Category Archives: Legislation in the News

CRS guides for researching federal legislation

Two regularly updated research guides produced by the Congressional Research Service were updated in the last year.

Researching Current Federal Legislation and Regulations: A Guide to Resources for Congressional Staff (Feb. 6, 2017, RL33895) introduces congressional staff to selected governmental and nongovernmental sources that are useful in tracking and obtaining information on federal legislation and regulations. It includes governmental sources, such as Congress.gov, the Government Publishing Office’s Federal Digital System (FDsys), and U.S. Senate and House websites. Nongovernmental or commercial sources include resources such as HeinOnline and the Congressional Quarterly (CQ) websites.

Legislative History Research: A Guide to Resources for Congressional Staff (July 6, 2016, R41865) provides an overview of federal legislative history research, the legislative process, and where to find congressional documents. The report also summarizes some of the reasons researchers are interested in legislative history, briefly describes the actions a piece of legislation might undergo during the legislative process, and provides a list of easily accessible print and electronic resources.

See also, The Framing of the United States Constitution: A Beginner’s Guide on In Custodia Legis.

Useful. — Joe

New CBO analysis of American Health Care Act, H.R. 1628, as passed by the House

The Congressional Budget Office released its analysis of the health-care bill that passed the House of Representatives earlier this month. Here’s the text. For an analysis, see NPR’s GOP Health Plan Would Leave 23 Million More Uninsured, Budget Office Says. — Joe

UELMA update

The Uniform Electronic Legal Material Act (UELMA) has been enacted in 16 states and the District of Columbia. AALL has updated its handy UELMA Enactment Chart, which includes information about the covered materials, cost, and effective date of the act in each state. — Joe

Is the National Popular Vote Compact a better way to elect the next president?

“The National Popular Vote Compact would bring every state and every voter into play. National candidates would be incentivized to campaign all over the nation, not just in today’s ‘battleground’ states.” — Karen Hobert Flynn, A Better Way to Pick the Next President: The National Popular Vote Compact, The Daily Beast, Nov. 25, 2016.

In More states consider working around the Electoral College (Dec. 23, 2016), AP’s Susan Haigh wrote “Frustrated after seeing another candidate secure the presidency without winning the national popular vote, mostly Democratic lawmakers in several capitols want their states to join a 10-year-old movement to work around the Electoral College.” That movement centers on the National Popular Vote Compact (NPVC). The NPVC is an interstate compact in which member states will allocate all of their electoral votes to the winner of the national vote, as opposed to the traditional state vote. It relies on the Constitution’s grant of authority to the states in Article II, Section 1, to appoint presidential electors “in such Manner as the Legislature thereof may direct…. ”

Here’s how it would work. Any state that joins the NPV compact pledges to award all its electoral votes to the winner of the national popular vote in all 50 states and the District of Columbia, regardless of who wins in that particular state. The compact would, however, come into effect only if its success has been assured; that is, only if states controlling a majority of electoral votes (270 or more) join the compact. If enacted by enough states, the NPVC would all but put an end to the Electoral College, and we might be able move to a direct national vote for president, without a constitutional amendment. See generally, the CRS report, The National Popular Vote Initiative: Direct Election of the President by Interstate Compact (Dec. 12, 2014, R43823).

Ten states (CA, HI, IL, MA, MD, NJ, NY, RI, VT, WA) and the District of Columbia, which jointly control 165 electoral votes, have enacted into law the Compact. It has passed at least one house in 12 additional states with 96 electoral votes (AR, AZ, CO, CT, DE, ME, MI, NC, NM, NV, OK, OR)  and been approved unanimously by committee votes in two additional states with 27 electoral votes (GA, MO). See the National Public Vote website. This tally has led Salon’s Maegan Carberry to conclude “Optimistically, we’re 23 new electoral votes away from ridding ourselves of the Electoral College. It’s something that could be managed through strategically pressuring a handful of state representatives.” Quoting from Why doesn’t anyone know we’re incredibly close to replacing the Electoral College with the popular vote? Salon, May 7, 2017. See also, Chris Bowers, The surprisingly realistic path to electing the president by national popular vote by 2020, Daily Kos, Nov. 9, 2016. But see, Mark Joseph Stern, Yes, We Could Effectively Abolish the Electoral College Soon. But We Probably Won’t, Slate, Nov. 10, 2016.

