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Federal Register weekly update; 2019 page total surpasses 70,000 pages

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 December 16 to December 20, the Federal Register increased by 2,068 pages, bringing the year-to-date total to 70,392 pages. The week’s Federal Register featured a total of 578 documents, including 447 notices, four presidential documents, 64 proposed rules, and 63 final rules.

Two proposed rules were deemed significant under E.O. 12866—meaning that they could have large impacts 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 1,644 pages for a year-to-date total of 66,076 pages. As of December 20, the 2019 total led the 2018 total by 4,316 pages.

The Trump administration has added an average of 1,380 pages to the Federal Register each week in 2019 as of December 20. Over the course of 2018, the Trump administration added an average of 1,301 pages to the Federal Register each week. During 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.

Click here to find more information about weekly additions to the Federal Register in 2018 and 2017.

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Click here to find yearly information about additions to the Federal Register from 1936 to 2016.



South Dakota to vote on medical marijuana in 2020

On December 19, the South Dakota Secretary of State’s office announced that New Approach South Dakota’s initiative to establish a medical marijuana program had qualified for the ballot. The group reported submitting more than 30,000 signatures in November, of which 25,524 were deemed valid. To qualify, 16,961 signatures were required.

The measure would establish a medical marijuana program in South Dakota for individuals who have a debilitating medical condition and are certified by a physician. Under the measure, a debilitating medical condition means, “A chronic or debilitating disease or medical condition or its treatment that produces one or more of the following: cachexia or wasting syndrome; severe, debilitating pain; severe nausea; seizures; or severe and persistent muscle spasms, including those characteristic of multiple sclerosis.” The measure provides that the Department of Health could add additional qualifying conditions.

Medical marijuana patients would be able to possess three ounces of marijuana as well as additional amounts of other types of marijuana products. Patients would be able to possess three marijuana plants and products made from the plants.

The attorney general’s explanation stated, “The 95-section measure contains numerous other provisions not described here. It will likely require judicial or legislative clarification.”

South Dakotans for Better Marijuana Laws, a group sponsoring a separate measure to legalize recreational marijuana, reported submitting more than 50,000 signatures on November 4, 2019, and are awaiting validation from the Secretary of State. That measure was designed to legalize the recreational use of marijuana. It would also require the legislature to pass laws providing for the use of medical marijuana and the sale of hemp by April 1, 2022. In South Dakota, if there are two conflicting ballot measures on the same ballot, and both are approved, the one that receives the most yes votes supersedes the other in areas of conflict.

As of 2019, 33 states and Washington, D.C., had passed laws legalizing or decriminalizing medical marijuana. Additionally, 13 states had legalized the use of cannabis oil, or cannabidiol (CBD)—one of the non-psychoactive ingredients found in marijuana—for medical purposes. As of 2019, 11 states and Washington, D.C., had legalized the possession and personal use of marijuana for recreational purposes.

Also set to appear on the 2020 ballot is a marijuana legalization amendment in New Jersey that would legalize the possession and use of marijuana for persons age 21 and older and legalize the cultivation, processing, and sale of retail marijuana. The New Jersey constitutional amendment is the first marijuana legalization measure that a state legislature has referred to voters. In Illinois and Vermont, the state legislatures passed bills to legalize marijuana without ballot measures. The other nine states (and D.C.) that have legalized marijuana did so through the ballot initiative process, in which proponents collected signatures to place their issues before voters. There is no initiative process in New Jersey.

Measures concerning medical marijuana targeting the 2020 ballot have been proposed in Florida, Idaho, Mississippi, and Nebraska. Measures to legalize marijuana for recreational use have been proposed targeting the 2020 ballot in Arizona, Arkansas, Florida, Missouri, Nebraska, North Dakota, and Oklahoma.

From 1996 through 2018, a total of 74 measures have appeared on the ballot during even-numbered election years in South Dakota, of which, 39% were approved and 61% were defeated.

