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U.S. Election Forecast on Congressional Leadership Changes

With the election less than a week away, we conducted in-depth analysis of possible House and Senate committee leadership changes, including committees that effect energy technology policies. Leadership of a number of House and Senate committees is bound to change due to term-limits, retirements, and perhaps election results, including the Energy and Commerce and Natural Resources House committees, and the Energy and Natural Resources and Environment and Public Works Senate committees. We have outlined those potential changes in either a Republican- or a Democratic-controlled House and Senate. To read more about these potential Congressional leadership changes, read on!

Among Republicans on the House Energy and Commerce committee, Rep. John Shimkus (IL) and Rep. Greg Walden (OR) are expected to run for Chair/Ranking Member because Rep. Fred Upton (MI) is term-limited. Rep. Shimkus has more seniority on the committee than Rep. Walden, but Walden is completing his second term leading the Republican National Congressional Committee. Both are well-liked within the Republican Caucus and are adept fundraisers. Rep. Joe Barton (TX) has the most seniority on the committee and could also choose to run for Chairman or Ranking Member. Sources are indicating that should the Democrats gain control of the House, Rep. Barton would be less interested in running for Ranking Member. Additionally, Rep. Barton is already term-limited as the top Republican on the committee and would have to seek a waiver to serve as the next Chair or Ranking Member. On the Democrats’ side, Rep. Frank Pallone (NJ) would likely remain the Ranking Member if the Republicans control the House and would likely become Chairman if the Democrats control the House.

On the House Natural Resources committee, Republican Rob Bishop (UT) would likely remain the Chairman if the Republicans control the House and would likely become the Ranking Member if the Democrats took control. For the Democrats, Rep. Raul Grijalva (AZ) could remain the Ranking Member if the Republicans retain the House and could become Chairman if the Democrats win control. However, Rep. Grijalva could choose to run for Chair/Ranking Member of the Education and the Workforce Committee if Rep. Bobby Scott (VA) is appointed to the Senate to replace Vice Presidential candidate Tim Kaine. It is unclear who would run for or become Chair/Ranking Member of Natural Resources in that scenario.

In the Senate, Republican Sen. Lisa Murkowski (AK) would likely remain Chairwoman of the Energy and Natural Resources committee if the Republicans win the Senate. However, if the Democrats control the Senate, Sen. John Barrasso (WY) could become the Ranking Member because Sen. Murkowski is term-limited as Ranking Member of Energy and Natural Resources. Sen. Barrasso could also choose to become the Ranking Member of Environment and Public Works, in which case, Sen. Jim Risch (ID) could become the Ranking Member of Energy and Natural Resources. However, sources are indicating that Sen. Barrasso, who represents a Western coal state, would likely choose to become the Ranking Member of Energy and Natural Resources, in part because it would allow Sen. Shelley Moore Capito (WV), a rising female star in the GOP who hails from an Eastern coal state, to become the Ranking Member of Environment and Public Works. For the Democrats, Sen. Maria Cantwell (WA) would likely remain the Ranking Member if Republicans remain in control or become the Chairwoman for Energy and Natural Resources if the Democrats win the Senate. Though highly unlikely, there is a scenario in which, Sen. Jack Reed (RI) becomes the Chair/Ranking Member of Appropriations and Sen. Bill Nelson (FL) then takes over as Chair/Ranking Member of Armed Services. In that unlikely case, Sen. Cantwell could choose to become the Chair/Ranking Member of Commerce, opening up the top Democratic slot on Energy and Natural Resources to Sen. Bernie Sanders (VT). (Sen. Ron Wyden (OR) would be next in line after Sen. Cantwell on Energy and Natural Resources, but Sen. Wyden will remain the Chair/Ranking Member of Finance.)

Among Republicans on the Senate Environment and Public Works committee, Sen. Barrasso could become the Chairman because Sen. James Inhofe (OK) is term-limited as Chairman and Sen. David Vitter (LA) is retiring. If the Democrats control the Senate, Sen. Barrasso could become the Ranking Member because Sen. Inhofe is again term-limited and Sen. Vitter is retiring. However, as discussed above, Sen. Barrasso would likely choose to become the Ranking Member of Energy and Natural Resources, in which case Sen. Capito could become the Ranking Member of Environment and Public Works. For the Democrats, if the Republicans or Democrats control the Senate, Sen. Tom Carper (DE) could become Chair/Ranking Member of Environment and Public Works because Sen. Barbara Boxer (CA) is retiring. According to sources, Sen. Carper is indeed preparing to take over as the top Democrat on this committee. However, Sen. Carper could choose to remain the Chair/Ranking Member of Homeland Security, in which case Sen. Ben Cardin (MD) could become the Chair/Ranking Member of Environment and Public Works. Sen. Cardin could also choose to remain the Chair/Ranking Member of Foreign Relations unless Sen. Robert Menendez (NJ) is cleared of ethics violations and is reinstated, which is unlikely in the near future. If Sen. Cardin remains the Chair/Ranking Member of Foreign Relations, which is nearly certain as long as Sen. Menendez is under indictment, Sen. Sanders could become the Chair/Ranking Member of Environment and Public Works.

ARTICLE BY David J. Leiter, Sarah Litke & Matthew Miller of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.

US Voting Leave Laws: What Employers Need to Know

With the general election days away, employers should familiarize themselves with their state’s voting leave laws.

Voting leave laws vary across the country. A number of states, however, do not have specific laws permitting time off to vote. These states include: Connecticut, Delaware, Florida, Idaho, Indiana, Louisiana, Maine, Michigan, Mississippi, Montana, New Hampshire, New Jersey, North Carolina, Oregon, Pennsylvania, Rhode Island, South Carolina, Vermont, Virginia, Washington, and the District of Columbia.

Generally, states with voting leave laws grant an employee two hours off work, in order to vote, without experiencing loss of pay. An employee who has sufficient hours to vote outside his or her working hours is generally not eligible to take time off work to vote without experiencing loss of pay. Some states may fine employers who violate an employee’s statutory right to take time off work to vote.