Realistic? Hell if I know. Certainly the Founding Fathers opposed the direct election of the president. But Vikram D. Amar’s The Case for Reforming Presidential Elections by Subconstitutional Means: The Electoral College, the National Popular Vote Compact, and Congressional Power, __ Georgetown Law Journal ___  addresses and debunks various criticisms of the National Popular Vote Compact movement. The essay then “turns to the key question of whether a national popular vote with different voting rules in each state is workable, and in particular the sources of power Congress has to remedy any problems with the design of the current National Popular Vote Compact plan being adopted by many states. There are good arguments in favor of Congressional power to iron out difficulties, especially once a compact is up and running. For this reason, the idea floated by some that only a constitutional amendment can bring about a national popular vote is misguided.” Quoting from the abstract. See also, Michael Brody’s Circumventing the Electoral College: Why the National Popular Vote Interstate Compact Survives Constitutional Scrutiny Under the Compact Clause. But see, Norman R. Williams’ Why the National Popular Vote Compact Is Unconstitutional, 2012 BYU L. Rev. 1523 and John Samples’ A Critique of the National Popular Vote Plan for Electing the President, Cato Policy Analysis Series, No. 622, Oct. 13, 2008.

Good idea? Doable? For an example of the legislative enactment of the NPVC, see the text of Maryland’s legislation. — Joe

Puerto Rico files for debt restructuring

The debt restructuring petition was filed by Puerto Rico’s financial oversight board in the US District Court in Puerto Rico on Wednesday under Title III of PROMESA. Title III provides a court debt restructuring process akin to US bankruptcy protection. Puerto Rico is barred from a traditional municipal bankruptcy protection under Chapter 9 of the Bankruptcy Code. The action sent Puerto Rico, whose approximately $123 billion in debt and pension obligations far exceeds the $18 billion bankruptcy filed by Detroit in 2013, into uncharted ground. Enacted only last summer the Puerto Rico Oversight, Management, and Economic Stability Act or PROMESA, Pub. L. No. 114-187 was designed help insolvent territories like the Commonwealth restructure its billions in debt and pension obligations. Next step, Chief Justice Roberts will appoint a life-tenured judge to hear the case.

CRS produced this backgrounder on PROMESA. See also Melissa Jacoby’s Presiding Over Municipal Bankruptcies: Then, Now, and Puerto Rico, 91 American Bankruptcy Law Journal __, 2017 Forthcoming, Why Puerto Rico Will Likely Rely On PROMESA Title III, Law360, March 1, 2017 and Issues To Expect In A Title III Puerto Rico Restructuring, Law360, March 8, 2017. — Joe

‘Too big to fail’ and the Financial CHOICE Act of 2017, H. R. 10

As the House Committee on Financial Services meets today to begin the mark-up of the Financial CHOICE Act of 2017, H.R. 10, [Committee memorandum], “Too Big To Fail” will be in the news again because of H.R. 10’s Dodd-Frank Act repeal provisions. Systemically Important or “Too Big to Fail” Financial Institutions (Jan. 4, 2017, R42150) discusses the economic issues raised by “Too Bill To Fail,” broad policy options, and policy changes made by the relevant Dodd-Frank provisions. — Joe

Interest in pending federal legislation grows as web traffic soars on Congress.gov

Data analytics reveals that Congress.gov has seen record-breaking traffic since January 2017 according to Andrew Weber’s In Custodia Legis post, Reaching a Web Traffic Milestone on Congress.gov. Weber writes

Besides the large increases in visits, there are other interesting changes in our web traffic. The percentage of traffic from mobile devices has greatly increased from 27% in 2016 to 52% in 2017, and traffic from social media hit a high of 40% of visits in February 2017, compared to an average of 5% in 2016. Legislation went viral on Facebook, with the bill summary for H.R.861 shared more than 200K times.

Weber concludes his blog post as follows: “While we can not be 100% certain that these large increases in web traffic will continue, we can see that legislation is currently of great interest to the general public, and many new users are discovering Congress.gov.” — Joe

Preparing for the 2017 tax reform debate

Individual and corporate income tax reform is in the wind. Here’s a OMB graphic on the sources of US federal tax revenue for reference. Note that individual income tax and corporate income tax receipts represent 57% of all federal tax revenue.

