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Senate Confirms Lee Francis Cissna to lead USCIS

On Oct. 5, the U.S. Senate approved the nomination of Lee Francis Cissna to lead the U.S. Citizenship and Immigration Services agency (USCIS) on a bipartisan vote of 54-43. All Republican senators supported the nomination and were joined by Democrat Senators Donnelly (IN), Heitkamp (ND), Manchin (WV) and McCaskill (MO). Senators Cochran (R-MS), Cortez Masto (D-NV) and Heller (R-NV) did not vote.

For more legal analysis go to The National Law Review

President’s FY18 Budget Proposes Historic Cuts to EPA Funding and Staffing

On May 23, 2017, the White House unveiled the full version of President Trump’s proposed budget for fiscal year (FY) 2018 entitled “A New Foundation for American Greatness.” As signaled in the President’s “skinny budget” released earlier this year, the proposed budget would fund the U.S. Environmental Protection Agency (EPA) at $5.7 billion — a more than 30 percent decrease from the current funding of nearly eight billion. EPA’s congressionally enacted budget has remained relatively flat since 2000, other than a significant boost in 2010 to $10.3 billion. The proposed FY18 budget also calls for an EPA staffing level of 11,611 — a thirty year low. The proposed decreased staffing level equates to a 20 percent reduction in the overall EPA workforce, which would eliminate approximately 3,000 employees. A portion of the staff cuts would come from programs proposed for elimination, including the Center for Corporate Climate leadership, the Coalbed Methane Outreach group, and greenhouse gas reporting programs. Some of the staff cuts may be accomplished by early retirement and lump sum voluntary separation payment incentives. On June 1, 2017, EPA Acting Deputy Administrator Mike Flynn sent an e-mail to EPA employees providing preliminary details and next steps on early retirement and separation incentive offers. Employees who accept offers will leave EPA by early September 2017.

Funding for state and tribal assistance grants (STAG) and other funds for state and regional initiatives is markedly decreased or zeroed out in the proposed budget, with cuts totaling $482 million, or 45 percent below the current enacted levels. According to the Environmental Council of the States, which represents state departments of environment, STAG monies support approximately 27 percent of state departments of environment annual budgets.

In the area of federal enforcement, the Office of Enforcement and Compliance Assurance’s (OECA) budget would decrease by nearly 25 percent below current funding. This decrease would reduce civil and criminal enforcement by 18 and 16.5 percent, respectively. Funding for laboratory and forensics costs that support enforcement cases, including monitoring, would decrease by over 40 percent. The corresponding reduction in enforcement efforts is likely to result in increased litigation from environmental advocates, particularly for matters governed by the Clean Air Act and the Clean Water Act which authorize citizen suits.

The budget requests $65 million for chemical risk review and reduction efforts under the Toxic Substances Control Act (TSCA), an increase of nearly $3.8 million from the current level. EPA’s budget document notes that TSCA fee collections, set to begin in the second quarter of FY18, will fund approximately 53 full-time employees to support the chemical review process that were previously funded by federal appropriations. This small boost in funding may not be sufficient enough to support the implementation of “new TSCA,” however, and the implementation could still result in delays.

The President’s budget provides $99.4 million in appropriated funding to support EPA’s pesticide registration review and registration program, including implementation. This amount would decrease funding by $20.4 million from current enacted levels. In addition to budget appropriations, EPA’s pesticide program is supported by Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) maintenance fees and Pesticide Registration Improvement Act (PRIA) registration application fees. These fees combined typically generate approximately $40-45 million in additional funding per year. Congress is currently considering the reauthorization of PRIA, which would increase application fees. Together, however, the total amount of funds available to operate the pesticide program (appropriations and industry fees) have declined over the past years and present a threat to the pesticide program’s ability to meet application review deadlines.

EPA Administrator Pruitt’s Back-to-Basics agenda includes addressing hazardous waste clean-up of the sites that have remained on the Superfund National Priorities List for decades. In spite of this priority action item, the proposed budget would fund the Hazardous Substance Superfund Account at $762 million, $330 million below the 2017 level. Instead of relying on the Superfund account to finance remediation, EPA instead would use existing settlement funds to clean up hazardous waste sites.

EPA’s Office of Water’s overall funding would decrease by nearly 20 percent. The Clean Water and Drinking Water State Revolving Funds (SRF) funding levels would remain funded at current levels. The SRFs support states’ administration of their drinking water and surface water programs and related infrastructure projects. Steep cuts to STAG grants, and zeroing out of the Section 319 Nonpoint Source program and regional initiatives like the Great Lakes and Chesapeake Bay programs will be felt at the state level. The Section 319 program targets nonpoint source pollution, including runoff from agricultural working lands. States use 319 program funds to support watershed improvement projects and incentivize voluntary installation of best management practices on farms (e.g., grass waterways and buffers).

EPA’s FY18 Budget in Brief provides more details on proposed budget allocations and priorities. The President’s budget is likely to face steep opposition in Congress, which has until September 30, 2017, to pass a budget for FY18, although this timeline will likely be extended through the use of continuing resolutions. The House is slated to finish its work on appropriation bills before the July 4, 2017, holiday break, which should provide more insights on how much influence the President’s budget will have with appropriations leadership.

This post was contributed by the Government Regulations practice group at Bergeson & Campbell, P.C.

Watchdog: ‘Reason To Believe’ Trump And Super PAC Violated Election Law

A campaign finance watchdog said Wednesday that chief White House strategist Steve Bannon may have illegally benefited from spending by a pro-Trump super PAC while he led Trump’s presidential campaign.

The Campaign Legal Center believes Make America Number 1, a super PAC that backed Trump, may have improperly subsidized Bannon’s salary. In a letter to regulators on Wednesday, the Campaign Legal Center argued that details in Bannon’s recent financial disclosure give “reason to believe” the Trump campaign and the super PAC may have violated federal election rules.

While Trump initially criticized his Republican opponents for their close ties to super PACs and disavowed outside groups that sought to support his bid, his team embraced outside help during his general election race against Hillary Clinton and pushed the boundaries of federal election rules as much as any other 2016 candidate, testing regulations meant to ensure super PACs operate independently from campaigns.

Bannon’s disclosure, filed March 31, confirmed his financial connection to Glittering Steel, a film production company that was involved with Bannon’s “Clinton Cash” documentary about the Clinton family and “Torchbearer,” which starred Duck Dynasty’s Phil Robertson.

