The Proposal to Establish a U.S. Commission on Civil and Human Rights

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.

Comparison of Conscience Provisions in Health Care Reform Bill

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.

Reconciliation and Health Care

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.

Reauthorization of the USA PATRIOT Act

Updated March 2010
Two significant provisions of the USA Patriot Act (“Patriot Act”)¹ and a related counterterrorism authority will expire on December 31 of this year unless Congress reauthorizes them.  Despite the impending expirations, legislative action to address the subject has just begun.  The House and Senate Judiciary Committees each recently held their first hearings on this subject, on September 22 and 23, respectively.  On September 17, Senators Durbin and Feingold introduced a bill to amend two of the expiring provisions and numerous other counterterrorism authorities.  Senate Judiciary Committee Chairman Leahy also recently announced legislation to reauthorize the expiring provisions, with amendments and another sunset.  On September 14, the Department of Justice weighed in on behalf of the Administration, recommending to Congress that all three expiring provisions be reauthorized. 

Fair Elections Now Act

Congress is considering a novel way to regulate campaigns.  The bill at issue, the Fair Elections Now Act¹ (FENA), combines federal campaign funds with subsidized advertising for candidates who participate in the program.  Modeled, to some extent, on existing programs at the state and local level, FENA presents interesting constitutional and policy questions.

What are Americans Getting from the GIVE Act?

Many provisions of the “Edward M. Kennedy Serve America Act” (H.R. 1388) or “Generations Invigorating Volunteerism and Education Act” (“GIVE Act”) (the Act’s previous moniker) took effect on October 1, 2009.¹  The Act was passed by the House by a vote of 321-105 on March 18, 2009,² ratified by the Senate on March 26, 2009 by a vote of 79-19,³ and signed into law by President Obama on April 21, 2009.⁴  The final legislation measures 142 pages.⁵  Sponsored by Rep. Carolyn McCarthy (D-NY),⁶ the Act reauthorizes and expands federally funded national service programs by amending the National and Community Service Act of 1990 (“NCSA”) and the Domestic Volunteer Service Act of 1973 (“DVSA”)⁷ and authorizes between $5.7 billion⁸ and $6 billion⁹ to support various community service-oriented initiatives, including AmeriCorps (and others),¹⁰ over the course of the next six years through its scheduled conclusion in 2014.¹¹

The Paperwork Reduction Act

The Paperwork Reduction Act of 1995¹ (PRA) seeks to “minimize the paperwork burden … resulting from the collection of information by or for the Federal Government,” and “ensure the greatest possible public benefit from and maximize the utility of information created, collected, maintained, used, shared and disseminated by or for the Federal Government.”² Other purposes of the act include coordinating government information resources, improving the “quality and use of Federal information to strengthen decision-making, accountability, and openness in Government and society,” minimizing costs to government of gathering, maintaining and using information, and ensuring that information is handled in ways consistent with federal laws related to privacy, security and access.

Proposed Reinstatement of the “Uptick Rule”

On April 10, 2009, the Securities and Exchange Commission (the “SEC”) proposed two approaches to restrictions on short selling¹ and, on August 17, 2009, re-opened the comment period until September 21, 2009 and solicited additional feedback on an aspect of the original proposal.

In July, 2007, the SEC eliminated all short sale price restrictions, one of which was its Rule 10a-1, the so-called “uptick rule”, which, for almost 70 years, prohibited short sales of publicly traded securities except on a price increase.  The repeal of the uptick rule followed seven years of studies and public comment as to the rule’s effectiveness.

Resolution Authority over Systemically Important Financial Companies

One of the key elements of the Obama administration’s financial reform efforts is to address the supervision of systemically important financial institutions.  As a result of perceived weaknesses in the regulatory framework, the administration proposes to enhance supervision of entities such as AIG, Bear Stearns and Lehman Brothers under the belief that such supervision could have potentially avoided the present crisis or, at a minimum, mitigated the consequences.

Executive Compensation

The Corporate and Financial Institution Compensation Fairness Act of 2009 ("The Act"), H.R. 3629, passed the House of Representatives on July 31, 2009.  That Act included substantial components from the Treasury Department's compensation proposals released on July 16, 2009.  The Act includes four provisions.  It mandates publicly traded companies give their shareholders an opportunity to conduct a non-binding, advisory vote on annual executive compensation (known colloquially as "Say-on-pay").  It also mandates that the Compensation Committees of the Boards of Directors of publicly traded companies consist of independent directors.  The act further requires financial institutions with over $1 billion in assets provide enhanced disclosure about their incentive-based compensation and requires the banking regulators to set minimum standards for incentive-based compensation at those financial institutions.  Senator Schumer's Shareholder Bill of Rights, currently under consideration by the Senate Committee on Banking, Housing, and Urban Development, also includes a provision requiring an annual advisory vote on executive compensation.