Tag: presidential election

Review of Chiafalo and Baca: The “Faithless Electors” Supreme Court Cases

The role the Electoral College plays in American life has confused and confounded many, especially since the U.S. Presidential election of 2016, when the winner of the national popular vote, Hillary Clinton, actually lost the election to President Donald Trump by vote of State-appointed electors in the Electoral College.

The Electoral College was intended by the Founding Fathers to be a buffer between the passions of the masses and the rule by edict of only an elite few, but how much of a buffer and how autonomous the electors within the Electoral College actually are was never fully addressed by the Supreme Court until its decisions late this term in Chiafalo v. Washington, 19-465, (Decided July 6, 2020) and Colorado Dept. of State v. Baca, 18-1173 (Decided July 6, 2020). (The Supreme Court issued its full opinion in Chiafalo).

As a country, we have grown accustomed to watching the national news on election night as states are called for each candidate, and electoral vote tallies are updated to show to us who is “winning” the election when, in reality, all of this is a mere projection, as none of those “electoral votes” are assured, or even cast, until the electors actually cast those votes at a time and place long after November 4.

So who are these “electors” who vote in the Electoral College? Are they “rubber stamps” bound to follow the popular vote of the State who appointed them? Can the State require the electors to sign a pledge to vote consistent with their state’s popular vote winner? If so, can the State punish that elector, including removal as an elector if they violate that pledge and vote for someone else? Or is an elector more of a “free agent” in the vein of those elected as State representatives in Congress? Congressional representatives, of course, are not bound by the State or its citizens’ desires when casting a vote in Congress (though they are held to account for their votes in the next congressional election). If electors are not to use their own judgment, then why does the Constitution call them an “elector” (which connotes some amount of discretion) instead of a delegate, or a proxy, or any number of other terms that would signify a lack of individual authority? Or, more simply, why have electors at all?

In Chiafalo and Baca, electors in Washington and Colorado were appointed by their respective States and were required to make, and did make a pledge when they were appointed as electors to vote consistent with the popular vote of their states. Yet, when the time came to cast their vote in the Electoral College, they didn’t vote consistent with the winner of the State’s popular vote as they had pledged. They voted for another candidate instead, forever earning the moniker of “faithless electors”.  They weren’t the first electors ever to have done that. In fact, it has happened 180 times in our country’s history. The question presented to the Court then was – can they do that?

As it turns out the answer isn’t that simple. To understand how we got here, you need to go back to the Founding Fathers and the debates that forged the U.S. Constitution and the country itself. Let’s start with the misconception that the Constitution provides for a direct popular election of the President by the vote of its citizens.  It doesn’t. At the birth of our country, there was fierce debate over who would elect our President. One group argued for a free and democratic vote, where the (white) (male) citizens directly chose their nation’s leader based upon a direct popular vote. Another group, more skeptical about the passions (and frankly, the ability) of the masses, called instead for a group of wise men to be tasked with choosing the President.  This debate was resolved in an “eleventh hour” compromise at the close of the Constitutional Convention, which attempted to bridge the gap by expressly stating only:

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States shall be appointed an Elector.

U.S. Constitution, Article II, §1, cl. 2.  Originally, the Article continued on to describe the process for the vote, but that process was quickly found unworkable and the States scrapped it.

Instead, in 1804, the States replaced the process the electors were to follow with the Twelfth Amendment:

The Electors shall meet in their respective states and vote by ballot for President and Vice-President…, they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and the number of votes for each, which lists they shall sign and certify, and transmit sealed to [Congress, where] the votes shall then be counted.

Yet even after this amendment, the Constitution remained silent as to what the electors’ role beyond merely casting their vote was to be.