Make America Number 1 paid the film production company nearly $1 million during the 2016 election cycle, with payments starting in July 2015 and continuing after Bannon became the Trump campaign’s CEO. The Trump campaign never paid Bannon, who previously was the executive chairman of Breitbart News, a right-wing news site.

The filing says Bannon resigned from Glittering Steel and stopped receiving monthly consulting payments from the company in August 2016, when he joined the Trump campaign. But the form indicates Bannon kept an ownership interest in Glittering Steel, worth at least $100,000. Bannon’s report says he’s trying to sell his stake in the company.

“As a result, as Bannon worked for the Trump campaign without pay, he continued to benefit, directly or indirectly, from the estimated $267,500 in payments that Make America Number 1 made to Glittering Steel LLC after or around his officially joining the campaign,” wrote the Campaign Legal Center’s general counsel, Larry Noble.

The Campaign Legal Center first filed its complaint with the Federal Election Commission in October. It’s unclear if the agency has decided to investigate, as the FEC doesn’t disclose investigations until they’re completed. Its commissioners have frequently deadlocked on whether to pursue apparent election law violations.

Overall, the FEC has done little to ensure that super PACs remain independent from candidates in the wake of the Supreme Court’s 2010 Citizens United decision, which allowed companies and unions to spend unlimited amounts of money on elections.

Super PACs and politically active nonprofits spent almost $1.5 billion during the last election cycle, with much of the money coming from ultra-wealthy individuals like billionaire Robert Mercer, the conservative hedge fund executive who financed Make America Number 1. His daughter, Rebekah, led the super PAC, which originally backed Texas Sen. Ted Cruz in the Republican primary race.

The Mercers pressed Trump to hire Bannon to lead his campaign, according to the Washington Post. Over the years, the Mercer family has funded Breitbart News, as well as the Government Accountability Institute, a conservative investigative nonprofit led by Bannon. Bannon and the Mercers founded Glittering Steel together, the Post reported.

The Mercers are also major investors in Cambridge Analytica, a data firm that worked for both Make America Number 1 and the Trump campaign. Bannon received monthly consulting payments from Cambridge Analytica and served on its board. Though Bannon’s financial disclosure says he resigned from the firm when he started working for Trump, he still has a stake in the company, worth over $1 million, that he’s planning to sell.

The Campaign Legal Center said that there’s reason to question whether Bannon did in fact resign from Glittering Steel and Cambridge Analytica in August.

Bannon’s financial disclosure says he resigned from Breitbart News then, but Breitbart’s CEO Larry Solov recently told the Senate Press Gallery that Bannon resigned from Breitbart in November, days after Trump’s victory.

The relationship between Bannon and Breitbart News, which gave Trump favorable coverage throughout the campaign, has generated controversy in recent weeks. Bannon has reportedly maintained contact with Breitbart editors about the site’s coverage. That news prompted a liberal watchdog group, Citizens for Responsibility and Ethics in Washington, to request an investigation into whether Bannon has violated his White House ethics pledge.

News reports suggested last week that there’s a growing rivalry between Bannon and Trump’s son-in-law and advisor Jared Kushner, and that Bannon could be on his way out the door, after Trump removed Bannon from a position on his National Security Council.

Trump did little to quiet talk of a shake-up on Tuesday when the New York Post asked him if he still has confidence in Bannon. “I like Steve, but you have to remember he was not involved in my campaign until very late,” he said. “I had already beaten all the senators and all the governors, and I didn’t know Steve. I’m my own strategist and it wasn’t like I was going to change strategies because I was facing crooked Hillary.”

*This article was produced by MapLight in partnership with Fast Company.

ARTICLE BY MapLight

Trump Administration Executive Order on Ethics Breaks New Ground

President Trump signed an executive order on ethics this weekend that is similar in key respects to the Obama Administration’s executive order governing ethical conduct by presidential appointees. But in one key respect it is significantly broader in scope than the previous Obama executive order. The Trump executive order incorporates the concept of “ lobbying activities, ” a defined term that it imports from the federal Lobbying Disclosure Act.

Presidential appointees are required to agree that they will not engage in “lobbying activities” with respect to their agency for five years after the end of their term of office. Lobbying activities is a broad and amorphous term that covers not just actual lobbying contacts that may trigger lobbyist registration but also behind-the-scenes strategic advice and other work related to the lobbying contacts of others. In other words, whereas the restrictions in the Obama executive order applied to individuals who engaged in activities requiring lobbyist registration, the Trump executive order reaches even activity by non-registered lobbyists. This closes one of the major loopholes that President Obama had included in his administration’s executive order on ethics.

The Trump executive order also bars appointees from engaging in “lobbying activities” with respect to any covered executive branch official or non-career Senior Executive Service appointee for the remainder of the Administration. This provision applies not just to the appointee’s former agency but to the entire executive branch. And again, because it applies to “lobbying activities,” as that term is defined in the LDA, it applies to behind-the-scenes strategic advice that supports someone else’s lobbying contacts.

Incorporating the term “lobbying activities” will have very significant consequences for Trump administration appointees, subjecting them to much broader post-employment restrictions than was so for Obama administration appointees. It would be difficult for Trump appointees who sign the pledge to pursue employment as strategic advisors, much less lobbyists, for a period of time after leaving the administration.

The change in language is quite subtle, probably understood only by Lobbying Disclosure Act aficionados at this point. But it is likely to draw considerable attention as appointees begin to focus on the consequences of signing the pledge.

ARTICLE BY Robert Kelner of Covington & Burling LLP

Inauguration Day 2017: President Donald Trump

One year ago, few people outside of candidate Donald Trump and his closest and most loyal supporters imagined that January 20, 2017, would mark his inauguration as the 45th president of the United States. Regardless, today an estimated 800,000–900,000 people were on hand to witness his inauguration on the west front steps of the U.S. Capitol. As is the tradition, the new president was sworn in by the chief justice of the Supreme Court of the United States, with Donald Trump repeating the 37-word, constitutionally mandated oath of office administered by Chief Justice John G. Robert Jr. There then followed the traditional rendition of “Ruffles and Flourishes” and the first “Hail to the Chief” for President Trump, as well as the howitzers of the 3rd U.S. Infantry’s 21-round gun salute while the First Lady and other members of the Trump family looked on.