Below is a summary of states’ voting leave laws:

Alabama: An employee may take up to one hour off work to vote, upon reasonable notice to his or her employer, unless the employee’s hours of employment begin at least two hours after the polls have opened or end at least one hour before the polls close. The employer may specify the hours when an employee may take off work to go vote. (Code of Ala. § 17-1-5)

Alaska: An employee may take off as much working time as necessary to vote, without loss of pay. If, however, an employee’s working hours begin either two hours after the polls have opened or two hours before the polls close, the employee is considered to have sufficient time outside working hours within which to vote and may not take time off to vote without incurring loss of pay. (Alaska Stat. § 15.15.100)

Arizona: An employee may take time off work to vote, upon notice to the employer prior to election day, if there are less than three consecutive hours between the opening of the polls and the beginning of the employee’s work shift or between the end of the employee’s work shift when the difference between work shift hours and opening or closing of the polls provides a total of three consecutive hours. The employee shall not experience loss of pay for work time taken to vote and the employer may specify the hours when an employee may take off to vote. Employers refusing an employee’s right under this statute or subjecting an employee to a penalty or reduction of wages is guilty of a class 2 misdemeanor. (A.R.S. § 16-402).

Arkansas: Employers must schedule employees’ work hours in such a way that each employee has an opportunity to go vote. An employer’s failure or refusal to comply with this statute may result in a fine of no less than $25 and no more than $250. (A.C.A. § 7-1-102).

California: An employee without sufficient time outside working hours may take off as much time as necessary at the beginning or the end of a work shift in order to vote. An employee may not lose pay for less than two hours taken off to vote. (Cal. Elec. Code § 14000).

Colorado: With notification to the employer prior to Election Day, an employee may be absent from work for up to two hours in order to vote without incurring loss of pay. The employer may specify the hours when the employee may be absent, but the employee may request that the hours be at the beginning or end of the work shift. An employee with three or more off-duty hours between the time of opening and closing of the polls may not take time off work to vote without incurring loss of pay. (C.R.S. 1-7-102).

Georgia: Upon reasonable notice to the employer, an employee may take off up to working hours to vote unless the employee’s working hours beginning at least two hours after the opening of polls or end at least two hours before polls close. The employer may specify during which hours an employee may take off work to vote. (O.C.G.A. § 21-2-404).

Hawaii: An employee may take off work up to two hours to vote without incurring loss of pay. If an employee fails to vote after taking time off for that purpose, the employer, upon verifying that fact, may deduct appropriate wages or salary from the employee for the period during which the employee was absent from employment for purposes of voting. An employer who refuses an employee’s privileges conferred by this statute may be subject to a fine of not less than $50 and not greater than $300. (HRS § 11-95).

Illinois: Upon notice to an employer prior to Election Day, an employee may take off up to two hours from work to vote without loss of pay if the employee’s working hours begin less than 2 hours after polls open and less than 2 hours before polls close. The employer may specify the hours when the employee may take off work to vote. (10 ILCS 5/17-15).

Iowa: With a written request made prior to Election Day, an employee, without three consecutive off duty hours between the time of the opening and closing of polls, may take such time off work as necessary to grant the employee a total of three consecutive hours to vote, without loss of pay. (Iowa Code § 49.109).

Kansas: An employee may be absent from work for no more than two consecutive hours between the time of opening and closing of polls. If polls are open before the employee is scheduled to begin work or after ending work, but the period of time the polls are open is less than two consecutive hours, then the employee can only take off as much time to grant the employee two consecutive hours to vote. (K.S.A. § 25-418).

Kentucky: An employee, having applied for leave prior to Election Day, may take up to four hours off work, between the time of opening and closing the polls, to vote without loss of pay. The employer may specify the hours during which an employee may take off work to vote. (KRS § 118.035).

Maryland: An employee may take up to two hours off work to vote if the employee does not have two continuous off-duty hours during the time that polls are open. The employer shall pay the employee for up to two hours taken off work to vote. (Md. Election Law Code Ann § 10-315).

Massachusetts: An employee in a manufacturing, mechanical, or mercantile establishment may take time off work during the two hours after the opening of polls, upon application for leave of absence during such period. (ALM GL ch. 149 § 178).

Minnesota: An employee may be absent from work for the time necessary to cast a ballot and return to work on that same day without loss of pay. An employer hindering an employee’s right under this statute is guilty of a misdemeanor. (Minn. Stat. § 204C.04).

Missouri: Upon request made prior to Election Day, an employee may take off three hours from work between the time of opening and the time of closing the polls for purposes of voting. The employer may specify the hours when the employee may take off work to vote. (§ 115.639 R.S. Mo.).

Nebraska: An employee who does not have two consecutive off-duty hours in the period between the time of the opening and closing of the polls may take off work two consecutive hours to cast a ballot and without loss of pay. The employer may specify the hours during which the employee may take off work to vote. (R.R.S. Neb. § 32-922).

Nevada: If it is impracticable for an employee to vote before or after his or her hours of employment, an employee may be absent from his or her place of employment at a time designated by the employer to provide for enough time to vote. An employee shall not experience loss of pay for time taken off to vote. (Nev. Rev. Stat. Ann. § 293.463).

New Mexico: An employee may take off work up to two hours for the purpose of voting without loss of pay unless the employee’s work shift begins two hours after polls open or ends three hours before polls close. An employer refusing an employee’s right granted by this statute is guilty of a misdemeanor and may be punished by a fine not less than $50 and not more than $100. (N.M. Stat. Ann. § 1-12-42).

New York: An employee without four consecutive off-duty hours either between the opening of the polls and the beginning of his or her working shift, or between the end of his working shift and the closing of the polls, may take as much time off from work to vote. An employee may take off up to two hours of work without loss of pay. An employee seeking to take time off work to vote must notify the employer between two to ten days before the election requiring time off work. No less than ten working dates before an election, employers must post in the workplace a conspicuous notice notifying employees of their rights under the statute. Such notice shall be posted until the close of polls on Election Day. (NY CLS Elec § 3-110).

North Dakota: Employers are encouraged, but not required, to establish a program to grant employees time off work to vote when the employee’s regular work schedule conflicts with the polls opening and closing time. (N.D. Cent. Code, § 16.1.01-02.1).

Ohio: Employers cannot discharge or threaten to discharge an employee for taking a reasonable amount of time off work to vote on Election Day. An employer who violates this section may be fined not less than $50 and no more than $500. (ORC Ann. 3559.06).

Oklahoma: Upon oral or written notice by the employee prior to Election Day, an employer must grant an employee two hours off from work, during the period when polls are open, to allow the employee to vote. The employer may select and notify the employee of the work hours that may be taken off to vote. Employees taking time off work to vote shall not experience loss of pay or other penalty, for such absence. An employer failing to comply with this statute may be guilty of a misdemeanor and may subject to a fine between $50 and $100. (26 Okl. St. § 7-101).

