Category Newsletters

January 20, 2022 at 2:00 PM

In this issue: U.S. Rep. Larson has first primary challenge since 1998 and Democratic candidates air ads criticizing Sen. Joe Manchin

Shanelle Jackson launches primary challenge to Rep. Rashida Tlaib

On Jan. 14, former state Rep. Shanelle Jackson (D) announced she would challenge U.S. Rep. Rashida Tlaib (D) in the Democratic primary for Michigan’s newly redrawn 12th Congressional District. Jackson ran against Tlaib in the 2018 Democratic primary for the 13th District, which Tlaib won with 31% of the vote. Jackson received 5%.

Jackson said in a recent interview with Jewish Insider, “I think we’ll be very different, obviously, in our approaches. I don’t hate banks. I don’t hate subprime lenders. I know, as an African American that has been poor and has been better, that we need all options on the table and that our situation is nuanced.”

In a press release supporting the 2020 Public Banking Act, Tlaib said large financial institutions “held the country hostage for their reckless behavior” and, “It is time for this relationship to be reciprocated and have the banks work for the people and not solely privatized profits wreaking havoc on communities of color.”

Jackson also said Tlaib, who supported the Boycott, Divestment and Sanctions movement, “obviously is carrying the water of Palestine in all that she does.” Jackson said she would work to strengthen ties with Israel and believes “the United States and Israel are sisters, and I can’t imagine living in a world where our nation didn’t have Israel’s back. It’s heartbreaking, to be honest with you, to have Rep. Tlaib not even wanting to explore that path.”

Tlaib voted against funding for Israel’s Iron Dome defense system in September 2021, saying, “I will not support an effort to enable and support war crimes, human rights abuses and violence. The Israeli government is an apartheid regime.”

Tlaib announced on Jan. 5 she would run in the open 12th District, which she said includes about two-thirds of the people she currently represents. As of Jan. 19, Jackson and Tlaib were the only declared candidates for the Democratic primary, scheduled for Aug. 2.

U.S. Rep. John Larson announces re-election amid first primary challenge since 1998

U.S. Rep. John Larson (D) announced on Jan. 14 that he’s running for re-election to Connecticut’s 1st Congressional District. But for the first time since his initial win in 1998, Larson will face a primary challenge.

Primary candidate Muad Hrezi, a 27-year-old former staffer to U.S. Sen. Chris Murphy (D-Conn.), completed Ballotpedia’s Candidate Connection survey, writing that he is most passionate about “unrigging our economy, making sure everyone has access to medical care at an affordable price, stopping catastrophic climate change, and making sure all communities are safe and free from discrimination.” Click here to read his full responses.

On his campaign website, Larson said he “has delivered real results and real solutions on big issues — like Covid-relief, infrastructure, and health care reform — and on local issues — helping over 17,500 constituents with problems involving veteran’s affairs, social security, immigration, and more.”

CTMirror.org’s Mark Pazniokas wrote, “Hrezi is hoping to catch a wave, testing whether there might be an undetected vein of dissatisfaction with Larson — and if anything in the playbook used by U.S. Reps. Alexandria Ocasio-Cortez and Ayanna Pressley might work here.”

The primary is scheduled for Aug. 9. The winner is likely to go on to win the general election; Larson has won re-election 11 times by an average margin of 36 percentage points.

Democratic candidates air ads criticizing Sen. Joe Manchin

Democratic candidates for U.S. Senate in at least four states have run ads criticizing Sen. Joe Manchin (D-W.V.), who is next up for re-election in 2024. Lt. Gov. Mandela Barnes (Wis.), Lt. Gov. John Fetterman (Penn.), retired Adm. Michael Franken (Iowa), and U.S. Rep. Tim Ryan (Ohio) are among the 15 Democratic congressional candidates who have run a combined 700 negative ads against Manchin so far this cycle, according to Newsweek’s Shane Croucher.

The bulk of the negative ads have criticized what they describe as Manchin’s unwillingness to work with fellow Democrats, particularly on the negotiations surrounding the Build Back Better bill. With the Senate split 50-50, Democrats would need the support of every Democratic senator—as well as Vice President Kamala Harris’ (D) tie-breaking vote—to pass the $1.75 trillion budget framework.

On Dec. 19, Manchin cited concerns about debt, inflation, threats from COVID and other nations, and the reliability of the electric grid, saying, “I have always said, ‘If I can’t go back home and explain it, I can’t vote for it.’ Despite my best efforts, I cannot explain the sweeping Build Back Better Act in West Virginia and I cannot vote to move forward on this mammoth piece of legislation.”

The ads are “another reminder of the depth of the disappointment and hostility toward Manchin that’s taken hold of the Democratic base,” according to the Pennsylvania Capital-Star’s John Micek.

Nate Lerner, founder of the digital consulting group Build the Wave, said in an interview with Newsweek that “It is extremely uncommon to name a party colleague in a negative ad outside of a primary…I think we will see more of it moving forward as progressives split further from right-leaning Democrats like Manchin and [Arizona Sen. Krysten] Sinema.”

Manchin was governor of West Virginia from 2004 to 2010, when he was first elected to the Senate. In 2012, Manchin defeated Republican opponent John Raese 61% to 37%. In 2018, Manchin defeated Patrick Morrisey (R) 49.6% to 46.3%. Former President Donald Trump (R) defeated President Joe Biden (D) 69% to 30% in West Virginia.

NY governor updates: De Blasio not running, eviction moratorium becomes issue

Former New York City Mayor Bill de Blasio announced he will not run for governor. The Democratic primary so far includes incumbent Gov. Kathy Hochul, U.S. Rep. Tom Suozzi, and New York City Public Advocate Jumaane Williams.

Hochul was elected lieutenant governor in 2018 and became governor last year when Andrew Cuomo (D) resigned. Hochul defeated Williams in the Democratic primary for lieutenant governor 53% to 47%.

At a Martin Luther King Jr. Day event on Jan. 17, Williams said, “Dr. King’s birthday was on Saturday. On Saturday, we allowed the eviction moratorium to lapse without even putting some ‘Good Cause Eviction’ in place to protect someone and no money to protect small homeowners who are going to foreclose.” The New York Daily News said Williams was “referring to a tenants’ rights bill that Hochul has withheld support for.” Williams said, “We did that in the middle of winter and a COVID surge. …That wasn’t the Republicans — I want to be clear about that.”

Hochul extended New York’s eviction moratorium in September after the federal moratorium ended. She said recently, “We talked about giving people a little more breathing room, giving them a little more relief on a short term basis and that went all the way until Jan. 15.” Hochul signed a letter with other governors requesting more federal rental assistance funds.

Responding to a landlord at a tele-town hall event on Jan. 6, Suozzi said, “There are people who are abusing the system … It’s common sense that if somebody is working and they got the money and they are living in your house and they are not paying rent then you should be able to kick them out. If I’m the governor, I’ll give you that kind of protection.”

A recent Siena College poll showed Hochul with 46% support among registered Democrats. De Blasio had 12%, Williams 11%, and Suozzi 6%. The margin of error was +/- 4 percentage points.

The primary is scheduled for June 28.

Noteworthy campaign support in Illinois’ secretary of state primary

Two Democratic candidates running in the Democratic primary for Illinois secretary of state recently received noteworthy campaign support.

Alexi Giannoulias, a former state treasurer, received endorsements from the Cook County Democratic Party and former candidate Pat Dowell, who dropped out of the secretary of state race to run for U.S. House.

Anna Valencia, who serves as Chicago city clerk, chose Laura Ricketts to co-chair her campaign’s finance committee. Ricketts is a co-owner of the Chicago Cubs baseball team and raised money for both Barack Obama’s (D) and Hillary Clinton’s (D) presidential campaigns.

At least one other Democrat, Chicago Alderman David Moore, is running in the primary. As of Jan. 5, Giannoulias led the Democratic field in cash on hand with $4 million. Valencia had about $820,000, and Moore had about $105,000.

Incumbent Secretary of State Jesse White (D) is retiring. He was first elected in 1998. In the 2018 general election, White defeated Jason Helland (R) 68% to 29%.

The primary is set for June 28.

N.C. Legislature passes bill further delaying primaries

On Wednesday, the North Carolina General Assembly passed a bill moving the primary date to June 7 from May 17 and setting the candidate filing period to run between March 24 and April 1. Gov. Roy Cooper (D) would need to sign the bill for it to take effect. Cooper said he’d need to see the final version before deciding whether to do so.

Looking back at year one of the Biden Administration

By David Luchs

January 20, 2022 at 6:54 AM

Welcome to the Thursday, January 20, Brew.