On April 26, the Trump administration released its principles of tax reform. [Text] The document is mostly a series of broad principles under three headings: Goals for Tax Reform, Individual Reform and Business Reform. Compare The Goals Of Donald J. Trump’s Tax Plan, which is hosted on Trump’s presidential campaign site and the Ways and Means Committee Republicans’ Better Way for Tax Reform.

The nonpartisan think tank Tax Policy Center has prepared a series of briefs describing the key tax code provisions Congress is likely to debate when tax reform moves to the center of public attention. The below graphic was created by the Center. — Joe

 

Register of Copyrights: ‘Why should the Librarian [of Congress] have unilateral authority over an appointment that impacts so many livelihoods in the United States?’

Currently the Register of Copyrights is appointed by the Librarian of Congress. That would change if H.R. 1695, Register of Copyrights Selection and Accountability Act of 2017, passes. The bill would make the Register position a presidential appointment with confirmation by the Senate, with 10-year term limit. It would create minimum standards for those who hold the Register of Copyrights position by requiring the officeholder to be a U.S. citizen who has professional background and experience in copyright law. Under the proposed legislation, the President will select a nominee from a list of names identified by a Congressional leadership panel that includes the Librarian of Congress.

H.R. 1695 was reported out of committee [H. Rept. 115-91] and placed on the Union Calendar on April 20th.  The Hill’s Dina LaPolt and John Meller in H.R. 1695: A vital first step towards Copyright Office modernization opine that this change makes sense:

The Register advises Congress and accordingly, Congress should have a hand in who holds this position.  It makes sense to appoint the Register via a standard nomination process involving our elected representatives, same as most other high-ranking government officials. Why should the Librarian have unilateral authority over an appointment that impacts so many livelihoods in the United States?

AALL opposes the bill, stating that our association believes it is unnecessary and would create management conflicts within the Library of Congress. But LaPolt and Meller report that two former Registers support it.

This bill is also supported by two previous Registers of Copyright, Marybeth Peters and Ralph Oman. They point out that the Act would address issues that have escalated in the relationship between the Copyright Office and the Library, which they state are “structural, not personal or political”, and explain that Congress should be able to obtain “independent copyright advice straight and true from the expert agency” rather than “filtered through the lens – and shaped by the perspective – of the head of the national library”.  Their opinion should carry great weight here—especially since they were themselves appointed unilaterally by the Librarian.

What do you think? — Joe

Unfit to serve: former presidents and vice presidents could decide under HR 2093

Under Section 4 of the 25th Amendment, the vice president and a majority of cabinet officers or “of such other body as Congress may by law provide” may jointly decide that a president is unfit to serve. Following the 25th Amendment, on April 14th, Rep. Earl Blumenauer (D-Oregon) introduced the Strengthening and Clarifying the 25th Amendment Act of 2017, HR 2093. HR 2093 would “provide for an alternative body to transmit a written declaration that the President is unable to discharge the powers and duties of his office in accordance with the provisions of the 25th Amendment of the Constitution.” In a nutshell, if passed which it won’t in a Republican controlled Congress, HR 2093 would empower former presidents and vice presidents of both parties in coordination with the sitting vice president to determine if a president is fit for office. The motivation appears to be that the 25th Amendment would fall short in cases of emotional or mental incapacity because Cabinet officers might be too conflicted to make such a determination because they were appointed by the sitting president.

One can only wonder how the living former Republican presidents and vice presidents would vote on Trump’s fitness to lead the US. — Joe

CRS report on the Hatch Act

The Hatch Act applies to all federal officers and employees—other than the President and Vice President—in the agencies, departments, bureaus, and offices of the executive branch of the federal government. It is beginning to be referenced by some pundits in the context of the culprits involved in Trump-Russia connection.