South Dakota: An employee without two consecutive off duty hours during the time polls are open may take off two hours from work in order to vote without loss of pay. The employer may specify the hours during which the employee may take off work to vote. An employer refusing an employee’s right under this section is guilty of a Class 2 misdemeanor.

Tennessee: An employee, upon notice to the employer before noon of the day before Election Day, may take off three hours from work during the time the polls are open, without loss of pay, in order to vote, unless the employee’s work shift begins three hours after polls open or ends three hours before polls close. The employer may specify the hours during which the employee may be absent. (Tenn. Code Ann. § 2-1-106).

Texas: An employer may not bar an employee from taking time off from work on Election Day for the purpose of voting. An employer in violation of this statute may be guilty of a Class C misdemeanor. (Tex. Elec. Code § 276.004).

Utah: Upon application prior to Election Day, an employer must allow an employee to take off from work up to two hours, between the time the polls open and close, in order to vote upon. An employee who has three or more consecutive off duty hours between the times polls open and close is not eligible to take time off work under this statute. An employer violating an employee’s rights under this statute is guilty of a class B misdemeanor. (Utah Code Ann. § 20A-3-103).

West Virginia: Upon written request made to the employer at least three days prior to Election Day, an employee may take off up to three hours from work in order to vote. An employee shall not experience loss of pay for time taken off work to vote. An employee with three or more off duty hours between the hours of the opening and the close of polls on Election Day may not take time off work to vote without loss of pay. (W. Va. Code § 3-1-42).

Wisconsin: Upon notification to the employer prior to Election Day, an employee may take off up to three hours from work to vote. The employer may specify the hours when the employee may take off work to vote and the employee shall not experience loss of pay. (Wis. Stat. § 6.76).

Wyoming: An employee may take off one hour from work in order to vote without loss of pay. (Wyo. Stat. § 22-2-11).

ARTICLE BY Ingrid Cepero of Squire Patton Boggs (US) LLP

The 2016 U.S. Presidential Election; Brexit West?

It is hard to overstate the political and policy parallels between the recent UK “Brexit” vote to leave the European Union (“EU”) and the pending U.S. presidential election. Both cases reflect the significant tensions between globalism and national sovereignty, as well as the competing ideologies of capitalism and what might be described as European corporatism. The narrowly-decided Brexit vote can be viewed as a reassertion of national sovereignty, reflecting deep political divisions and concerns about economic dislocation, immigration, and national security. Similar political forces in the U.S. have given rise to the unlikely presidential candidacy of Donald Trump.

Regardless of the outcome of the November 8 election, these underlying political forces will continue to shape public policy on both sides of the Atlantic. With respect to Brexit, the UK Prime Minister Theresa May recently revealed that she will trigger Article 50 of the Lisbon Treaty no later than the end of March 2017. Recent statements suggest that the United Kingdom may force a “hard Brexit,” i.e., leaving the EU within two years and without the framework for the future relation with the EU being agreed upon. In other words, the pace of fundamental policy changes could be much faster than many observers currently anticipate.

Importantly, domestic policy outcomes will depend, to unprecedented extent, on discussions that will occur at an international level. Understanding these dynamics will be the key to successful strategies for favorably influencing policy outcomes in Brussels, London, and Washington, DC. This analysis briefly touches on some of the key policymakers who will shape the complex interplay between the U.S., the UK, and the EU, demonstrating that a government relations function will be an important facet on every successful strategic business plan.

United Kingdom

Theresa May, United Kingdom Prime Minister

As leader of a Conservative UK government, Theresa May will play an integral role in setting the tone on the UK side of the Brexit negotiations.

Rt. Hon. David Davis, MP and Secretary of State for Exiting the EU

David Davis will manage policy decisions in the Brexit negotiations and work to establish the future relationship between the EU and UK.

Oliver Robbins, Permanent Secretary for the Department of Exiting the EU

Oliver Robbins will be responsible for supporting the newly-formed Department of Exiting the EU in the Brexit negotiations.

Rt. Hon. Liam Fox, MP and Secretary of State for International Trade

Liam Fox will develop and negotiate free trade agreements with non-EU countries.

Mark Carney, Governor of the Bank of England and Chairman of the Financial Stability Board

Mark Carney will set policy for the Bank of England and will attempt to mitigate shocks to the UK economy throughout the negotiations (his term was recently extended until mid-2019).

European Union

Jean-Claude Juncker, President of the European Commission

Jean-Claude Juncker will head the European Commission and will set policy for the EU in the Brexit negotiations

Michel Barnier, Chief EU Negotiator

Michael Barnier, former-European Commissioner for Internal Market and Services, will lead the Brexit negotiations for the EU.

Didier Seeuws, Official Negotiator for European Council

Didier Seeuws will lead a “Brexit taskforce” of EU negotiators that will focus on technical issues of the treaty negotiations.

Guy Verhofstadt, Member of the European Parliament and European Parliament Brexit Negotiator

Guy Verhofstadt will represent the European Parliament in the Brexit negotiations.

Mario Draghi, President of the European Central Bank

Mario Draghi and the European Central Bank will likely act in an advisory capacity for the EU during the Brexit negotiations.

United States

Considering Hillary Clinton’s and Donald Trump’s opposing views on the government’s role in the financial system, the outcome of the U.S. election will likely impact the ongoing global regulatory tension between market-based capitalism and state-based corporatism. Moreover, the U.S. plays a key role on such international bodies as the G20, the Financial Stability Board (“FSB”), International Organization of Securities Commissions, and Basel Committee on Banking Supervision, which will serve as echo chambers as the new bilateral and multilateral agreements are negotiated.

Hon. Hillary Clinton, Democratic Presidential Nominee

Hillary Clinton will draw on her experience as Secretary of State as the U.S. reacts to Brexit negotiations. A Clinton Administration will be much more inclined to embrace the trend that emerged after the 2008 financial crisis of greater international cooperation on financial regulation. A likely hallmark of Hillary Clinton’s approach is an emphasis on collaborating with international economic powers to reduce risks to the stability of the global financial markets. In this regard, a Clinton Administration will probably be receptive to engaging international regulatory bodies on heightened global capital requirements for financial institutions and on more stringent margin and collateral rules for securities and derivatives transactions. Additionally, Hillary Clinton has advocated in favor of international regulations for resolving globally active financial institutions that could pose a risk to the financial system and called for an expansion of the authority of regulators to police financial market activity, including providing them additional authority to address risky activity in the “shadow banking” sector.

