[House Report 110-941]
[From the U.S. Government Publishing Office]
Union Calendar No. 614
110th Congress, 2d Session - - - - - - - - - - - - House Report 110-941
REPORT ON THE ACTIVITIES
of the
COMMITTEE ON THE JUDICIARY
of the
HOUSE OF REPRESENTATIVES
during the
ONE HUNDRED TENTH CONGRESS
pursuant to
Clause 1(d) Rule XI of the Rules of the
House of Representatives
January 3, 2009.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
LETTER OF TRANSMITTAL
----------
House of Representatives,
Committee on the Judiciary,
Washington, DC, January 3, 2009.
Hon. Lorraine Miller,
Clerk, House of Representatives,
Washington, DC.
Dear Ms. Miller: Pursuant to clause 1(d) of rule XI of the
Rules of the House of Representatives, I am transmitting the
report on the activities of the Committee on the Judiciary of
the U.S. House of Representatives in the 110th Congress.
Sincerely,
John Conyers, Jr., Chairman.
C O N T E N T S
----------
Page
Jurisdiction of the Committee on the Judiciary................... 1
Tabulation of Legislation and Activity........................... 3
Printed Hearings................................................. 5
Committee Prints................................................. 13
House Documents.................................................. 13
Public Laws...................................................... 13
Conference Appointments.......................................... 19
Summary of Activities of the Committee on the Judiciary.......... 21
Antitrust Legislative Activities............................. 21
Antitrust Oversight Activities............................... 23
Committee Legislative Activities............................. 28
Committee Oversight.......................................... 31
Investigation into U.S. Attorney Removals and the
Politicization of the Department of Justice............ 31
Hiring and Firing of U.S. Attorneys and other
Department Personnel............................... 31
Allegations of Selective Prosecution................. 35
Committee Hearings and Meetings on U.S. Attorney
Removals and Politicization of the Department of
Justice............................................ 38
Oversight Hearings of Executive Branch Agencies.......... 42
Other Committee Oversight Hearings....................... 44
SUBCOMMITTEE ON COMMERCIAL AND ADMINISTRATIVE LAW................ 49
Legislative Activities....................................... 49
Administrative Law....................................... 49
Bankruptcy............................................... 51
U.S. Attorneys Investigation............................. 54
State Taxation Affecting Interstate Commerce............. 55
Federal Arbitration Act.................................. 58
Tort Reform Issues....................................... 60
Claims Issues............................................ 62
Oversight Activities......................................... 62
Administrative Law, Process, and Procedure............... 62
Bankruptcy............................................... 66
Privacy.................................................. 76
Arbitration.............................................. 79
State Taxation Affecting Interstate Commerce............. 81
Product Liability........................................ 82
Department of Justice Matters............................ 83
SUBCOMMITTEE ON THE CONSTITUTION, CIVIL RIGHTS, and CIVIL
LIBERTIES...................................................... 91
Legislative Activities....................................... 91
Oversight Activities......................................... 114
Health Consequences of the Attacks of September 11, 2001. 123
Law Enforcement Practices and Accountability............. 124
Civil Rights Enforcement................................. 126
SUBCOMMITTEE ON COURTS, THE INTERNET, AND INTELLECTUAL PROPERTY.. 133
Legislative Activities....................................... 134
Courts................................................... 134
Copyright................................................ 139
Patents and Trademarks................................... 145
Oversight Activities......................................... 147
The Federal Judicial System.............................. 147
The U.S. Copyright System................................ 147
The U.S. Patent and Trademark Systems.................... 148
List of oversight hearings............................... 149
SUBCOMMITTEE ON CRIME, TERRORISM, AND HOMELAND SECURITY.......... 157
Legislative Activities....................................... 157
Oversight Activities......................................... 188
SUBCOMMITTEE ON IMMIGRATION, CITIZENSHIP, REFUGEES, BORDER
SECURITY, AND INTERNATIONAL LAW................................ 201
Legislative Activities....................................... 202
Oversight Activities......................................... 204
Letters.................................................. 234
GAO Requests............................................. 239
Union Calendar No. 614
110th Congress Report
HOUSE OF REPRESENTATIVES
2d Session 110-941
======================================================================
REPORT ON THE ACTIVITIES OF THE COMMITTEE ON THE JUDICIARY
_______
January 3, 2009.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Conyers, from the Committee on the Judiciary, submitted the
following
R E P O R T
Jurisdiction of the Committee on the Judiciary
The jurisdiction of the Committee on the Judiciary is set
forth in Rule X, 1.(k) of the Rules of the House of
Representatives for the 110th Congress:
RULE X--ORGANIZATION OF COMMITTEES
COMMITTEES AND THEIR LEGISLATIVE JURISDICTIONS
1. There shall be in the House the following standing
committees, each of which shall have the jurisdiction and
related functions assigned by this clause and clauses 2, 3, and
4. All bills, resolutions, and other matters relating to
subjects within the jurisdiction of the standing committees
listed in this clause shall be referred to those committees, in
accordance with clause 2 of rule XII, as follows:
(k) Committee on the Judiciary.
