A proposed bill would require agencies to request written feedback from interested people regarding new major rules earlier in the regulatory process. Senators James Lankford (R-Okla.) and Kyrsten Sinema (D-Ariz.) introduced Senate Bill 1419, the Early Participation in Regulations Act, on May 13, 2019. The act requires agencies to issue advance notices that they will be proposing a rule at least 90 days before the agency publishes the proposed rule in the Federal Register.
The act states that advance notices have to provide time for interested people to submit their views to the agency in writing and have to include the following:
The nature of the problem the agency plans to address with a new major rule
The data the agency expects to use to formulate the rule
A description of the regulatory alternatives the agency is considering
The legal authority under which the major rule may be proposed
An achievable objective for the major rule
S. 1419 follows other federal standards and defines major rules as those that have or are likely to have the following results:
An annual effect on the economy of $100 million or more
A major increase in costs or prices for consumers, individual industries, government agencies, or geographic regions
Significant effects on competition, employment, investment, productivity, innovation, health, safety, the environment, or on the ability of U.S.-based enterprises to compete with foreign-based enterprises in domestic and export markets
Rules that do not require published notices of proposed rulemaking (NPRM) in the Federal Register are not subject to the act. Those exempted rules include guidance documents, which are interpretive rules, policy statements, and agency rules of organization. Beyond guidance, agencies can choose not to publish NPRMs for new rules if they find good cause and explain their reasoning in the rule they issue. Finally, if the administrator of the Office of Information and Regulatory Affairs (OIRA) determines that compliance would not serve the public interest or would be too burdensome and redundant based on the requirements of other laws, then the agency does not have to publish an advance notice of proposed rulemaking (ANPRM) under the act. OIRA is an office within the Office of Management and Budget (OMB) that handles regulatory review, information collection requests, and oversight of government statistics and privacy policies.
On May 13, Governor Phil Murphy (D) conditionally vetoed S1500, legislation that would require 501(c)(4)s, super PACs, and other entities to disclose their donors who contribute $10,000 or more.
In his veto statement, Murphy said, “I commend my colleagues in the Legislature for seeking to ensure that so-called ‘dark money’ is brought out into the open. However, I am mindful that such efforts must be carefully balanced against constitutionally protected speech and association rights. Because certain provisions of Senate Bill No. 1500 (Fifth Reprint) may infringe on both, and because the bill does not go far enough in mandating disclosures of political activity that can be constitutionally required, I cannot support it in its current form.”
What comes next? With his conditional veto, Murphy delineated his objections to the bill and proposed amendments to address them. This differs from an absolute veto (i.e., an outright gubernatorial rejection of a proposed law). Should the legislature adopt an amended version of the bill, it will return to Murphy’s desk for his consideration.
The legislature can also, by a two-thirds majority vote in each chamber, override Murphy’s veto and enact the bill. The Senate
approved the bill 33-to-0, with seven members not voting. The Assembly approved the bill 60-to-1, with two members not voting and 17 abstaining. Democrats control both chambers of the state legislature, with a 26-to-14 majority in the Senate and a 54-to-26 majority in the Assembly.
The bill’s sponsors, Sen. Troy Singleton (D) and Asm. Andrew Zwicker (D), said: “The governor says that this bill ‘falls short’ of the goal to bring greater transparency to our political process. That is a gross misrepresentation of months and, frankly, years of hard work. The only thing that fell short today was the governor’s will to truly address the behemoth of dark money that has eroded the public’s trust in our government.”
What does the legislation propose?
As adopted, S1500 would define an independent expenditure committee as any person or group of persons organized under sections 501(c)(4) or 527 of the Internal Revenue Code spending $3,000 or more annually to influence or provide political information about any of the following:
“the outcome of any election or the nomination, election, or defeat of any person to any state or local elective public office”
“the passage or defeat of any public question, legislation, or regulation”
Under S1500, independent expenditure committees would be required to disclose all expenditures exceeding $3,000. These committees would also be required to disclose the identities of donors contributing $10,000 or more.