Donald Trump, Republican Presidential Nominee

If Donald Trump wins the election, his nationalistic policy agenda will probably place far less emphasis on international financial regulation. More specifically, a Trump Administration will likely shun the macro-prudential framework set forth by the FSB and the G-20. A Trump Administration may also revisit financial markets regulation with an eye toward U.S. competitiveness. While the Republican Party platform included a provision calling for the resurrection of the Glass-Steagall Act, Republicans are unlikely to pursue this as a policy objective. More likely, the House Republican financial reform proposals, principally House Financial Services Committee Chairman Rep. Jeb Hensarling’s (R-TX) Financial CHOICE Act, will be the foundation for any financial reforms in a Trump Administration.

What Can Be Done?

These turbulent times will produce winners and losers on both sides of the Atlantic. Accordingly, government relations efforts to favorably influence policy outcomes will be an integral component of every successful strategic business plan. That requires a deep understanding of the nuts and bolts of the relevant issues and relationships with key policymakers in the U.S., UK, EU so they can receive the best input on the merits of competing regulatory alternatives.

ARTICLE BY Daniel F. C. Crowley, Bart Gordon, Bruce J. Heiman, Karishma Shah Page, Giovanni Campi & Ignasi Guardans of K & L Gates

Election Day is Coming – What are Your Obligations as Employer?

With Election Day drawing near, and large voter turnout expected, employers should ensure they are aware of state law requirements related to providing employees with time off. While not all states impose requirements on employers, some impose time off obligations with the possibility of criminal or civil penalties for non-compliance.

Applicable laws vary by state. Some provide for paid time while others do not mandate that such time off be paid. Laws also vary as to the amount of time that must be provided and whether an employer can dictate which hours are taken off, such as at the start or end of the workday. Further, some jurisdictions require postings to advise employees of voting leave rights. Additionally, some jurisdictions also obligate employers to provide time off to employees who serve as election officials or to serve in an elected office.

Accordingly, employers should immediately review existing policies and practices to ensure compliance with applicable laws and be prepared to address requests for time off prior to Election Day.

The following is a sample of state requirements regarding voting time off:

Arizona – Arizona Revised Statute § 16-402 provides that an employee has the right to be absent from work if he or she has fewer than 3 consecutive hours in which to vote between the opening of the polls and the beginning of his or her work shift or between the end of his or her regular work shift and the closing of the polls. An employee may be absent for a length of time at the beginning or end of his or her work shift that, when added to the time difference between work-shift hours and the opening/closing of the polls, totals 3 consecutive hours.

Notice: The employee must apply for leave prior to Election Day.
Hours: The employer may specify the hours.
Paid: Leave is paid.

California – Pursuant to California Election Code § 14000, employees are entitled to an amount of time off to vote that, when added to the voting time otherwise available to him or her outside of working hours, will enable him or her to vote. Employee with sufficient non-working time to vote are not entitled to additional time off to vote.

Notice: Two working days’ advance notice prior to the election is required if, on the third working day prior to the election, the employee knows or has reason to believe he or she will need time off in order to vote.
Hours: Time may be taken only at the beginning or end of the work shift, whichever allows the greatest amount of free time for voting and least time off from work, unless otherwise mutually agreed.
Paid: No more than 2 hours of the time taken off for voting shall be without loss of pay.

Colorado – Colorado Revised Statute §1-7-102 provides that eligible voters are entitled to be absent from work for up to 2 hours for the purpose of voting on Election Day unless the employee has 3 or more non-working hours to vote while the polls are open.

Hours: The employer may specify the hours of absence, but the hours must be at the beginning or end of the work shift, if the employee so requests.
Paid: No more than 2 hours.

Hawaii – Pursuant to Hawaii Revised Statutes § 11-95, employees who do not have 2 consecutive non-working hours to vote while the polls are open are entitled to take time off up to 2 hours (excluding any lunch or rest periods) to vote, so that the time taken when added to the non-working time totals 2 consecutive hours when the polls are open. Employees cannot be required to reschedule their normal work hours to avoid the needed time off.

Paid: Employees must be paid for time taken during working hours. If any employee fails to vote after taking time off for that purpose, the employer, upon verification of that fact, may make appropriate deductions from the salary or wages of the employee for the period during which the employee is entitled to be absent from employment.
Proof: Presentation of a voter’s receipt to the employer shall constitute proof of voting by the employee.

Maryland – Maryland Election Law Code §10-315 states that every employer in the state must allow employees who claim to be registered voters to be absent from work for up to 2 hours on Election Day to vote if the employee does not have 2 consecutive non-working hours to vote while the polls are open.

Paid: Employees must be paid for the up to 2 hours of absence.
Proof: Employees must provide proof of voting or attempt to vote on a form prescribed by the State Board.

New York – New York Election Law § 3-110 states that an employee is entitled to a sufficient amount of leave time that, when added to his or her available time outside of working hours, will enable him or her to vote. Four hours is considered sufficient time. An employee is excluded from leave if he or she has 4 consecutive hours in which to vote, either between the opening of the polls and the beginning of his or her work shift or the end of his or her work shift and the close of the polls.

Notice: The employee must provide notice of leave at least 2, but not more than 10, days prior to the election.
Hours: The employer may specify the hours. Leave must be given at the beginning or end of the work shift, as the employer may designate, unless otherwise agreed.
Paid: Not more than 2 hours may be without loss of pay.

ARTICLE BY Richard Greenberg & Daniel J. Jacobs of Jackson Lewis P.C.

Amid Hours of Debate and Insult, Campaign Finance Gets 85 Seconds

All but ignored during the previous two presidential debates, campaign finance appeared ready to have its moment in the sun during the final televised bout. Within two minutes of the debate’s opening, former Secretary of State Hillary Clinton, the Democratic nominee, raised the issue of the landmark 2010 Supreme Court decision that allowed a flood of money from outside groups to pour into elections.

Clinton promised to appoint justices “that will stand up and say no to Citizens United, a decision that has undermined the election system in our country because of the way it permits dark, unaccountable money to come into our electoral system.”

Then, crickets.