In Chiafalo, the “faithless electors” argued that electors could vote for whomever they wished, based on three main arguments: (1) a textual argument that focused heavily on the word “elector”; (2) a historical argument based upon the fact that from early on there were electors who voted contrary to their state’s popular vote; and (3) the “federal function” argument, that once they had been appointed by the State as an elector, that the State no longer had the power to control their vote since they were now engaged a “federal function” of electing the President and Vice President. Central to their arguments was the concept that the right to vote inherently includes the discretion to choose whom they will vote for. And more, that an elector should not be subject to punishment by the State based upon how they cast their vote. While a State can set requirements for electors, i.e. that they be state residents, etc., the electors argued that those requirements end when it comes to the electors’ exercise of their appointed function – the vote.  The faithless electors argued that electors were akin to legislators and that discretion by the voter was inherently part of the Electoral College process. Once the State appointed an elector, they argued, the State did not have the power to “stand over the shoulder” of the elector as they carried out their constitutional function of voting for President and Vice-President. Otherwise, why have electors?  Why not have the States simply report who they had voted for?

The States countered that, consistent with Supreme Court precedent, along with the express power to appoint the electors, came with it the reciprocal and concurrent power to also remove the electors, and therefore States could set conditions of removal on its electors, including punishments for the way in which they vote, such as a pledge that they vote as the state’s voters had in the popular election or suffer a $1,000 fine.  The States argued that this outcome was dictated by a plain textual reading that these powers had been delegated to the States, that the federal government has limited power and authority, and that any powers not expressly given to the federal government in the U.S. Constitution, remain forever within the States’ exclusive right to control.

The gravity of the question the Supreme Court faced in these cases was real. While the outcome of the 2016 election was not changed by these faithless electors’ actions, with our country so closely divided, it is quite possible that faithless electors could change the outcome of future elections.  If the Court had decided that electors were “free agents” who, once appointed, could vote (or not vote) as they wish, then not only could an elector or group of electors “switch sides” and change the winner of the Presidential election, but also, if they instead chose not to vote, they could deny both candidates the 270 votes necessary to win the election, and the matter would be sent to the House of Representatives for a “contingent election.” In a contingent election, each State must cast a single vote, and the victor of that vote becomes President regardless of who won the national popular vote or won States with more than 270 electoral votes combined.

As many publications recognized in advance of the Court’s ruling, this case legally presented a close call.  The Founding Fathers provided little help, as even they couldn’t agree on the best approach – hence the compromise – and essentially just “kicked the can down the road.” A dispositive purely textual analysis (which this Court in its current make-up is increasingly fond of) was unavailing.  The sole clear point is the unconditional power given to the States by the Constitution to choose the electors.

In deciding Chiafalo and Baca, the Supreme Court struck a pragmatic approach. Listening to the oral arguments, once could sense the concern with potential for “chaos” – the “chaos question” Justice Breyer called it – about the “chaos” that could ensue if the Supreme Court suddenly declared all electors to be “free agents” untethered from the will of the States and their citizens, to be instead courted and lobbied by nefarious actors from both home and abroad to vote for candidates regardless of who won the actual popular vote of each State’s elections. A fear that once may have seemed far-fetched, seems much more real today, after 2016, when foreign actors clearly engaged in attempts to manipulate the Presidential election. Consider, as the Court did, the risk of a foreign power hacking the computers of electors and blackmailing them to change their votes. Or the risk of a rich and elite few enticing electors to switch their votes for personal gain. It was these practical rather than legal concerns that seemed a loud and constant undercurrent of the entire debate.

In the end, the Justices, even the most fervent originalists among them, appeared to look more at how electors and the Electoral College is understood today than how the Founding Fathers had actually potentially intended it to work at the beginning.

Writing for the majority, Justice Elena Kagan quoted James Madison’s maxim that “a regular course of practice” can “liquidate & settle the meaning of” disputed or indeterminate “terms & phrases.”  She then reviewed that regardless of what may or may not have been envisioned as an elector’s role 200 years ago, the historical reality is that over time electors have evolved into merely a “rubber stamp” for the vote of the people within their States. (The faithless electors stressed that since the founding, electors have cast some 180 faithless votes for either President or Vice President without objection, but the Court shrugged off this inconvenient fact, concluding “that is 180 out of over 23,000” electoral votes cast).