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Wisconsin’s April 7th Marsy’s Law ballot measure challenged in court

On December 18, 2019, the Wisconsin Justice Initiative, a nonprofit organization, filed litigation in the Dane County Circuit Court that challenges the Marsy’s Law Amendment, which is on the ballot for April 7, 2020. Marsy’s Law was designed as a type of constitutional bill of rights for crime victims.

As of 2019, 13 states had passed ballot measures for Marsy’s Law. Courts have struck down Marsy’s Law in Montana and Kentucky. In Montana, the constitutional amendment was struck down as violating the state’s single-subject and separate-vote requirements. In Kentucky, a judge ruled that the ballot question didn’t fully and fairly inform the electorate. In Pennsylvania, where a majority of electors voted for Marsy’s Law on November 5, 2019, an ongoing lawsuit contends that the constitutional amendment violated the state’s single-subject requirement.

Henry Nicholas, the co-founder of Broadcom Corp., established Marsy’s Law for All in 2009 to advocate for constitutional amendments. In Wisconsin, the state legislature passed Marsy’s Law in 2017 and 2019 to place the amendment on the ballot. In 2019, most legislative Republicans (77 of 82) supported the resolution placing Marsy’s Law on the ballot. Two-thirds of legislative Democrats (32 of 50) supported the resolution.

Plaintiffs in the lawsuit stated that the ballot question did not accurately and completely describe the constitutional amendment. Craig Johnson, board president of the Wisconsin Justice Initiative, said, “Voters are being asked to vote on a single sentence that doesn’t remotely begin to describe what Marsy’s Law is and what it does. It may sound reasonable, but the question masks a proposed amendment twice the length of the U.S. Bill of Rights.” The Wisconsin Justice Initiative asked the court to strike Marsy’s Law from the ballot or require the ballot question to be rewritten.

The ballot question is: “Shall section 9m of article I of the constitution, which gives certain rights to crime victims, be amended to give crime victims additional rights, to require that the rights of crime victims be protected with equal force to the protections afforded the accused while leaving the federal constitutional rights of the accused intact, and to allow crime victims to enforce their rights in court?”

Teri Jendusa-Nicolai, chairperson of Marsy’s Law for Wisconsin, responded to the lawsuit, saying, “This to me is a last-ditch effort to take away the rights of crime victims.” Jendusa-Nicolai added, “I do believe in the intelligence of the voters of Wisconsin, that they do understand what they are getting into and what they are voting for. … This has passed (the) Legislature twice. It has gone through many rigorous hearings, many rewordings and revisions, something that’s been worked on for quite some time.”

The case could eventually be appealed to the Wisconsin Supreme Court, which would have final jurisdiction.

Click here to learn more.

Additional reading:
Marsy’s Law crime victim rights
Marsy’s Law for All
Wisconsin 2020 ballot measures
2020 ballot measures 



D.C. Circuit rejects APA challenge to e-cigarette regulation

A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit on December 10 unanimously rejected an Administrative Procedure Act (APA) challenge to the Food and Drug Administration’s (FDA) process for approving new e-cigarette products. An e-cigarette manufacturer joined with an e-cigarette advocacy group to sue the FDA, arguing that the agency violated the APA by not providing an easier pathway for new e-cigarette products to be approved for marketing and sale.

The court ruled that requiring companies to show that selling an e-cigarette product was consistent with public health did not fail the APA’s arbitrary-or-capricious test, which instructs courts reviewing agency actions to invalidate those they find to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” The judges argued in the opinion that the plaintiffs’ “wholesale objection is to Congress’ design, not to any arbitrariness on the FDA’s part in carrying it out.”

Judge Cornelia T.L. Pillard, and Obama appointee, wrote the opinion for the D.C. Circuit panel. The other judges on the panel were Judith Rogers, a Clinton appointee, and David Sentelle, a Reagan appointee.

Click here to learn more about the Administrative Procedure Act.
Click here to learn more about the D.C. Circuit.

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Click here to read the full opinion.