Meanwhile, many continue to refuse to accept the election results—in which Trump won a wide majority of votes cast in the Electoral College (301–237) but lost the popular vote by over three million votes. Their protests were reflected by hundreds of thousands of demonstrators in inauguration marches in Washington, D.C., and elsewhere around the country, including the Women’s March on Washington, which an estimated 200,000 individuals—brought to the nation’s capital by 1,400 buses—attended. In contrast to the calls for unity and peaceful transfer of power, a few of the protests turned violent resulting in property damage and police action, including the use of tear gas, pepper spray, and flash grenades, and numerous arrests.

Despite the protests, on January 20, Donald John Trump became the new president of the United States, along with Vice President Mike Pence, and the Trump era was launched.

His relatively brief inaugural address—20 minutes—written by his own hand, lacked the rhetorical flourishes of the most memorable lines from several of his predecessors.

For a president whose national popularity rating of 40 percent, according to a recent poll—the lowest rating of any new president on Inauguration Day over the past six most recent presidents—President Trump’s desire for national unity is an important message to deliver, especially in the face of impending change.

In this regard, President Trump used expressions in his inaugural speech such as “always pursue solidarity” and “We share one heart, one home, and one glorious destiny.” Yet essentially, it was a speech that mirrored his campaign speeches calling to “Make America great again.” Perhaps the most memorable line was,

From this day forward, a new vision will govern our land. From this day forward, it’s going to be only America first, America first.

The Trump White House

President Donald Trump and Vice President Mike Pence plan to advance a conservative domestic social and fiscal policy agenda from the White House, and to redefine global relationships with our trading partners, foreign governments, and international organizations. President Trump has promised to quickly overturn President Obama’s executive orders and regulations, as well as repeal and replace the Affordable Care Act, which was passed by a strictly partisan congressional vote with no Republicans voting in favor. President Trump also enjoys a Senate Republican majority to confirm his Cabinet nominees, although confirmation of some may face difficulty. However, Senate confirmation of his choice for the Supreme Court of the United States will be more difficult since, unlike lower federal circuit court judges and administration appointments that cannot be filibustered and only require a simple 51-vote majority to confirm, Supreme Court nominees require 60 votes to overcome a threatened Senate filibuster.

The Republican Congress—Critical to Trump’s Agenda

The Trump era will rely on a Republican-controlled Congress to advance its agenda. Republicans enjoy majorities in both Houses of Congress, albeit by slimmer margins than the 114th Congress. In the new 115th Congress (2017-2018), Senate Republicans hold 52 seats versus 46 Democrats and 2 Independents who caucus with the Democrats, which is 2 fewer Republicans than in the 114th Congress. The slim 52-vote majority makes Senate Republicans susceptible to a 60-vote super-majority vote necessary to invoke cloture to end a legislative filibuster blocking the Trump agenda. In the House the margin is 241 Republicans versus 194 Democrats, which includes 6 fewer Republicans than there were in the 114th Congress but more than sufficient to move the Trump agenda.

What is the Trump Agenda?

President Trump’s Inaugural Address echoed themes he had sounded over the course of his candidacy. Key excerpts from his speech reflect his priorities:

“We assembled here today are issuing a new decree to be heard in every city, in every foreign capital, and in every hall of power. From this day forward, a new vision will govern our land. From this day forward, it’s going to be only America first. America first.”
“What truly matters is not which party controls our government but whether our government is controlled by the people.”
“January 20th, 2017 will be remembered as the day the people became rulers of this nation again.”
“When you open your heart to patriotism, there is no room for prejudice.”
“A new national pride will stir our souls, lift our sights and heal our divisions.”

First 100 Days

On the first day, the Senate will confirm two of President Trump’s Cabinet nominees: retired United States Marine Corp general, James “Mad Dog” Mattis as Secretary of Defense and retired Marine General John Kelly as Secretary of Homeland Security.

Although President Trump will take executive actions on Inauguration Day following his swearing in, he has stated that he considers his “first day” to be Monday, January 23.

President Trump’s first 100 days in office are likely to include a laser-beam focus on:

confirming his Cabinet and sub-Cabinet nominees;
repealing the Affordable Care Act (or “Obamacare”) and replacing it with a slimmed-down version;
overturning most, if not all, of President Obama’s executive orders and instructing the Trump Executive Branch agency heads to undo Obama regulations by reverse rulemaking or by withdrawing their agencies’ legal defenses of such regulations before the federal appellate courts where they have been enjoined permanently (e.g., the persuader rule) or preliminarily (e.g., the government contractor “blacklisting” rule);
redesignating the chairs of the National Labor Relations Board (NLRB) and the U.S. Equal Employment Opportunity Commission (EEOC), and filling vacancies in those two agencies;
nominating a new Supreme Court justice and candidates for the lower federal circuit courts of appeals;
beginning work on immigration policy, infrastructure, tax reform, and trade policy; and
negotiating a spending bill to fund the federal government before the continuing resolution expires in April 2017.

How Might Labor and Employment Policy Change Under President Trump?

Under President Trump, expect a significant reversal of Obama labor and employment policies at the U.S. Department of Labor (DOL), NLRB, and the EEOC.

Traditional Labor. In terms of labor policy, for example, a recent study concluded that over 4,559 years of judicial precedent was overturned in eight years by the Obama Board in favor of pro-union policies. Expect gradual reversal of many of those decisions by a new Trump Board. Reversals will be slowed, however, by the need for a “live” case (the NLRB is not permitted to issue advisory opinions) and by incumbent pro-union Democratic General Counsel Richard Griffin, whose term expires in November of 2017.

Joint-Employer. Also, expect reversal of the Obama policy on “joint-employer” status, which saddles franchisors with the collective bargaining obligations and labor law violations of their franchisees. The ubiquitous Obama joint-employer standard has been developing government-wide by the NLRB (in its Browning-Ferris Industries decision) as well as by the DOL’s Wage and Hour Division and Occupational Safety and Health Administration, and by the EEOC. Business groups argue that the joint-employer standard would destroy the franchise model. We can likely expect the Trump administration to move quickly to reverse these joint-employer policies, especially if the chief executive officer of CKE Restaurants, Andy Puzder is confirmed as Secretary of Labor.