For a Court that has tacked toward textualism and divining the original intent of the Founding Fathers, its decision as expressed in Chiafalo and Baca was instead a square and practical one. If a State holds an election for President, and the State declares “winner take all” for its electoral votes, then the State has the power to require the electors to vote as the States wants, including the power to condition their service and to mete out punishment on the electors if and when they do not comply. The country has evolved to a place where it is now assumed by the general public that their votes count, and that electors will simply carry out the proxy of the State who appoints them. To change that assumption now would not just upset the apple cart – but may well have destroyed it – disenfranchising millions of citizens and creating grave risks of political corruption that, in the Justices’ eyes, was too much to bear.

© The National Law Forum LLC
Article by David K. TeSelle Trial Lawyer at Burg Simpson and
The National Law Review’s Guest Contributor.
For more on the Electoral College see the National Law Review Election Law & Legislative News section.

Mueller Indictment: Russians Manipulated Social Media, Advertising and Political Rallies to Impact 2016 Election

Robert Mueller’s office released 37 page  indictment of 13 Russian individuals and three Russian organizations for interference in the 2016 Presidential election.  According to Mueller’s office, a Russian organization based in St. Petersburg known as the Internet Research Agency used fake American social media profiles sometimes posing as political activists to wage “information warfare,” interfering with and manipulating the US election process.

According to today’s indictment, these activities began as early as 2014, with certain defendants traveling to the United States and obtaining VPN infrastructure, to obscure the origins of their activities so various accounts would appear to be based within the United States.  Alleged activities included purchasing online advertisements–and stealing identities to do so.  Moving offline the defendants and their co-conspirators solicited individuals to disparage or promote candidates, including hiring a woman to wear a costume portraying Hillary Clinton in a prison uniform at various political events, all while hiding their Russian identities.

These activities were done without proper regulatory disclosure and without registering as foreign entities.  Deputy Attorney General, Rod Rosenstein, who announced the indictment stated: “The defendants allegedly conducted what they called information warfare against the United States with the stated goal of spreading distrust towards the candidates and the political system in general.”

DNC Chair Tom Perez released a statement, saying, “This indictment gives us a chilling look at just how sophisticated, well-funded and wide-ranging this attack on our democracy really was. It should send chills up the spine of every American.”   Perez points to the indictment as proof that the 2016 election was marred by Russian interference; including hacking into the DNC by Russian operatives as well as hacking into voter registration systems across the country, along with the now ubiquitous understanding of the Russian presence on social media and their attempts to foster disagreement and manufacture intense contention among already disagreeing Americans online.

Additionally, Perez points to Trump’s failure to act on the information presented by Mueller, referencing Trump’s attempts to diminish and discredit the Mueller investigation and his failure to direct intelligence officials to take action to prevent future attacks.   Perez:

“President Trump continues to deny these facts.  And Republican in Congress continues to spread falsehoods to tarnish the very investigation that is beginning to hold Russia accountable for its actions in 2016. If the president won’t uphold the oath he took to protect our nation’s security, he has no place in the Oval Office. And if Republican leaders in Congress can’t put the interests of our democracy before politics, they have no place in Congress.”

On the other side of the aisle, Kayleigh McEnany, an RNC spokesperson read the indictment to indicate that Russian interference was two-sided, with President-elect Trump also in the Russian cross-hairs.  She points specifically to rallies funded by Russian Roubles on November 12th and 19th of 2016, in the days following the election.   In an appearance on Fox News, she indicated that it was the Democrats who had deceived the country by emphasizing the Russian election interference.  She said, “Democrats deceived this country…and they were caught today.”

In a tweet today, president Trump stated that there was a lack of allegations in today’s indictment of any impact on the 2016 presidential election and highlighted his campaign’s lack of involvement.