By: David Luchs

Here’s what’s in store for you as you start your day:

Looking back at one year of the Biden Administration
Twenty-eight U.S. Senators running for re-election, six retiring
School board members retained, state legislator elected Tuesday

Looking back at one year of the Biden Administration

One year ago today, Joe Biden (D) assumed office as the 46th president of the United States. We assume every political newsletter in your inbox this morning will have something for you on this point. So, here are five numbers you might not see elsewhere.

77: Number of executive orders issued
During the first year of his presidency, Biden issued 77 executive orders, 47 presidential memoranda, 195 proclamations, and 26 notices. Biden’s 77 executive orders in his first year is higher than the average number of executive orders issued each year by other recent presidents. Donald Trump (R) issued 55 on average each year, Barack Obama (D) issued 35, and George W. Bush (R) issued 36.
Click here for more on President Biden’s executive orders and actions
15: Number of tie-breaking votes in the Senate
Under Article I, Section 3, Clause 4 of the U.S. Constitution, the vice president of the United States also serves as the president of the Senate. In this capacity, he or she may cast the deciding vote when there is a tie in the Senate. In the first year of the Biden Administration, Vice President Kamala Harris (D) cast 15 tie-breaking votes in the Senate. Twelve of those votes were related to nominations and confirmations, and three were related to the American Rescue Plan Act of 2021. In her first year, Harris surpassed the total number of tie-breaking votes Mike Pence (R) cast (13) during his vice presidency.
Click here for more on tie-breaking votes cast by vice presidents
40: Number of federal judges confirmed
Since taking office, President Joe Biden (D) has nominated 73 individuals to federal judgeships on Article III courts. As of January 1, 2022, 40 of the nominees have been confirmed. The monthly federal vacancy count report from January 1 said 11 of Biden’s confirmed judges were for the U.S. Court of Appeals, while 29 were for the U.S. District Courts. At the same point during previous presidential administrations, Trump had appointed 19 federal judges, Obama had appointed 13, and W. Bush had appointed 28.
Click here for more on President Biden’s federal judicial nominations
1: Number of Cabinet-rank nominees not yet confirmed
During the first year of his presidency, 22 of Biden’s Cabinet-rank nominees were confirmed. The only nomination left outstanding was for the Director of the Office of Management and Budget. Biden initially nominated Neera Tanden to the position, but she withdrew her nomination on March 2, 2021. Biden nominated Shalanda Young on November 24, 2021. For the 15 main Cabinet secretary positions, six of Biden’s nominees were confirmed within the first month of his presidency, and the other nine were confirmed by the end of the second month. Compared to Trump, the Biden Administration completed six main Cabinet secretary nominations sooner during the first year of the presidency.
Click here for more on President Biden’s Cabinet
0: Number of presidential pardons issued
Article II, Section 2 of the U.S. Constitution states, “The President … shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.” It describes the presidency’s powers of executive clemency, which give the president the authority to pardon individuals convicted of having committed a federal crime. During Biden’s first year, he issued no presidential pardons or commutations. During fiscal year 2017, Trump issued one pardon and no commutations. Obama and W. Bush issued no pardons or commutations during the first fiscal year of their presidencies.
Click here for more details on executive clemency and presidential pardons

Twenty-eight U.S. Senators running for re-election, six retiring

With Sens. Ron Johnson’s (R-Wis.) and John Thune’s (R-S.D.) recent announcements that they will seek re-election, all incumbent senators up for re-election in 2022 have made their decisions. Twenty-eight senators are seeking re-election—15 Republicans and 13 Democrats. Six senators are retiring—five Republicans and one Democrat. This is the highest number of Republicans not seeking re-election since at least 2012.

In every election cycle within that time through 2020, either two or three Republican senators did not seek re-election. The number of retiring Democrats has ranged from zero to six. Between 2018 and 2022, two Democratic senators and 11 Republicans decided to not run for re-election. The six open seats in 2022 are in Alabama, Missouri, North Carolina, Ohio, Pennsylvania, and Vermont. Republicans hold the Senate seat in each except Vermont. Three of the open Senate races—in North Carolina, Pennsylvania, and Ohio—have at least one competitive rating (Toss-up, Tilt Republican, or Lean Republican) from three election forecasters.

Our battleground Senate races list currently consists of eight states: Arizona, Florida, Georgia, Nevada, New Hampshire, North Carolina, Pennsylvania, and Wisconsin. Democrats and Republicans each hold four of the battleground seats going into the elections.

Democrats have an effective majority in the Senate, with each party holding 50 seats and Vice President Kamala Harris (D) serving as the tie-breaking vote.

Looking back on Tuesday’s elections

Three elections took place within Ballotpedia’s coverage scope Tuesday. Voters in Manhattan elected Eddie Gibbs (D) to the state Assembly. Meanwhile, voters in Newberg, Oregon, appeared to reject recalls of two school board members.

The special election in New York was called after Robert Rodriguez (D) resigned his seat representing District 68 in the state Assembly to serve as secretary of state. Eddie Gibbs (D) defeated Daby Carreras (R) 80% to 10% to win election to the seat. For comparison, Rodriguez’s narrowest margin was his 89% to 8% defeat of John Ruiz (WFP) to win election in 2010. District 68, representing East Harlem, is one of Manhattan’s 11 state assembly districts.

As of Jan. 19, the recalls of Newberg, Ore., school board members Dave Brown and Brian Shannon appeared headed to defeat, with “no” leading on both recalls 52% to 48% out of 14,000 votes cast. Oregon law allows for mail-in ballots to be counted as long as they are postmarked on election day and for voters to contest signature issues for 21 days after the election. Because of this, final results will not be available until Feb. 9.

The recall effort against Shannon started after the board voted in August 2021 to ban Black Lives Matter and LGBT pride flags from the district. This policy was replaced the following month with a ban on all political symbols and images. The recall effort against Brown started after the board voted in favor of a motion he submitted to fire the district superintendent without cause.

Ballotpedia tracked 91 school board recall efforts against 235 board members in 2021—the highest number of school board recall efforts we tracked in one year. The next-highest year was in 2010 with 38 recall efforts against 91 school board members.

In 2021, Ballotpedia covered a total of 346 recall efforts against 535 elected officials. This was the highest number of recall efforts and officials targeted since we started compiling data on recalls in 2012.

Virginia General Assembly introduces bills barring contributions from public utilities

By Ethan Rice

January 19, 2022 at 2:48 PM

Welcome to The Disclosure Digest! Keep an eye out for new editions published on Wednesdays through June 2022.

Virginia General Assembly introduces bills barring contributions from public utilities

Virginia legislators have introduced three bills seeking to limit public utilities’ ability to influence the state’s elections. HB71 (introduced by Del. R. Lee Ware (R) on Jan. 4), SB45 (introduced by Sen. Chap Petersen (D) on Dec. 28, 2021), and SB568 (introduced by Sen. Richard Stuart (R) on Jan. 12), would all prohibit public utilities from making political contributions and bar candidates, campaign committees, or political committees from soliciting or accepting such contributions.

Background

Utilities’ political contributions have been a reoccuring issue in Virginia politics in recent years. Sen. Petersen has introduced multiple measures similar to SB45, most recently in Jan. 2021, that died in committee. Peterson said calls from reform from progressive Democrats “in a lot of ways moved the needle on this issue.”

Dominion Energy, one of Virginia’s largest electric utilities, faced criticism from Republicans after reports showed it contributed more than $200,000 to Accountability Virginia PAC, which ran ads against then-candidate Gov. Glenn Youngkin (R) during the 2021 gubernatorial race. In an Oct. 2021 interview, Youngkin said, “I’m going to disrupt all of these entrenched interests in Richmond,” including Dominion. Dominion CEO Bob Blue said the company “would not approve or knowingly support” the PAC’s activities and “we failed to vet sufficiently the scope of their intended activities.” “We will not be giving to organizations of this nature in the future,” Blue said.

Reactions

Ware said he introduced HB71 because utility providers “need to be responsible to the State Corporation Commission and not use massive lobbying monies and a large lobbying corps to get around and get what they want from the assembly.” Referring to the Dominion contributions, Sen. David Suetterlein (R) said the General Assembly “needed to change disclosure policies in Virginia because we would not know exactly what was done until after the next governor was inaugurated.” Suetterlein introduced SB67 on Jan. 12, which would require in-state political action committees to file a report for any single expenditure of $1,000 or more received in the month before the election on the following day.