Massachusetts income tax rate decrease takes effect on January 1

In the general election of 2000, Massachusetts voters approved Question 4 with 59 percent of the vote. The initiative enacted a law that would lower the state’s personal income tax from 5.9% in 2000 to 5% by 2003.

In 2002, the Massachusetts General Court passed House No. H.5250, which replaced the schedule adopted by Question 4 with a more gradual decrease tied to revenue milestones. The act decreased the state’s personal income tax rate by 0.05% every fiscal year that revenue benchmarks were met. On January 1, 2020, the rate will decrease to 5%—the target rate of Question 4.

The rate decrease is expected to lower tax revenue by $88 million in fiscal year 2020, which ends June 30, 2020. Massachusetts is one of nine states with a flat income tax rate. In 2019, the average income tax rate among those states was 4.49 percent.

From 2010 through 2018, Massachusetts voters approved 8 citizen initiatives. Of those, two were altered by the state legislature; one was amended and one

Click here to learn more.

Additional Reading:
Legislative alteration

 



27% drop in recall efforts in 2019

This year, fewer state and local recall efforts were started or reached the ballot compared to 2018. Ballotpedia covered 151 recall efforts against 230 officials in 2019. In comparison, 206 recall efforts targeted 299 officials in 2018. Since Ballotpedia released its first annual recall report in 2012, a minimum of 151 efforts (2019) and a maximum of 282 efforts (2016) have been covered each year.

In addition to having fewer recalls overall, 2019 also saw a lower success rate for recalls that made the ballot. Of the 66 officials whose recalls reached the ballot, 34 (52%) were recalled and 32 remained in office. Recall efforts in 2017 and 2018 both had a higher success rate, 56% and 63% respectively.

In other ways, however, 2019 was similar to previous years. As in 2016, 2017, and 2018, city council officials drew more recall petitions than any other group. A total of 90 city council members were targeted in 2019. Mayors and vice-mayors faced the second-most recall efforts with 45. In comparison, 93 city council officials and 39 mayors and vice-mayors were targeted in 2018.

California led the way with the highest number of officials targeted for recall with 37. The state previously had the most recall efforts in 2015 (80), 2016 (79), and 2017 (61). Colorado (28) and Idaho (23) were second and third in total recall efforts in 2019.

Of the recall efforts covered in 2019, 20% were still underway as of December 17 and another 6% had recall elections scheduled. A total of 40% of the efforts did not make it to the ballot.

Click here to learn more.

Additional reading:
Recall overview
Political recall efforts, 2019



New CFPB lawsuit raises nondelegation challenge

The New Civil Liberties Alliance (NCLA), a pro bono law firm with a focus on the administrative state, filed a lawsuit on December 19 in the U.S. District Court for the Southern District of New York challenging the constitutionality of the Consumer Financial Protection Bureau (CFPB) on the grounds that Congress unlawfully delegated appropriations power to the agency in violation of the nondelegation doctrine. Prior constitutional challenges to the CFPB, including a case currently pending before the United States Supreme Court, have claimed that the CFPB’s single director is unconstitutionally insulated from removal by the president.

The nondelegation doctrine is a legal principle holding that legislative bodies cannot delegate their legislative powers to executive agencies or private entities. In other words, lawmakers can’t allow non-lawmakers to make laws. The case, Law Offices of Crystal Moroney v. Bureau of Consumer Financial Protection, alleges that Congress violated the nondelegation doctrine by granting the CFPB the authority to draw funding directly from the Federal Reserve. This grant of authority, according to NCLA, allows the agency to unilaterally exercise appropriations power and evade oversight from congressional appropriations committees.

The lawsuit also reiterates the claim that the structure of the CFPB is unconstitutional because its single director (rather than multi-member commission) has protections that guard against direct removal by the president. This question is currently pending before the United States Supreme Court in Seila Law v. Consumer Financial Protection Bureau.

The case further alleges that the CFPB violated Crystal Moroney’s due process rights by issuing, withdrawing, and—after a federal court dismissed the case—reissuing civil investigative demands against Moroney’s law firm.

Click here to learn more about the nondelegation doctrine.
Click here to learn more about the appointment and removal power.

