State Attorneys General June 12 Update

Squire Patton Boggs’ State Attorneys General Practice Group is comprised of lawyers who have served at senior levels in state AG offices around the country and whose practices focus, to one degree or another, on representing clients before these increasingly assertive and powerful, yet often overlooked, government agencies, as explained in detail here.

In these updates, we will call attention to the most noteworthy state AG news or developments emerging in the previous week.

Advocacy

Massachusetts AG Maura Healey and 32 State AGs have joined together to oppose President Trump’s proposal to eliminate federal funding for the Legal Services Corporation (LSC). The coalition of AGs drafted a letter to Congress extolling the role of LSC in “help[ing] residents nationwide receive justice.”

Virginia AG Mark Herring and a coalition of 20 other AGs in a joint letter are urging House leadership to reject “anti-consumer legislation that would roll back many of the critical protections adopted in the wake of the financial crises that harmed so many hard-working Americans.” Their principal objective is defunding the Consumer Financial Protection Bureau (CFPB).

Regulatory

Texas AG Ken Paxton and 16 fellow AGs are calling for regulatory reform to protect citizens and businesses from what they see as federal government overreach. In a letter, the AGs encouraged the president to push Congress to limit the enforcement authority of federal agencies.

House Agriculture Committee Hearing to Focus on Watershed Programs

Legislative Activity

House Agriculture Committee Hearing to Focus on Watershed Programs

On Wednesday, the House Agriculture Committee’s Subcommittee on Conservation and Forestry is scheduled to hold a hearing focused on small watershed infrastructure, specifically the Watershed Rehabilitation Program and the Watershed and Flood Prevention Operations (WFPO) Program. Both programs are administered by the United States Department of Agriculture’s Natural Resources Conservation Service, which partners with local watershed sponsors to fund projects relating to soil conservation; flood prevention, such as dam rehabilitation; water conservation, usage, and disposal; and surveys.

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Markups on Appropriations Bills Begin in the House this Week with FY2018 MilCon-VA Bill; House Republican Members Push for an Omnibus Before August Recess

Legislative Activity

Markups on Appropriations Bills Begin in the House this Week with FY2018 MilCon-VA Bill; House Republican Members Push for an Omnibus Before August Recess

Appropriations subcommittees in the House will commence FY 2018 spending bill markups this week, with the Military Construction and Veterans Affairs (MilCon-VA) subcommittee markup scheduled for this evening. Still lacking a comprehensive FY 2018 budget resolution, the committee is reportedly planning to release the top-line discretionary spending level (302A) later this month.

The Republican Study Committee joined Rep. Tom Graves (R-GA), who chairs the House Appropriations Subcommittee on Financial Services and General Government, in supporting his strategy to move directly to a 12-bill omnibus, with the intent to send it to the Senate prior to the August recess. While proponents of the plan recognize the challenge in achieving this goal, given the House is only in session six weeks before the August recess, they feel it will provide leverage as they eventually work through an FY 2018 compromise with the Senate.

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Secretary DeVos Testifies on Education Budget; Department of Education Must Make Decisions on Higher Ed Regulations

Legislative Activity

Effective Apprenticeships Rebuild National Skills (EARNS) Act

Members of the House Committee on Education and the Workforce introduced two bills that seek to promote fair union elections and restore important protections for workers and employers. The first is the Workforce Democracy and Fairness Act (H.R. 2776), introduced by Rep. Tim Walberg (R-MI), chairman of the Subcommittee on Health, Employment, Labor, and Pensions. The bill seeks to protect worker freedom by addressing the National Labor Relations Board’s (NLRB) ambush election rule and micro-union scheme. The second, introduced by Rep. Joe Wilson (R-SC), is the Employee Privacy Protection Act (H.R. 2775), which will roll back NLRB policies that may jeopardize the privacy of workers and their families.

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Return of Senate’s Comprehensive Energy Bill to Move Prior to July 4th Recess; Administration Reviews Clean Power Plan

Legislative Activity

Revival of the Comprehensive Energy Bill

Last week, by unanimous consent, the House Energy and Commerce Committee advanced 11 bills governing energy infrastructure and efficiency. The bills address a range of issues including:  skill preparation for energy-related jobs; improvement to hydroelectric licensing; retrofits for schools; increasing energy and water efficiency for federal facilities and amending monetary thresholds for mergers of FERC-regulated facilities. Several of the issue areas that these bills address were included in the larger comprehensive energy bill that Congress had tried but failed to pass last session.