Peterson called for Younkin, who has not taken a public stance on the legislation, to support it. “The commonwealth needs the new governor to take a firm stand on this issue, and my hope is that will change the dynamic,” Peterson said. Asked about the governor’s stance on the bills, Youngkin press secretary Macaulay Porter said, “The governor will review all legislation that comes to his desk.”

Rayhan Daudani, a representative for Dominion Energy, said, “Campaign finance laws should apply to all equally.” As of Jan. 18, no other utility companies have issued public statements on the proposed legislation.

Virginia has a divided government: Republicans control the office of governor and 52 of the 100 seats in the House of Delegates, and Democrats occupy 21 of the 40 seats in the Virginia State Senate.

The big picture

Number of relevant bills by state: We’re currently tracking 79 pieces of legislation dealing with donor disclosure and privacy. 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

For complete information on all of the bills we are tracking, click here.

Arizona HB2443: This bill would prohibit individuals from contributing more than a total of $5,610 in a calendar year to state and local candidate committees and political action committees that contribute to candidate committees.
- Primary emphasis: Disclosure
- Democratic sponsorship
- This bill was introduced on Jan. 13.
Colorado HB1060: This bill would set limits on contributions to candidates for school district director and require candidates to disclose campaign contribution information to the secretary of state.
- Primary emphasis: Disclosure
- Democratic sponsorship
- This bill was referred to committee on Jan. 14.

Florida H0617: This bill would create an exemption from public records requirements for personal identifying information of current or prospective donors to the direct-support organization of the Statewide Council on Human Trafficking who wish to remain anonymous. It would also create an exemption from notice requirements for specified meetings. It provides for future legislative review and repeal of the exemption under the Open Government Sunset Review Act.
- Primary emphasis: Privacy
- Republican sponsorship
- This bill was referred to committee on Jan. 13.
Florida H0921: This bill would prohibit a foreign national from making or offering to make contributions or expenditures in connection with any election held in the state.
- Primary emphasis: Disclosure
- Republican sponsorship
- This bill was referred to committee on Jan. 11.
Florida H1359: This bill prohibits the governor, lieutenant governor, or a member of the cabinet from soliciting or accepting a contribution during the 60-day regular legislative session or a special legislative session. It would also require a political committee that is dissolved to dispose of all residual funds and file a report reflecting the disposition of such funds within 90 days of its dissolution.
- Primary emphasis: Disclosure
- Republican sponsorship
- This bill was referred to committee on Jan. 14.
Florida H1373: This bill would lower the contribution threshold requiring a group to file a statement of organization from $5,000 to $1,000. It would also change the deadline for filing the statement to within 24 hours after the close of the qualifying period for the office the candidate seeks. It would also require electioneering communications organizations to disclose the identity of donors, the amount contributed, and the purpose of each expenditure.
- Primary emphasis: Disclosure
- Democratic sponsorship
- This bill was referred to committee on Jan. 14.
Florida H1547: This bill would prohibit a public agency from requiring 501(c)(3) nonprofit organizations to provide the public agency with personal information or otherwise compel the release of personal information. This bill would not apply to any report or disclosure required for campaign financing under chapter 106 or lobbying under chapter 11.
- Primary emphasis: Privacy
- Republican sponsorship
- This bill was referred to committee Jan. 16.
Florida H6109: This bill would remove provisions that preempt counties, municipalities, and other local governmental entities from restricting certain contributions and expenditures or establishing contribution limits different than those defined under state law.
- Primary emphasis: Disclosure
- Democratic sponsorship
- This bill was referred to committee on Jan. 12.
Florida S1352: This bill would prohibit a foreign national from making or offering to make contributions or expenditures in connection with any election held in the state.
- Primary emphasis: Disclosure
- Republican sponsorship
- This bill was referred to committee Jan. 12.
Florida S1836: This bill would change the contribution threshold requiring a group to file a statement of organization from $5,000 to $1,000. It would change the deadline for filing the statement to within 24 hours after the close of the qualifying period for the office the candidate seeks. It would also require electioneering communications organizations to disclose the identity of donors, the amount contributed, and the purpose of each expenditure.
- Primary emphasis: Disclosure
- Democratic sponsorship
- This bill was referred to committee Jan. 12.
Florida S1848: This bill would prohibit a public agency from requiring 501(c)(3) nonprofits to provide the public agency with personal information or otherwise compel the release of personal information. This bill would not apply to any report or disclosure required for campaign financing under chapter 106 or lobbying under chapter 11.
- Primary emphasis: Privacy
- Republican sponsorship
- This bill was referred to committee Jan. 12.
Kentucky HB301: This bill would require all costs and expenses related to election administration be paid for with public funds and prohibit a state government employee from accepting contributions to assist with election administration unless entered into as a lawful contract.
- Primary emphasis: Disclosure
- Republican sponsorship
- This bill was referred to committee Jan. 13.
New Hampshire SB302: This bill would prohibit public agencies and bodies from disclosing any information that directly or indirectly identifies a person as a member, supporter, volunteer, or donor of financial or nonfinancial support, to any nonprofit organization. It would also ban government entities from requiring a nonprofit to disclose information about its donors.
- Primary emphasis: Privacy
- Bipartisan sponsorship
- This bill was referred to committee on Jan. 11.
New Jersey A924: This bill would prohibit any person holding an administrative position in a Type II school district from making campaign contributions, directly or through a family member, to a board of education candidate of that district of more than $100 per election.
- Primary emphasis: Disclosure
- Republican sponsorship
- This bill was introduced on Jan. 11.
New Jersey A1016: This bill prohibits a legislative aide who works, or worked, directly for a member of the Legislature in a district office from making a political contribution or giving other things of value greater than $30 to that legislator.
- Primary emphasis: Disclosure
- Bipartisan sponsorship
- This bill was introduced on Jan. 11.
New Mexico HB51: This bill would repeal a statute requiring candidates for the state retirement board to file a report disclosing contributions they received.
- Primary emphasis: Privacy
- Bipartisan sponsorship
- This bill was introduced on Jan. 18.
Utah HB0040: This bill would prevent the disclosure of the names and information of donors or prospective donors to a governmental entity. This would include an institution within the state system of higher education defined in Section 53B-1-102, if the donor requests anonymity in writing and the government entity is engaged in educational, charitable, or artistic endeavors, and has no regulatory or legislative authority over the donor.
- Primary emphasis: Privacy
- Bipartisan sponsorship
- This bill was introduced on Jan. 12.
Virginia HB489: The bill would require advertisements that are independent expenditures or support the passage or defeat of a referendum to disclose the names of the sponsor’s three largest contributors in a disclaimer.
- Primary emphasis: Disclosure
- Democratic sponsorship
- This bill was introduced on Jan. 11.
Virginia HB492: This bill would require campaign committee treasurers to keep accounts of campaign contributions and expenditures and authorizes the Department of Elections to conduct reviews of a percentage of campaign committees. The Department of Elections would report the results of the reviews to the State Board of Elections, the Governor, and the General Assembly and make them available on the Department’s website.
- Primary emphasis: Disclosure
- Democratic sponsorship
- This bill was introduced on Jan. 11.
Virginia HB500: This bill would broaden the scope of campaign advertisement disclosure requirements to include electioneering communications.
- Primary emphasis: Disclosure
- Democratic sponsorship
- This bill was introduced on Jan. 11.
Virginia HB524: This bill would prohibit any candidate from soliciting or accepting a contribution from any public service corporation or any political action committee established and administered by such a corporation.
- Primary emphasis: Disclosure
- Democratic sponsorship
- This bill was introduced on Jan. 11.
Virginia HB575: This bill would establish contribution limits from any individual to any candidate campaign committee, political action committee, and political party committee and from any political action committee or political party committee to any campaign committee. It would also prohibit corporations from making any contribution to any candidate for elected office.
- Primary emphasis: Disclosure
- Democratic sponsorship
- This bill was introduced on Jan. 11.
Virginia SB318: This bill would broaden the scope of campaign advertisement disclosure requirements to include electioneering communications. It would also require advertisements that are independent expenditures or support the passage or defeat of a referendum to disclose the names of the sponsor’s three largest contributors in a disclaimer.
- Primary emphasis: Disclosure
- Democratic sponsorship
- This bill was referred to committee on Jan. 11.
Virginia SB568: This bill would prohibit public utilities from making political contributions.
- Primary emphasis: Disclosure
- Republican sponsorship
- This bill was referred to committee on Jan. 12.
Virginia SB67: This bill would require in-state political action committees to file a report for any single expenditure of $1,000 or more received in the month before the election on the following day.
- Primary emphasis: Disclosure
- Republican sponsorship
- This bill was referred to committee on Jan. 18
West Virginia HB2841: This bill would require political committee reports to include the name of any donors and would make those reports public.
- Primary emphasis: Disclosure
- Democratic sponsorship
- This bill was referred to committee on Jan. 12.
West Virginia SB54: This bill would require political committees to disclose contributors’ names and addresses to the secretary of state.
- Primary emphasis: Disclosure
- Bipartisan sponsorship
- This bill was referred to committee on Jan. 12.
West Virginia SB107: This bill would require the disclosure of the names and addresses of contributors, including federal political action committees that make state level independent expenditures or engage in state level electioneering communications.
- Primary emphasis: Disclosure
- Democratic sponsorship
- This bill was referred to committee on Jan. 12.
West Virginia SB258: This bill would allow members of the Legislature or Board of Public Works to collect donations for a regional or national organization conference or other function related to the office of the member to be held in the state for the purpose of deferring costs to the state for hosting of the conference or function. The organization must file a complete list of the names and last known addresses of all donors and the amount of donations received with the secretary of state.
- Primary emphasis: Disclosure
- Democratic sponsorship
- This bill was referred to committee on Jan. 13.