Wage and Hour Issues. On issues such as the “salary basis” for the Fair Labor Standards Act’s overtime exemption for white collar employees (executive, administrative, or professional employees), and the minimum wage, expect the Trump administration to propose significantly lower increases than those proposed by President Obama. Similarly, expect Trump to advance some version of a federal paid family leave law, although without some of the onerous provisions previously advocated.

Executive Orders. On issues like “government contractor blacklisting” (Executive Order 13673, “Fair Pay and Safe Workplaces” and its implementing regulations and DOL guidance), President Trump has promised to quickly rescind the executive order, perhaps on his first day in office. The same is true with Obama’s other labor and employment executive orders starting with those from the first days of the Obama presidency.

Persuader Rule. As for the “persuader” regulations, expect Trump to instruct his Justice Department and Department of Labor to withdraw their appeals in the Fifth Circuit of the permanent injunction granted by a federal district court in Texas. The same is true of the appeal of a preliminary injunction of the Labor Department’s overtime regulation entered by another federal district court in Texas. By withdrawing from the litigation, the Trump administration would effectively end those regulations without going through a burdensome and time-consuming reverse rule making.

Immigration. In addition to reversing and replacing Obamacare and rescinding other Obama labor and employment executive orders and regulations, immigration reform is a high priority for the Trump administration. Under President Trump, immigration policy will focus on boarder security, restrictions on entry, and deportation of undocumented aliens.

Court Vacancies. Finally, the composition of federal courts, including the Supreme Court of the United States, is important to labor and employment policy. Filling the vacancy on the Supreme Court, and the 100 vacancies in the lower federal courts, will be a priority. Currently, for example, only the Fifth, Sixth, Seventh, and Eighth Circuits retain majorities appointed by Republican presidents. Now, after the “nuclear option” was rammed through the Senate by then-Majority Leader Harry Ried (D-NV), it is possible that the Senate confirmation of judicial appointments will not be filibustered and will only require a simple 51-vote majority. We can likely expect President Trump to move quickly to fill those vacancies.

Post- Inauguration Day 2017: The Trump Era Begins

The next four years potentially will bring dramatic changes in domestic and foreign policy. One of the most significant changes likely will be in labor and employment policy. As with all of his predecessors throughout U.S. history, President Trump enters the White House hoping to bring about change. Time will tell.

ARTICLE BY Harold P. Coxson of Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

Forecasting the Trump Administration’s First 100 Days

With the 2016 election in the rearview mirror, manufacturers must be mindful of the early initiatives you can expect from Congress and the new administration. With a return to one-party rule, the coming congressional term is likely to be among the most active in recent memory.

President-elect Trump’s appointment of Republican National Committee Chairman Reince Priebus as White House chief of staff signals that, rather than battling the Washington establishment, Trump has now embraced it to get results. Similarly, the decision to replace New Jersey Governor Chris Christie with Vice President-elect Mike Pence as transition team lead means the president-elect understands that, campaign rhetoric aside, his early success will depend on partnering with House Speaker Paul Ryan and Senate Majority Leader Mitch McConnell.

Early Legislation

The Trump transition team was thinly staffed and produced few of the reams of position papers the Clinton team, and even the Romney team in 2012, produced leading up to Election Day. As a result, we believe the core of the term’s early legislation will be a series of bills previously passed, largely by the House, which President Obama refused to consider. The last four years’ deep legislative history offers insight into the likely legislative agenda, for example, the upcoming tax bill or financial services reform.

In the short run, we expect the first weeks of the Trump Administration will focus on quick action to nullify many of the Obama Administration’s executive orders. Priorities likely include approving the Keystone XL pipeline, reversing Clean Air Act rules, striking down the increased minimum wage for federal contractors, and freezing the recruiting of new, non-defense federal employees. Trump also spoke during the campaign about lifting restrictions on U.S. energy development and canceling billions in payments to U.N. climate programs.

On trade, expect the president-elect to order his new commerce secretary to “identify all foreign trading abuses that unfairly impact American workers and direct them to use every tool under American and international law to end those abuses immediately.” Also expect Canada, Mexico, and the United States to begin negotiations to revamp the North American Free Trade Agreement.

We anticipate that Republican leadership to combine a number of priorities into a major reconciliation bill, which will only require 51 Senate votes. (Other Senate bills require 60 votes to advance under current rules.) Key elements in this whopper of a bill will likely be tax reform, the repeal or rewrite of the Affordable Care Act, and financial services reform. Such reform will assuredly eviscerate the Consumer Financial Protection Bureau (“CFPB”), in addition to addressing a number of other issues.

Aside from fleshing out the Cabinet, President Trump will nominate a Supreme Court justice and two members of the Federal Reserve’s seven-member Board of Governors. It is worth noting that the Fed now has jurisdiction over the CFPB. Another interesting decision is whether to fill the open seats on the Export-Import Bank. Three of its five seats are open. While Congress has fought off challenges to kill the bank, Trump could effectively kill it by never filling the vacant seats.

What’s Next?

In the next six months, the new administration and Congress will negotiate some of the largest changes to law in recent memory, substantially impacting manufacturers.

ARTICLE BY Dennis A. Cardoza & Scott L. Klug of Foley & Lardner LLP

Five Lessons from FOX News and Trump on Sexual Harassment

The recent accusations of sexual harassment against Roger Ailes at Fox News, and the response of a high-profile candidate for public office about how women should respond to sexual harassment have crystallized into an opportunity to learn from the mistakes of others.

Since the mid-1980s, we’ve all read about sexual harassment and been trained on it. For the last 25 years, I’ve studied it, investigated it, seen it, taught about it, warned about it, developed policies to guard against it, and defended companies accused of it. Here are a few lessons from these recent events:

A Quick Review

If you’ve avoided (whether by choice or by luck) these last few news cycles, former Fox News anchor Gretchen Carlson accused former Fox News Chairman and CEO Roger Ailes of sexual harassment. After an outside investigation and multiple women providing more examples of his alleged slimy behavior, Ailes is now gone. It happened quickly.

Then, in responding to questions about sexual harassment, a high-profile office-seeker went on record saying he hopes his daughter would quit if she were sexually harassed—and seek another career—which is, by all accounts, an impossibly unrealistic option for most women. Another family member, jumping on the grenade, made it worse when he tried to explain that what his dad actually meant was that a “strong” woman would not allow such sexual harassment to continue – implying (whether intentionally or not) either that strong women could control it, or would have the power to find other work.

