All eyes have been focused on the federal mid-term elections and the impact on the U.S. House and Senate. Post-mortems by the pundits have begun. See Locke Lord’s take on the mid-terms. The divided government in Washington, D.C. may well stymie efforts to regulate the insurance industry at the federal level, except in very limited circumstances where bi-partisan accord can be achieved. However, the results of races in a number of states may impact the insurance industry in unexpected ways, as newly elected or appointed insurance commissioners take office, governors are replaced by members of opposing parties, or houses of state legislatures change control.
It is important for all participants and stakeholders in the insurance industry to monitor developments in states important to them. Below is a summary of the impact of the mid-term elections on selected states. This is by no means a comprehensive list. We are carefully watching legislative and regulatory actions in these and other states. We are paying attention in particular to states where results of elections potentially impacting insurance are inconclusive.
California
California is one of a minority of states that elects its insurance commissioner. The current commissioner is Dave Jones (Democrat). While the race between Steve Poisner (Independent) and Ricardo Lara (Democrat) was extremely tight, Lara has been declared the winner. The new Commissioner will be sworn-in in January for a four year term. The Democrats retained the Governorship and control of the California legislature. Currently, the Governor and Insurance Commissioner are Democrats and both houses of the legislature are controlled by the Democratic Party.
Thus, the Democratic Party continues to control the regulation of insurance in California.
Connecticut
Connecticut’s Insurance Commissioner is appointed by the state’s Governor. The current Insurance Commissioner, Katharine L. Wade, was appointed by Governor Dan Malloy (Democrat) in 2015. The Democrats retained the Governorship with the election of Ned Lamont Democrat), retained control of the House of Connecticut’s General Assembly, and gained control of its Senate, which had been evenly split between Democrats and Republicans. The Governor-elect is assembling his transition team but has not announced his cabinet or plans to replace Commissioner Wade.
As the result of the Democratic Party capturing the Connecticut Senate, Republicans will no longer have the ability to prevent or stall passage of laws regulating insurance in Connecticut.
Florida
The race to replace Governor Rick Scott (Republican) between Andrew Gillum (Democrat) and Ron DeSantis (Republican) was extremely close. DeSantis’ margin of victory was so slim that an official recount has been ordered. Both houses of the Florida legislature remain under Republican control.
Florida does not elect its Commissioner of the Office of Insurance Regulation (OIR). In 2016, David Altmaier, the current OIR Commissioner, was (and any future OIR Commissioner will be) appointed by a majority vote of the Florida Financial Services Commission consisting of the Governor and the members of his cabinet: the Chief Financial Officer, Attorney General and Commissioner of Agriculture. The majority of that Commission approving an OIR Commissioner must include the votes of the Governor and CFO. The CFO and AG offices remain in Republican hands, while approximately 5,000 votes separate the Republican and Democratic candidates for Commissioner of Agriculture and a recount has also been begun for that office. Even if Andrew Gillum becomes Governor and Nikki Fried (Democratic) defeats Matt Caldwell (Republican) as Commissioner of Agriculture, the Financial Services Commission would be evenly split and the Democratic Governor would require the Republican CFO to approve a new Commissioner of OIR.
Depending on the outcome of the recounts, there is a possibility of gridlock in pushing through legislation relating to insurance or in appointing a new OIR Commissioner should Commissioner Altmaier cease serving for whatever reason.
Georgia
Georgia is one of a minority of states that elects its insurance commissioner. The three candidates for the 2018 race for Georgia’s Insurance Commissioner were Jim Beck (Republican ), a former Deputy Insurance Commissioner, Janice Laws (Democrat), who is an insurance agent, and Donnie Foster (Libertarian), who is a businessman and a former sheriff’s deputy. The vote tallies of Beck and Laws are extremely close with Beck polling 50.4%, Laws 46.9%. Foster garnered 2.6%.
The Governor’s race was also very tight with Brian Kemp (Republican) holding a narrow lead over Stacey Adams (Democrat) with slightly 50.3% of the votes cast. As was the case with the Insurance Commissioner’s race, a Libertarian candidate was on the ballot and attracted about 1% of the vote.
Should a candidate for Governor or Insurance Commissioner not receive a majority of votes, there will be an automatic run-off between the top two candidates.