In the Senate, Chairman Lisa Murkowski (R-AK) of the Energy and Natural Resources Committee has begun the effort to revive the bi-partisan comprehensive energy bill. The all-encompassing 800-page bill from the 114th Congress, S. 2012, as engrossed by the Senate, will serve as the base bill. It will also include several of the agreed-upon items from conference (such as the SAVE Act). The Chairman intends have the bill ready to move to the Senate Floor prior to the July 4 recess. 

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House Moves Forward with Financial Services Reform as Banking Looks to Find Its Own Path

Legislative Activity

House Moves CHOICE Act Forward as Senate Banking Committee Discusses Banking Reforms

Last week, the House passed the Financial CHOICE Act of 2017 (CHOICE Act) by a vote of 233-186. The comprehensive deregulatory bill would roll back many of the regulations put in place by the Dodd–Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank). For now, passage of the bill amounts to little more than a messaging exercise from the House GOP, since Senate Republicans do not plan to take up the legislation as written. House Financial Services Committee Chairman Jeb Hensarling (R-TX) – the author of the CHOICE Act – has expressed his hope that at least parts of the bill will become law during this Congress. That said, he has also conceded it is a “long game” with some of the bill’s proposals, recognizing the challenging political obstacles of moving the bill through the Senate. Note that the CHOICE Act vote was along party lines except for one Republican, Rep. Walter Jones (R-NC), who voted against the bill.

Meanwhile, on the other side of Capitol Hill, the Senate Banking Committee held a hearing last week titled “Fostering Economic Growth: The Role of Financial Institutions in Local Communities.” Broadly speaking, the hearing focused on banking regulatory reform – especially as it relates to community banks and credit unions. Relatedly, on Thursday, June 15, the Senate Banking Committee is set to hold a hearing on potential regulatory reforms for mid-sized, regional, and large financial institutions.

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House to Vote on Additional Health Care Legislation; CMS Revises Requirements for Long-Term Care Facilities; CMS Issues Request for Information

Legislative Activity

House to Vote on Additional Health Care Legislation

This week Majority Leader Kevin McCarthy (R-CA) announced that the House of Representatives is scheduled to vote on two pieces of health care legislation. These bills are part of the third phase of Speaker Paul Ryan’s repeal and replace strategy. H.R. 2579, the Broader Options for Americans Act, was introduced by House Committee on Ways and Means Subcommittee on Health Chairman Pat Tiberi (R-OH), and H.R. 1215, the Protecting Access to Care Act of 2017, was introduced by Rep. Steve King (R-IA). H.R. 2579 amends H.R. 1628, the American Health Care Act (AHCA), as passed by the House of Representatives on May 4, 2017. The bill expands financial support for purchasing health insurance by allowing the health insurance tax credit created in the AHCA to also be available for Americans who have lost their group coverage as a result of losing their job. H.R. 1215 establishes provisions governing health care lawsuits where coverage for care was provided or subsidized by the federal government. The intent of the legislation is to reduce the burden the liability system places on the health care delivery system, lower health care costs, and increase health care access. Both pieces of legislation passed their committees of jurisdiction by party line votes and are scheduled for a vote on the House floor by the end of the week. While these bills could be incorporated into the Senate health care package, it is unlikely H.R. 2579 or H.R. 1215 would pass the Senate as stand-alone bills.

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House Armed Services Committee Introduces “By Request” NDAA Bill; Mattis and Dunford to Testify at Armed Services and Appropriations Hearings; Trump Administration Considering Expansion of Laptop Ban

Legislative Activity

House Armed Services Committee Introduces “By Request” NDAA Bill

On June 7, House Armed Services Committee Chairman Mac Thornberry (R-TX) and Ranking Member Adam Smith (D-WA) introduced H.R. 2810, the “by request” version of the Fiscal Year 2018 National Defense Authorization Act (NDAA).

This procedural measure is traditionally the first step in the legislative process for the NDAA. The introduced bill only reflects the legislative proposals submitted by the Department of Defense, but Armed Services Committee’s proposals will be incorporated into the bill during its markup.

The Committee is expected to hold its first markup of the legislation on June 28.