Enough already. Sexual harassment is personal; it’s sensitive, and it’s complicated.

Five Quick Lessons

Lesson 1: Sexual harassment comes in many forms.

In 1986, 30 years ago, the U.S. Supreme Court determined that sexual harassment is a form of sex discrimination. Today, the law recognizes harassment that includes female-on-male, male-on-male, female-on-female, but most often we see the male-on-female harassment. Still.

Lesson 2: Most women don’t want to complain about it. Period.

Since the 90s, the research has repeatedly shown that complaining is the leastlikely response from women who were harassed. The more likely responses include (1) avoiding the harasser; (2) downplaying the gravity of it; (3) ignoring it; and (4) taking it head-on.

The EEOC’s recently released Select Task Force Report on the Study of Harassment in the Workplace explains in more detail that most women who are victims of harassment don’t ever complain about it. They just want to fly under the radar. There are a lot of reasons, but that’s for a much longer article in a different format. In sum, usually, it takes courage to complain.

Lesson 3: Know when to bring in outsiders.

Fox News did the right thing by bringing in an outside investigator—reportedly an outside law firm—to investigate the Carlson allegations. When the accused is in a position of power (like Ailes), such that other employees might be afraid to tell what they’ve actually experienced or seen, an internal investigator is usually not enough. An outside neutral has no attachment to the accused or accuser, and the results—whatever they are—in most cases, are more likely to be more thorough, more revealing, and more trusted.

Importantly, with an outside law firm as an investigator, you also have more opportunities to protect communications, advice, and other developments under the attorney-client privilege. That process must be carefully handled.

Lesson 4: Confidentiality is critical.

When employees report harassment, the law compels employers to investigate. We know investigations can be messy and trigger unexpected consequences. Practically, it makes sense to protect those who complain and those about whom complaints are made. Some sexual harassment (like the allegations against Ailes) is severe, while other accusations are more tame. In some cases, there really is no evidence of a hostile work environment and no evidence of harassment. Everyone needs to be protected.

For those of you chiding me for the NLRB’s sweeping decisions against blanket confidentiality rules, I know, I know. But, after being on the front lines of these investigations, confidentiality is critical to protecting everyone in an investigation, and to prevent retaliation.

Notably, even the EEOC’s Select Task Force acknowledges the need for the EEOC and NLRB to “jointly clarify and harmonize the interplay of the National Labor Relations Act and federal EEO statutes with regard to the permissible confidentiality of workplace investigations, and the permissible scope of policies regulating workplace social media usage.”

Lesson 5: Update your policies.

Good employers have good policies that encourage people to come forward. The EEOC’s Select Task Force Report emphasized that a modern, updated policy will include the following elements:

Clear explanation of prohibited conduct, including examples

Promises to protect against retaliation

Complaint process that provides multiple, accessible avenues of complaint

Promises to protect the confidentiality of harassment complaints to the extent possible

Processes for a prompt, thorough, and impartial investigation

Promises to take immediate, proportionate corrective action when harassment has occurred

Promises to respond appropriately to behavior that might not be legally actionable “harassment,” but that which—left unchecked—might lead to harassment

The Select Task Force Report also lists a host of other recommendations, including updating training. Practically, even the best of policies may not have prevented the conduct that Ailes is accused of committing, but let’s take this opportunity to try.

ARTICLE BY Jeanine M. Gozdecki of Barnes & Thornburg LLP

Donald Trump, Want To Binge-Watch Anti-Trump Ads? You’ll Need Three Full Days And Nights

If you were to binge-watch every negative Donald Trump advertisement aired in 23 selected markets during the primary season, you would first want to make yourself comfortable.

How comfortable? Extremely so. You’ll be sitting down for more than 3 days and nights.

Our analysis of Political TV Ad Archive data has found that the Republican presidential nominee was the subject of at least 4,963 minutes of negative advertisements between Nov. 20 and July 14, in television markets ranging from San Francisco to Washington, D.C. Cumulatively, the ads attacking Trump amounted to about 83 hours of air time.

Donald Trump, Election anti-trump ads — Screenshot of Our Principles PAC advertisement from the Political Ad Archive

By comparison, it would take about 11 hours to watch the airings of negative ads aimed exclusively at Hillary Clinton. The presumptive Democratic nominee only had one major primary candidate, Bernie Sanders, who, for the most part, stuck to his pledge of running a positive campaign. Republican groups sponsored all of the anti-Clinton spots.

The campaign against Trump is unusual. Most of the attack ads came from a super PAC backed by his own Republican party’s establishment.

Outsourcing negative ads

Although waning in influence, television advertisements still make up the single largest expense of any presidential campaign – nearly three of every four dollars spent. Most political ads are bought by campaign committees that are tied directly to an individual candidate.

Traditionally, those committees have been reluctant to sling mud for fear of angering voters. Instead they have outsourced the work of attacking opposing candidates to outside spending groups. Most negative ads are now sponsored by those groups, which include super PACs and “dark money” organizations that aren’t required to reveal their donors.

Archive records show that anti-Trump ads aired at least 7,811 times during the primary season. Our Principles, a super PAC backed by the Republican party’s establishment wing, paid for at least 1,795 airings of spots dedicated to attacking Trump individually — the most from a single group. Nearly 30% of that air time was devoted to one ad that attacked the Republican nominee’s history of using undocumented workers on construction projects.

Two super PACs affiliated with the campaign of U.S. Sen. Ted Cruz paid for at least 670 airings of anti-Trump ads. But the Texas Republican, who ran against Trump in the GOP presidential primary before dropping out of the race in May, used his own campaign funds to pay for 5 separate ads attacking Trump. One of those spots claimed Trump favored gender-neutral public bathrooms.

Conservative Solutions PAC, a super PAC affiliated with the unsuccessful campaign of U.S. Sen. Marco Rubio (R-Florida), who dropped out of the race in March, paid for nearly 600 airings of anti-Trump spots. All of those ads featured Trump boasting, “I love the poorly educated.”

Business As Usual

Of the 95 separate advertisements focused on Trump, the Political Ad Archive determined that 71 were unambiguously negative, while 22 ads were considered strictly positive. That means that roughly 3 out of every 4 ads featuring only Trump were negative.