Trump Tweet Russian Election Indictment

However, a holistic reading of the indictment supports claims that Russian interference did appear to impact the 2016 election. The indictment offers a timeline of the defendant’s conspiracy that had a clear purpose: “impairing, obstructing and defeating the lawful governmental functions of the United States by dishonest means in order to enable the Defendants to interfere with U.S. political and electoral processes, including the 2016 U.S. Presidential election.”

You can read the indictment here.

For more on Election Legal issues, check out our Legislative, Election, Lobbying, Campaign Finance and Voting Law News.

This post was written by Eilene Spear of The National Law Review/The National Law Forum LLC.

Workplace Law Under President-Elect Donald Trump: What to Expect

labor law elections

President-elect Donald Trump will assume office on January 20, 2017, with a Republican majority in both the Senate and the House of Representatives. While it is difficult to predict whether the new administration will be able to deliver on President-elect Trump’s campaign promises, we can expect significant policy and enforcement shifts. For example, judicial appointments to the U.S. Supreme Court and other federal courts will have significant and far-reaching implications. This analysis focuses on the likely dramatic impact of the Trump Administration on workplace law.

Courts

The U.S. Supreme Court has been operating with eight justices since the sudden passing of Justice Antonin Scalia in February. There also are many judicial vacancies on the federal bench. President-elect Trump likely will appoint judges more inclined to preserve the strict certification standards for class actions and rein in novel interpretations of laws such as the Americans with Disabilities Act (e.g., on disparate impact and reasonable accommodation issues).

Government Enforcement

Federal agencies increasingly have been aggressive and controversial in their enforcement methods. Under new leadership in the Department of Labor (DOL), the Equal Employment Opportunity Commission (EEOC), and the Office of Federal Contract Compliance Programs (OFCCP), among others, one can expect a return to traditional, more conservative theories of discrimination previously recognized by federal courts. We may see the EEOC ease its systemic discrimination enforcement activity and enforcement position on the ADA, Title VII, and the Pregnancy Discrimination Act. An important issue to watch is the EEOC’s position on Title VII’s application to LGBT issues. Corporate diversity and inclusion programs are not likely to be affected by the new administration, as they are driven much more by demographic changes in the population, labor force, and marketplace and risk management considerations, and much less by federal law and policy in the short-term.

Further, the focus of current controversial regulatory action will change. New DOL leadership may revisit recent DOL proposed or implemented regulations, including those subject to court injunctions. Congress may also now pass legislation to repeal the new DOL overtime rule that raises the salary level for exempt employees effective December 1, 2016, and President-elect Trump might agree. Ongoing challenges to the Occupational Safety and Health Administration (OSHA) final rules (e.g., silica and the electronic recordkeeping rule) may result in settlements that lessen the regulatory impact of the rules. Aggressive enforcement coupled with significant publicity and fines have been key tools implemented by the current administration. Under new leadership, these agencies may ease back on such aggressive approaches and offer greater cooperation to the employer community as they try to balance the purposes of the law with business realities.

Executive Orders and Actions

President-elect Trump has announced an intention to undo President Barack Obama’s Executive Orders, many of which impose significant employment-related prohibitions and requirements on government contractors. The new administration likely will rescind at least some of those Executive Orders, chief among them the controversial Fair Pay and Safe Workplaces Executive Order.

In addition, President-elect Trump has stated he will reverse the Deferred Action for Childhood Arrivals (DACA) and Deferred Action for Parents of Americans (DAPA) Executive Actions. It is unclear whether this would only address the enjoined executive relief programs or also include revocation of work authorization documents for currently eligible workers under DACA.

EEO-1 Pay Data Reporting

Final rules revising the EEO-1 report to add W-2 earnings and work hours reporting are scheduled to go into effect in early 2018. The new administration may consider rescinding the changes before first reporting is due in 2018 or revising the reporting to ease the burden on employers.