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Congressional Hearings Will Focus on the State and Defense Department’s FY 2018 Budgets, While the Senate Focuses on an Iran Sanctions Bill

Most of Washington was focused on last Thursday’s Senate Intelligence Committee hearing, where former Director of the Federal Bureau of Investigation (FBI) James Comey testified about circumstances that may have contributed to his termination.  President Trump announced on Wednesday that he was nominating Christopher Wray to serve as Director of the Federal Bureau of Investigations (FBI).

Both chambers of Congress are in session this week.  The Senate will resume debate of S. 722, an Iran sanctions bill, on Monday evening.  A final vote on the bill is expected before the 4 July recess.

The White House announced last Friday that President Trump will soon travel to Poland.  The White House said the trip “will reaffirm America’s steadfast commitment to one of [its] closest European allies and emphasize the Administration’s priority of strengthening NATO’s collective defense.”  Also Friday, President Trump announced his intent to nominate Jeffrey Gerrish to serve as Deputy U.S. Trade Representative for Asia, Europe, the Middle East & Industrial Competitiveness, and Nathan Alexander Sales to serve as Coordinator for Counterterrorism at the State Department, among other nominations.

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Senators Seek Hearing on Sinclair-Tribune Merger

Legislative Activity

Senators Seek Hearing on Sinclair-Tribune Merger

On June 5, a group of senators including Sens. Maria Cantwell (D-WA), Al Franken (D-MN), and Corey Booker (D-NJ) sent a letter to Sen. John Thune (R-SD), Chairman of the Senate Committee on Commerce, Science and Transportation (Senate Commerce Committee) and Sen. Chuck Grassley (R-IA), chairman of the Senate Committee on the Judiciary requesting that both committees “hold hearings to examine the proposed acquisition of Tribune Media (Tribune) by Sinclair Broadcasting (Sinclair),” which was announced in early May. The senators also requested that both committees hold hearings on the Federal Communications Commission’s (FCC) April 2017 Order on Reconsideration (Order) in which it reinstated the “UHF discount,” which allows commercial broadcast television stations to discount the audience reach of its ultra-high frequency television stations (generally those occupying frequencies between 470 MHz and 890 MHz) when calculating compliance with the FCC’s national television ownership rule, which prohibits a single entity from owning television stations that reach more than 39% of the total television households in the country in the aggregate. In the letter, the senators stated that “Sinclair currently owns 173 stations and reaches more than 38% of the nation” while “Tribune has 42 stations . . . and reaches more than 43% of the nation.” The group then argued that the acquisition of Tribune by Sinclair would create “the largest television broadcast company in the United States.” They expressed concerns about allowing such media concentration, including its “impact on the public interest,” worrying that the merger would “harm competition.” Regarding their request for hearings on the FCC’s Order, the group noted that the Order relaxed “the limits on how many stations a TV group could own by revising how the agency calculates the audience reached by broadcasters, thereby paving the way for mergers and acquisitions that would otherwise be barred by regulators.” The group concluded by asking both committees to hold hearings “after the companies have filed the requisite paperwork” with the FCC and the Department of Justice.

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FY 2018 Transportation Appropriations; Presidential Events on Infrastructure Initiative; President Appoints Deputy FAA Administrator

Legislative Activity

Congress Begins Evaluating FY 2018 Transportation Appropriations

This week, the House and Senate Appropriations Subcommittees on Transportation, Housing and Urban Development, and Related Agencies will hold hearings on FY 2018 appropriations for the U.S. Department of Transportation (DOT). Transportation Secretary Elaine Chao will testify on Tuesday at the Senate Subcommittee hearing and on Thursday at the House Subcommittee hearing.

The President’s FY 2018 Budget Proposal would fully fund highway and transit formula programs at their FAST Act-authorized levels, but would eliminate funding for the Transportation Infrastructure Generating Economic Recovery (TIGER) grant program and limit funding for the Capital Investment Grant (CIG) program, commonly known as New Starts/Small Starts, to current projects. However, there is significant Congressional support for the TIGER grant program and the New Starts/Small Starts program and it is not likely the final FY 2018 appropriations will reflect the FY 2018 Budget Proposal’s elimination of funding for these programs. The Budget also proposes to end all General Fund transfers to the Highway Trust Fund, effectively resulting in a $95 billion cut in surface transportation funding over seven years, starting with FY 2021. This aspect of the 2018 Budget proposal is unrelated to FY 2018 spending decisions, so should be seen more as call for greater fiscal discipline – no more General Fund supplements to the Highway Trust Fund – than as a budget priority for the coming fiscal year.