Those figures are similar to the previous presidential primary season, when roughly 70 percent of the political ads aired through April of 2012 took a negative tone, according to researchers at the Wesleyan Media Project. In 2008, only 9 percent of presidential primary ads were negative.

A 2012 post-election report found that near the end of the campaign, the prevalence of negative ads threatened to swamp any positive marketing by candidates. Almost 90 percent of 2012 GOP nominee Mitt Romney’s general election advertisements were negative, according to Kantar Media CMAG; roughly 80 percent of Obama’s 2012 spots were attack ads.

Clinton’s allies have been attacking Trump since late November, according to archive records. Priorities USA Action, a Democratic-leaning super PAC that supported Obama and is now backing the former Secretary of State, has paid for 527 airings of attack ads focused only on Trump, including one spot that has run 415 times. Clinton’s own committee has already aired more than 130 anti-Trump ads, including one that consists entirely of Republicans criticizing Trump.

Methodology: analysis of Political TV Ad Archive data through July 14, 2016. The markets included in the Political TV Ad Archive include stations in Iowa (Des Moines-Ames; Cedar Rapids-Waterloo-Iowa City-Dubuque; and Sioux City), New Hampshire (Boston-Manchester), Nevada (Las Vegas and Reno), South Carolina (Columbia and Greenville-Spartanburg), Colorado (Colorado-Springs-Pueblo and Denver), North Carolina (Charlotte and Raleigh-Durham-Fayetteville); Virginia (Roanoke-Lynchburg; Norfolk-Portsmouth-Newport News; and Washington, DC-Hagerstown), Ohio (Cleveland-Akron-Canton and Cincinnati), Florida (Tampa-St. Petersburg-Sarasota; Orlando_Daytona Beach-Melbourne; and Miami-Ft. Lauderdale), California (San Francisco), Pennsylvania (Philadelphia), and New York (New York City). More information about the data from the Political TV Ad Archive is available here.

ARTICLE BY MapLight of MapLight

Choosing the Next Vice President [PODCAST]

Every election, months before an official candidate is nominated, the names of potential vice presidents are floated around. For each presidential candidate there are different factors to consider, and over the years the role of the vice president seems to have changed. This podcast, featuring Vincent C. Immel Professor of Law Joel K. Goldstein, will explore what the future holds for the candidates and for the office itself.

Corie:

I’m Corie Dugas. Thanks for joining us. We have Professor Joel Goldstein, the Vincent C. Immel Professor of Law and highly respected scholar on the Vice Presidency. Today we will explore what the future holds for the candidates and for the office itself. Welcome to the show Joel.

Joel:

Hi, Corie.

Corie:

Well to start things off, can you give the listeners a refresher on the important responsibilities of the vice president once elected?

Joel:

The constitution gives the vice president two responsibilities. He or she is the president of the Senate and is the first successor in case of a death, resignation, removal or disability of the president. But, in fact, that doesn’t really describe very well what the modern Vice President does. The Vice President rarely presides over the senate. Instead, ever since Walter Mondale was Vice President in 1977, the vice presidents become a highly important, engaged, involved member of the Executive Branch, who works closely with the president in the White House, is a close presidential advisor, and takes on assignments from the president.

Corie:

Ok, so now that things have sort of changed since Mondale, what makes a good vice president?

Joel:

It’s a difficult job because for a vice president to be successful, he has to have a good relationship with the president. He has to add something substantive to the administration that it needs, whether it’s the ability of a spokesperson, or as a diplomat or a congressional liaison. But, really a vice president has to be both a leader and a follower. A vice president has to be able to deal with world leaders and congressional leaders as an equal, but also has to be able to operate in a situation where he or she isn’t the decider; rather they’re implementing what somebody else has decided.

Corie:

So we’re really amping up into the election season. In general, what are the presidential candidates that we have out there looking for in a potential vice president?

Joel:

The basic things that a presidential candidate looks for in a vice president is somebody at the least who hopefully can help them improve their chances of being elected, but who at least won’t hurt them. They don’t want the vice president to become a major drag on their candidacy. So there’s an elaborate vetting process that takes place to see, to examine the potential vice presidential candidates in detail. Find out everything about their lives. Joe Liebermann said that it was like having a colonoscopy without an anesthesia. So they do this to try and eliminate candidates who will have negative baggage that will hurt the ticket. But they usually are looking for somebody who could at least provide or who could hopefully provide some boost. Sometimes it’s a question of picking somebody who could help unify the party. Sometimes it’s helping them with a demographic where they’re weak or where they’re a part of the party or the constituency where the presidential candidate is weak.

Corie:

Are there any particular personality characteristics that you think are important for a vice candidate?

Joel:

Well vice presidential candidates I think needs to be presidential. There’ll be a debate of probably 90 minutes where the vice presidential candidates and if you’re a presidential candidate, you don’t want to be sitting watching that debate as your campaign goes down the tubes because people see that you’ve put somebody potentially a heartbeat away from the presidency who doesn’t belong there. Moreover, you want somebody who is presidential because who you choose as vice president is often sort of the first presidential decision that a presidential candidate makes. So it’s sometimes viewed as sort of a test on how good of a decision maker somebody is. The other thing you need in a vice presidential candidate is somebody who is a good follower. Somebody who will recognize that two greats they’re being given a plan, a script and they need to follow it. They’re not the person who gets to dictate strategy. They help implement a strategy that others have set.

Corie:

So, if the vice presidential candidates are followers, which seems that that is really important and that makes perfect sense, can they really be influential in the policy that’s presented in the campaign?

Joel:

Well they can be in some respects. I mean, they can be influential with the presidential candidate and his or her advisors to the extent that they’re respected by the presidential candidate. I mean for instance when Michael Dukakis chose Lloyd Benson, Dukakis and Dukakis’s top aides really grew to respect Benson a lot and sometimes Dukakis’s aids would even go to Benson and ask Benson to say things to Dukakis as a way to persuading him. But they also can be influential in the campaign, to the extent that they’re an effective sales person for the presidential candidate, to the extent that they are good at articulating themes that the campaign wants to get across. In 1960, when John Kennedy was running for president, he was attacked on the ground that he was Catholic. Lyndon Johnson very effectively went through the south and would talk about JFK’s war record and the war record of John F. Kennedy’s brother who was killed in World War II, and would say that when those young men went out to fight for their country, nobody asked what religion they were. And so a vice presidential candidate who is an effective messenger and an effective articulator of the themes that the campaign wants to get across can also be influential in the campaign.