Number of relevant bills by state: We’re currently tracking 72 pieces of legislation dealing with donor disclosure. On the map below, a darker shade of green indicates a greater number of relevant bills. Click here for a complete list of all the bills we’re tracking.
Number of relevant bills by current legislative status:
Number of relevant bills by partisan status of sponsor(s):
Recent legislative actions
Below is a complete list of legislative actions taken on relevant bills in the past week. Bills are listed in alphabetical order, first by state then by bill number. Know of any legislation we’re missing? Please email us so we can include it on our tracking list.
Massachusetts H686: This bill would require groups producing electioneering communications to disclose to the public certain information about donations coming from foreign sources.
Joint Committee on Election Laws hearing May 15.
Missouri HB394: This bill would require any entity not a defined as a committee under the state’s campaign finance laws that spends $500 or more to support or oppose candidates or ballot measures to file quarterly donor reports. Included in those reports would be the names and addresses of donors who gave more than $50 to the entity in that quarter.
Referred to House General Laws Committee May 17.
Missouri HB513: This bill would require any committees that receive contributions or make expenditures for inaugural activities to file disclosure reports with the Missouri Ethics Commission.
Referred to House General Laws Committee May 17.
Missouri HB886: This bill would lower the disclosure threshold for contributors to ballot measure campaigns from $500 in aggregate to $25 or more in aggregate during an election cycle.
Referred to House Elections and Elected Officials Committee May 17.
New Hampshire SB105: This bill would establish disclosure requirements for certain contributions made to inaugural committees.
House Election Law Committee executive session May 16.
New Hampshire SB156: This bill would require that political contributions made by limited liability companies be allocated to individual members in order to determine whether individuals have exceeded contribution limits.
House Election Law Committee executive session May 16.
New Jersey S1500: This bill would require disclosure of donors to 501(c)(4)s, super PACs, and other similar entities who give $10,000 or more.
The Supreme Court has finished hearing arguments for its October 2018-2019 term. Click here to read more about SCOTUS’ current term.
Opinions
SCOTUS has ruled on three cases since our May 6 issue. The court has issued rulings in33 cases so far this term. Thirty-nine cases are still under deliberation.
Click the links below to read more about the specific cases SCOTUS ruled on since May 6:
May 13, 2019
Apple v. Pepper was argued before the court on Nov. 26, 2018.
Robert Pepper and other plaintiffs filed an antitrust lawsuit against Apple Inc., alleging the company was monopolizing the market for iPhone apps. Apple controls which apps can be sold through its App Store and keeps 30 percent of sales from apps developed by third-party developers that are sold in the App Store. A U.S. District Court dismissed the case. Citing the Supreme Court’s 1977 decision in Illinois Brick Co. v. Illinois, the district court ruled App Store customers could not sue for antitrust violations because they are purchasing their apps directly from the developers, not Apple. According to Illinois Brick, “only the overcharged direct purchaser, and not others in the chain of manufacture or distribution” are able to sue for antitrust violations. The 9th Circuit Court reversed the dismissal, ruling that consumers are purchasing from Apple, not the app developers.
The outcome: In a 5-4 opinion, the court affirmed the 9th Circuit’s ruling, holding that people who purchase apps through Apple’s App Store are direct consumers and can sue Apple for having a monopoly in the market and increasing prices. Justice Brett Kavanaugh delivered the majority opinion and was joined by Justices Ruth Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan.
Justice Neil Gorsuch authored the dissenting opinion and was joined by Chief Justice John Roberts, and Justices Clarence Thomas, and Samuel Alito.
