McDonald Hopkins Government Strategies Advisory: This Week in Washington -- August 14, 2015

Obama's climate rules under fire

Congress isn't the only place that President Barack Obama's new rules for carbon-emissions from power plants is facing a challenge. Fifteen states attorneys general have now asked a federal court to put the rules on hold because the clock has begun ticking on their compliance - while the rules have not been formally published in the Federal Register, they were publicly unveiled in early August.

The lawsuit argues that without a stay from the court, states will be "irreparably harmed" because they must spend resources and begin reordering their energy sector.

"With this firm deadline [September 2016], the Rule requires States to spend significant and irrecoverable sovereign resources now to begin preparing their State plans."

The rule at the center of the controversy aims to cut emissions from power plants by 32 percent the 2005 level by 2030 - and accomplishes this largely by speeding the shift from coal-fired power to other sources such as renewables and natural gas.

The new lawsuit not only seeks to stay the implementation but more broadly argues that the rule goes far beyond what Congress authorized in the Clean Air Act:

"The Clean Air Act was never intended to be used to create this type of regulatory regime, and it flies in the face of powers granted to the states under the U.S. Constitution."

The petition was filed by West Virginia's attorney general and was joined by the states of Alabama, Arkansas, Florida, Indiana, Kansas, Nebraska, Ohio, Oklahoma, South Dakota, Wisconsin, and Wyoming.

Defenders of the legislation say that the lawsuit is premature and that multiple courts have already upheld the EPA's power to limit carbon emissions under the Clean Air Act.

Congress to take on porn

After the August recess, Rep. Jackie Speier (D-Calif.) will introduce legislation that will make it illegal to distribute explicit images without the consent of the subject. The legislation, which is expected to be bipartisan and bicameral, is aimed at outlawing so-called "revenge porn."

More than half of U.S. states have some law on the books that deals with the issue of revenge porn, but some now believe that it is time for the federal government to step up to help stop the practice. There is opposition however, among free speech advocates who worry that the legislation is a dangerous nose under the tent when it comes to legislating speech.

Speier is a San Francisco-area liberal who says it’s not about speech but rather it's a sexual-harassment issue and a privacy issue. Speier had hoped to introduce the bill before the August recess, but supporters in the Senate asked her to wait until Congress returns in September.

Over the past year, as the subject of revenge porn has gotten increasing attention in the news, law enforcement officials have stepped up efforts aimed at ending the practice. In January, the Federal Trade Commission ordered a revenge-porn website taken down because it violated fair business practices.

It's not just law enforcement that is stepping up its efforts, companies like Google and Bing, have made changes to their policies to make it easier for victims of explicit images published without their consent to take down the compromising photos. Social networks like Facebook and even the notoriously lawless Reddit have also joined the effort.

Free speech advocates say that criminalization is the wrong approach and especially criminalizing the sharing of a lawful image that was lawfully obtained. They argue that any legislation should focus instead on the intentional and knowing invasion of privacy and warn that the legislation is so broad that it is unlikely to withstand constitutional scrutiny from a court if passed.

Federal Trade Commission votes to limit its own power

In a closed door vote this week, the Federal Trade Commission (FTC) voted in favor of a new policy for the agency that could limit its ability to crack down on companies that try to stifle competition.

Over the past few years, the FTC has lodged anti-trust violations against a number of high-profile technology companies like Google and Apple. Despite pressure from Silicon Valley, Democrats have generally opposed any effort to more specifically spell out the boundaries of the agency's "unfairness" power for fear that such a move would hamstring the FTC's ability to stop unfair competition.

The FTC has long argued that Section 5 of the FTC Act, which bans "unfair methods of competition," grants it broader authority than the Justice Department's Antitrust Division. Allowing the FTC to bring cases that the Justice Department could not. For example, the FTC pointed to its Section 5 powers in 2013 when it settled charges with Google for refusing to allow its competitors to use key smartphone patents.

