New Federal Initiatives Project
Through the New Federal Initiatives Project (NFIP) of the Practice Groups, the Federalist Society is monitoring and analyzing some significant proposals of the new Congress and administration, with an eye toward their constitutional and legal implications. The Federalist Society hopes this project will continue to foster debate on these and other important issues. For briefing papers on such proposals, choose any of the recently posted papers below or select from any of the categories or the index on the left hand side of this page.
On January 21, 2010, the U.S. Sentencing Commission proposed several amendments to the Sentencing Guidelines applicable to business organizations ("Organizational Guidelines") and requested public comment on whether a future amendment should allow a business organization to receive full credit for having an effective compliance and ethics program, notwithstanding the involvement of high-level personnel in the criminal conduct, if the organization's compliance personnel have direct reporting authority to the board or the audit committee. On March 17, 2010, the Commission held a public hearing on the proposed amendments and the issue for public comment, and on April 7, 2010, the Commission voted to submit the proposed amendments to Congress.
Three bills that are currently circulating in Congress seek to regulate interchange fees, which are payments banks make to each other to compensate for the risks and costs associated with credit card transactions. Ultimately, banks pass this fee to the merchant as the major portion of the price for the right to accept each credit card purchase. A November GAO study noted that attempts to lower the interchange fee would entail a mix of costs and benefits and measuring the effects on consumers may be difficult. The question of even whether to regulate interchange fees is controversial.
President Barack Obama's January 21, 2010 announcement that his Administration would seek to limit both the activities and size of U.S. financial institutions (the "Obama Proposal") immediately generated a burst of media and political commentary both in the United States and abroad. It was also followed by a significant drop in the share prices of many U.S. and European financial institutions. The Obama Proposal, which will need to pass both the Senate and House to become law, is virtually certain to generate intense debate in Congress this spring. Senator Richard Shelby and other Senate Banking Committee members have already sent a letter to Chairman Christopher Dodd requesting hearings on the Obama Proposal.
Congress is considering legislation to temporarily lift the statutory ban on the nonconsensual modification, or cramdown, of home mortgages. The bill is called the Helping Families Save Their Homes Act of 2009. It shares this moniker with a different bill which President Obama signed into law in May of 2009. However, the already enacted version of the bill does not include key provisions modifying Chapter 13 of the Bankruptcy Code.
The "Employment Non-Discrimination Act" ("ENDA") would amend Title VII of the 1964 Civil Rights Act to add "sexual orientation" and "gender identity" to the list of statuses protected from employment discrimination. ENDA has been introduced in various forms since the 1970s. With the recent shift in party control of Congress and the backing of President Barack Obama, ENDA has new prospects for passing the 111th Congress and becoming law.
Last year, H.R. 3335, “The Democracy Restoration Act,” was introduced in the House of Representatives. On March 16, 2010, hearings were held on the bill before the House Judiciary Committee’s Subcommittee on the Constitution, Civil Rights, and Civil Liberties. Seven witnesses testified (five in favor of the bill, and two opposing); their testimony is available on the Committee’s website.
EDITOR’S NOTE: The earlier version of this paper titled “Proposed Reinstatement of the ‘Uptick Rule’” was published on November 9, 2009, and has been updated by the author to include recent developments.
On February 24, 2010, the Securities and Exchange Commission (the “SEC”), by a 3-2 vote, adopted a rule1 restricting short sales of a public company’s stock if the price of the stock has fallen ten percent (10%) or more from the price the shares closed at the previous day. Under the final rule, a short sale, after such a price drop, would only be executed at a price above the market’s best bid and that requirement would remain in effect the balance of the trading day and all of the next trading day.
Several dozen advocacy organizations are promoting a proposal to recreate the U.S. Commission on Civil Rights as a U.S. Commission on Civil and Human Rights. This proposed legislation would authorize the newly reauthorized commission to monitor U.S. compliance with international human rights treaties and advocate for U.S. adoption of international human rights treaties. It would also create a new process for commissioner and executive staff appointments. Advocates argue that the proposal will strengthen human rights protections in the United States. Critics respond that the proposal is not at all what it appears to be and that it would, as currently formulated, likely accomplish the opposite of its stated intentions.
Both the House-passed and the Senate-passed health care reform bills include language that protects from discrimination health care providers who are unwilling to participate in abortions. However, the House language is broader in scope than the Senate language. Also, both bills have non-preemption clauses for federal conscience laws, but not for state conscience laws. Finally, neither bill includes conscience protection that would cover other controversial practices, such as the provision of emergency contraception or performance of sterilizations.
There is a lot of discussion right now about the use of "reconciliation," a mechanism for enacting legislation to carry out the budget resolution that cannot be filibustered in the Senate, to enable enactment of health care legislation. As part of our New Federal Initiatives Project, we asked Martin Gold, a partner at Covington & Burling and one of the country's leading experts on congressional procedures, for a paper discussing the issues that this raises. The views set out in this paper are his own, not those of the Federalist Society. For a competing take on these issues, see “Reconciliation for Health Care Should Not Be an Issue” by Stanley Collener, a contributing writer for Roll Call who for most of his career worked on budgetary issues.