After serving time in prison for being part of a fraudulent subcontracting scheme, Billy Joe Hunt, a Parsons Corporation employee, filed a lawsuit alleging that Parsons and Cochise Consultancy Inc. violated the False Claims Act (FCA). Parsons and Cochise argued the statute of limitations barred Hunt’s claim. The statute requires a violation to be brought within six years of the violation or three years “after the date when facts material to the right of action are known or reasonably should have been known by the official of the United States charged with responsibility to act in the circumstances.” The district court granted the contractors’ motion to dismiss, but the 11th Circuit reversed and remanded the case.
The outcome: In a 9-0 opinion, the court held that a relator (private citizen) in a False Claims Act qui tam action lawsuit can rely on the statute of limitations, but the relator is not an official of the United States. A qui tam action refers to a lawsuit brought by a private citizen against a company who is believed to be in violation of the law in performing a contract with the government.
Justice Clarence Thomas wrote the opinion of the court.
In 1993, Gilbert Hyatt, a computer chip inventor, was audited by the Franchise Tax Board of California (FTB). Hyatt had moved from California to Nevada, and FTB said he owed $1.8 million in state income taxes, along with other penalties. “Hyatt sued FTB in Nevada state court for several intentional tort and bad faith conduct claims. FTB argued that the Nevada courts were required to give FTB the full immunity to which it would be entitled under California law,” according to the National Conference of State Legislatures (NCSL).
In Hyatt I, decided in 2003, the U.S. Supreme Court held that Nevada courts did not have to give FTB full immunity, and a Nevada district court awarded Hyatt over $400 million in damages. In Hyatt II, decided in 2016, the U.S. Supreme Court issued a 4-4 ruling on whether to overrule Nevada v. Hall, which permits a state to be sued in another state’s courts without its consent. The court also issued a separate ruling that limited the amount of damages Nevada courts could award.
FTB appealed the U.S. Supreme Court, which agreed to hear the case for the third time. In a 5-4 decision, the court overruled Nevada v. Hall and established that a state cannot be sued in another state’s courts without its consent. Justice Clarence Thomas delivered the opinion of the court. He was joined by Chief Justice John Roberts, and Justices Samuel Alito, Neil Gorsuch, and Brett Kavanaugh.
Justice Stephen Breyer filed a dissenting opinion and was joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan.
Upcoming SCOTUS dates
Here are the upcoming dates of interest in May and June:
May 20: SCOTUS will release orders.
When SCOTUS releases orders, they grant or deny review on the merits in a case. They can also issue other orders, such as granting or denying a request to participate in oral argument, according to SCOTUSblog.
May 23: SCOTUS will conference. A conference is a private meeting of the justices where justices decide which cases to accept or reject and discuss and vote on cases heard since the previous conference.
May 28: SCOTUS will release orders.
May 30: SCOTUS will conference.
June 3: SCOTUS will release orders.
SCOTUS trivia
What is it called when the court publishes a decision without indicating authorship?
Five judges appointed by Republican presidents and six judges appointed by Democratic presidents.
The Senate has confirmed 107 of President Trump’s judicial nominees—65 district court judges, 40 appeals court judges, and two Supreme Court justices—since January 2017.
Nominations
President Trump announced no new Article III nominees since our May 6 edition.
The president has announced 186 Article III judicial nominations since taking office Jan. 20, 2017. The president named 69 judicial nominees in 2017 and 92 in 2018. For more information on the president’s judicial nominees, click here.
Vacancies
The federal judiciary currently has 144 vacancies. As of publication, there were 62 pending nominations.
According to the Administrative Office of U.S. Courts, an additional 15 judges have announced their intention to leave active judicial status during Trump’s first term.
For more information on judicial vacancies during Trump’s first term, click here.
Jeff Brown, nominee for the U.S. District Court for the Southern District of Texas
Robert Colville, nominee for the U.S. District Court for the Western District of Pennsylvania
Stephanie Haines, nominee for the U.S. District Court for the Western District of Pennsylvania
Brantley Starr, nominee for the U.S. District Court for the Northern District of Texas
Do you love judicial nomination, confirmation, and vacancy information? We figured you might. Our monthly Federal Vacancy Count, published on the last Wednesday of each month, monitors all the faces and places moving in, moving out, and moving on in the federal judiciary.