Hillary Clinton, Donald Trump, Debates — *Photo credit: Ethan Miller, Getty Images News*

Republican nominee Donald J. Trump, who attacked Clinton on Twitter earlier this month as “the single biggest beneficiary of Citizens United in history,” passed on the issue, instead using the question to pledge his support for gun rights and opposition to abortion.

The debate encapsulated the two candidates’ approaches to the issue of money in politics during the general election campaign. Across three debates spanning four-and-a-half hours, Clinton and Trump have spent a grand total of one minute and 25 seconds on a subject that an overwhelming number of Americans consider to be a major threat to the nation’s democratic traditions. A poll last year found that 85 percent of Americans believe the system of campaign financing requires either a complete rebuilding or fundamental changes. The two candidates have so far raised more than a half-billion dollars on their presidential bids.

Trump, who launched his campaign with a grandiose promise to pay for his own presidential bid, has used the issue of money in politics occasionally to jab at Clinton, mostly claiming she used her office to encourage donations to her family’s eponymous charitable foundation or her presidential campaign.

The billionaire mogul has sought to tie Clinton to unpopular bankers, claiming during the debate that her advertisements were paid for by her “friends on Wall Street that gave so much money because they know you’re going to protect them.” Meanwhile, Trump has claimed: “By self-funding my campaign, I am not controlled by my donors, special interests or lobbyists. I am only working for the people of the U.S.!”

Even so, Trump, who said last year he “loved the idea of campaign finance reform,” has soft-pedaled earlier critiques of money in politics. He was criticized last month for hiring David Bossie, a long-time Clinton critic who helped orchestrate the Citizens United battle, as his deputy campaign manager. His campaign also is currently the subject of a complaint alleging that two former campaign staffers went to work for a super PAC boosting his campaign without going through a mandatory 120-day “cooling-off” period.

Hacked emails published recently by WikiLeaks show how the Clinton campaign staff turned supportive super PACs into integral parts of her campaign, despite FEC rules prohibiting coordination between candidates and outside groups. A July 2015 campaign memo, posted by a hacker known as Guccifer 2.0., laid out plans for collaborating with Correct the Record, a super PAC created by a longtime ally. The memo recommended that the Clinton campaign “work with CTR… to publicize specific GOP candidate vulnerabilities.”

While the Clinton campaign has confirmed its chairman’s personal email account was hacked, her team has not corroborated the authenticity of the emails that Wikileaks has been posting online daily.

Wednesday night’s forum also featured a pointed question about ethics, with moderator Chris Wallace asking Clinton about her pledge to “avoid even the appearance of a conflict of interest” involving her family’s foundation while she was Secretary of State. Wallace referred to a recent ABC report that found individuals considered “FOB,” or friends of Bill Clinton, were given special attention by the State Department when they offered to provide assistance in Haiti in the aftermath of a devastating earthquake in 2010.

“Everything I did as Secretary of State was in furtherance of our country’s interests and our values,” said Clinton, who chose to talk about her family foundation’s efforts to help millions of people get access to HIV/AIDS medication, rather than explain any potential ethical issues.

When Trump questioned the foundation’s work in Haiti — which was scrutinized by The Nation in 2011 — Clinton said that the foundation had “raised $30 million to help Haiti after the catastrophic earthquake,” adding that “we’re going to keep working to help Haiti because it’s an important part of the American experience.”

Clinton said she would “be happy to compare what we do with the Trump Foundation,” noting that Trump had used his charity’s money to purchase a six-foot-tall portrait of himself. The Washington Post reported that the Donald J. Trump Foundation had spent $20,000 to buy the artwork, and “may have violated IRS rules against ‘self-dealing.’”

When Trump said his foundation’s money “one hundred percent goes to different charities,” Wallace asked him about a report that he had used the charity’s funds to settle a number of lawsuits involving his for-profit businesses.

“No, we put up American flag, and that’s it,” Trump responded. “They put up the American flag. We fought for the right in Palm Beach to put up the American flag.”

One of the lawsuits did involve the height of a flagpole at Trump’s golf course in Palm Beach, Florida. The Post found that Trump also used his charity to pay a settlement in New York. Both of the expenditures could violate self-dealing rules, the paper wrote.

Earlier this month, New York’s attorney general, Eric Schneiderman, ordered the Trump Foundation to stop raising money in his state, following a report that the charity did not obtain the required certification to solicit donations there.

This article was written by Frank Bass. Andrew Perez contributed reporting. Read the original article here: Amid Hours of Debate and Insult, Campaign Finance Gets 85 Seconds

Hillary Clinton’s Intellectual Property Litigation Experience

Many people are surprised to learn that Hillary Clinton was an intellectual property attorney when she practiced law from 1977-1992 for the Rose Law Firm. While the New York Times has reported that former colleagues cannot remember any cases she tried and that court reporters in Little Rock say she appeared in court infrequently, there are at least three reported court decisions on which she is named as counsel. A review of those decisions provides an interesting glimpse into Clinton’s background with intellectual property.

In a case involving allegations of false advertising, Clinton represented Maybelline Co. in a suit against Noxell Corp. regarding Noxell’s “Cover Girl Clean Lash” mascara product.^[1] According to the complaint, Maybelline’s principal place of business and only factory in the United States was located in North Little Rock, Arkansas. Maybelline asked the court to restrain Noxell from advertising the Clean Lash mascara as being waterproof. Maybelline submitted to the court a videotape of a Clean Lash commercial in which a voice-over claimed that “water won’t budge” Clean Lash and that it “laughs at tears,” and then submitted independent laboratory tests contradicting those claims. Maybelline argued that the commercials were deceptive. Unfortunately for Clinton, it was found that Maybelline brought suit in the wrong venue because Noxell was not doing business in the Eastern District of Arkansas.^[2] The case was transferred to a court in New York and settled.^[3]

In a trademark infringement case, Clinton represented First Nationwide Bank against Nationwide Savings and Loan Association regarding the use of the mark “Nationwide Savings.”^[4] In particular, First Nationwide Bank sought an injunction against the Savings and Loan Association’s use of the phrase “Nationwide Savings” for financial services. First Nationwide Bank argued that the use of the disputed phrase was likely to cause confusion among customers as to the provider of the financial services and was an attempt by the Savings and Loan Association to benefit from the valuable goodwill and reputation established by First Nationwide Bank. Clinton helped to secure injunctive relief for the Bank to prevent the Savings and Loan Association from using the mark.