Redistricting news from Arkansas and Ohio

By Samuel Wonacott

January 19, 2022 at 6:13 AM

Welcome to the Wednesday, January 19, Brew.

By: Samuel Wonacott

Here’s what’s in store for you as you start your day:

Redistricting update: Arkansas and Ohio
Marijuana policy could be on numerous statewide ballots this year
Kentucky statewide filing deadline is Jan. 25

Redistricting update: Arkansas and Ohio

Redistricting continues apace across the country. As of Jan. 18, 24 states have adopted congressional district maps and 27 states have adopted legislative district maps.

Today, we’re looking at some recent updates in two states—Arkansas and Ohio.

Arkansas

Arkansas’ new congressional map went into effect on Jan. 14, 90 days after the state legislature approved revised district boundaries. Although the legislature sent the map to Gov. Asa Hutchinson (R) for approval, Hutchinson announced on Oct. 13 he would allow the map to take effect without his signature.

Under the proposed maps, two of the state’s counties would be split between multiple congressional districts: Sebastian County, which is split between two, and Pulaski County—the state’s most populous county—split between three districts. Opponents of the new boundaries said the division of Pulaski County, where more than 50% of the population identify as other than solely white, was conducted along partisan and racial lines. Supporters said the county’s size and location in the center of the state required the split to reduce the total number of counties being split elsewhere.

Arkansas is the 24th state to enact a new congressional map, which takes effect for the 2022 congressional elections. The statewide filing deadline is March 1.

Ohio

The Ohio Supreme Court struck down the state’s enacted congressional map in a 4-3 decision on Jan. 14 and ordered the legislature to draw and approve a new map. Gov. Mike DeWine (R) signed legislation enacting the new boundaries on Nov. 20. However, because the map did not meet the required threshold of bipartisan support in the legislature, it was set to last for four years instead of until after the 2030 census.

A group of Ohio residents and organizations filed lawsuits challenging the congressional map on Nov. 22 and Nov. 30. The suits alleged the maps violated the 15th Amendment of the U.S. Constitution and Section 2 of the Voting Rights Act and that the plan “unduly favors the Republican Party and its incumbents, while disfavoring the Democratic Party and its incumbents.”

In the majority opinion, Justice Michael P. Donnelly wrote: “When the dealer stacks the deck in advance, the house usually wins. That perhaps explains how a party that generally musters no more than 55 percent of the statewide popular vote is positioned to reliably win anywhere from 75 percent to 80 percent of the seats in the Ohio congressional delegation. By any rational measure, that skewed result just does not add up.”

In their dissenting opinion, Justices Sharon L. Kennedy, Pat Fischer, and Pat DeWine wrote: “The majority today declares the congressional-district plan enacted by the legislature to be unconstitutional on the basis that it ‘unduly’ favors a political party and ‘unduly’ splits governmental units. It does so without presenting any workable standard about what it means to unduly favor a political party or divide a county.”

Ohio Supreme Court judges are elected in nonpartisan general elections. Four current justices were elected after advancing from Republican primaries and three won election after advancing from Democratic primaries. In 2020, we published Ballotpedia Courts: State Partisanship, a study examining the partisan affiliation of all state supreme court justices in the country as of June 15, 2020. We gave Ohio a Court Balance Score of 7.14, indicating Republican control of the court. Since that date, Democratic-affiliated Justice Jennifer L. Brunner replaced Republican-affiliated Justice Judith French on the Ohio Supreme Court. Although elections for the Ohio Supreme Court are officially nonpartisan, they are preceded by a partisan primary.

You can read our study here, or click below to read more about redistricting in Arkansas, Ohio, and other states.

Marijuana policy could be on numerous statewide ballots this year

We’re tracking 20 citizen-initiated measures in nine states related to marijuana that could appear before voters in 2022. Currently, recreational marijuana is legal in 18 states and Washington, D.C., and medical marijuana is legal in 36 states and D.C.

Here’s a summary of a few of the states where voters could see marijuana on the ballot this year:

Arkansas: Voters could decide two marijuana initiatives. One would decriminalize marijuana, give limited immunity to cannabis businesses, and create regulations for the cannabis industry. The other would legalize marijuana use for individuals 21 and older regardless of residency. Both campaigns have until July 8 to collect 89,151 valid signatures.
Idaho: Kind Idaho filed an initiative to establish a state medical marijuana program. Sponsors attempted to qualify an identical initiative for the 2020 Idaho ballot but suspended their signature-gathering campaign in April 2020 due to the coronavirus pandemic. Voters could also decide on an initiative to legalize recreational marijuana. The Idaho Way sponsored the initiative. The campaigns need to submit 64,945 valid signatures by May 1.
Ohio: Sponsors of an initiative to legalize recreational marijuana submitted an additional 29,918 signatures on Jan. 13, after the secretary of state verified their initial petition contained 119,825 valid signatures–13,062 less than required. If enough of the additional signatures are valid, the initiative will go before the state legislature. If the state legislature does not enact it outright, sponsors will have to collect a second round of 132,887 signatures to place it on the November ballot. In 2015, Ohio voters defeated Issue 3 63.65% to 36.35%.
South Dakota: an initiative to legalize marijuana was cleared for signature gathering. In 2020, 54.18% of voters approved Amendment A, which would have legalized marijuana. The state supreme court later ruled the measure violated the state’s single-subject rule and constituted a revision of the constitution rather than an amendment. New Approach South Dakota, which also sponsored the 2020 amendment, filed the current initiative.

Kentucky statewide filing deadline is Jan. 25

We’re less than one week from the next candidate filing deadline. Kentucky’s filing deadline for candidates seeking to run for office this year is Jan. 25. The deadline was originally Jan. 7, but Gov. Andy Beshear (D) and the Kentucky General Assembly pushed back the date to give themselves more time to enact new state legislative and congressional maps.

The deadline applies to candidates running in U.S. Senate and House races, as well as state Senate and state House races.

The only state whose filing deadline has passed is Texas, where candidates had until Dec. 13 to file. Texas will be holding the earliest primaries of the 2022 election season, scheduled for March 1. Kentucky, Alabama, and West Virginia are among the 12 states holding primaries in May.

After Kentucky, the next deadline for candidates running in state and federal offices will be in Alabama, on Jan. 28, followed by Jan. 29 for candidates in West Virginia.

The next five filing deadlines for statewide and federal office will be:

February 1 (New Mexico)
February 2 (Ohio, state-level candidates only)
February 4 (Indiana)
February 15 (Nebraska)
February 22 (Maryland)

Click to read more about Kentucky’s 2022 elections.

Economy and Society: Shareholder group study argues ESG fund labels misleading

In Federal, Newsletters

January 18, 2022 at 2:30 PM

Economy and Society is Ballotpedia’s weekly review of the developments in corporate activism; corporate political engagement; and the Environmental, Social, and Corporate Governance (ESG) trends and events that characterize the growing intersection between business and politics.

ESG Developments This Week

In Washington, D.C.

ESG advocacy group releases its recommendations for federal regulatory action

Ceres, one of the largest nonprofit groups advocating for capital markets to take an active role in urging businesses to be what it deems more environmentally conscious, released its list of recommendations for federal agencies. The organization noted that the members of its investor network—to whom Ceres offers investment direction and guidance on climate change and other matters—have some $32 trillion in assets under management. Roll Call provided the details:

“Ceres last week publicly disclosed its recommendations to the Federal Reserve, the Federal Deposit Insurance Corporation, the Office of the Comptroller of the Currency and the U.S. Treasury Department, calling on the regulators to incorporate climate risk into their rule-making and policy frameworks….