(1) The judiciary and judicial proceedings, civil and
criminal.
(2) Administrative practice and procedure.
(3) Apportionment of Representatives.
(4) Bankruptcy, mutiny, espionage, and
counterfeiting.
(5) Civil liberties.
(6) Constitutional amendments.
(7) Criminal law enforcement.
(8) Federal courts and judges, and local courts in
the Territories and possessions.
(9) Immigration policy and nonborder enforcement.
(10) Interstate compacts generally.
(11) Claims against the United States.
(12) Meetings of Congress; attendance of Members,
Delegates, and the Resident Commissioner; and their
acceptance of incompatible offices.
(13) National penitentiaries.
(14) Patents, the Patent and Trademark Office,
copyrights, and trademarks.
(15) Presidential succession.
(16) Protection of trade and commerce against
unlawful restraints and monopolies.
(17) Revision and codification of the Statutes of the
United States.
(18) State and territorial boundary lines.
(19) Subversive activities affecting the internal
security of the United States.
Tabulation of Legislation and Activity
----------
LEGISLATION REFERRED TO COMMITTEE
Public Legislation:
House bills............................................... 885
House joint resolutions................................... 59
House concurrent resolutions.............................. 32
House resolutions......................................... 86
--------------------------------------------------------------
____________________________________________________
1062
--------------------------------------------------------------
____________________________________________________
Senate bills.............................................. 35
Senate joint resolutions.................................. 2
Senate concurrent resolutions............................. 1
--------------------------------------------------------------
____________________________________________________
38
--------------------------------------------------------------
____________________________________________________
Subtotal................................................ 1100
==============================================================
____________________________________________________
Private Legislation:
House bills (claims)...................................... 1
House bills (copyrights).................................. 0
House bills (immigration)................................. 73
House resolutions (claims)................................ 3
--------------------------------------------------------------
____________________________________________________
77
--------------------------------------------------------------
____________________________________________________
Senate bills (claims)..................................... 0
Senate bills (immigration)................................ 0
--------------------------------------------------------------
____________________________________________________
Subtotal................................................ 77
--------------------------------------------------------------
____________________________________________________
Total................................................. 1177
==============================================================
____________________________________________________
ACTION ON LEGISLATION NOT REFERRED TO COMMITTEE
Held at desk for House action:
Senate bills.............................................. 19
--------------------------------------------------------------
____________________________________________________
19
==============================================================
____________________________________________________
Conference appointments:
House bills............................................... 2
Senate bills.............................................. 0
--------------------------------------------------------------
____________________________________________________
Total................................................. 2
==============================================================
____________________________________________________
FINAL ACTION
House concurrent resolutions approved (public)................ 11
House resolutions approved (public)........................... 30
Public legislation vetoed by the President.................... 0
Public Laws................................................... 69
Private Laws.................................................. 0
Printed Hearings
Serial No. and Title
----------
1. Proposed Immigration Fee Increase. Subcommittee on Immigration,
Citizenship, Refugees, Border Security, and International Law. February
14, 2007.