In another case involving allegations of trademark infringement, Clinton represented Holsum Baking Co. against W.E. Long Co.^[5]regarding the use of the “Holsum” trademark in the marketing of bakery products. Long registered the “Holsum” mark on bakery products in Arkansas and later entered into an agreement granting Holsum Baking the right to use the “Holsum” name for advertising purposes in certain areas for three years. After that time, Holsum Baking began using the composite mark “Holsum Sunbeam” until more than 40 years later when it introduced a wheat bread product and marketed it as “Holsum Grains” with no mention of Sunbeam. Long then contacted the packaging suppliers of Holsum Baking and advised them not to sell packaging bearing the “Holsum” mark to Holsum Baking. Holsum Baking sought injunctive relief to reinstate its packaging source with the “Holsum” mark, arguing that the earlier agreement had been breached or abandoned by the parties and that Holsum Baking had acquired the rights to the “Holsum” mark due to use for more than 44 years. Clinton helped to secure a preliminary injunction for Holsum Baking.

While the number of reported cases involving Clinton is too small to draw any definitive conclusions, the above three cases demonstrate Clinton’s advocacy for companies that had their IP rights threatened. Some commentators have criticized Hillary Clinton’s current intellectual property platform as being vague, consisting of passing references to patent litigation reform and copyright policy. However, given her past experience, she may have more detailed thoughts on IP policy–an area that rarely is a focus in presidential campaigns.

ARTICLE BY Justin M. Sobaje of Foley & Lardner LLP

^{[1] Maybelline Co. v. Noxell Corp., 643 F. Supp. 294 (E.D. Ark. 1986).}

^{[2] Maybelline Co. v. Noxell Corp., 813 F.2d 901 (8th Cir. 1987).}

^{[3] Morrison, T.C., “The Regulation of Cosmetic Advertising under the Lanham Act,” 44 Food Drug Cosm. L.J. 49, 57 1989.}

^{[4] First Nationwide Bank v. Nationwide Sav. & Loan Ass’n, 682 F. Supp. 965 (E.D. Ark. 1988).}

^{[5] W.E. Long Co. v. Holsum Baking Co., 307 Ark. 345 (Ark. 1991).}

Employer Strategies for Surviving Election Season

Once again, the “silly season” is upon us. Every four years, battle lines are drawn and many employees take sides, touting their preferred candidate’s merits over what they regard as the utterly despicable nature of the other candidate. Fortunately for employers (and everyone else who values their sanity) this should be over in about a month. I hesitate only because I lived in Florida during the 2000 election, and if you think things are contentious now – pray the current election cycle doesn’t go into overtime.

Free Speech?

It’s only natural for employees to discuss politics at work. But doing so can be disruptive, and if a political discussion gets out of hand, it can lead to confrontations, allegations of assault, harassment, discrimination or retaliation. Generally, private employers may limit and even prohibit political expression in the workplace, such as discussing candidates or issues, wearing or displaying political signs and paraphernalia. What about free speech, you ask? The First Amendment does not apply to private employers – only the government. Still, there are limits. For one thing, the National Labor Relations Act (NLRA) allows political discussions directly connected to the terms and conditions of employment. Second, some states (such as Colorado, Connecticut, Maryland, New Jersey, New York, Oregon, Texas, Virginia and Washington) have laws that prohibit discrimination against employees based on their political affiliation, or from unduly influencing an employee’s vote through intimidation.

Prudent employers should adopt and implement policies advising their employees of what will and will not be tolerated in the workplace during election season. If an employer wants to keep politics separate and apart from the workplace, this is perfectly appropriate – provided of course, that the employer complies with the exclusions outlined by the NLRA, which may be required under state or local law.

Election Day Leave

Another reminder during election season is that most states permit employees to take leave during the workday so they can cast their ballots. The specific laws can vary significantly by state. For instance, some states – but not all – allow voting leave only where the employee would not otherwise have sufficient time to vote before or after their scheduled shift. The majority of states require employees to provide advance notice of voting leave, and also give employers the discretion to determine the specific times during which the employee may be absent from work to vote. With few exceptions, voting leave laws typically allow an employee to be away from work for up to two or three hours during the workday to vote. Similarly, with few exceptions, most states require the employer to pay the employee for the time spent on voting leave. Further, a few states also allow employees to take time off not only to vote, but to serve as election officials.

Other Employer Considerations

Employers seeking to preserve a calm workplace in this silly season – particularly one as heated as this year’s – should try to stay above the fray and consider these strategies:

Adopting a neutral stance about the elections while focusing on the business at hand.
Review, and if necessary, revise existing policies regarding political expressions at work.
Remind employees of the policies on voting and political expression.
Check the requirements of state and local laws regarding elections, and particularly anti-discrimination and voting leave laws, to ensure compliance.
Educate your front-line supervisors and human resources personnel (especially those tasked with handling leave requests) about the company’s policies and the requirements of state and local laws.

ARTICLE BY Hannesson Murphy of Barnes & Thornburg LLP

Election 2016: Trump on Antitrust

While antitrust policy and enforcement has not received much attention from Donald Trump on the campaign trail, Mr. Trump has made a few notable statements regarding antitrust law that provide hints as to potential antitrust enforcement priorities for a Trump administration. Mr. Trump’s history as both a plaintiff and defendant in antitrust litigation is also notable and unprecedented.

In his 2011 book Time to Get Tough: Making America #1 Again, Mr. Trump addressed the Organization of the Petroleum Exporting Countries (OPEC) specifically in the context of antitrust law. Under the heading “Sue OPEC” Mr. Trump wrote:

We can start by suing OPEC for violating antitrust laws. Currently, bringing a lawsuit against OPEC is difficult. . . . The way to fix this is to make sure that Congress passes and the president signs the “No Oil Producing and Exporting Cartels Act” (NOPEC) (S.394), which will amend the Sherman Antitrust Act and make it illegal for any foreign governments to act collectively to limit production or set prices. If we get it passed, the bill would clear the way for the United States to sue member nations of OPEC for price-fixing and anti-competitive behavior. . . . Imagine how much money the average American would save if we busted the OPEC cartel.