This CRS report, Hatch Act Restrictions on Federal Employees’ Political Activities in the Digital Age (April 13, 2016 R44469), “examines the history of regulation of federal employees’ partisan political activity under the Hatch Act and related federal regulations. It discusses the scope of the application of these restrictions to different categories of employees and provides a background analysis of the general restrictions currently in place. Finally, it analyzes potential issues that have arisen and interpretations that have been offered related to the application of these restrictions to new platforms of activity, for example, email, social media, and telework.’ — Joe

Forecasting the probability of legislation being enacted into law using machine learning

John Nay (Vanderbilt University, School of Engineering) conducted the most comprehensive analysis of law-making forecasting to date last year. In Predicting and Understanding Law-Making with Machine Learning, he writes:

We compared five models across three performance measures and two data conditions on 68,863 bills over 14 years. We created a model with consistently high predictive performance that effectively integrates heterogeneous data. A model using only bill text outperforms a model using only bill context for newest data, while context-only outperforms text-only for oldest data. In all conditions text consistently adds predictive power after controlling for non-textual variables.

In addition to accurate predictions, we are able to improve our understanding of bill content by using a text model designed to explore differences across chamber and enactment status for important topics. Our textual analysis serves as an exploratory tool for investigating subtle distinctions across categories that were previously impossible to investigate at this scale. The same analysis can be applied to any words in the large legislative vocabulary. The global sensitivity analysis of the full model provides insights into the factors affecting predicted probabilities of enactment. For instance, when predicting bills as they are first introduced, the text of the bill and the proportion of the chamber in the bill sponsor’s party have similarly strong positive effects. The full text of the bill is by far the most important predictor when using the most up-to-date data. The oldest data model relies more on title predictions than the newest data model, which makes sense given that titles rarely change after bill introduction. Comparing effects across time conditions and across models not including text suggests that controlling for accurate estimates of the text probability is important for estimating the effects of non-textual variables.

Although the effect estimates are not causal and estimates on predictors correlated with each other may be biased, they represent our best estimates of predictive relationships within a model with the strongest predictive performance and are thus useful for understanding law-making. This methodology can be applied to analyze any predictive model by treating it as a “black-box” data-generating process, therefore predictive power of a model can be optimized and subsequent analysis can uncover interpretable relationships between predictors and output. Our work provides guidance on effectively combining text and context for prediction and analysis of complex systems with highly imbalanced outcomes that are related to textual data. Our system for determining the probability of enactment across the thousands of bills currently under consideration (predictgov.com/projects/congress) focuses effort on legislation that is likely to matter, allowing the public to identify policy signal amid political and procedural noise.

— Joe

AALL supports passage of the OPEN Government Data Act, S. 760

From the April 5, 2017 letter to the chairman and ranking member of the Senate Committee on Homeland Security and Governmental Affairs:

We support the OPEN Government Data Act for several reasons. First and foremost, this legislation would institutionalize the federal government’s commitment to open data and allow the United States to remain a world leader on open data. Second, adopting a policy of open by default for government data would ensure that the value of this public resource would continue to grow as the government unlocks and creates new data sets. Third, a firm commitment to providing open data as a public resource would encourage businesses, non-profits, and others to invest in innovative tools that make use of government data. And, according to the Congressional Budget Office’s review of the 2016 unanimously passed Senate bill, taking these steps would not have a significant impact on agency spending.

Here’s the text of S. 760. — Joe

National Archive reminds White House to save all Trump tweets

To comply with the Presidential Records Act, the Trump administration has agreed to archive all of Trump’s tweets including the ones he deletes or corrects. No word on how precisely the White House will do that. See Stephen Braun’s National Archives to White House: Save all Trump tweets for more. Therein Braun also reports that apparently some senior administration staff are using their private RNC email accounts. — Joe

Nepotism in the executive branch of the federal government

From the introduction to the CRS Legal Sidebar, The Federal Anti-Nepotism Statute: Limits on Appointing, Hiring, and Promoting Relatives (12/1/2016):

The process of presidential transition has raised questions about who may be appointed to certain executive posts in the White House, an issue addressed under a federal law commonly known as the anti-nepotism statute. Nepotism is defined generally as the exercise of favoritism by a person in a position of authority towards that person’s relatives, particularly giving them jobs. The federal anti-nepotism statute applies to all public officials (including the President and Members of Congress) in all three branches of the federal government. Such officials are barred from appointing, hiring, or promoting – or advocating for the appointment, hiring, or promotion of – a specific class of relatives to a civilian position in the agency in which that official serves or over which the official exercises authority.

