Category Archives: Legislation in the News

Trump, Twitter, and the Russians: The Growing Obsolescence of Federal Campaign Finance Law

From Anthony Gaughan’s Trump, Twitter, and the Russians: The Growing Obsolescence of Federal Campaign Finance Law, 27 Univ. of Southern California Interdisciplinary Law Journal ___ (2017):

Since the 1970s, federal campaign finance law has been built on four pillars. The first is contribution limits on donations to candidate campaigns and political party committees. The contribution limits are designed to reduce the role of money in politics by preventing large donors from corrupting elected officials. The second is the ban on foreign contributions to American political campaigns. The prohibition is intended to prevent foreign influence on American elections and to ensure that candidates rely exclusively on American sources of support for getting their campaign messages out to voters. The third is the mandatory public disclosure of the identities of campaign contributors. Disclosure laws are intended to enable voters to evaluate the sources of a candidate’s support and to guard against corruption. The fourth pillar is the Federal Election Commission, which is charged with enforcing the law in an effective and bipartisan manner.

The 2016 presidential campaign made it starkly apparent that all four pillars of federal campaign finance law have become woefully outdated in the age of the internet, social media, and non-stop fundraising. First, contribution limits have not only failed to reduce the role of money in politics but have instead severely distorted our political system. Second, the federal ban on foreign contributions failed to prevent a massive level of foreign intervention in the 2016 presidential election. Third, FECA’s requirement that all contributions to political committees be reported and publicly disclosed no longer keeps the public adequately informed. Fourth, FECA’s foundational presumption that the FEC would enforce the law in a bipartisan and vigorous fashion has collapsed amid finger-pointing, personal acrimony, and profound ideological divisions among the commissioners.

A vestige of the post-Watergate reforms of the 1970s, FECA no longer adequately regulates the campaign finance world of 21st century American politics. The time has come for a sweeping reform and restructuring of the law. This article proposes 4 major reforms to modernize federal campaign finance law: the elimination of FECA’s contribution limits, the closing of the dark and gray money loopholes, the clarification and expansion of federal regulation of foreign government influence on American elections, and the fundamental restructuring of the FEC. By adopting those reforms, FECA will finally be brought out of the 1970s and into the age of the internet, iPhones, Twitter, and Facebook.

— Joe

Trump income tax calculators

Here’s three:

  1. Marketwatch
  2. New York Times
  3. Wall Street Journal

— Joe

First-of-its-kind legislation in Congress: The FUTURE of AI Act

The FUTURE of AI Act [text] would require the Secretary of Commerce to establish a federal advisory committee on the development and implementation of artificial intelligence. Future laws regulating AI may be steered by the committee’s input. The areas of interest cover subjects such as economic impact and the competitiveness of the US economy in the future, but also will explore some legal matters, which will include: “ethics training” for technologists working with AI; data sharing; and “machine learning bias…and cultural and societal norms.” Introduced by Senators Maria Cantwell (D-WA), Todd Young (R-IN), and Ed Markey (D-MA), along with Representatives John K. Delaney (D-MD) and Pete Olson (R-TX) this bill, to the best of my knowledge, is the first AI-related legislative proposal.

On a related note, co-sponsor Rep. John Delaney (D-MD) launched the Artificial Intelligence Caucus for the 115th Congress in May. The AI Caucus is co-chaired by Republican Congressman Pete Olson (TX-22).The goal of the caucus is to inform policymakers of the technological, economic and social impacts of advances in AI and to ensure that rapid innovation in AI and related fields benefits Americans as fully as possible. The AI Caucus will bring together experts from academia, government and the private sector to discuss the latest technologies and the implications and opportunities created by these new changes. — Joe

Text of final version of H.R. 1, The Tax Cuts and Jobs Act

Here is the text of the 1,000+ page Tax Cut and Jobs Act as reported out of conference. — Joe

Joint Committee on Taxation scores Tax Cut and Jobs Act

The growth generated by the tax proposal is projected to reduce the estimated $1.4 billion revenue loss from the proposal by about $458 billion over the 2018-2027 budget period resulting in a net deficit of $1 billion according to Macroeconomic Analysis Of The “Tax Cut And Jobs Act” as ordered reported by the Senate Committee on Finance on November 16, 2017. — Joe