Need a daily fix of judicial nomination, confirmation, and vacancy information? Click here for continuing updates on the status of all federal judicial nominees.
Or, if you prefer, we also maintain a list of individuals President Trump has nominated.
Court in the spotlight
In each issue of Bold Justice, we highlight a federal court you should know more about. Right now, we’re taking a closer look at the 94 U.S. District Courts. The district courts are the general trial courts of the U.S. federal court system. There is at least one judicial district for each state, and one each for Puerto Rico and the District of Columbia.
The District of Rhode Island has three authorized judgeships. There is currently one vacancy. The breakdown of current active judges by appointing president is:
Barack Obama (D): One judge
George W. Bush (R): One judge
Looking ahead
We’ll be back on June 3 with a new edition of Bold Justice.
Alabama voters will decide the fate of a constitutional amendment about the state judiciary during the March 2020 presidential primary.
On May 14, 2019, the state House gave final approval to a constitutional amendment to revise the article concerning the state judiciary. The vote referred the amendment—Senate Bill 216—to the March 2020 ballot. The amendment would make changes throughout sections of the state constitution related to the judiciary. Notable changes include:
Removing the authority to appoint an administrative director of courts from the Chief Justice of the Alabama Supreme Court and give it to the Alabama Supreme Court as a whole;
increasing the membership of the Judicial Inquiry Commission; and
repealing provisions which provide for the impeachment of Supreme Court Justices and appellate judges and the removal of various state and local judges.
The state Senate unanimously approved the amendment on April 30. The state House considered a change to increase the mandatory retirement age after which a judge cannot run for another term from 70 to 75. The proposed retirement age amendment to Senate Bill 216 was rejected. The state House approved the amendment 92-6 on May 14, 2019.
This amendment was the 25th statewide measure to be certified for 2020 across the country. It was the first to be certified for the 2020 ballot in Alabama. From 1997 to 2018, the number of measures on statewide ballots in Alabama during even-numbered years ranged from four to 15. The average was eight.
In Pennsylvania, special elections are being held for District 33 and District 41 of the state Senate and District 11 of the state House on May 21. All three seats were vacated by Republican incumbents.
In Senate District 33, Sarah Hammond (D) and Doug Mastriano (R) are running in the general election. The seat became vacant after Richard Alloway (R) resigned on February 28, 2019. Alloway cited political gridlock, a lack of advancement opportunities, and burnout as reasons for his resignation. Alloway had served in the state Senate since 2009.
In Senate District 41, Susan Boser (D) and Joe Pittman (R) are running in the general election. The seat became vacant after Don White (R) resigned on February 28, 2019, for health reasons. White had served in the state Senate since 2001.
In House District 11, Samuel Doctor (D) and Marci Mustello (R) are running in the general election. The seat became vacant after Brian Ellis (R) resigned on March 18, 2019, following allegations of sexual assault. Ellis had served in the state House since 2005.
Three other state legislative special elections have already been held in Pennsylvania in 2019. On April 2, Senate District 37 flipped from Republican control to Democratic control. Six seats have flipped as a result of 2019’s state legislative special elections. Elections have been held for 26 Democratic seats and 14 Republican seats. Four seats have flipped from Democratic control to Republican control. One seat has flipped from Republican control to Democratic control. One seat has flipped from Republican control to an independent officeholder.
Pennsylvania has a divided government, and no political party holds a state government trifecta. A trifecta exists when one political party simultaneously holds the governor’s office and majorities in both state legislative chambers. Heading into the special elections, Republicans hold a 26-22 majority in the state Senate with two vacancies. The state House is controlled by a 109-93 Republican majority with one vacancy. Gov. Tom Wolf (D) was first elected in 2014 and won re-election to a second term in 2018.