Corie:

So you’ve listed a number of characteristics and given some great examples of some excellent vice presidential candidates and what they’ve helped the presidential candidates with. What do you think are some of the names that we will be hearing on the democratic ticket in the upcoming election?

Joel:

Well it’s always a bit unpredictable until you get closer, but I think some of the people that might be considered, especially if Secretary Clinton is the nominee, would be Secretary Castro, who is the Secretary of Housing and Urban Development, and Secretary Lopez, who is the Secretary of Labor – have both been widely mentioned. They are two candidates who are young – relatively new to the national scene, but are thought to be helpful in terms of mobilizing support among the Hispanic community. Senator Cory Booker from New Jersey is sort of a up and coming new member of the senate. Senator Ted Cain of Virginia was one of the ten finalists that then Senator Obama considered in 2008. He’s an influential senator from a potential swing state. Senator Sherrod brown from Ohio is another who, I think, Secretary Clinton might consider. Again, somebody who is well thought of by the more liberal wing from the Democratic Party also comes from Ohio. So I think those may be the people who will be considered on the democratic side.

Corie:

Is there any names that come to mind if Bernie Sanders moves forward as the nominee?

Joel:

Well I think that if Senator Sanders was the nominee, I think some of the same names. You would expect that he would try and strengthen himself in some of the areas where he’s been weaker. Let’s say some of the traditional democratic constituencies, African Americans, Hispanics –where he hasn’t run as well. He also would be somebody who, unlike Secretary Clinton, who doesn’t have perceived national security credential. So, he also would be looking for somebody stronger in that area. You know, where as in her case, she doesn’t really need to cover that.

Corie:

That makes a lot of sense. Is there anybody that you see potentially popping up on the Republican ticket?

Joel:

Well the Republican ticket a lot depends on who the nominee is. But one person who has been mentioned widely and who would be considered on the Republican side would be Governor Nikki Haley of South Carolina. She was the person chosen to give the response to President Obama’s State of the Union address in January. She’s supported Senator Rubio, which would mean if somebody other than Senator Rubio is the nominee she would be perceived as a bridge to that part of the party. Also is a woman and somebody who I think is perceived as an effective governor of South Carolina. She would be helpful in a race against Secretary Clinton. I think there could be some people from Donald Trump –said he would take a political insider and said Governor Haley would fit that bill. People like Senator John Thune from South Dakota or Senator John Corn from Texas might be sort of people who might be considered. It could be a long list and this point it is sort of unpredictable to say. There could some different dynamics that play out on the Republican Party that we have encountered in recent times.

Corie:

How will the naming of the Vice Presidential candidate, when we get there, change how the campaigns look?

Joel:

Well once you name one vice presidential candidate and then two vice presidential candidates, instead of the race becoming a competition between two people; it becomes a competition, in a way, between two couples. Particularly, if either of the running mates is a new face, there is almost a feeding frenzy that takes place as America is introduced to somebody new. Paul Ryan in 2012. Governor Palin in 2008. Even somebody like Senator Biden, who had been in the Senate for 36 years, have shared major committees, run for president and so forth; the level of coverage that you receive as a vice presidential nominee is well beyond anything you have ever received in any other type of political life. So there’ll be a focus of the new candidate and what that selection says about the person who selected him or her. I mean ultimately people vote based upon their preferences of the presidential candidates but how they perceive the vice presidential candidates, what messages it sends about the presidential candidates are things that some people take into account. I think those are ways in which selection changes the dynamic of the campaign. It gives us somebody new to talk about, somebody new to write about. And often times, new candidates – in which the presidential candidates have been doing this for long periods of time, I mean it is if they’re in mid-season farm. Vice presidential candidates is somebody who is selected and hasn’t been used to doing this. So, sometimes in the early stages they have committed gaffes and those create their own sort of patterns of coverage and problems for a ticket.

Corie:

And by the time we get to the naming of Vice Presidential candidates, we’ll have been with months and months of hearing of hearing form the presidential candidates, so it might be fresh new voices in there as well. In the recent elections, have you seen any examples of vice presidential candidate that have stood out as good picks that have really helped elevate the presidential candidate?

Joel:

Well, I think there have been a few. I think that, depending on how far back one goes, in 1976, I think that pretty clearly that Jimmy Carter would not have been elected if not have been for Mondale’s role in the campaign. And in the vice presidential debate, Mondale helped Carter in a couple of decisive states. I think that in 1992, Al Gore really helped Bill Clinton reinforce the image of Clinton as a young southern democratic centrist. Gore was the same thing. So when you put the two together, the picture of the two of them, their spouses, really presented a image of change that was more powerful than just seeing Governor Clinton. I think that Dick Cheney in 2000, lent gravitas to President Bush’s candidacy. I think it was reassuring that where you had somebody who could governor, but had someone with no national security experience to be bringing on to his ticket somebody who had experience leading the defense department during the Persian Gulf War. I think the choice of Governor Palin in 2008, initially really energized the Republican base, the conservative part of the republican party who had never been enamored with Senator McCain became enthusiastic about him for the first time. Ultimately, over the course of the campaign, I think Governor Palin had some fairly disastrous interviews and so forth. Her numbers went down and she became something of an albatross for the campaign, but the initial period of selection, she really provided some energy and boost for his campaign. But one of the lessons I think is that sometimes presidential candidates choose somebody who will look good in July and August and while that may be important, ultimately it’s also important as to how they’re going to be perceived in October and November.

Corie:

Professor Goldstein also has a new book on this topic, The White House Vice Presidency: The Path to Significance, Mondale to Biden. This book is out now. So thank you so much for joining us today Joel. I hope you all had a chance to read the book. This has all been very informative and interesting discussion.

Joel:

Thanks Corie, it’s been fun.

Trump Trump Trump Trump Trump Trump Everywhere All the Time, Including in Workplace

D donald trum larry king onald Trump has become part of the national conversation. Not a single day goes by now without Mr. Trump filling up at least one news cycle. His recent success reminds me of a fantastic exchange in Private Parts when a researcher is explaining Howard Stern’s improbable success to the infamous Pi … let’s just call him Phil Vomitz:

Researcher: The average radio listener listens for eighteen minutes. The average Howard Stern fan listens for – are you ready for this? – an hour and twenty minutes.