More generally, see Aneil Kovvali’s Constitutional Avoidance and Presidential Power, 35 Yale J. on Reg. Bull. (2017 Forthcoming). Here’s the abstract:

Recent developments have brought renewed attention to statutes designed to constrain and discipline the President. The federal anti-nepotism statute, the federal conflict of interest statute, the Federal Advisory Committee Act, and the Freedom of Information Act all appear set to endure unusual stress in the coming years. Troublingly, these statutes have already been given limited constructions that weaken their power to restrain the President. Under the constitutional avoidance canon, courts construe statutes so as to avoid constitutional questions. Citing the avoidance canon and the President’s actual (or merely arguable) constitutional prerogatives, courts have limited the scope of statutes meant to discipline the presidency. Constitutional avoidance is a time-honored principle, but its application in this context is uniquely troubling. The President is an active participant in the legislative process, and can use his veto power to protect his prerogatives for himself. As a result, this type of judicial involvement can distort results in a way that is difficult, if not impossible, for Congress to reverse. The President’s unique powers also make the application of constitutional avoidance particularly problematic in this context.

— Joe

S.J.Res. 34: Senate votes to undo broadband privacy rules that protect user data from their Internet providers

“Republican senators moved Thursday to dismantle landmark internet privacy protections for consumers in the first decisive strike against telecommunications and technology regulations created during the Obama administration, and a harbinger of further deregulation”, wrote Cecilia Kang in her  NYT story, Congress Moves to Strike Internet Privacy Rules From Obama Era (March 23, 2017). “The measure passed in a 50-to-48 vote largely along party lines. The House is expected to mirror the Senate’s action next week.”

The measure is S.J.Res. 34. Created on March 25th, a We the People petition calls for reinstating the privacy of customers of broadband and other telecom services because S.J.Res. 34 is expected to pass in the House and be signed by President Trump. — Joe

Bipartisan support for The Equal Access to Congressional Research Service Reports Act of 2016

New federal legislation, if passed and signed into law, would provide open access to CRS reports. The Equal Access to Congressional Research Service Reports Act of 2016 (S 2639 and HR 4702) directs the GPO to establish and maintain a public website containing CRS Reports, and an index, that are searchable, sortable, and downloadable (including downloadable in bulk), for which no fee may be charged. Coverage includes CRS Authorization of Appropriations Products, Appropriations Products, and any other written CRS product containing CRS research or CRS analysis available for general congressional access on the CRS Congressional Intranet. Coverage excludes any custom product or service prepared in direct response to a request for custom analysis or research and not available for general congressional access on the CRS Congressional Intranet.

H/T Barbie Keiser, A New Focus on Transparency for the Congressional Research Service (Information Today). — Joe

Short Takes On The News: Public Defenders, Lawyer Ideology, and Faculty Pay

Short Takes on the News

The Governor of Maine is promoting legislation that would revise how representation for indigent criminal defendants is organized in that state.  Rather than organizing a public entity to perform the work, the State would contract with lawyers for individual cases.  The story in the Bangor Daily News doesn’t mention this directly, but this would likely save a cat box load of money that would go to government pensions for state employed Public Defenders otherwise.  I wonder if Maine would be willing to try this same approach with the Prosecutor’s Office.  Probably not.

Has anyone ever wondered about the political ideology of the legal academy?  I’d say the answer is no only because the bias anecdotally appears to be liberal.  Well, someone took the time and effort to measure that bias in multiple contexts.  A new paper called The Political Ideologies of the American Lawyer by Adam Bonica, Adam S. Chilton, and Maya Sen seems to confirm just where that bias lines up on a spectrum of left and right.  The legal profession collectively lines up somewhere center left close to where Bill Clinton would be (he’s a marker on the chart along with other well-known politicians).  Medical doctors and bankers tend to be more to the right.  Go figure.

Graduates of elite law schools tend to be more liberal:

The most striking result in Figure 6 is that all 14 top law schools have distributions that lean to the left. That is, there are more liberal alumni from those schools than there are conservative alumni. Not only do all of the schools lean to the left, the skew is fairly extreme in several of the schools. Perhaps unsurprisingly, the University of California, Berkeley has the most liberal leaning distribution of alumni of all the elite law schools. That said, although the ideology of Berkeley graduates skews the furthest to the left, it is obviously not the only school with a heavily left skewed distribution. In fact, all of the top six law schools—Yale, Harvard, Stanford, Columbia, Chicago, and NYU—have a relatively small number of graduates with conservative CFscores.