On May 13, the filing deadline passed to run for the vacant District 99 and District 158 seats in the Missouri House of Representatives. Trish Gunby (D) and Lee Ann Pitman (R) are running for the District 99 seat, and Lisa Kalp (D) and Scott Cupps (R) are campaigning in District 158. The special general election is scheduled for November 5, 2019, and there is no primary.
Both seats were previously held by Republicans. Jean Evans resigned from District 99 on February 5 in order to become the executive director of the state GOP, while Scott Fitzpatrick left the District 158 office on January 3 following his appointment as the new Missouri Treasurer by Gov. Mike Parson (R). In the 2018 election, Evans won re-election to a second term with 53% of the vote while Fitzpatrick ran unopposed to win his fourth term.
Entering the special election, the Missouri House of Representatives has 46 Democrats, 114 Republicans, and three vacancies. The third opening is for the District 36 seat, which DaRon McGee (D) vacated on April 29. No special election has been scheduled for that seat yet. A majority in the chamber requires 82 seats.
Missouri is one of 22 Republican trifectas. A state government trifecta exists when one political party simultaneously holds the governor’s office and both state legislative chambers.
The Federal Register is a daily journal of federal government activity that includes presidential documents, proposed and final rules, and public notices. It is a common measure of an administration’s regulatory activity.
During the week of May 13 to May 17, the number of pages in the Federal Register increased by 1,928 pages, bringing the year-to-date total to 22,692 pages. This week’s Federal Register featured a total of 612 documents, including 494 notices, 11 presidential documents, 52 proposed rules, and 55 final rules.
Three proposed rules and one final rule were deemed significant under E.O. 12866—meaning that they may have a large impact on the economy, environment, public health, or state or local governments. Significant actions may also conflict with presidential priorities or other agency rules.
During the same week in 2018, the number of pages in the Federal Register increased by 1,172 pages. As of May 17, the 2019 total trailed the 2018 total by 656 pages.
The Trump administration has added an average of 1,135 pages to the Federal Register each week in 2019 as of May 17. In 2018, the Trump administration added an average of 1,301 pages to the Federal Register each week. Over the course of the Obama administration, the Federal Register increased by an average of 1,658 pages per week.
According to government data, the Federal Register hit an all-time high of 95,894 pages in 2016.
Ballotpedia maintains page counts and other information about the Federal Register as part of its Administrative State Project. The project is a neutral, nonpartisan encyclopedic resource that defines and analyzes the administrative state, including its philosophical origins, legal and judicial precedents, and scholarly examinations of its consequences. The project also monitors and reports on measures of federal government activity.
A new bill aims to help administrative agencies meet regulatory goals by requiring them to assess the effectiveness of new major rules. Senate Bill 1420, The SMART Act of 2019, would require agencies to publish ideas about how to measure the anticipated benefits of new major rules, including how to collect the necessary data to conduct such a review. Senators Kyrsten Sinema (D-Ariz.) and James Lankford (R-Okla.) introduced the bill on May 13, 2019.
The act instructs agencies to perform cost-benefit reviews of major rules to determine whether they are accomplishing their objectives, are no longer necessary, or need to be improved. It follows other federal standards and defines major rules as those that have or are likely to have the following results:
An annual effect on the economy of $100 million or more
A major increase in costs or prices for consumers, individual industries, government agencies, or geographic regions
Significant effects on competition, employment, investment, productivity, innovation, health, safety, the environment, or on the ability of U.S.-based enterprises to compete with foreign-based enterprises in domestic and export markets
The provisions of the SMART act apply to rules that meet those criteria as determined by the administrator of the Office of Information and Regulatory Affairs (OIRA). OIRA is an office within the Office of Management and Budget (OMB) that handles regulatory review, information collection requests, and oversight of government statistics and privacy policies. The act exempts guidance documents, which include interpretive rules, policy statements, and agency rules of organization, from its review requirements.
Philadelphia Mayor James Kenney’s (D), Alan Butkovitz (D) and Anthony Williams (D) are running in a Democratic primary May 21 seeking the nomination for the November 5 mayoral election.