FISA reauthorization needed by end of December

On December 30, 2012, President Obama signed H.R. 5949, the Foreign Intelligence Surveillance Act (FISA) Amendments Act Reauthorization Act of 2012, which extended Title VII of FISA until December 31, 2017. Two bills that amend and reauthorize Title VII are currently pending in Congress:

  • S. 2010, the FISA Amendments Reauthorization Act of 2017, as reported by the Senate Select Committee on Intelligence on October 25, 2017, S. Rept. 115-182; and
  • H.R. 3989, the USA Liberty Act of 2017, as ordered to be reported by the House Judiciary Committee on November 8, 2017.

Summaries of the provisions of S. 2010 and H.R. 3989, organized by general topic, along with brief descriptions of current law relevant to the proposed legislation are provided in this CRS memorandum. — Joe

States are about to start running out of CHIP funding while Congress considers reauthorization

So far Congress has failed to reauthorize funding for the Children’s Health Insurance Program, or CHIP, a federal-state initiative that covers about nine million lower-income kids. Within weeks, states will start running out of money, leaving them scrambling to patch the holes in their budgets or forced to suspend their programs and drop coverage. For pending legislation, see Comparison of the Bills to Extend State Children’s Health Insurance Program (CHIP) Funding (Nov. 3, 2017 R44989). More generally, for a CRS report describing the basic elements of CHIP, focusing on how the program is designed, who is eligible, what services are covered, how enrollees share in the cost of care, and how the program is financed see State Children’s Health Insurance Program: An Overview (Apr. 23, 2015 R43627). — Joe

Foundations for Evidence-Based Policymaking Act, H.R. 4174, passes House; Incorporates provisions of the OPEN Government Data Act

The bipartisan supported Foundations for Evidence-Based Policymaking Act, H.R. 4174, passed the House by voice vote on Nov. 15, 2017. Sponsored by Speaker Ryan, the bill incorporates some of the recommendations the White House’s Commission on Evidence-Based Policymaking made in September and absorbs elements of the Open, Public, Electronic and Necessary Government Data Act, or the OPEN Government Data Act, sponsored by Reps. Derek Kilmer, D-Wash., and Blake Farenthold, R-Texas., and Sens. Brian Schatz, D-Hawaii., and Ben Sasse, R-Neb. Quoting from H. Rept. 115-411:

H.R. 4174, the Foundations for Evidence-Based Policymaking Act of 2017, advances the evidence building functions in the Federal government by improving access to data and expanding evaluation capacity. The bill incorporates H.R. 1770, the OPEN Government Data Act, in titles I and II, which expand public access to Federal data assets and make information about Federal data assets publicly available in a comprehensive, searchable inventory. H.R. 4174 improves data management practices by codifying the Chief Data Officer position and requiring the new position to coordinate the agency’s data management functions. H.R. 4174 also establishes the position of Chief Evaluation Officer, which is responsible for coordinating evidence-building activities across the agency and leading the agency’s evidence-building strategic planning. The bill further expands access to data by establishing a secure process for accessing nonpublic data assets for the purpose of evidence-building.

Summary of the Foundations for Evidence-Based Policymaking Act

Title I, Federal Evidence-Building Activities

  • Requires federal agencies to submit an evidence-building plan, which will be consolidated into one government-wide plan by the Office of Management and Budget
  • Requires federal agencies to appoint/designate a Chief Evaluation Officer to coordinate evidence-building activities within the agency Establishes an advisory committee on data for evidence building

Title II, OPEN Government Act

  • Ensures maximum data availability while respecting privacy and national security concerns
  • Requires federal agencies to appoint/designate a Chief Data Officer
  • Instructs federal agencies to establish a data inventory and federal data catalogue

Title III, Confidential Information Protection and Statistical Efficiency

  • Expands access to data while improving privacy standards

— Joe

Second set of articles of impeachment filed against President Trump

Congressman Steve Cohen (D-TN-09), the ranking member of the House Judiciary Subcommittee on the Constitution and Civil Justice, which has jurisdiction over impeachment matters, and four Democratic colleagues, introduced five articles of impeachment against President Donald J. Trump yesterday. The five articles are:

  • Article I – Obstruction of Justice
  • Article II – Violation of Article I, Section 9 of the U.S. Constitution – Foreign Emoluments
  • Article III – Violation of Article II, Section 1 of the U.S. Constitution – Domestic Emoluments
  • Article IV – Undermining the Independence of the Federal Judiciary and the Rule of Law
  • Article V – Undermining Freedom of the Press

Documentation:

End Note: LLB post on first articles of impeachment. — Joe

Countdown to Day 301 under the Federal Vacancies Reform Act of 1998

Of 612 key positions requiring Senate confirmation, no candidate has been nominated by the Trump Administration for 259 positions according to the Washington Post-Partnership for Public Service tracker. Most, if not all, of these key advice and consent positions are occupied by acting officers. For many such situations, the Federal Vacancies Reform Act of 1998, 5 U.S. Code § 3345, limits the amount of time an acting officer may remain in his or her position. According to the CRS Legal Sidebar, Out of Office: Vacancies, Acting Officers, and Day 301 (Nov. 1, 2017 LSB10022):

A number of acting officers are currently filling vacancies that occurred during the presidential transition period. For those offices that were vacant on or shortly after Inauguration Day, the 210-day period, with the 90-day extension [under The Vacancies Act], will come to an end beginning sometime in November. If an acting officer remains in office beyond this 300-day period, and if the President has not submitted any nomination to that office, then the acting officer runs the risk of violating the Vacancies Act.

So if an acting officer was appointment on Jan. 20, 2017, then day 301 is November 17th. According to the CRS analysis here’s what can happen on Day 301:

On Day 301, whenever that day might occur for a particular office, the office would be designated vacant, for purposes of the Vacancies Act, and only the head of the agency would be able to perform the functions and duties of that vacant office. (If an office designated vacant under this provision is that of the agency head, it appears that no one can temporarily perform the functions and duties of that office under the Vacancies Act.) If the acting officer remains in office and attempts to perform a nondelegable function or duty—one that a statute or regulation expressly assigns to that office—that action will “have no force or effect.” In the words of the Supreme Court, it will be “void ab initio”: void from the beginning, as if the act had never been done. (There are a few specifically named offices that are exempt from this provision, but it is unclear what the consequences are if one of those offices is staffed by an acting officer serving in violation of the Vacancies Act.) Critically, the Vacancies Act also prohibits an agency from subsequently ratifying any void actions. This means that the agency can’t cure any violations by reissuing its decision through the proper processes.

For a detailed analysis, see The Vacancies Act: A Legal Overview (Oct. 30, 2017, R44997). — Joe

Restricting the first-use nuclear strike option by legislation

On January 24, 2017, identical versions of the Restricting First-Use of Nuclear Weapons Act of 2017 were introduced in both chambers of Congress: H.R. 669 and S. 200. See this LLB post. Earlier this month, CRS released two reports on the topic:

HT beSpacific. — Joe

Text of Tax Cuts and Jobs Act released

Here’s the text of the Tax Cuts and Jobs Act as released by the House Ways and Means Committee today. For a summary of major changes, see this Business Insider report. — Joe

Who earns pass-through business income?

Once released (tomorrow?), the tax treatment of pass-through businesses in the House’s tax cut legislation will play an important role in reducing the tax liability of more than half of all US business income. Here’s an excerpt from the CRS report, Who Earns Pass-Through Business Income? An Analysis of Individual Tax Return Data (Oct. 24, 2017 R42359):

Pass-through businesses—sole proprietorships, partnerships, and S corporations—generate more than half of all business income in the United States. Pass-through income is, in general, taxed only once at the individual income tax rates when it is distributed to its owners. In contrast, the income of C corporations is taxed twice; once at the corporate level according to corporate tax rates, and then a second time at the individual tax rates when shareholders receive dividend payments or realize capital gains. This leads to the so-called “double taxation” of corporate profits.

This report analyzes individual tax return data to determine who earns pass-through business income. The analysis finds that in 2011 over 82% of net pass-through income was earned by individuals with an adjusted gross income (AGI) over $100,000, although these taxpayers accounted for just 23% of individual returns with pass-through income. A significant fraction of pass-through income is concentrated among upper-income earners. Taxpayers with an AGI over $250,000, for example, received 62% of pass-through income, but accounted for just over 6% of returns with pass-through income. Individuals with an AGI in excess of $1 million earned about 32% of pass-through income, while filing roughly 1% of all returns with pass-through income.