National Labor Relations Board (NLRB)

Currently, the NLRB has a 2-1 Democratic majority, with two vacant seats. Since the President traditionally has had the opportunity to appoint Board members to achieve a majority along political lines, the open seats likely will be filled by Trump appointees. This will create a more business-oriented NLRB. A new Board with a Republican majority is likely to revisit recent NLRB rules and decisions, including those covering (1) class action waivers, (2) joint employers, (3) inclusion of temporary workers in bargaining units with an employer’s regular workers, (4) quickie elections, (5) expansion of protected concerted activity (e.g., its impact on workplace policies), (6) definition of appropriate bargaining units, and (7) status of college/university adjunct faculty, graduate students, and student athletes. The new Board also may not make additional changes the current Board would make, such as extending Weingarten rights to non-union workplaces and making misclassification of employees as independent contractors a separate violation of the National Labor Relations Act (NLRA). In addition, the Labor-Management Reporting and Disclosure Act (LMRDA) “persuader” regulations, which are currently enjoined, may be revisited.

Sarbanes-Oxley Act and Dodd-Frank Act

During the campaign, President-elect Trump singled out the Dodd-Frank Act of 2010 (DFA) as making it impossible for banks to lend money to businesses for the purpose of creating jobs. A repeal of the DFA might encourage Congress and the Securities and Exchange Commission to rely more heavily on the Sarbanes-Oxley Act of 2002 (SOX) whistleblower provisions and thus mandate that corporate compliance programs, as developed by publicly traded companies, be increasingly robust, providing for greater “self-regulation.” Further SEC enforcement actions regarding confidentiality agreements likely will decrease.

Affordable Care Act (ACA)

President-elect Trump has vowed to repeal and replace the ACA. The extent to which this comes to fruition, the timing of any dismantling efforts, and the types of replacements that are offered will be of utmost importance to employers. While there has been much mentioned in broad brush strokes about a full repeal, it is unlikely that that can or will occur. Alternatives, such as the reliance on private healthcare savings accounts, market-based universal coverage and allowing for insurance plans to be offered across state lines have been floated, however, there is no Republican consensus on what the path away from the ACA will look like. Employers will be eager to see what is done to change and lessen employer obligations under the ACA, but for the meantime, will have to stay the course.

Fiduciary Rule

The DOL’s fiduciary rule concerning the expanded definition of who is considered a fiduciary under the Employee Retirement Income Security Act (ERISA) and the Internal Revenue Code, as well as certain exemptions addressing conflicts of interest, also may be subjected to increased scrutiny in light of the President-elect’s opposition to the current administration’s financial initiatives and, more generally, “unnecessary” regulations. It is hard to determine at this point where these types of regulations on fiduciary status and conduct will rank among a long list of priorities for the new administration.

Federal Tax Reform

President-elect Trump has promised sweeping federal tax reform, including tax cuts for corporations. While the viability of implementing such changes rests with the Republican Congress, the lack of specificity as to what tax reform would look like under the new administration leaves many questions. These questions include how tax reform may affect benefits plans and arrangements, such as qualified retirement plans, fringe benefits, and executive compensation arrangements.

E-Verify

The new administration may focus on expanding enforcement of existing immigration laws in the workplace, which may include encouraging more employers to use E-Verify under existing law, as well as working with Congress to expand mandatory use of E-Verify. Under current federal law, E-Verify is voluntary for employers, except as mandated by executive order for federal government contractors.

International

The new administration may suspend temporarily the issuance of visas to certain countries and regions designated as high risk. President-elect Trump has indicated he will ask the Department of State, Department of Homeland Security, and the Department of Justice to begin a comprehensive review of high-risk visa cases to develop a list of regions and countries for which visa issuance will be suspended until a proven and effective vetting mechanism is implemented. Individuals from countries such as Syria, Iraq, Libya, and other designated high-risk areas, or individuals who have traveled to such countries, will face even longer delays obtaining visas for both short- and long-term travel to the U.S. In addition, global mobility may be affected if the U.S. restricts or delays business visas, resulting in reciprocal treatment by the affected countries.

U.S. companies operating in major European markets and other countries with strong labor interests may encounter increasingly complex labor relations and works council issues, as the United States is perceived as more nationalistic and less deferential to local employee protections. Further, there may be increasing pressure from foreign vendors, suppliers, customers, and employees on U.S. companies to certify that they will comply with ILO standards.

