Election Cliffhanger: Impact On Privacy, Postal, and Philanthropy

As ballots are being counted, and re-counted, here’s where the votes are shaking out in the U.S. Senate and House of Representative races and what those results will mean for key nonprofit issues during the next two years. The analysis is from The Nonprofit Alliance in Washington, D.C. This column will be updated as results are finalized.

The U.S. Senate 

As the nation awaits returns in a number of U.S. Senate races, it is unclear as to which party will control the legislative body. Here are some of the issues:

Data Privacy

In the event the Republicans maintain control of the Senate, Sen. Roger Wicker (R-Miss.) will continue as chairman of the Senate Commerce Committee, the committee with principal jurisdiction over privacy legislation. Wicker favors a robust national privacy statute with a clear federal preemption over state privacy laws, no private right of action, and a mandate that litigation must be filed in federal court.

Additionally, the Subcommittee of the Senate Commerce Committee with privacy jurisdiction will continue to be chaired by Sen. Jerry Moran (R-Kan.), who like Wicker, also favors a robust national privacy statute with a clear federal preemption over state privacy laws, no private right of action, and a mandate that litigation must be filed in federal court. 

Should the Democrats take the Senate, which will be seated January 3, Sen. Maria Cantwell (D-Wash.) will be the new chair of the Senate Commerce Committee. Historically, Cantwell has opposed national privacy legislation with a clear federal preemption over current or future state privacy laws, and supports federal regulation as a “floor,” with the states free to enact their own more stringent state privacy statutes. She also favors a private right of action to facilitate class action lawsuits against violators of a federal privacy statute and allowing such class action suits to be filed in state courts, rather than federal court where uniform national enforcement is more likely to result. 

Further, Sen. Richard Blumenthal (D-Conn.) will become the chair of the Subcommittee with privacy jurisdiction. Somewhat similar to Cantwell, Blumenthal also supports a private right of action and generally supports the concept that litigation can be filed in state courts. It is unclear how Blumenthal would ultimately come down on the issue of a clear federal preemption of state privacy laws. 

Philanthropy 

In the event the Republicans maintain control of the Senate, Sen. Chuck Grassley (R-Iowa) is expected to continue as the chairman of the Senate’s tax-writing committee, the Finance Committee. Grassley has generally been supportive of the nonprofit sector. The Finance Committee has jurisdiction over Universal Charitable Deduction legislation and legislation to expand the IRA Charitable Rollover by raising the cap from $100,000 per year that an individual can contribute to an IRA Charitable Rollover to $130,000 per year — starting at age 70 ½.

Grassley was supportive of the enactment of a $300 Universal Charitable Deduction for 2020, which became law earlier this year. It is uncertain what his position is on the expansion of the IRA Charitable Rollover. The Senate Finance Committee would also have jurisdiction over donor-advised fund (DAF) legislation. To date, no such legislation has been introduced in the Senate. 

Should the Democrats take the Senate, the new chairman of the Finance Committee will be Sen. Ron Wyden (D-Ore). Wyden has been a long-time supporter of the nonprofit sector and has historically supported legislation to create a Universal Charitable Deduction. His position on expansion of the IRA Charitable Rollover, however, is less clear. 

Postal 

In the event the Republicans maintain control of the Senate, the chairmanship of the Homeland Security & Governmental Affairs Committee, the committee with postal jurisdiction, is expected to pass to Sen. Rob Portman (R-Ohio). The current chairman, Sen. Ron Johnson (R-Wis.) is “term limited” under Senate Republican rules, and thus will have to give up chairing the committee. Historically, Portman has not had a high profile on postal issues, and it is uncertain how he would view legislation calling for structural changes to the postal service. 

Should the Democrats take the Senate, Sen. Gary Peters (D-Mich.), who won a very close re-election race, will chair the Homeland Security & Governmental Affairs Committee. Peters has led numerous efforts to protect the U.S. Postal Service (USPS) and was vocal on concerns about postal delays earlier this year. The long effort to get the Postal Reform Act of 2006 enacted into law stands as proof that getting Congress to enact changes to the USPS is no easy task. 

The House Of Representatives 

The Democrats will retain their majority in the House, while likely losing a few seats. There probably won’t be major changes in the leadership of the committees of the House impacting the nonprofit sector. 

Data Privacy 

In the House, the committee with principal jurisdiction over privacy legislation is the Energy & Commerce Committee. The committee will continue to be chaired by Rep. Frank Pallone (D-N.J.), with the Energy & Commerce Subcommittee with privacy jurisdiction continuing to be chaired by Rep. Jan Schakowsky (D-Ill.). In the last Congress, there was very little action in the House regarding national privacy legislation, with most of the activity occurring in the Senate Commerce Committee. 

Philanthropy 

Rep. Richie Neal (D-Mass.) will continue as the chairman of the tax-writing committee, the Ways & Means Committee. Similar to the Senate Finance Committee, this committee has jurisdiction over Universal Charitable Deduction legislation, legislation to expand the IRA Charitable Rollover, and any DAF legislation. Neal last week released his Retirement Tax Provisions Package which included a provision expanding IRA Charitable Rollovers by raising the cap from $100,000 per year that an individual can contribute to an IRA Charitable Rollover to $130,000/\ per year — starting at age 70 ½. The retirement tax package is expected to be taken up early next year. Also, as in the Senate, no legislation has been introduced in the House regarding the regulation of DAFs. 

Postal 

The Oversight and Reform Committee has oversight of postal matters. Rep. Carolyn Maloney (D-N.Y.) will continue as chair, while Rep Gerry Connolly (D-Va.) will continue to chair the subcommittee with postal. Both full committee chair Maloney and subcommittee chair Connolly have cosponsored legislation which would relieve the USPS of the enormous liability of funding retiree healthcare costs and move postal employees to Medicare. But as noted, enacting changes to the USPS is no easy task.

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Mark Micali is vice president, government affairs for The Nonprofit Alliance, a membership association that promotes, protects, and strengthens the nonprofit sector.  His email is mmicali@tnpa.org

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Editor’s Note: This story was updated after Sen. Gary Peters (D-Mich.) was declared the winner in his race.