Ceres urged the Fed to issue supervision letters on climate risk to banks and bank holding companies to acknowledge that climate change poses risks to the financial system and provide guidance to financial institutions on identifying and monitoring the risks. The group also calls on the U.S. central bank to review the largest bank holding companies to gain an understanding of how they are identifying and managing climate risk and coordinate a study with the OCC and FDIC, as well as New York and Massachusetts’ state financial regulators.

“These recommendations build on that momentum by identifying practical and familiar steps that these agencies can take within their existing authorities to make good on their commitments to take action on climate financial risk,” said Steven M. Rothstein, managing director of the Ceres Accelerator for Sustainable Capital Markets.

Federal Reserve Chairman Jerome Powell told the Senate Banking Committee this week that it is “very likely” that the agency will use “climate stress scenarios” to ensure financial institutions understand the potential material risks from global warming.

That said, Ceres stressed the need for the agencies to work together and pursue interagency initiatives to optimize the regulatory response to climate change.

“Short-term actions by each of the Financial Stability Oversight Council members individually is critical to address the risks to the financial system from climate change,” the organization said.

“While individual agency actions are important, collective action can sometimes send a more powerful and consistent message to the financial services industry. The benefits from the government acting on a joint or interagency basis are clear. Such joint actions avoid conflicting or duplicative messages which create burden for industry and they can result in a more efficient allocation of resources by the agencies.””

Shareholder advocacy group’s ESG study reveals ESG fund labels confusing, misleading

As You Sow, a nonprofit organization that aims, according to its website, to “promote environmental and social corporate responsibility through shareholder advocacy, coalition building, and innovative legal strategies,” recently shared with the Securities and Exchange Commission (SEC) a study that it sponsored and that purportedly shows that the ESG landscape at present is confusing, misleading, and in need of federal regulatory action. According to Bloomberg Green:

“Investing in ESG funds is like trying to navigate “the Wild West” as both regulations and enforcement fall short, according to Andrew Behar, the chief executive of As You Sow.

The shareholder advocacy group spearheaded a study that found 60 of 94 ESG funds failed to adhere closely to the principles of environmental, social and governance investing. The findings, which have been shared with the U.S. Securities and Exchange Commission, indicate that “one can’t tell the difference between a prospectus for true ESG offerings vs. greenwashing mutual funds and ETFs,” the nonprofit said Tuesday.

The researchers — a group of graduate students from University of California, San Diego — used data-analytic tools to establish that language in many funds’ prospectuses lacked clarity when disclosing why they held stakes in companies involved in areas such as fossil fuels, deforestation, firearms and weapons, prisons and tobacco.

“We see funds with ESG in their names getting F’s on our screening tools because they hold dozens of fossil-fuel extraction companies and coal-fired utilities,” Behar said….

Representatives from As You Sow met with the SEC last week to share their analysis and make recommendations. The SEC has previously said it’s investigating potential misconduct related to flawed sustainability claims….

As You Sow wants the SEC to require that all prospectuses be produced in a “machine-readable” format to enable easy automated comparisons of the documents’ wording. If the regulator fails to do so, “we may be forced to file a petition,” Behar said.”

SEC in Texas probes banks over disclosures on ESG-related issues

According to a report published by Reuters on January 5, the Fort Worth, Texas office of the SEC is currently investigating disclosures made by banks in the state regarding their ESG policies. The banks in question do business with the Texas state government, which has laws on the books forbidding state entities from using banks that adhere too closely to ESG principles. According to the report, the Commission is looking for discrepancies between public statements and faithful compliance with state laws. As the wire reported:

“The inquiry appears to relate to two Texas laws, enacted last year, banning state entities from working with companies that discriminate against firearms or fossil fuel companies, the sources said.

Amid pressure from investors and employees, banks have become active on environmental, social, and governance (ESG) issues, eschewing gunmakers, backing racial equity projects and pledging to phase out fossil fuel lending, sparking a backlash from Republican lawmakers who worry sectors of the economy may lose access to credit.

The SEC’s new Democratic leadership, meanwhile, has pledged to crack down on public companies that may be inflating their ESG credentials to attract investors and burnish their reputation, or which may be underplaying related risks.

In recent weeks, enforcement staff in the SEC’s Fort Worth, Texas, office sent letters to a number of banks that have acted as underwriters in the Republican-led state, asking them to substantiate ESG policies they have outlined in public disclosures, the same people said.

The SEC seems to be scrutinizing potential conflicts between what the underwriters have told investors versus Texas regulators about their policies on doing business with gunmakers and fossil fuel companies, the sources said….

Lenders who want to underwrite offerings of securities issued by Texas state and local governments have had to sign public certifications saying they do not “boycott” energy companies or have a practice, policy, or directive that discriminates against a firearm entity or firearm trade association.

Thirty-six companies have filed such certifications, according to the Municipal Advisory Council of Texas, a trade association which compiles and publishes the documents.

Among them are Barclays (BARC.L), Citigroup Inc (C.N), RBC Capital Markets (RY.TO), TD Securities (TD.TO), UBS Financial Services (UBSG.S) and Wells Fargo, according to certifications filed between September and November.

These lenders have pledged to cut their carbon footprints and achieve net zero greenhouse gas emissions by 2050, which will affect the companies they finance.”

On Wall Street and in the private sector

Survey shows Americans think workers, not climate, the number one ESG issue

Just Capital, a nonprofit advocacy group that aims to influence capital markets, recently released the results of a survey it conducted assessing the issues that the American people think are in most desperate need of fixing in business. According to the advocacy group, the issue that most concerns people—and that thus deserves a higher place in the ESG hierarchy of issues—is not climate change or zero-carbon transitioning, but the worker. CNBC reported the survey as follows:

“In the annual ranking of top U.S. companies on ESG metrics conducted by research nonprofit Just Capital, there were some major moves in 2022, both up and down the list. Meta Platforms dropped 691 spots due to concerns about spread of misinformation on Facebook and Instagram’s negative social influence, while Uber Technologies rose 825 places, to No. 41. Both were unusual circumstances, but Uber’s ranking may say more about the most important issue to the American public when it comes to environmental, social and governance issues: treatment of workers.

It is the No. 1 issue, but that’s not revealed in the fact that Uber vaulted into the JUST 100 — it’s because Just Capital took the unusual step of denying Uber the “seal” that the top 100 companies usually get.

Uber, along with Lyft and DoorDash — though neither made the top 100 overall like Uber — were placed “under review” by the ESG research firm in this year’s rankings because the data does not capture the fact that a significant proportion of their workforce is classified as independent contractors….

Martin Whittaker, CEO of Just Capital, says when the firm sets out to create the annual list of America’s “most just” companies, it wants to get it “as right as you can,” and it’s not confident that ESG is there yet with the contingent workforce model.

“When you have a whole business model built around contingent workers it’s hard to get data,” Whittaker said. “The full-time employees I’m sure are paid very well and get great benefits. And you get data on that. But we know its whole business model is based on a different relationship with workers, and we didn’t feel like we had enough data to accurately reflect that story. It’s the same for Doordash and Lyft,” he said. “We felt like it is an emerging systemic story and we didn’t feel like we really had a sufficiently strong handle on what it meant and how to measure it.”

Just Capital knows for sure that workers are the No. 1 ESG issue to the American public because each year it polls the public to create the weightings for its annual ranking, and for 2022′s list, worker issues were weighted at nearly 40%, compared to 10% for climate. A fair, living wage was the No. 1 issue overall. The second-highest weighted area, Communities (20%), is partially a workforce metric because it includes job creation.”

In the spotlight

Crypto vs. ESG, again

A longstanding perceived battle between supporters of cryptocurrencies and advocates of ESG and sustainability has erupted in fighting once again, this time on the battlefield of Wikipedia. At present, Wikipedia accepts donations made in a handful of cryptocurrencies, most notably, Bitcoin. Because of the energy used in the cryptocurrency mining process, some ESG advocates consider cryptocurrency, in their view, environmentally damaging. As a result, Wikipedia, which has promised to be environmentally sustainable, is being pressured by its own contributors to stop accepting crypto donations:

“Wikipedia is facing increasing internal pressure to stop accepting crypto donations. The site which was launched in 2001 has grown throughout the years to become the number 1 encyclopedia site on the internet, all the while remaining a free resource for anyone with access to the internet, and the reason it has been able to do this was because it relies on donations.