Post-Employment Restrictions

The new administration is unlikely to continue attempts to prohibit non-compete agreements we have seen from the White House over the past months, at least on a federal level. On a state level, legislatures still may respond to the Obama Administration’s “call to action” and introduce measures to curb the use of non-compete agreements, as, for example, has been promised by New York State Attorney General Eric Schneiderman.

The “Antitrust Guidance for Human Resource Professionals,” issued by the Department of Justice and Federal Trade Commission, is not likely to continue as a priority for the new administration. The guidance promised criminal prosecution of human resource professionals who, for example, enter into “naked” no-poach agreements.

Trade Secret Protection

Adding to the bi-partisan federal Defend Trade Secrets Act, which provided a civil right of action under the Economic Espionage Act, a new administration may adopt protectionist policies, bringing further enforcement efforts to misappropriation of trade secrets flowing to foreign powers, including to China.

Cybersecurity

President-elect Trump has expressed a desire to reduce, rather than increase regulation. However, political party hacking and unfavorable email dumps from WikiLeaks, coupled with continued data breaches affecting privacy and public sector entities, may prompt the new President and Congress to do more. Politics aside, cybersecurity is a top national security concern, and it is having a significant impact on private sector risk management strategies and individual security.

DOL Opinion Letters

The long-standing practice of the Administrator of the Wage and Hour Division of the DOL issuing official opinion letters regarding application of the Fair Labor Standards Act (FLSA) upon which employers rely may make a comeback. In recent years, the DOL had stopped issuing opinion letters, choosing instead to issue less frequent “Administrator Interpretations” with wider applicability and scope, but less specificity. Two significant Administrator Interpretations concerned “joint employment” and “independent contractor” status under the FLSA. Both have been viewed as clear efforts to expand the rights of workers under the law and place additional burdens on employers. New opinion letters are issued on a variety of topics and could scale-back or withdraw the Obama Administrator Interpretations, permitting employers greater flexibility in using independent contractors and giving business more certainty in expanding through use of franchises.

White Collar

The President-elect has been critical of excessive and unnecessary government regulation in such areas as health care, energy, and the environment. We may see a decreased investigatory focus in these areas, and fewer federal prosecutions of health care organizations, pharmaceutical companies, and manufacturers.

Focused on security and protecting the homeland, the new administration may enhance emphasis on international terrorism investigations, import/export violations, and immigration offenses.

Given his pledge to improve life in “inner city” areas, we should expect greater resources and attention to be devoted to the prosecutions of criminal activity by violent gangs and an effort to address crimes that affect the daily lives of the residents of America’s cities.

***

An important question for many, especially those that operate in multiple states and must comply with the current patchwork of state laws on data breach and sick leave, for example, is whether a federal law that supersedes state law is likely. With Republicans in control of the executive and legislative branches, that remains to be seen.

ARTICLE BY Howard M. Bloom & Philip B. Rosen of Jackson Lewis P.C.

Jackson Lewis P.C. © 2016

Impact of Presidential Election on Key United States Supreme Court Cases

Supreme CourtAmerica’s next President will potentially have the authority to nominate more than one United States Supreme Court Justice before the end of his or her presidency. Notably, during the final debate, this subject of Supreme Court appointments by the President Elect was one of the six topics for discussion and was identified as one of the top issues among voters. Employers should take note because the Supreme Court may hear several cases in the upcoming term that could have significant implications for employers across the country with respect to (1) the enforceability of class action waivers, (2) pre-suit obligations of the Equal Employment Opportunity Commission (“EEOC”) in discrimination complaints, and (3) the issue of transgender rights.

(1) The Enforceability of Class Action Waivers in Arbitration Agreements

Following the Court’s ruling in 2011 in ATT Mobility LLC v. Concepcion1, where the Court in a 5-4 decision held that the Federal Arbitration Act preempted California from refusing to enforce class action waivers in consumer contracts, many employers have utilized waivers in arbitration agreements as a method of avoiding, or reducing, the risks of class or collective actions by employees alleging employment-related claims such as wage-and-hour violations and unlawful discrimination.

