Category Archives: Legislation in the News

Federal and state bill drafting guides

At the federal level, see House Office of Legislative Counsel, Legislative Drafting Guide and Style Manual. For a 50-state survey, see this compilation of resources produced by the National Conference of State Legislatures. — Joe

Bipartisan support for Special Counsel Independence and Integrity Act [text]

Intended to protect Special Counsel Mueller, under the terms of the bill a special counsel may be removed only for misconduct, dereliction of duty, incapacity, conflict of interest or other good cause, including violation of DOJ policies. Not yet on Congress.gov, the text of the bill was uploaded to Scribd by one of the bills sponsors. — Joe

Oregon is second state to protect net neutrality by statute [text]

Following Washington State’s landmark move last month, Oregon’s governor signed House Bill 4155 into law to attempt to protect net neutrality. Legal challenges are expected. — Joe

House committee markups manual

A principal responsibility of House committees is to conduct markups, to select legislation to consider, to debate it and vote on amendments to it (to mark up), and to report recommendations on passage to the House. House Committee Markups: Manual of Procedures and Procedural Strategies (R41083 Mar. 27, 2018) examines procedures and strategy related to committee markups and provides sample procedural scripts. — Joe

FDLP Modernization Act of 2018, H.R. 5305, introduced

“There is good news and bad news” wrote James R. Jacobs, Free Government Information, about H.R. 5305, the FDLP Modernization Act of 2018. His analysis is highly recommended. See FDLP Modernization Act of 2018 introduced. Take action now to improve the bill! To access other related resources, visit FDLP.gov’s Title 44 Revision page. There, you will find links to related Congressional testimony, the Depository Library Council’s Title 44 recommendations, GPO’s formal comments to proposed legislation, and more. — Joe

Russian cyber actors for interference with the 2016 U.S. elections and malicious cyber-attacks finally sanctioned by Trump administration

Announced Thursday, the Treasury Department enacted what amounts to the most stringent punishment yet by Trump for Russia’s election interference. The new sanctions, which include individuals indicted by the Special Counsel, finally met the Countering America’s Adversaries Through Sanctions Act’s mandate to impose measures punishing Moscow for its cyber intrusion.

For general background, see this CRS report — Overview of U.S. Sanctions Regimes on Russia (IN10634, July 11, 2017). — Joe

Washington is first state to establish net neutrality rules by legislation

While several states, including Montana, New York and New Jersey, have taken steps to protect net neutrality by executive orders, Washington is the first state to enact net neutrality rules by legislation. HB 2282 will be put into practice 90 days from now (by June 6th) or whenever the FCC’s Restoring Internet Freedom order takes effect, whichever comes first. — Joe

50-state survey on gun control

The Washington Post surveyed state regulation of guns, finding seven types of gun control enacted at the state level: red flag laws, relinquishment laws, assault weapons bans, high-capacity magazine bans, gun possession prohibitions for high-risk individuals, gun possession prohibitions for individuals with domestic violence convictions and mandatory background checks. Details at How strictly are guns regulated where you live? — Joe

Assessment of New York State’s assault weapons and large capacity magazine ban

Here’s the abstract for James Jacobs and Zoe Fuhr’s The Safe Act: New York’s Ban on Assault Weapons and Large Capacity Magazines, 53 Criminal Law Bulletin ___ (2017):

NYS’s 2012 SAFE Act includes tougher assault weapon and large capacity magazine bans than those enacted just 12 years earlier as part of NYS’s omnibus 2000 gun control law. The SAFE Act outlaws semi-automatics that accept detachable magazines and have one or more military-like features. Current owners may keep their assault weapons if they register them with the State Police, but they may not transfer or bequeath them to a fellow New Yorker. Manufacturers and retailers quickly adjusted by modifying prohibited weapons so that they do not qualify as assault weapons although they are functionally identical. The SAFE Act’s large capacity magazine ban initially limited magazine capacity to seven rounds, but had to be amended to ten because seven round magazines did not exist. The amendment’s stipulation that a ten round magazine could not be loaded with more than seven cartridges was struck down by a federal court. This assesses what the two bans have so far achieved.

— Joe

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