Both houses of the state legislature remain in Republican control.
The final outcomes of the races for Governor and Insurance Commissioner could result in a change in course for insurance regulation in Georgia.
Illinois
In the 2018 Illinois election, the incumbent Governor Bruce Rauner (Republican), was resoundingly defeated by J.B. Pritzker (Democrat). In the 59-member Senate, Democrats retained a veto-proof majority. In the 118-member House, the Democrats gained enough seats to also now have a veto-proof majority. In the current Administration, because both houses of the General Assembly were not veto-proof, Governor Rauner used his veto power to block a number of bills relating to insurance. Whatever Governor-elect Pritzker’s views as to the regulation of insurance law, his veto may no longer be a check on the Illinois legislature.
It is expected that the Governor-elect will be selecting new agency heads including the Director of the Department of Insurance. While the Governor-elect has pledged to be bi-partisan in his selections, a more pro-consumer leaning Director is possible.
Massachusetts
In the mid-term elections, Massachusetts voters overwhelmingly re-elected Republican Governor Charles Baker. The current Massachusetts Insurance Commissioner, Gary Anderson, was appointed by Governor Baker and is expected to remain in that role.
In the State Legislature, Democrats retain the majority in both the Massachusetts House and Senate. However, it is likely that there will be some shuffling of leadership roles in both chambers resulting from the former House Ways and Means Chair being unseated and a new Senate President being appointed. Because of this, there is a possibility that the legislative committee most focused on insurance matters, the Joint Committee on Financial Services, may have new House and Senate Chairs. These new legislative appointments are not likely to be made until February at the earliest.
New Jersey
In New Jersey there were no general statewide mid-term elections. In November eight special elections were called to fill 10 vacant seats in the New Jersey State Legislature. However, those special elections are not expected to be material to the regulation of insurance.
New York
New York’s Superintendent of the Department of Financial Services is appointed by the state’s Governor. The DFS has jurisdiction over insurance. The current Superintendent Maria T. Vullo was appointed by Governor Andrew Cuomo (Democrat) and is a member of his Cabinet. Governor Cuomo was re-elected in the mid-term elections. It is not uncommon for new Cabinet members to be appointed in a Governor’s new term.
Prior to the 2018 election, the state legislature was split with Republicans through an arrangement with a group of Democrats controlling the Senate and Democrats the Assembly. The Democrats retained control of the Assembly and captured the Senate. Because control of the Senate flipped, the Chair of the Senate Insurance Committee will likely be Neil Breslin (Democrat), the current Ranking Member, replacing Jim Seward (Republican). Breslin is a longtime Committee member.
All elected branches of the state government are now controlled by the Democratic Party. In the past, the Republican held Senate has blocked some insurance related legislation, which may now have renewed prospects for passage.
Letitia James was elected Attorney General replacing Acting Attorney General Barbara D. Underwood. Ms. James is a Democrat. Prior Attorneys General have taken activist stands against segments of the insurance industry.
Pennsylvania
Incumbent Governor Tom Wolf (Democrat) easily won re-election in Pennsylvania and Republicans continue to control both Houses of the Commonwealth’s legislature.
Jessica Altman is currently Insurance Commissioner having been appointed in March 2018.
Thus, as to the regulation of insurance, the status quo among the Governor, Commissioner and legislature appears likely to remain unchanged.
Texas
The Texas Commissioner is not elected and is instead appointed by Republican Governor Gregg Abbott. The 2018 elections are not expected to result in any significant changes to the Texas insurance regulatory environment. Abbott won re-election by a 13% margin, and all other state-wide offices are held by Republican incumbents who won re-election. The Texas Insurance Commissioner, Kent Sullivan, an Abbott appointee, however, must be confirmed by the Texas Legislature in the upcoming 2019 Legislative Session. The session begins in January 2019. Republicans maintained a majority in both legislative houses in the mid-terms.
However, Texas intermediate appellate courts in Austin, Dallas, Houston, and San Antonio experienced a significant change as a result of the election. State judges are elected in Texas, and many of the aforementioned courts were composed of a majority of Republican judges. However, Democrats won a number of the seats on all of those courts. Such intermediate appellate court changes could impact insurance coverage litigation and potentially appeals of insurance regulatory matters that make their way beyond the typical administrative and district court processes.