However, the safe haven apparently created under Concepcion has been under attack and led to inconsistent federal circuit court rulings applying its holding. Now, the Supreme Court has the opportunity to reconcile a split in the federal circuits regarding the enforceability of class action waivers in arbitration agreements. Because former Justice Scalia authored the Concepcion opinion, his replacement could impact its holding.

(2) EEOC Obligations with Respect to Discrimination Complaints

Recent discrimination cases have challenged aspects of the EEOC’s pre-suit obligations to investigate and attempt to conciliate discrimination charges before filing a lawsuit. Many judicial opinions have cited MachMining LLC v. EEOC2, a case in which the Supreme Court held that the EEOC’s statutory obligation to attempt conciliation with an employer as a prerequisite to a Title VII suit is subject to judicial review—although the scope of that review is narrow—and also established that form letters announcing the initiation and conclusion of the conciliation process alone do not satisfy the statutory obligation to attempt to facilitate conciliation with the employer.

In October 2016, the Supreme Court denied certification in EEOC v. Sterling Jewelers Inc.3, a matter of first impression in which the Second Circuit cited MachMining LLC v. EEOC in a decision permitting the EEOC to pursue a nationwide sex discrimination lawsuit on behalf of female retail store employees. Sterling Jewelers Inc.4 established that while a court may review whether the EEOC conducted an investigation into a formal charge of discrimination as a prerequisite for bringing an enforcement action under Title VII, it may not review the sufficiency of the agency’s investigation.

The case to watch is The Geo Grp. v. EEOC5, which is being docketed for review by the Supreme Court. The Ninth Circuit cited MachMining6 in a decision that allows the EEOC to litigate 19 sex discrimination claims despite the fact that the agency did not identify the alleged victims until after filing the lawsuit on the basis that MachMining7 permits the identification of a class of people as an alternative to identifying the individual alleged victims.

While many believe that the 2015 MachMining opinion could have potentially reversed the Ninth Circuit’s holding in Geo Grp., the Court (with a newly appointed Justice) could possibly walk back the limited judicial review permitted by the previous Court or establish a broader scope of judicial discretion in determining whether or not an attempt of conciliation with an employer took place in order to satisfy the EEOC’s statutory requirement under Title VII.

(3) Transgender Rights

In August, the Supreme Court stayed the Fourth Circuit Court of Appeals ruling in Gloucester Cnty. Sch. Bd. v G.G.8, keeping Grimm, an individual who was born a female, but identifies as a male, from using the boys’ restroom at school, while it decided whether it would take the case. On Friday, October 28, the Supreme Court announced it would in fact take up the issue. The Court’s holding on whether the U.S. Department of Education’s interpretation of the word “sex” is appropriate, as it relates to Title IX discrimination cases, could have wide ranging impact on litigation involving H.B. 2 from North Carolina and employers as they address transgender issues in the workplace.

ARTICLE BY Marc D. Katz, Isabel Crosby &  Jason R. Regas of Andrews Kurth Kenyon
© 2016 Andrews Kurth Kenyon LLP

1. ATT Mobility LLC v. Concepcion, 563 U.S. 333 (2011).

2. MachMining LLC v. EEOC, 135 S. Ct. 1645, 126 FEP Cases 1521 (2015).

3. Sterling Jewelers Inc. v. E.E.O.C., No. 15-1329; EEOC v. Sterling Jewelers Inc., 801 F.3d 96 (2nd Cir. 2016).

4. Id.

5. The Geo Grp. v. EEOC, No. 16-302; Arizona ex rel. Horne v. Geo Group, Inc., 816 F.3d 1189 (9th Cir. 2016).

6. MachMining LLC v. EEOC, supra.

7. Id. at 1648.

8. 136 S. Ct. 2442 (2016) (per curiam).