Wikipedia currently accepts donations in a number of cryptocurrencies, which began in 2014, but as these digital assets have grown and come under increased scrutiny due to its environmental impacts, there have been calls for it to discontinue crypto donations which “may not align with the foundation’s commitment to environmental sustainability.”…

The impact of bitcoin and other crypto mining on the environment remains a big debate to this day. It is estimated that crypto mining is the 33rd largest consumer of power in the world, ahead of a lot of countries. This has caused the rally against mining activities that are said to be damaging to the environment….

The proposal…calls into question the proof-of-work mechanism utilized by bitcoin and other cryptocurrencies which is a computationally expensive process and Wikipedia accepting crypto donations adds to the environmental burden levied by these transactions.

[The] proposal has sparked discussions across the Wiki community. Some have cosigned the message being passed by the contributor, although the debates around crypto donations continue.”

Robe & Gavel: SCOTUS begins second week of January sitting

January 18, 2022 at 12:50 PM

Welcome to the Jan. 18 edition of Robe & Gavel, Ballotpedia’s newsletter about the Supreme Court of the United States (SCOTUS) and other judicial happenings around the U.S.

This week, we commemorate the life and acts of Dr. Martin Luther King Jr. by reading his speeches, sermons, and engaging in acts of service. We thank you for spending some of your time with us as we gavel in and catch up on the federal judiciary.

Follow Ballotpedia on Twitter or subscribe to the Daily Brew for the latest news and analysis.

We #SCOTUS and you can, too!

Noteworthy court announcements

Court schedules oral arguments in COVID vaccine-related emergency appeals

On Jan. 13, the court issued per curiam opinions on both of the Biden administration’s COVID-19-related vaccine policies that came to the court on emergency appeals on Dec. 22. SCOTUS blocked enforcement of one mandate and allowed enforcement of the other while litigation continues in lower courts.

In National Federation of Independent Business v. Department of Labor (consolidated with Ohio v. Department of Labor), the court blocked the Occupational Safety and Health Administration’s (OSHA) COVID-19 vaccination-or-test mandate for businesses with more than 100 employees. Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan dissented from the order.

In Biden v. Missouri (consolidated with Becerra v. Louisiana), the court allowed the administration’s mandate requiring health care employees who work in Medicare and Medicaid-funded programs to go into effect. Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Amy Coney Barrett dissented.

Grants

SCOTUS has accepted eight new cases to its merits docket since our Jan. 10 issue.

Click the links below to learn more about these cases:

United States v. Washington concerns state workers’ compensation laws and intergovernmental immunity.
Siegel v. Fitzgerald involves the constitutionality of a law imposing different fees on Chapter 11 debtors based on the district in which the bankruptcy is filed.
Kemp v. United States concerns the Federal Rule of Civil Procedure governing court procedure in civil cases.
George v. McDonough involves the administrative state and veteran’s benefits claims.
Kennedy v. Bremerton School District involves First Amendment protections of religious expression.
Vega v. Tekoh involves whether a plaintiff may sue a police officer for violating their federal civil rights based on the officer’s failure to provide Miranda warnings.
Nance v. Ward concerns the procedure by which an inmate may challenge the state’s method of execution for their sentencing.
Shoop v. Twyford concerns evidentiary determinations for habeas petitions.

To date, the court has agreed to hear 59 cases for the 2021-2022 term. SCOTUS dismissed four cases after accepting them and removed one case from the argument calendar after both parties agreed to settle. Eleven cases have yet to be scheduled for arguments.

Arguments

The Supreme Court will hear arguments in four cases this week. Click here to read more about SCOTUS’ current term.

Click the links below to learn more about these cases:

Jan. 18

Shurtleff v. City of Boston concerns religion, government speech, and whether a city flagpole is a public forum. Click here to learn more about the case’s background.
Cassirer v. Thyssen-Bornemisza Collection Foundation concerns Foreign Sovereign Immunities Act (FSIA) and Holocaust Expropriated Art Recovery Act (2016) claims. Click here to learn more about the case’s background.

Jan. 19

Federal Election Commission v. Ted Cruz for Senate concerns federal election law and political campaign finance rules and spending limits. Click here to learn more about the case’s background.
Concepcion v. United States concerns sentencing requirements and reductions for drug offenses under the Fair Sentencing Act of 2010 and the First Step Act. Click here to learn more about the case’s background.

In its October 2020 term, SCOTUS heard arguments in 62 cases. Click here to read more about SCOTUS’ previous term.

Opinions

SCOTUS issued one opinion since our Jan. 10 edition. The court has issued rulings in six cases so far this term, two of which were decided without argument.

Click the links below to read more about the case:

Jan. 13

Babcock v. Kijakazi originated from the U.S. Court of Appeals for the 6th Circuit and was argued before the court on Oct. 13, 2021.

The case: David Babcock was a dual-status technician with the National Guard who participated in the Civil Service Retirement System (“CSRS”) and paid Social Security taxes on qualifying income. Upon retiring, Babcock applied for Social Security retirement benefits. The Social Security Administration (SSA) granted Babcock’s application but reduced his benefits since he also received CSRS pension payments. Babcock asked the SSA to reconsider, citing the Social Security Act uniformed services exception and arguing that his pension plan was covered. The SSA did not change its determination and on appeal, the determination was upheld. Babcock sought judicial review with the U.S. District Court for the Western District of Michigan. The court ruled that his uniformed service did not qualify under the exception. On appeal, the 6th Circuit affirmed the decision. Click here to learn more about the case’s background.

The outcome: The U.S. Supreme Court court affirmed the 6th Circuit in an 8-1 ruling, holding that Babcock’s civil-service pension payments were not based on his service as a member of a uniformed service. Justice Barrett delivered the majority opinion of the court. Justice Gorsuch filed a dissenting opinion.

Between 2007 and 2020, SCOTUS issued opinions in 1,062 cases, averaging between 70 and 90 decided cases per year.

Upcoming SCOTUS dates

Here are the court’s upcoming dates of interest:

Jan. 18:
- SCOTUS will hear arguments in two cases.
- SCOTUS will release orders.
Jan. 19: SCOTUS will hear arguments in two cases.
Jan. 21: SCOTUS will conference. A conference is a private meeting of the justices.
Jan. 24: SCOTUS will release orders.

Federal court action

Nominations

President Joe Biden (D) has announced no new Article III nominees since our Jan. 10 edition.

The president has announced 73 Article III judicial nominations since taking office on Jan. 20, 2021. For more information on the president’s judicial nominees, click here.

Committee action

The Senate Judiciary Committee has reported five new nominees out of committee since our Jan. 10 edition.

Jacqueline Scott Corley, to the U.S. District Court for the Northern District of California
Bridget Brennan, to the U.S. District Court for the Northern District of Ohio
Leonard Stark, to the U.S. Court of Appeals for the Federal Circuit
David A. Ruiz, to the U.S. District Court for the Northern District of Ohio
Charles Fleming, to the U.S. District Court for the Northern District of Ohio

Confirmations

The Senate has confirmed one new nominee since our Jan. 10 issue.

Gabriel Sanchez, to the U.S. Court of Appeals for the 9th Circuit
- No current vacancies, two upcoming vacancies
- Current membership:
  - 16 judges appointed by a Democratic president
  - 13 judges appointed by a Republican president

Vacancies

The federal judiciary currently has 78 vacancies, 76 of which are for lifetime Article III judgeships. As of publication, there were 26 pending nominations.

According to the Administrative Office of U.S. Courts, there were 34 upcoming vacancies in the federal judiciary, where judges have announced their intention to leave active judicial status.

For more information on judicial vacancies during the Biden administration, click here.

Note: This chart is updated at the start of each month with the latest vacancy data from U.S. Courts.

Do you love judicial nomination, confirmation, and vacancy information? We figured you might. Our monthly Federal Vacancy Count monitors all the faces and places moving in, moving out, and moving on in the federal judiciary. Click here for our most current count.

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, keep an eye on our list for updates on federal judicial nominations.

Spotlight: Presidential nominations to federal courts

Hello, gentle readers! Welcome back to our journey through federal judicial history. Today, we make a stop in the Gilded Age to highlight President Benjamin Harrison’s (R) judicial nominees from 1889 to 1893.

During his time in office, the U.S. Senate confirmed 43 of President Harrison’s judicial nominees. The Senate did not vote on two of Harrison’s nominees.

Among the most notable appointees were four Supreme Court Justices:

David Josiah Brewer, commissioned in 1889.
Henry Billings Brown, commissioned in 1890.
George Shiras, commissioned in 1892.
Howell Edmunds Jackson, commissioned in 1893.

By the end of his first year in office, two of President Harrison’s nominees had been confirmed. One nominee was confirmed to a U.S. district court and one was confirmed to the U.S. Supreme Court.

