If Democrats win control of the House of Representatives in next week’s elections and create a divided U.S. Congress, as they are seen as likely to do, the number of bills with a chance of passing falls dramatically.
But two areas of general agreement between the Democrats, Republicans and President Donald Trump stand out as having a high potential of successful legislation: lowering prescription drug prices and new regulations to protect online privacy.
Democrats need a net gain of 23 seats in the November 6 elections to take control of the House, and opinion polls generally give them a good chance of doing so. They are not expected to take a majority in the Senate.
Getting legislation through Congress is a heavy lift in the best of times. If power is split, the new Congress that convenes in January, even as the next presidential election season gets underway, would get even less done.
House Democratic Leader Nancy Pelosi said this month that Democrats want to “lower healthcare costs, reducing the price of Rx (prescription) drugs, increasing paychecks by building the infrastructure of America and cleaner government.”
Democratic lawmakers will also focus on giving consumers control over their personal data online, a tricky subject in an age when advertising finances vast amounts of free content, according to lobbyists, privacy advocates, executives and congressional aides.
If Republicans manage to hold the House, lawmakers will likely pressure social media companies like Twitter for allegedly suppressing conservative voices, something the companies have denied doing, and try again to trim back Obamacare.
“I don’t think they’ll go full out ‘repeal and replace’ but there might be smaller items” to nick away at the ACA’s foundations, said Rachel Stauffer of McDermottPlus Consulting, referring to the Affordable Care Act.
Republicans have battled former President Barack Obama’s healthcare law since it passed in 2010, viewing the effort to extend healthcare coverage as government overreach, but legislation last year to overturn much of the law failed despite the Republican control of Congress.
But one health issue that Republican President Donald Trump, Republicans and Democratic lawmakers have all inveighed against is high drug prices.
Roger Klein, a healthcare expert and member of the conservative Federalist Society, predicted that even a divided Congress could pass a bill aimed at bringing the prices down.
Critics have long accused brand name drug companies of abusing an arcane Food and Drug Administration system that limits distribution of some medicines, and lets them avoid giving samples to generic drug companies. Without samples, generic companies cannot prove their medicines are as safe and effective as the more expensive brand name drugs.
Drug industry experts expect lawmakers to once again take up the proposed Creating and Restoring Equal Access to Equivalent Samples (CREATES) Act of 2018, which allows generic companies to sue brand name drug companies to get these samples. The Senate version has 30 co-sponsors, fairly evenly split between the two parties.
Food and Drug Administration Commissioner Scott Gottlieb specifically addressed the issue in May 2018, saying the agency would inform the Federal Trade Commission if drug companies refuse to provide samples and inaccurately tell generic companies it is because of REMS distribution restrictions.
Democratic Representative David Cicilline will introduce the CREATES Act again in the next Congress, according to a congressional aide.
“Prospects for the CREATES Act improve if the Democrats take over the House,” said Erik Komendant of the Association for Accessible Medicines, which represents the generic pharmaceutical industry.
PhRMA, which represents some of the country’s biggest drug companies, said in an email statement that they do not support the bill as written, but take seriously concerns that the FDA system can be used to delay generic drugs coming to the market.
The prospect of an online privacy bill, which went nowhere for years, increased in June when California Governor Jerry Brown, a Democrat, signed legislation in his state to give consumers more control over how companies collect and manage their personal information, including allowing consumers to request data be deleted and allow them to forbid its sale.
Trump’s Commerce Department said in July that it was working to develop consumer data privacy policies, responding to a series of massive breaches of sensitive consumer data.
Alphabet Inc’s Google and other big companies have indicated they would support a federal bill that would take precedence over California’s tough legislation.
It would also respond to the European Union’s pro-privacy General Data Protection Regulation, or GDPR.
“Companies are likely looking at this (California’s law and GDPR) and thinking, we can’t fight this everywhere, we need a federal rule,” said Maura Corbett, CEO of the political communications firm Glen Echo Group that specializes in tech policy.
Debate over the bill could sweep in a vast array of companies, from Facebook and Twitter to small tech companies to automakers that build self-driving cars and consumer companies – any company that collects data on consumers.
Republican and Democratic lawmakers both envision privacy legislation, although it is not clear the two sides would write the same bill.
Representative Frank Pallone’s office has indicated that he is interested in pushing for “meaningful” privacy protections. Pallone, from New Jersey, is the top Democrat on the House Energy and Commerce Committee that oversees consumer protection.