New Presidency Will Compel Action in Key Areas of Health Care in 2017

health careAs we enter the final stretch of the U.S. presidential election, health care remains one of the most contested issues with great potential for change, particularly to existing insurance and patient care systems. Compounding matters is the opening of enrollment season for exchange plans, which places the already hotly debated Affordable Care Act (ACA) at the forefront of the national health care discussion.

Former U.S. Congressman Dennis Cardoza, co-chair of Foley’s Federal Public Affairs Practice, and Public Affairs Director Jennifer Walsh opined recently about how our next president could symbolically break the congressional logjam on several health care-related fronts and why the industry is poised for more market-driven disruption.

What follows are a few highlights of their conversation.

1. What health policy issues will be most impacted by the next administration?

Cardoza: Since the passage of the ACA, there has been very little legislative activity when it comes to health care, as everything has been done at the administrative level and spread across various departments. During the honeymoon period that follows every newly elected president, we’ll likely see an immediate and significant push around the ACA marketplaces, especially in light of some high-profile defections, decreasing competition and increasing premiums. It doesn’t matter who is in the White House; there are things happening in the market that can’t be ignored.

Walsh: I agree that legislation concerning the exchanges will be the first out of the gate. There is a strong impetus to fix the system, but it may happen initially as part of the reauthorization of the Children’s Health Insurance Program (CHIP) that is set to expire in 2017. CHIP is a bi-partisan issue and no one wants to see it lapse. This must be passed in the first or second-quarter and could grease the skids for other ACA measures that are either attached as amendments or follow in subsequent bills.

On a separate, simultaneous track, drug pricing will continue to be scrutinized. Lawmakers will pick up where they left off leading up to the August recess. It’s now part of the national dialogue and lawmakers will continue to discuss how to address the issue.

2. Will merger activity continue on its current, accelerated pace?

Cardoza: The ACA has forced market consolidation due to everyone’s ability, or rather inability to compete over costs. We may see other large insurance plans leave the exchanges if the Department of Justice doesn’t approve their respective mergers.

Walsh: Mergers have been an interesting consequence of the ACA, and we’ll see more alignment in this regard. They don’t always generate big news headlines, but smaller acquisitions of technology assets and payments systems are happening all over, so health care organizations can build their portfolios.

3. What are some other noteworthy developments you’re watching closely?

Cardoza: Concluding a long, iterative process, the Centers for Medicare & Medicaid Services will soon be rolling out its new health care payment and service delivery models as part of the transition from fee-for-service. Next year will be a key period as we work toward full-blown implementation of new reimbursement practices that reflect better value and promote quality care for patients.

Walsh: The 21st Century Cures Act, which is Representative Fred Upton’s legacy issue, has received broad bipartisan support and already passed the House. It will allocate more funding to the National Institutes of Health to explore new cures and treatments, and incent to innovative approaches to disease management. It should get a fair shake in 2017, if not during the upcoming lame duck session.

4. What should health care executives be thinking about heading into 2017?

Cardoza: Complacency has set in with the Washington gridlock, and many executives with bearish outlooks have accepted the broken system and are merely just controlling costs. However, they need to change their mindset and be more cognizant of what could soon affect their business, as we’re about to enter a transformative year where there will be a lot of moving parts. If they’re not informed and engaged, they’re going to get left behind.

Walsh: The uncertainty surrounding the ACA has certainly caused a lot of angst, and makes planning for businesses extremely difficult. Companies need to channel that energy into advocacy for their organization. Although every system is different, the industry-wide movement toward modernization, value, and quality will affect all parties. While it will be incremental, the change that will be prompted by the election is inevitable.

ARTICLE BY Dennis A. Cardoza & Jennifer F. Walsh of Foley & Lardner LLP

© 2016 Foley & Lardner LLP

U.S. Election Forecast on Congressional Leadership Changes

2016 presidential electionWith 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.

©1994-2016 Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. All Rights Reserved.

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

brexit westIt 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

Copyright 2016 K & L Gates