Looking ahead

We’ll be back next month on Feb. 7, 2022, with a new edition of Robe & Gavel. Until then, gaveling out!

Contributions

Kate Carsella compiled and edited this newsletter, with contributions from Brittony Maag and Jace Lington.

Checks and Balances: Courts weigh in on vaccine mandates

In Federal, Newsletters, State

January 18, 2022 at 12:07 PM

The Checks and Balances Letter delivers news and information from Ballotpedia’s Administrative State Project, including pivotal actions at the federal and state levels related to the separation of powers, due process and the rule of law.

This edition:

In this month’s edition of Checks and Balances, we review the latest judicial actions on the Biden administration’s vaccine mandates; a circuit split on the constitutionality of removal protections for certain administrative law judges that could prompt the U.S. Supreme Court (SCOTUS) to weigh in; new federal legislation seeking to codify Chevron deference; and the Office of Personnel Management’s (OPM) proposed rescission of Trump-era policies regarding poor-performing federal employees.

At the state level, we take a look at opposition from state attorneys general to the Biden administration’s vaccine and mask requirements for federal Head Start programs.

We also highlight the release of the Biden administration’s Fall 2021 Unified Agenda of Federal Regulatory and Deregulatory Actions. As always, we wrap up with our Regulatory Tally, which features information about the 2,094 proposed rules and 3,257 final rules added to the Federal Register in 2021 and OIRA’s regulatory review activity.

In Washington

SCOTUS, courts of appeal issue rulings on vaccine mandates

What’s the story?

The U.S. Supreme Court on January 13, 2022, blocked the Biden administration’s coronavirus (COVID-19) vaccination requirements for certain private businesses while upholding the vaccine mandate for healthcare workers. The vaccine requirements for federal contractors remained blocked nationwide as of January 14, 2022.

Private businesses: The U.S. Supreme Court ruled 6-3 to block enforcement of the Occupational Safety and Health Administration’s (OSHA) regulation implementing a vaccine requirement for workers at businesses with 100 or more employees. In the per curiam opinion, the majority justices argued that the OSHA secretary lacked the authority to issue the requirement, describing the rule as “a significant encroachment into the lives—and health—of a vast number of employees.”

In his concurrence, Justice Gorsuch argued in part that the rule failed the test of the major questions doctrine, which requires Congress to speak clearly when it grants an agency authority to regulate on economic or politically significant matters. “The agency claims the power to force 84 million Americans to receive a vaccine or undergo regular testing,” wrote Gorsuch. “By any measure, that is a claim of power to resolve a question of vast national significance. Yet Congress has nowhere clearly assigned so much power to OSHA.”

Healthcare workers: The U.S. Supreme Court ruled 5-4 to uphold the Centers for Medicare and Medicaid’s (CMS) vaccine requirement for healthcare workers at facilities that receive Medicaid or Medicare funds. In the per curiam opinion, the majority justices argued that “Congress has authorized the Secretary to impose conditions on the receipt of Medicaid and Medicare funds that ‘the Secretary finds necessary in the interest of the health and safety of individuals who are furnished services.’”

Federal contractors: The United States Court of Appeals for the Eleventh Circuit on December 17, 2021, upheld a nationwide injunction blocking enforcement of the Biden administration’s vaccine requirement for federal contractors. A three-judge panel of the United States Court of Appeals for the Sixth Circuit on January 7, 2022, ruled 2-1 to uphold a similar injunction blocking the requirement for federal contractors in Kentucky, Ohio, and Tennessee. “If the president can order medical interventions in the name of reducing absenteeism,” questioned the majority, “what is the logical stopping point of that power?”

Want to go deeper?

Circuit split could prompt SCOTUS to hear challenge to ALJ removal protections

What’s the story?

The United States Court of Appeals for the Fifth Circuit on December 13, 2021, issued an en banc opinion in Cochran v. U.S. Securities & Exchange Commission (SEC) et al., holding 9-7 that federal law does not prohibit federal district courts from concurrently hearing constitutional challenges to the SEC’s administrative law judges (ALJs) in cases where the agency has yet to issue a final adjudicative order. The court’s decision creates a circuit split with six other courts of appeal that have already considered such challenges, which could prompt the U.S. Supreme Court to take up the case.

Cochran has argued that the removal protections of the SEC ALJ assigned to her case unconstitutionally insulate the ALJ from removal by the president. The district court ruled that, according to the Securities Exchange Act of 1934, Cochran must first raise her constitutional challenge during agency proceedings before appealing the final agency order to the federal courts. A panel of the Fifth Circuit agreed with the district court. The full Fifth Circuit heard the case and disagreed, finding in part that Cochran’s constitutional concern “has absolutely nothing whatsoever to do with a final order, and therefore her claim falls outside of” the statutory limit on the district court’s subject matter jurisdiction.

“In Free Enterprise Fund, the Supreme Court rejected the precise argument the SEC makes here—that the Exchange Act divests district courts of jurisdiction over removal power challenges,” wrote Judge Catharina Haynes in the opinion.

Judge Gregg Costa argued in the dissent, “Before today, every court of appeals to consider the question has answered that a person facing an SEC enforcement action may not mount a collateral attack against the agency proceeding in federal district court.” The majority, he further argued, “turns constitutional avoidance on its head by making separation-of-powers claims a first rather than last resort in resolving cases.”

The U.S. Supreme Court in 2018 ruled in a constitutional challenge to the appointment of the SEC’s ALJs. The court found in Lucia v. SEC that the SEC’s ALJs are Officers of the United States subject to the Appointments Clause.

Want to go deeper?

Legislation seeks to codify Chevron deference

What’s the story?

U.S. Representative Pramila Jayapal (D-Wash.) on December 1, 2021, introduced the Stop Corporate Capture Act, which aims to enact broad changes to the regulatory process, including codification of the Chevron deference doctrine.

Chevron deference compels judges to defer to reasonable agency interpretations of statutes they are tasked with administering. The proposed legislation would codify Chevron deference, despite continued uncertainty among U.S. Supreme Court justices regarding the doctrine’s scope. “[A]ll nine justices have at least once signed an opinion explicitly holding that Chevron should not apply in a situation where the administrative law textbooks would previously have said that it must apply,” concluded administrative law scholar Michael Kagan in 2017.

In addition to codifying Chevron deference into law, the Stop Corporate Capture Act proposes instituting new requirements for material submitted during public comment periods, including new disclosure standards for scientific studies and new penalties for corporations found to have submitted “materially false, fictitious, or fraudulent” information. The legislation would also require agencies to prioritize regulations that offer the most benefits to the public, regardless of costs, and would allow agencies to reinstate rules repealed under the Congressional Review Act, among other provisions.

Want to go deeper?

OPM moves to rescind Trump-era policy on poor-performing federal employees

What’s the story?

The Office of Personnel Management (OPM) on January 4, 2022, issued a proposed rule aimed at rescinding regulations issued under the Trump administration regarding poor-performing federal employees.

OPM issued the rules in November 2020 pursuant to President Donald Trump’s (R) Executive Order 13839, which aimed to streamline the discipline and dismissal processes for poor-performing federal employees. The regulations directed agency approaches to employee probationary and improvement periods, barred agencies from entering into settlement agreements with employees, and shortened the time frame for employees to respond to allegations of misconduct or poor performance.

President Joe Biden (D) on January 22, 2021, issued Executive Order 14003, rescinding E.O. 13839 and directing OPM to repeal the Trump-era regulations. In its proposed rule to implement Biden’s directive, OPM argued that the rules “removed previous flexibilities enjoyed by agencies in how to address performance issues with their employees.” The proposed rule is open for public comment through February 3, 2022.

Want to go deeper?

In the states

States challenge coronavirus (COVID-19) requirements for federal Head Start programs

What’s the story?

Attorneys general in Florida, Texas, and Louisiana have opposed the Biden administration’s coronavirus (COVID-19)-related requirements for federal Head Start programs. The Department of Health and Human Services (HHS) on November 30, 2021, issued an interim final rule mandating vaccination for employees and contractors of federal Head Start programs and requiring masks for students ages two and older.

Texas Attorney General Ken Paxton and Lubbock Independent School District on December 10, 2021, filed a preliminary injunction to block enforcement of the rule. Louisiana Attorney General Jeff Landry followed suit on Dec. 21, filing a lawsuit arguing in part that the Head Start requirements exceed the authority of the executive branch. Attorneys general from 23 other states joined Landry’s lawsuit.

Judge James Wesley Hendrix of the United States District Court for the Northern District of Texas on December 31, 2021, blocked enforcement of the rule in Texas, arguing in part that Congress did not delegate authority to HHS to issue vaccine or mask requirements for Head Start programs. The next day, Judge Terry Doughty of the United States District Court for the Western District of Louisiana blocked enforcement of the rule in Louisiana and 23 other states.