— Joe

Proposed amendment to H.R. 195 would restrict free print distribution of legislative documents

On Free Government Information James Jacobs reports on the following development and calls for action opposing this proposed change:

The Federal Register is the official journal of the federal government of the United States that contains government agency rules, proposed rules, and public notices. There’s a particularly damaging bill, H.R. 195: Federal Register Printing Savings Act of 2017, winding its way through Congress, having already passed the House, reported out of the Senate Committee on Homeland Security and Governmental Affairs and is pending action and vote on the Senate floor. If passed, the bill — “To amend title 44, United States Code, to restrict the distribution of free printed copies of the Federal Register to Members of Congress and other officers and employees of the United States, and for other purposes” — would restrict the printing of copies of the Federal Register only to Members of Congress and Government officials.

What’s even worse, FGI sources say that Missouri Senator Claire McCaskill (D-MO) is set to propose an amendment to HR 195 that would eliminate the printing not only of the Federal Register, but of copies of congressional hearings, committee reports, and bills, resolutions, and amendments in both the Senate and the House.

— Joe

Honest Ads Act has bipartisan support

A bipartisan group of lawmakers in the Senate introduced Thursday the Honest Ads Act in an attempt to create stricter rules and increase transparency for political advertisements placed online. [Text of Bill] The bill — sponsored by Senators Mark Warner, D-VA, Amy Klobuchar, D-MN, and John McCain, R-AZ — will aim to align the rules for online advertising with standards set for advertising in other forms of media including television and radio. If passed, the Honest Ads Act would require online advertising platforms — including Google and Facebook — to include disclosures that identify who purchased an ad. It would also require the ad platforms to maintain a public file of ads about candidates and political issues. — Joe

Text of first Articles of Impeachment against President Trump submitted to Congress

Back on May 12, 2017, CNN ran a story listing Democrats who were discussing the impeachment of President Trump. Two months later, H.Res. 438 – Impeaching Donald John Trump, President of the United States, for high crimes and misdemeanors, was introduced by Rep. Brad Sherman [D-CA-30] and referred to the House Committee on the Judiciary. Here’s the text of the first articles of impeachment filed against President Trump.

H. RES. 438: Impeaching Donald John Trump, President of the United States, for high crimes and misdemeanors.

IN THE HOUSE OF REPRESENTATIVES

July 12, 2017

Mr.  Sherman (for himself and Mr. Al Green of Texas) submitted the following resolution; which was referred to the Committee on the Judiciary

Resolved,  That Donald John Trump, President of the United States, is impeached for high crimes and misdemeanors and that the following article of impeachment be exhibited to the United States Senate:

Article of impeachment exhibited by the House of Representatives of the United States of America in the name of itself and of the people of the United States of America, against Donald John Trump, President of the United States of America, in maintenance and support of its impeachment against him for high crimes and misdemeanors.

ARTICLE I

In his conduct while President of the United States, Donald John Trump, in violation of his constitutional oath faithfully to execute the office of President of the United States and, to the best of his ability, preserve, protect, and defend the Constitution of the United States, and in violation of his constitutional duty to take care that the laws be faithfully executed, has prevented, obstructed and impeded the administration of justice during a Federal investigation in that:

Knowing that Federal law enforcement authorities were investigating possible criminal law violations of his former National Security Advisor, General Michael Flynn and knowing that Federal law enforcement authorities were conducting one or more investigations into Russian state interference in the 2016 campaign for President of the United States, and that such investigation(s) included the conduct of his campaign personnel and associates acting on behalf of the campaign, to include the possible collusion by those individuals with the Russian government, Donald John Trump sought to use his authority to hinder and cause the termination of such investigation(s) including through threatening, and then terminating, James Comey, who was until such termination the Director of the Federal Bureau of Investigation.

The pattern of behavior leading to the conclusion that he sought to cause the hindrance or termination of said investigation(s) include the following:

(1) Requesting that the Director of the Federal Bureau of Investigation curtail the investigation of the activities of General Michael Flynn under circumstances wherein it appeared that Director Comey might be terminated if he failed to adhere to such request.