The FTC only rarely invokes its Section 5 powers and companies generally settle rather than fight the agency in court - leaving Section 5 power largely untested in court.

Business groups, and their Republican allies, however, have been urging the agency to establish boundaries so that companies can know what exact type of behavior will get them in trouble.

The FTC's new policy will focus on three principles:

1. It will ban practices that harm or are likely to harm competition, unless that harm is outweighed by other benefits.
2. The agency will focus on protecting consumers.
3. The agency will rely on traditional anti-trust laws whenever possible.

The agency vote was 4 to 1, with the lone no vote coming from a Republican FTC commissioner who argued that the agency should have gotten input from the public and that the new policy is so vague that it could actually give rise to more - not less - cases filed against companies for so-called "unfair" conduct.

House conservatives eye Medicare reform

Republicans have long dreamed of reforming Medicare in a way that relies more on the private sector and less on the federal government. While the theory is popular among conservatives - particularly in think tank land - the dream has always been that - just a dream - as the political realities of a divided Capitol Hill and the dangers of taking on Medicare have kept Republicans from acting.

Conservatives on the Hill are looking to make this dream a reality. Next year, House Republicans will start drafting a Medicare "premium-support" bill according to Ways and Means Health Subcommittee Chairman Kevin Brady (R-Texas).

The ambitious undertaking will aim to draft the legislative text next year for consideration in 2017, once a new Congress and a new president have been sworn into office.

Premium support generally means that Medicare would provide seniors with a set amount of money to purchase private healthcare plans. Under some versions of premium support, traditional Medicare would remain as an option. However, under other versions premium support would fully replace traditional Medicare.

Brady and his allies face long odds. A July poll by the Kaiser Family Foundation shows that only 26 percent of the American public favors a premium support style system and Democrats have successfully used support for such an approach in political attacks against Republicans.

August recess special “back to school" series

Since we are in the middle of the August recess – the time when both chambers are out of session – we thought it might be a good time to take the opportunity to explain a little bit more about some of the more complex processes on the Hill. Think of it as a “back to school” primer on how Washington works. This week, we explore what Congress' role is in approving or stopping implementation of President Obama's nuclear deal with Iran.

Congress and the Iran deal

The nuclear deal with Iran was not negotiated as a treaty but instead as an agreement that relies on the powers of the executive branch alone for implementation of the deal. Until earlier this year, there was no real way for Congress to weigh in on any deal struck by Obama with the Iranian regime.

This changed, however, after passage of the bipartisan Iran Nuclear Agreement Review Act of 2015.

The new law, which Obama signed, prevents the president from waiving sanctions on Iran for 60 days from the day the president submits the deal to Congress. This 60-day delay gives Congress the opportunity to review the legislation and possibly to stop it.

Unfortunately for opponents of the deal, the hurdles required to actually stop the deal are tremendous. First, and most importantly, unlike with a treaty where the Senate must act to approve it, the burden is shifted here on Congress to act to disapprove the Iran deal. If Congress did nothing, the deal is implemented and the sanctions are lifted.

If Congress decides to act - which they will - it requires a majority vote in both chambers to prevent the lifting of sanctions on Iran. However, such legislation is subject to a presidential veto - something the president has promised to do. So for Congress to be successful in blocking implementation of the deal they must overcome a presidential veto. Such a move would require two-thirds of both the House and Senate. That's 290 votes in the House and 67 in the Senate.

Those are long odds for opponents of the deal. There are currently 246 Republicans in the House, meaning that they would need to hold every Republican and pickup an additional 44 Democrats. If Republicans hold the vacant seat of former Rep. Aaron Schock (R-Ill.), as expected, in the September 10th special election, then only 43 Democrats would be needed to override the president's veto.

In the Senate, there are 54 Republicans, which means opponents would need to hold every GOP Senator and have 13 Democratic Senators join them. 

 

  

 Steven C. LaTourette, President | 202.559.2600

McDonald Hopkins Government Strategies LLC
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