Under Philadelphia’s current charter, which dates to 1951, no incumbent mayor has been defeated in a bid for re-election. Kenney recently received the endorsement of the Philadelphia Inquirer.
Kenney’s support for a 1.5 cent-per-ounce tax on sugary drinks that passed in 2016 has drawn criticism from Butkovitz and Williams, both of whom pledged to repeal the tax.
Kenney says he supports the soda tax because it has raised money for the city’s infrastructure and schools. He says he built a progressive record in his first term by increasing the minimum wage for city employees to $15 per hour, declaring Philadelphia a sanctuary city, and pledging to abide by the terms of the Paris Climate Agreement.
In addition to the Inquirer, Kenney has been endorsed by Gov. Tom Wolf (D), Sen. Bob Casey Jr. (D), and all three of Philadelphia’s representatives in the U.S. House.
Butkovitz served three terms as city controller before losing to former Kenney administration official Rebecca Rhynhart (D) in 2017. He earlier served eight terms in the state house. Butkovitz says that the Kenney administration has failed to address poverty and violent crime in Philadelphia and has racially discriminatory hiring practices.
Williams placed second to Kenney in the 2015 mayoral primary with 26% of the vote to Kenney’s 56%. Williams has served in the state Senate since being elected in 1998 and earlier served five terms in the state house. He promises to expand charter schools with the goal of reaching every neighborhood. He was endorsed by Philadelphia Magazine, the Black Clergy of Philadelphia and Vicinity, and former mayor John Street (D).
Kenney raised $1.1 million through May 12. Butkovitz and Williams each raised $150,000. Both supporters and opponents of soda taxes outside Philadelphia have weighed in. The American Beverage Association spent over $600,000 on an ad campaign opposing Kenney. Former New York City mayor Michael Bloomberg, who supports the tax, (D) donated $1,000,000 to a PAC spending in support of Kenney.
The winner will face attorney Billy Ciancaglini (R) and any declared nonpartisan candidates in the November 5 election. No Republican has won a Philadelphia mayoral election since Bernard Samuel (R) in 1947.
President Donald Trump made 104 Article III federal judicial appointments through May 15, 2019. How does that figure compare to other modern presidents at this stage of their terms?
We looked at the numbers from the last 13 presidents, dating back to Harry Truman.
Article III judges are lifetime appointments to the U.S. Supreme Court, a U.S. court of appeals, a U.S. district court, or the Court of International Trade. The breakdown of Article III judges is as follows:
Supreme Court of the United States: 9 justices
United States court of appeals: 179 judgeships
United States district court: 677 judgeships
United States Court of International Trade: 9 judgeships
The chart below shows the number of Article III judges confirmed by the U.S. Senate under each of the last 13 presidents on or before May 15 of their third years in office. The confirmations are broken up by court type.
Here are five takeaways from the above graph and other elements of the data:
Trump has made the fourth most Article III appointments through this point in his term. The three presidents who had more at this point were Bill Clinton (141), George W. Bush (124), and John F. Kennedy (116).
Trump has made the most appeals court appointments through this point, 39, which is 22 percent of the 179 appeals court judgeships. The next highest number of appointments at this point in a presidency was Richard Nixon (25) and George W. Bush (21).
Kennedy had 56 judges confirmed in the first year of his term, most among the group. Dwight Eisenhower had nine, the fewest. Trump’s 19 appointments in the first year of his presidency were eighth-most.
Trump has made the eighth-most district court appointments, 63, which is nine percent of the 677 district court judgeships. Clinton had made 118 such appointments, and George W. Bush had 100.
Trump inherited 108 Article III judicial vacancies when he was inaugurated. This represented 12.4 percent of the 870 Article III judicial posts. Among the last six presidents, only Clinton inherited more vacancies—111 of 842 positions, or 13.2 percent.
For more charts and to explore the raw data, visit our in-depth analysis at the link below.