There is likely not sufficient time before the start of FY 2018 to consider all 12 appropriations bills individually and Congress may move directly to an Omnibus appropriations act for FY 2018. We expect that program funding levels in the Congressional transportation appropriations bills will vary significantly from the President’s FY 2018 Budget Proposal.

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Senate to Focus on Russia and Nominations in Return from Recess

Senate Legislative Activity

The Senate will next convene at 3:00 pm on Monday, June 5, 2017.

On Monday, following any Leader remarks, the Senate will proceed to the consideration of Calendar #107, S.Res.176, commemorating the 50th anniversary of the reunification of Jerusalem, with the time until 5:30 pm equally divided in the usual form. At 5:30 pm, the Senate will vote on adoption of the resolution.

On Tuesday, June 6th, at 2:15 pm, the Senate will vote on confirmation of Executive Calendar #54, the nomination of Courtney Elwood, of Virginia, to be General Counsel of the Central Intelligence Agency.

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State Attorneys General June 5 Update

Squire Patton Boggs’ State Attorneys General Practice Group is comprised of lawyers who have served at senior levels in state AG offices around the country and whose practices focus, to one degree or another, on representing clients before these increasingly assertive and powerful, yet often overlooked, government agencies, as explained in detail here.

In these updates, we will call attention to the most noteworthy state AG news or developments emerging in the previous week.

Advocacy

On June 1, Democratic governors and state AGs launched the “United States Climate Alliance,” which is a group of states committed to upholding the environmental promises established through the Paris Climate Accord. Responding to President Trump’s decision to withdraw from the Paris Climate Accord, Pennsylvania AG Josh Shapiro stated that he is “incredibly distressed and disturbed.” Massachusetts AG Maura Healey voiced her disappointment with President Trump’s recent environmental actions and vowed to “hold the line on important measures that have been put in place to protect our habitat and prevent climate change.” AG Healey went on to suggest that President Trump has placed “hundreds of thousands” of clean energy jobs in jeopardy.  The AGs did not discuss specific legal strategies but emphasized their commitment to continue challenging President Trump’s “unfortunate executive actions.”

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International Food Assistance Programs in the Farm Bill

Legislative Activity

International Food Assistance Programs in the Farm Bill

On Wednesday, the House Agriculture Committee is scheduled to hold a full committee hearing focused on international food assistance programs under the committee’s jurisdiction. Three major food aid programs authorized under past farm bills are the Food for Peace Act, which is administered by the U.S. Agency for International Development (USAID); the Food for Progress Program, which is administered by the United States Department of Agriculture’s (USDA) Foreign Agricultural Service (FAS); and the McGovern-Dole International Food for Education and Child Nutrition Program, which is also administered by USDA’s FAS. Additionally, farm bill legislation has historically authorized programs that seek to promote U.S. agricultural products on global markets.

The House and Senate Agriculture Committees, which are charged with reauthorizing farm bill programs before the current farm bill’s expiration date of September 30, 2018, will undoubtedly face  policy battles over the fate of certain international food aid programs, as they did during the two-and-a-half years leading up to the enactment of the 2014 Farm Bill.

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With a Passing Glance at the President’s Request, Congress Continues Work on FY 2018 Appropriations

Legislative Activity

With a Passing Glance at the President’s Request, Congress Continues Work on FY 2018 Appropriations

President Trump’s FY 2018 budget request, which was released on May 23, was received in Congress with reservation by Democrats and Republicans alike. The $4.09 trillion federal budget request, entitled “A New Foundation for American Greatness,” proposes cutting federal spending by $3.6 trillion over 10 years. In addition to the anticipated backlash from Congressional Democrats, Republican members seemed to somewhat disregard the President’s request: “The president’s budget, as we all know, is a recommendation,” Senate Majority Leader Mitch McConnell (R-KY) noted, “what I do like about it is it clearly focuses on increased defense spending, which is important given the threats that we face.”

Congress is continuing its work on FY 2018 appropriation bills, despite the fact that budget committees have yet to produce a budget resolution to provide topline spending levels for the upcoming fiscal year. Appropriators will likely begin construction of the FY 2018 appropriations legislation using the discretionary spending cap of $1.065 trillion mandated by the Budget Control Act of 2011 (BCA/P.L. 112-25), commonly referred to as sequestration-level funding.

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