Phil Vomitz: How can that be?

Researcher: Answer most commonly given? “I want to see what he’ll say next.”

Phil Vomitz: Okay, fine. But what about the people who hate Stern?

Researcher: Good point. The average Stern hater listens for two and a half hours a day.

Phil Vomitz: But… if they hate him, why do they listen?

Researcher: Most common answer? “I want to see what he’ll say next.”

Not surprisingly, not a single day also goes by without a workplace water-cooler (or better yet, chat room) conversation about Mr. Trump (or any of the other presidential candidates.) It can run the spectrum from some friendly banter among co-workers, to a serious dialogue about the issues facing this country, all the way to a heated disagreement coupled with threats of violence. And it begs the question: how can employers respond to employee political speech in the workplace? This post addresses that issue.

Few Laws Exist Protecting Employee Political Speech in Private Workplaces

Generally private employers can take adverse actions against employees based on their political speech, unless (i) the employer operates in a state or city that specifically protects employees against discrimination because of political speech, or (ii) the employees are subject to a collective bargaining agreement that does the same. (The story is quite different for public sector workers, but we do not address them here.)

Many workers live in jurisdictions that provide at least some protection against political speech discrimination – typically in the form of protecting an employee’s political activities, expressions and/or affiliations. But those laws come in all shapes and sizes, so employers must proceed carefully before banning political speech or disciplining an employee. For example, Washington D.C.’s human rights law limits its reach to actual or perceived political affiliations only, while Seattle’s law is a bit broader, extending to one’s “political ideology.” Wisconsin protects those declining to attend a meeting or to participate in any communication about political matters.

More often than not, these laws protect workers from discrimination because of their political activities outside instead of inside the workplace. For example, with limited exceptions, Colorado law prohibits employers from firing someone because of their lawful off-duty activities, which includes engaging in political speech, and it also prohibits employers from making any rule prohibiting employees from engaging or participating in politics or running for office. New York’s law protects employees engaging in certain “political activities” outside the workplace, during off hours, but it contains an exception where the employee’s activities would create a “material conflict of interest related to the employer’s trade secrets, proprietary information or other proprietary or business interest.”

There is no federal law that specifically protects employees from discrimination or retaliation because of their political activities, affiliations or expressions. And the First Amendment is not much of a help as it only protects a person’s right to free speech from government interference, not from interference by private employers.

Therefore, unless you live in a jurisdiction that protects you, if the boss overhears you in the cafeteria campaigning for Team Trump or going haywire for Hillary, he or she can generally send you packing.

Political Speech May Invoke the Protections of Other Laws, However

Of course, it’s a bit more complicated than the above analysis indicates, and will only become more so as the primary, and then general election, season unfolds. To explain, consider the following hypothetical.

Employees A and B are talking in the break room about the upcoming Democratic debate. Employee A says to Employee B that Hillary is the only candidate who can deliver on increasing the minimum wage, and “maybe they’ll stop underpaying us here if that happens.” Employee B disagrees emphatically, placing his bet on Bernie Sanders as the only viable candidate to get the job done, and eventually the conversation turns uncomfortably vocal such that Employee C, an older Hispanic woman, cannot help but overhear Employee B comment to Employee A that he fully expects Hillary Clinton to play the female victim card to stave off criticism about her e-mail scandal. Employee D, who supervises Employees A, B and C, chimes in and enthusiastically sides with Employee B stating that women always do this, and that Employee A should really stop griping about her wages if “she knew what was good for her.” Employee E, a senior executive, then gets in on the conversation by professing his love for Trump, including by echoing his views on immigration and in particular, Mexican immigrants, and then he goes on to say that he thinks Hillary is just too old to assume the Commander in Chief Position. Meanwhile Employees F, G, and H are sitting there stunned with their turkey sandwiches in hand, saying to themselves “awwwwwkward!”

This hypothetical, drawn directly from The Cat in the Hat Comes Back: Workplace Edition, shows that while the employer doesn’t necessarily have a political speech problem on its hands, it may instead have sex, age, race and national origin discrimination and/or NLRA interference complaints coming its way – just from one spirited election-related conversation in the break room. Yes, politically-related conversations often invoke passionate feelings on both sides of the aisle on issues ostensibly about public policy, but they also often touch on issues that may relate to someone’s membership in a protected class, leaving employers vulnerable to discrimination and other claims.

Potential Employer Responses to Political Speech in the Workplace

As we head into Super or SEC Tuesday and the (17-month+ long!) election season plods along, you should be asking yourself what level of political discourse do you want in your workplace. Do you want everyone to keep their political opinions to themselves or do you want to encourage robust debate or somewhere in between? Discussion of politics and campaigning in the workplace puts you on tricky terrain, and may lead to conflict among your employees and thus, wherever you fall on this spectrum, consider addressing these issues in your code of conduct or in your handbook, including more specifically in your anti-discrimination/harassment, complaint reporting, non-solicitation/distribution and social media and electronic use policies. In doing so, remain mindful of certain laws like the state and local laws mentioned above and the National Labor Relations Act, which restrict your ability to limit certain politically-based conversations/activities in the workplace.

If you will tolerate political discussions in the workplace, consider whether it’s necessary during this election season to conduct workplace professionalism training seminars for all staff members to reduce the likelihood that a healthy debate will turn into a contentious or inappropriate one. Or consider distributing an election-focused one-pager with helpful talking points. For example, it may remind employees that a politically-laced, yet well-intentioned conversation, even between the best of friends, can quickly turn contentious, and thus, even though you are not banning such conversations, you are asking your employees to think twice before engaging in one. Or if the employees do engage in such a conversation, they should be sensitive to others’ beliefs and should not pressure anyone into discussing politics at work. It also should remind them to utilize your complaint reporting mechanisms if a problem does arise from such a conversation.

Overall, employers should aim for outcomes where employees can engage in a dialogue about important issues, whether in person or electronically, during non-working hours while remaining respectful of others’ points of view and aware of key discrimination and labor laws. Employees should also understand that they may be subject to discipline for failing to meet your standards of conduct regarding political discourse. Taking this approach should allow employers to create realistic workplace social conditions, maintain employee morale, and reduce their exposure to a lawsuit.

Article By Michael S. Arnold of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.

Category: Politics

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