More recently, in a May 2016 interview with Sean Hannity, Mr. Trump made a notable reference to antitrust law in connection with a discussion of Jeff Bezos and Amazon:

[Jeff Bezos is] using the Washington Post for power so that the politicians in Washington don’t tax Amazon like they should be taxed. He’s getting absolutely away. He’s worried about me and he’s, I think he said that to somebody, it’s in some article, where he thinks I would go after him for antitrust, because he’s got a huge antitrust problem because he’s controlling so much, Amazon is controlling so much of what they’re doing. And what they’ve done is, he-he bought this paper for practically nothing, and he’s using that as a tool for political power against me and against other people and, I’ll tell you what, we can’t let him get away with it. . . . So what they’re doing is that he’s using that as a political instrument to try and stop antitrust, which he thinks I believe he’s antitrust, in other words what he’s got is a monopoly and he wants to make sure I don’t get in. So, it’s one of those things. But I’ll tell you what, I’ll tell you what, what he’s doing is wrong and the people are being, the whole system is rigged – you see a case like that, the whole system is rigged. . . he’s using the Washington Post, which is peanuts, he’s using that for political purposes to save Amazon in terms of taxes and in terms of antitrust.

In addition to his statements, there is also Mr. Trump’s personal history as an antitrust litigant to be considered. In January 2016, former FTC Chairman Bill Kovacic was quoted as observing that “Donald Trump is the only presidential candidate in my lifetime to be a plaintiff in an antitrust case.

Indeed, as detailed in the American Bar Association’s Antitrust Source earlier this year, Mr. Trump was involved in three significant antitrust proceedings in the late 1980s and early 1990s. First, in 1988, Mr. Trump paid a $750,000 civil penalty to settle charges brought by the US Department of Justice (DOJ) and Federal Trade Commission (FTC) that he had violated the Hart-Scott-Rodino Antitrust Improvements Act (HSR Act) by acquiring stock in two companies without making timely HSR filings. Around the same time, Mr. Trump, as one of the owners of the New Jersey Generals US Football League team, was involved in a private antitrust suit against the National Football League (NFL)—a case that resulted in a jury verdict that the NFL had willfully acquired or maintained monopoly power in a market consisting of major league professional football in the United States, in violation of Section 2 of the Sherman Act. Damages of $1, trebled to $3, were awarded. US Football League v. Nat’l Football League, 842 F.2d 1335 (2d Cir. 1988). Finally, Mr. Trump, in connection with his Atlantic City casinos, was sued by Boardwalk Properties, Inc. on numerous grounds including allegations that he had attempted to monopolize casino gambling and had conspired to suppress competition. After a lengthy legal battle, Mr. Trump prevailed.

While we can only speculate as to how a Trump administration would approach antitrust policy and enforcement, Mr. Trump’s commentary regarding Amazon suggests that he would not be shy about pressing for aggressive investigation and potential enforcement action against those he perceives to be running afoul of antitrust laws. While it appears likely that Amazon would find itself under the microscope of a Trump administration, it is unknown whether Mr. Trump would direct enforcement towards other particular domestic companies or industries. It is also uncertain if Mr. Trump would maintain the Obama administration’s increased rate of merger challenges.

With respect to international enforcement, Mr. Trump’s comments on OPEC, coupled with his campaign focus on trade issues, suggest that he would be in favor of aggressive antitrust enforcement actions focused on foreign companies—and, potentially, against foreign governments (though some of Mr. Trump’s strategies may first require legislative action by US Congress before they can be pursued). Mr. Trump’s litigious history on both sides of antitrust laws demonstrates his familiarity and experience with the legal system, and further suggests that a President Trump would not hesitate in pressing for antitrust action against foreign actors. Mr. Trump underscored this point in Time to Get Tough favorably quoting a former Reagan and Bush advisor who, commenting on antitrust enforcement against OPEC, stated “isn’t starting a lawsuit better than starting a war?”

It is possible that a President Trump would ultimately do little to shake up the antitrust enforcement status quo, given other pressing national and international issues that have been focal points of the Trump Campaign. On the other hand, it is equally possible that, given his comments and litigation history, Mr. Trump would adopt a very aggressive antitrust investigation and enforcement policy against perceived wrongdoers, resulting in antitrust issues becoming central to a Trump administration’s economic and trade policies.

ARTICLE BY Emre N. Ilter of McDermott Will & Emery

Campaign Finance Reform Emerges Briefly As Topic In Ugly Trump-Clinton Debate

Amid a presidential debate that focused as much on personal attacks as substance, the topic of campaign finance reform finally made a brief, if tangential, appearance in the high-stakes public forum.

Although the role of money in politics has been one of the top issues that voters want candidates to discuss, the topic hadn’t come up until Sunday night’s debate, the second in a series of three forums featuring both of the candidates.

Debate, Clinton, Trump, campaign finance reform — Photo Credit: Drew Angerer, Getty Images News

Asked about potential litmus tests for Supreme Court appointments, Democratic nominee Hillary Clinton told the town hall-style audience that she would select justices in favor of reversing the high court’s 2010 Citizens United ruling. The decision, which allowed corporations and unions to spend on elections, has led to sweeping changes to the U.S. campaign finance system that allow big donors to bankroll outside groups to boost their favored candidates.

Clinton said she wants to “get dark, unaccountable money out of our politics,” referring to non-profit organizations that can spend unlimited amounts of money supporting or opposing candidates without publicly revealing their donors. The number of “dark money” groups approved by the Internal Revenue Service has surged after the Citizens United ruling. In the past, Clinton has warned of dark money “distorting our elections, corrupting our political process and drowning out the voices of our people.”

The former secretary of state, however, didn’t speak directly to the issue of super PACs, another byproduct of the Citizens United decision. Super PACs, which are regulated by the Federal Election Commission, can accept any amount of money and spend unlimited funds on elections, as long as they disclose their donors and don’t coordinate directly with candidates.

Super PACs supporting Clinton have raised more than $143 million this election cycle, according to data compiled by the Center for Responsive Politics. Priorities USA Action, the most well-funded super PAC supporting Clinton, has raised $133 million during the current election cycle. While the group has disclosed the sources of most of its funding, it received $1 million in untraceable donations last summer.

The Campaign Legal Center, a nonpartisan watchdog organization, recently accused Clinton’s campaign of illegally coordinating with “Correct the Record,” another pro-Clinton super PAC. The group has claimed the limited scope of its expenditures means it doesn’t have to follow the federal election rules that prohibit outside organizations from coordinating activities with a campaign.