“This Court has no hesitation in finding that the Head Start Mandate is a decision of vast economic significance and that Congress has not clearly spoken to give Agency Defendants the authority to impose it,” wrote Doughty in the order.

Want to go deeper?

____________________________________________________________________________

Biden administration releases Fall 2021 Unified Agenda

The Biden administration in December released the Fall 2021 Unified Agenda of Federal Regulatory and Deregulatory Actions—a semiannual publication of recently completed, ongoing, and anticipated federal regulations. The Unified Agenda combines regulatory agendas and other required reports and information from approximately 60 departments, agencies, and commissions of the federal government.

“The regulatory plans and agendas submitted by agencies and included here offer blueprints for how the Administration plans to continue delivering on the President’s agenda as we build back better,” stated the Office of Information and Regulatory Affairs in the document’s introduction. “We are proud to shine a light on the regulatory agenda as a way to share with the public how the themes of equity, prosperity and public health cut across everything we do to improve the lives of the American people.”

The Fall 2021 Unified Agenda identifies 68 federal agencies tasked with 3,777 rules in the active, just-completed, and long-term stages, according to an analysis in Forbes.

Want to go deeper?

Click here to view the Fall 2021 Unified Agenda

Regulatory tally: 2021 in review

Federal Register

The Federal Register in 2021 reached 74,532 pages.
The 2021 Federal Register included 2,094 proposed rules and 3,257 final rules.
The 2021 Federal Register ranks as the second-lowest final rule count since the 1970s. The lowest final rule count since the 1970s was 2,964 final rules issued in 2019.
A total of 309 significant documents were added to the Federal Register in 2021, including 129 proposed rules, 176 final rules, and four notices. In comparison, the Trump administration added 109 significant documents in 2020 and 121 significant documents in 2019.
Want to go deeper?
- Click here to find more information about weekly additions to the Federal Register in 2019, 2018, and 2017
- Click here to find yearly information about additions to the Federal Register from 1936 to 2019

Office of Information and Regulatory Affairs (OIRA)

OIRA’s 2021 regulatory review activity included the following actions:

Review of 502 significant regulatory actions.
Twenty-five rules approved without changes; recommended changes to 383 proposed rules; 90 rules withdrawn from the review process; four rules subject to a statutory or judicial deadline.
As of January 3, 2022, OIRA’s website listed 72 regulatory actions under review.
Want to go deeper?
- Every month, Ballotpedia compiles information about regulatory reviews conducted by OIRA. To view this project, visit: Completed OIRA review of federal administrative agency rules

Subscribe to The Heart of the Primaries to keep up to date with 2022 elections

By Samuel Wonacott

January 18, 2022 at 7:58 AM

Welcome to the Tuesday, January 18, Brew.

By: Samuel Wonacott

Here’s what’s in store for you as you start your day:

Subscribe to The Heart of the Primaries to stay abreast of the latest key congressional and state-level primaries in 2022
Austin initiative to decriminalize marijuana and prohibit no-knock warrants submitted more than 20,000 valid signatures
New Hampshire Secretary of State retirement triggers triplex status change

Subscribe to The Heart of the Primaries to stay abreast of the latest key congressional and state-level primaries in 2022

Voters will decide thousands of races, including all 435 members of the U.S. House of Representatives and 34 seats in the U.S. Senate. That’s in addition to the roughly 6,000 state legislative candidates that will appear on ballots across the country, or all the races for state executive positions, county and local offices, and school board seats.

Sounds like a lot, right? Don’t worry—we’ve got you covered.

Our Heart of the Primaries newsletter is the key to keeping up with what promises to be a frenetic primary season. First launched in January 2018, Heart of the Primaries takes you to the front lines of primary battles, where readers witness intraparty conflict as Democrats and Republicans compete to make it to the general election. We cover key congressional, legislative, and executive races from state to state. We also look at the policy differences between candidates, which donor groups are behind which candidates (and why!), polling, and more. Two versions are published each week: one for Democratic primaries and one for Republican primaries.

Here’s a summary of stories from our most recent Republican and Democratic editions:

Chicago Ald. Dowell drops SoS bid to run in 1st District primary
- On Jan. 5, Chicago Ald. Pat Dowell (D) announced she would end her bid for Illinois secretary of state and instead run in the Democratic primary for the 1st Congressional District. Dowell made the announcement following 1st District Rep. Bobby Rush’s (D) announcement that he would not seek re-election. The Chicago Sun-Times’ Lynn Sweet said Dowell’s political and fundraising campaign operation would give her a strong position in the primary.
Clay Aiken launches second U.S. House bid in N.C.
- Clay Aiken, an entertainer and former American Idol contestant, announced his bid for North Carolina’s 6th Congressional District on Jan. 10. In 2014, Aiken won the Democratic primary in North Carolina’s 2nd Congressional District. Incumbent Renee Ellmers (R) defeated him in the general election 59% to 41%.
Multiple Tennessee counties switch to partisan school board elections
- At least eight of the 10 largest counties in Tennessee will hold partisan primary elections for school board in 2022. Gov. Bill Lee (R) signed a bill in November giving county parties the ability to hold partisan primary elections. Previously, school board elections were nonpartisan with candidates prohibited from identifying or campaigning with any political party.
State Sen. Coram challenges U.S. Rep. Boebert in Colorado
- State Sen. Don Coram announced last week he is challenging Rep. Lauren Boebert in the Republican primary for Colorado’s 3rd Congressional District. Coram said, “I’m looking at our state and our nation and I’m very concerned that the 10% on the right and the 10% on the left are making all the noise and getting all the attention, and the 80% in the middle are totally ignored.” Boeber called Coram a “self-serving, super-woke social liberal who would have a far better chance of winning the Democrat nomination.”

Our next editions come out Jan. 20. Click the link below to subscribe and follow along!

Austin initiative to decriminalize marijuana and prohibit no-knock warrants qualifies for the May 7 ballot

On Jan. 10, the Austin City Clerk, in Austin, Texas, announced that an initiative to decriminalize marijuana and prohibit no-knock warrants had qualified for the ballot. Proponents submitted over 20,000 valid signatures, meeting the required number to appear on the ballot.

The city council has 10 days to adopt the proposed charter amendment outright or vote to send it to the May 7 ballot.

Here is a summary of the initiative:

Chapter 1: The proposed initiative would prohibit Austin police from issuing any citations or making any arrests for misdemeanor marijuana possession offenses, so long as the offenses are not involved in the investigation of a narcotics-related case designated as a high priority or a violent felony case. Austin police officers would be able to seize marijuana if they have probable cause to believe that an individual possesses it, but they must write up a full report and are not permitted to detain the individual if marijuana possession is the sole charge. The initiative would also prohibit police officers from issuing citations for possession of drug residue or paraphernalia.
Chapter 2: The proposed initiative would prohibit Austin police from requesting, executing, or participating in a no-knock search warrant. The initiative would define a no-knock search warrant as “any search warrant that does not require the officer to knock and announce their presence and wait at least 15 seconds prior to execution.”

In 2020, voters approved 20 local police-related ballot measures in 10 cities and four counties within seven states. Two were overturned after the election. In 2021, voters approved seven of 12 local police-related ballot measures in 10 cities and one county within nine states. Among the approved measures was a ban on no-knock warrants in Pittsburgh that won 81.16% of the vote.

In 2021, we covered 202 local measures on the ballot for voters in the top 100 largest cities and state capitals in the U.S.

New Hampshire Secretary of State retirement triggers triplex status change

On Jan. 10, 2022, New Hampshire Secretary of State William Gardner (D), the longest-serving secretary of state in U.S. history, retired. The New Hampshire legislature first elected Gardner to the position in 1976.

Deputy Secretary of State David Scanlan (R) was sworn in after Gardner resigned. According to the New Hampshire Constitution, the deputy secretary of state replaces the secretary until a new secretary is appointed. Scanlan will serve the remainder of Gardner’s term, which ends in December 2022.

Scanlan’s swearing-in created a Republican triplex in New Hampshire, meaning that Republicans control the executive offices of governor, attorney general and secretary of state.

In New Hampshire, the joint session of the state legislature chooses the secretary of state.

In 2022, 27 states are holding an election for secretary of state. Click here to read more about those elections.

There are 21 Democratic secretaries of state and 26 Republican secretaries of state. The position does not exist in Alaska, Hawaii, or Utah.

New York City legislation allowing certain noncitizens to vote becomes law