(2) Making a determination to terminate the Director of the Federal Bureau of Investigation, and only thereafter requesting that the Deputy Attorney General provide him with a memorandum detailing inadequacies in the Director’s performance of his duties.

(3) Despite offering differing rationales for the termination of the Director of the Federal Bureau of Investigation, admitted subsequently that the main reason for the termination was that the Director would not close or alter the investigation of matters related to the involvement of Russia in the 2016 campaign for President of the United States.

(4) Stated that, once he had terminated the Director of the Federal Bureau of Investigation, the pressure of said investigation had been significantly reduced.

In all of this, Donald John Trump has acted in a manner contrary to his trust as President and subversive of constitutional government, to the great prejudice of the cause of law and justice and to the manifest injury of the people of the United States.

Wherefore, Donald John Trump, by such conduct, warrants impeachment and trial, and removal from office.

— Joe

Trump’s immigration principles for DACA deal [text]

Here’s the text of the recently released immigration principles proposed by the Trump Administration as the basis for a bipartisan DACA agreement. — Joe

Maybe it is time for Congress to take action on the Restricting First Use of Nuclear Weapons Act of 2017

After President Trump’s “calm before the storm” remark last night, maybe it is time to move the Restricting First Use of Nuclear Weapons Act of 2017 forward. Introduced in House and Senate on Jan. 24, 2017 by Rep. Ted Lieu [D-CA-33] and Sen Edward Markey [D-MA] the Restricting First Use of Nuclear Weapons Act of 2017, H.R. 669 / S. 200 prohibits the President from using the Armed Forces to conduct a first-use nuclear strike unless such strike is conducted pursuant to a congressional declaration of war expressly authorizing such strike. The bills are sitting in committees right now.

From the joint Lieu-Markey press release:

Upon introduction of this legislation, Mr. Lieu issued the following statement:

“It is a frightening reality that the U.S. now has a Commander-in-Chief who has demonstrated ignorance of the nuclear triad, stated his desire to be ‘unpredictable’ with nuclear weapons, and as President-elect was making sweeping statements about U.S. nuclear policy over Twitter. Congress must act to preserve global stability by restricting the circumstances under which the U.S. would be the first nation to use a nuclear weapon. Our Founders created a system of checks and balances, and it is essential for that standard to be applied to the potentially civilization-ending threat of nuclear war. I am proud to introduce the Restricting First Use of Nuclear Weapons Act of 2017 with Sen. Markey to realign our nation’s nuclear weapons launch policy with the Constitution and work towards a safer world.”

Upon introduction of this legislation, Senator Markey issued the following statement:

“Nuclear war poses the gravest risk to human survival. Yet, President Trump has suggested that he would consider launching nuclear attacks against terrorists. Unfortunately, by maintaining the option of using nuclear weapons first in a conflict, U.S. policy provides him with that power. In a crisis with another nuclear-armed country, this policy drastically increases the risk of unintended nuclear escalation. Neither President Trump, nor any other president, should be allowed to use nuclear weapons except in response to a nuclear attack. By restricting the first use of nuclear weapons, this legislation enshrines that simple principle into law. I thank Rep. Lieu for his partnership on this common-sense bill during this critical time in our nation’s history.”

— Joe

 

California Values Act signed into law, makes California a sanctuary state

California Governor Jerry Brown signed SB 54, the California Values Act. [Signing Statement] The Act, reportedly the most far-reaching of its kind in the country, forbids local and state law enforcement officers from carrying out practices such as asking about someone’s immigration status, handing a person over to federal immigration authorities if there’s no warrant or establishment of probable cause and disclosing personal information about someone if it isn’t already public information. The law also prevents local and state law enforcement from detaining someone over an immigration hold request. — Joe

Senate Republicans counter Dream Act with SUCCEED Act for undocumented children

Recently, Senators Thom Tillis (R-NC) and James Lankford (R-OK) introduced the SUCCEED Act (Solution for Undocumented Children through Careers, Employment, Education and Defending our nation) [FAQ], a merit-based solution to address the legal uncertainty facing undocumented children. The SUCCEED Act includes a longer path to citizenship for DACA recipients, as compared to the Dream Act. Only after 15 years of legal status, including at least five years as a green card holder, could an applicant apply for citizenship. — Joe