After the debate Sunday night, Republican nominee Donald Trump called Clinton a “hypocrite” on Twitter and said she is “the single biggest beneficiary of Citizens United in history, by far.” Even though Trump criticized the influence of outside groups during the Republican primary race, he currently benefits from the post-Citizens United world.

The billionaire real estate mogul’s campaign has close ties to two super PACs that are working to help him defeat Clinton. The two super PACs were the subject of another Campaign Legal Center complaint that argued the Trump campaign failed to follow rules designed to prevent super PAC staffers from immediately joining campaign staff, and vice versa.

Earlier this month, wealthy donors including Nevada casino magnate Sheldon Adelson announced they would pour tens of millions of dollars into another super PAC and a dark money organization to support Trump. So far, super PACs supporting Trump’s candidacy have raised more than $40 million.

Trump also touched upon money in politics issues at the debate, falsely claiming to be “pretty much self-funding” his campaign, as he has asserted many times over the course of the race. “By the time [the election] is finished, I’ll have more than $100 million invested,” Trump said.

Trump’s campaign has always received donations from individuals. While he did fund a significant portion of his primary race, he never promised to pay the entire bill for a general election race. Recently, his campaign has courted the support of the types of special interest donors he previously lampooned.

It’s unclear if Trump will meet the pledge he made Sunday night to invest $100 million in his presidential bid by Nov. 8 election. As of the end of August, Trump had given $54 million to his campaign.

Margaret Sessa-Hawkins contributed to this report.

You can view this press release in its original on the MapLight website here.

Watchdog Files Complaint Claiming Illegal Trump, Clinton Super PAC Coordination

A campaign finance watchdog group is calling on federal election regulators to investigate whether Donald Trump and Hillary Clinton’s presidential campaigns have illegally coordinated with super PACs supporting them.

Two pro-Trump super PACs — Make America Number 1 and Rebuilding America Now — may have made prohibited in-kind contributions to the Trump campaign, the Campaign Legal Center said Thursday. The Washington-based organization said a pro-Clinton organization, Correct the Record, may be guilty of similar violations.

Because super PACs can accept unlimited contributions, federal law requires them to operate independently of campaigns. Super PACs are relatively new political entities, created in the wake of the Supreme Court’s 2010 Citizens United decision. Candidates and outside groups have tested the legal boundaries surrounding them, especially in the current election cycle. So far, super PACs have raised more than a half-billion dollars in support of the 2016 presidential nominees.

The Campaign Legal Center filed complaints against the campaigns and super PACs on Thursday with the Federal Election Commission. It’s unlikely the commission will decide before the election whether to take any actions.

The pro-Clinton group, Correct the Record, has been testing the rules virtually since its inception. Correct the Record has long asserted it can work directly with Clinton’s campaign. The super PAC says it’s only producing and posting communications online, and that its work is exempt from FEC rules regarding “coordinated communications.” In a statement last May, Correct the Record said it “will not be engaged in paid media and thus will be allowed to coordinate with campaigns.”

Lawyers from the Campaign Legal Center say that argument is misleading, because Correct the Record has made “coordinated expenditures,” which would also be considered in-kind contributions. They add that Correct the Record’s payments to its staff would represent prohibited donations if its employees’ work was done in coordination with the Clinton campaign.

“The factual record demonstrates that the vast majority of Correct the Record’s expenditures have been for activities like opposition research, message development, surrogate training, reporter pitches, media booking, video production, ‘rapid response’ press outreach, and other ‘earned media,’” the complaint says. “Any such expenditures made in ‘cooperation, consultation, or concert, with, or at the request or suggestion of’ Clinton’s campaign committee constitute in-kind contributions to the campaign.”

Since June 2015, the Clinton campaign has paid $282,000 to Correct the Record, which the super PAC has characterized as payments for “research,” according to campaign finance records.

Trump was slow to warm up to super PACs, disavowing support from outside groups during the Republican primary, but his campaign is deeply tied to two groups that want to help him defeat Clinton this November. One of those organizations, Rebuilding America Now, is headed by former top staffers to the Trump campaign.

Campaign staffers who have knowledge of a candidate’s strategy and plans are required to go through a 120-day “cooling-off period” before joining a supportive super PAC. However, an investigation published in August found that Rebuilding America Now began paying its political director, Ken McKay, only days after he left his job as a senior adviser to the Trump campaign. Reuters subsequently reported that Rebuilding America Now paid another operative, Laurance Gay, right after he left a position with Trump.

Rebuilding America Now has said both consultants were only unpaid volunteers for the Trump campaign and possess no strategic knowledge from their time working for the real estate mogul.

According to the Campaign Legal Center, McKay and Gay qualify as employees of the Trump campaign, regardless of whether they were paid for their services. The group asserts the Rebuilding America Now operatives acquired “inside information” while they were with the Trump campaign, and adds that there’s “strong reason to believe” that McKay and Gay have used that information in crafting communications in support of Trump.

The complaint also concerns the closeness between the Trump campaign and Make America Number 1. The Campaign Legal Center says that the super PAC may have made prohibited “coordinated communications” by employing common vendors.

The anti-Clinton super PAC was originally created by hedge fund billionaire and GOP mega-donor Robert Mercer as a way to support U.S. Sen. Ted Cruz’ unsuccessful bid for the 2016 Republican presidential nomination. Around the same time the super PAC shifted its focus to defeating Clinton, Trump’s campaign began hiring staff and vendors associated with the Mercer family’s businesses.

Cambridge Analytica, a Mercer-owned data firm, has done work for both the Trump campaign and Make America Number 1. In August, the firm was paid $250,000 by Trump and more than $400,000 by the super PAC. That same month, the Trump campaign hired Breitbart News chief Stephen Bannon as its chairman, reportedly at the behest of the Mercer family. Robert Mercer has invested in Breitbart, and Bannon helped Mercer launch Cambridge Analytica, according to RealClearPolitics.

Kellyanne Conway, who’s serving as campaign manager for Trump, previously helped lead Make America Number 1 when it was a pro-Cruz effort. Her consulting firm has since been paid by both the super PAC and the Trump campaign. Make America Number 1 paid $247,000 to Conway’s firm, The Polling Company, on Aug. 23. One week later, the Trump campaign paid the company $128,000.

The Trump and Clinton campaigns and the super PACs included in the Campaign Legal Center complaints did not immediately respond to requests for comment.

ARTICLE BY Frank Bass of MapLight

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