There’s a joke in there somewhere but I’m not the one who is going to make it.

There is an in depth write-up of the paper in Quartz.  It can be downloaded here.

Finally, the EEOC has investigated pay discrepancies between male and female faculty members at the University of Denver and wouldn’t you know it, there is a pay gap.  Moreover, it’s been going on for at least four decades.  The story is in the Chronicle of Higher Education and the Denver Post.  I guess liberality stops at the paymaster window, at least at UD.

Mark

Georgia Sues Public.Resource.org Over Copyright In Published Annotations to the Georgia Code

The State of Georgia is suing Public.Resources .Org, Inc. and Carl Malamud in federal court for posting copies of the Official George Code Annotated on the Public.Resources.Org.  Georgia contracts with Lexis to create annotated copies of the Code where Lexis fills in the annotated material in what appears to be a work for hire as Georgia claims copyright in the annotations and value-added materials.  In some respects, it explains why Lexis wasn’t a co-plaintiff.  The State does not claim copyright in the text of the Code itself.  The complaint is seeking injunctive relief and requesting that all scanned copies be removed and destroyed, and yes, attorney fees.

I think it would have been much easier for the State of Georgia if copyright remained with Lexis.  The ownership would have been clearer.  It’s a murky situation otherwise.  I guess the question the Court is whether the State can actually claim a copyright in this case.  The United States government, as an example, disclaims copyright in most cases, but there are exceptions.  Two of these indicated at USA.gov are:

  • Works prepared for the U.S. government by independent contractors may be protected by copyright, which may be owned by the independent contractor or by the U.S. government.
  • The U.S. government work designation does not apply to works of U.S. state and local governments. Works of state and local governments may be protected by copyright.

The complaint his available through a link with a story at The Register, which is a U.K. based technology news site.  I’m a big fan of the site due to the somewhat snarky attitude the site takes at tech news.  The story in the Register about this case notes that Georgia effectively calls Malamud a “terrorist.”  Here are the excerpts from the complaint where Georgia makes that claim:

20.  On information and belief, Defendant is employing a deliberate strategy of copying and posting large document archives such as the O.C.G.A. (including the Copyrighted Annotations) in order to force the State of Georgia to provide the O.C.G.A., in an electronic format acceptable to Defendant. Defendant’s founder and president, Carl Malamud, has indicated that this type of strategy has been a successful form of “terrorism” that he has employed in the past to force government entities to publish documents on Malamud’s terms. See Exhibit 2.

21.  Consistent with its strategy of terrorism, Defendant freely admits to the copying and distribution of massive numbers of Plaintiff’s Copyrighted Annotations on at least its https://yeswescan.org website. See Exhibit 3. Defendant also announced on the https://yeswescan.org website that it has targeted the States of Mississippi, Georgia, and Idaho and the District of Columbia for its continued, deliberate and willful copying of copyrighted portions of the annotated codes of those jurisdictions. Defendant has further posted on the https://yeswescan.org website, and delivered to Plaintiffs, a “Proclamation of Promulgation,” indicating that its deliberate and willful copying and distribution of Plaintiff’s Copyrighted Annotations would be “greatly expanded” in 2014. Defendant has further instituted public funding campaigns on a website http://www.indiegogo.com to support its continued copying and distribution of Plaintiff’s Copyrighted Annotations. Defendant has raised thousands of dollars to assist Defendant in infringing the O.C.G.A. Copyrighted Annotations.

Terrorism, seriously?  Someone explain to me how this adds to the substance of the complaint.  It’s not as if black helicopters will be circling Atlanta at the end of the trial, not over annotations at least.

Mark

AALL officially supports UELMA now

At its November 2013 board meeting, the AALL E-board acted! By that I mean our elected officers finally adopted a formal resolution supporting UELMA “to aid its passage at the state level.” Quoting in pertinent part:

WHEREAS, members of the American Association of Law Libraries participated in the drafting of the Uniform Electronic Legal Material Act and have been instrumental in advocating for its adoption; now, therefore, be it

RESOLVED, that the American Association of Law Libraries supports enactment of the Uniform Electronic Legal Material Act in every state and the District of Columbia…

Better late than never. — Joe