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Ballotpedia’s annual minimum wage increase report: 24 states and D.C. will increase their minimum wages in 2020

Twenty-four states and Washington, D.C. will increase their minimum wages in 2020. The increases range from between $0.10 per hour in Florida to $1.50 per hour in New Mexico, Washington, and New York City for certain employees. In New York and Oregon, state laws provide for regional minimum wages.
Eight minimum wages will increase due to wages being indexed to changes in cost-of-living or inflation. Minimum wages in 10 states and D.C. will increase due to legislative bills scheduling specific increases, and they will increase in six states due to citizen-initiated measures scheduling specific increases.
In 2020, the largest minimum wage increases based on state laws are $1.50 in New Mexico ($7.50 to $9.00), Washington ($12.00 to $13.50), and New York City ($13.50 to $15.00 for certain employees).
The highest minimum wage based on state law is $15.00 in New York City in 2020. The highest statewide minimum wages based on state laws are $13.50 per hour in Washington and $13.00 in California.
In 2019, there were no statewide ballot measures related to minimum wages. Legislation to increase state minimum wages were approved by state legislatures and signed into law in five states in 2019.
One measure, a $15 per hour minimum wage initiative in Florida, has been certified for the 2020 ballot so far. Potential measures designed to increase minimum wages in Arizona and Idaho and one measure to prohibit local minimum wage increases in Missouri were filed targeting 2020 ballots.
Click here to learn more.
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Andrew Yang leads in pageviews for the first time since October; Amy Klobuchar has highest week-over-week pageview jump

Each week, we report the number of pageviews received by 2020 presidential campaigns on Ballotpedia. These numbers show which candidates are getting our readers’ attention.

Andrew Yang’s campaign page on Balloptedia received 2,421 views for the week of December 15-21. Yang’s pageview figure represents 11.7% of the pageviews for the week. Amy Klobuchar had 10.1% of the pageviews for the week, followed by Joe Biden with 10.0%. This is Yang’s first time leading in pageviews since the week of October 13-19.

Every Democratic candidate other than Julián Castro had more pageviews last week than the week before. The three candidates with the greatest week-over-week increases were Amy Klobuchar (81.1%), Andrew Yang (40.0%), and Tom Steyer (34.1%).

Andrew Yang remains the leader in overall pageviews this year with 154,956. He is followed by Pete Buttigieg with 147,578 and Joe Biden with 138,970.

For more information on pageviews and detailed lifetime stats, click here:
Presidential campaign pageviews on Ballotpedia, 2020



Two 2020 congressional retirements announced last week; 2,149 major party candidates filed for 2020 races

Two U.S. representatives announced last week they will not seek re-election to the U.S. House: Republican Reps. Mark Meadows (NC-11) and Mark Walker (NC-06). That brings the number of Republicans retiring from the House to 25. To date, four senators (three Republicans and one Democrat) and 34 Representatives (25 Republicans and nine Democrats) are not running for re-election. In 2018, 55 total members of Congress—18 Democrats and 37 Republicans—did not seek re-election.

 

As of December 23, 2019, 318 candidates are filed with the Federal Elections Commission (FEC) to run for U.S. Senate in 2020. Of those, 271—143 Democrats and 128 Republicans—are from one of the two major political parties. In 2018, 527 candidates filed with the FEC to run for U.S. Senate, including 137 Democrats and 240 Republicans.

 

For U.S. House, 2,010 candidates are filed with the FEC to run in 2020. Of those, 1,878—928 Democrats and 950 Republicans—are from one of the two major political parties. In 2018, 3,244 candidates filed with the FEC, including 1,566 Democrats and 1,155 Republicans.

 

On November 3, 2020, 35 Senate seats and all 435 House seats are up for election. Of those Senate seats, 33 are regularly scheduled elections, while the other two are special elections in Arizona and Georgia. Twelve are Democratic-held seats and 23 are Republican-held seats. In the House, where all seats are up for election, Democrats currently hold a majority with 233 seats.

 

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