2. Amending Executive Order 12866: Good Governance or Regulatory
Usurpation? Subcommittee on Commercial and Administrative Law. February
13, 2007.
3. Competition and Future of Digital Music. Antitrust Task Force.
February 28, 2007.
4. Senate Approach to Lobbying Reform. Subcommittee on the
Constitution. March 1, 2007. (S. 1).
5. Native American Methamphetamine Enforcement and Treatment Act of
2007, Animal Fighting Prohibition Enforcement Act of 2007, and
Preventing Harassment through Outbound Number Enforcement (PHONE) Act
of 2007. Subcommittee on Crime, Terrorism, and Homeland Security.
February 6, 2007. (H.R. 545, H.R. 137, H.R. 740).
6. Presidential Signing Statements Under the Bush Administration: A
Threat to Checks and Balances and the Rule of Law? Committee on the
Judiciary. January 31, 2007.
7. District of Columbia House Voting Rights Act of 2007. Committee
on the Judiciary. March 14, 2007. (H.R. 1433).
8. American Innovation at Risk: The Case for Patent Reform.
Subcommittee on Courts, The Internet, and Intellectual Property.
February 15, 2007.
9. Protecting the Right to Vote: Election Deception and
Irregularities in Recent Federal Elections. Committee on the Judiciary.
March 7, 2007.
10. Continuing Investigation into the U.S. Attorneys Controversy.
Subcommittee on Commercial and Administrative Law. May 3, 2007.
11. Executive Compensation in Chapter 11 Bankruptcy Cases: How Much
is Too Much? Subcommittee on Commercial and Administrative Law. April
17, 2007.
12. Ensuring Executive Branch Accountability. Subcommittee on
Commercial and Administrative Law. March 29, 2007.
13. Second Anniversary of the Enactment of the Bankruptcy Abuse
Prevention and Consumer Protection Act of 2005: Are Consumers Really
Being Protected Under the Act? Subcommittee on Commercial and
Administrative Law. July 3, 2007.
14. Making Communities Safer: Youth Violence and Gang Interventions
that Work. Subcommittee on Crime, Terrorism, and Homeland Security.
February 15, 2007.
15. Past, Present, and Future: A Historic and Personal Reflection
on American Immigration. Subcommittee on Immigration, Citizenship,
Refugees, Border Security, and International Law. March 30, 2007.
16. Shortfalls of the 1986 Immigration Reform Legislation.
Subcommittee on Immigration, Citizenship, Refugees, Border Security,
and International Law. April 19, 2007.
17. Problems in the Current Employment Verification and Worksite
Enforcement System. Subcommittee on Immigration, Citizenship, Refugees,
Border Security, and International Law. April 24, 2007.
18. Proposals for Improving the Electronic Employment Verification
and Worksite Enforcement System. Subcommittee on Immigration,
Citizenship, Refugees, Border Security, and International Law. April
26, 2007.
19. Tulsa Greenwood Race Riot Accountability Act of 2007.
Subcommittee on the Constitution. April 24, 2007. (H.R. 1995).
20. An Examination of Point Systems as a Method for Selecting
Immigrants. Subcommittee on Immigration, Citizenship, Refugees, Border
Security, and International Law. May 1, 2007.
21. The Inspector General's Independent Report on the F.B.I.'s Use
of National Security Letters. Committee on the Judiciary. March 20,
2007.
22. Restoring Checks and Balances in the Confirmation process of
U.S. Attorneys. Subcommittee on Commercial and Administrative Law.
March 6, 2007. (H.R. 580).
23. Findings and Recommendations of the Antitrust Modernization
Commission. Antitrust Task Force. May 8, 2007.
24. The McNulty Memorandums Effect on the Right to Counsel in
Corporate Investigations. Subcommittee on Crime, Terrorism, and
Homeland Security. March 8, 2007.
25. Shortfalls of the 1996 Immigration Reform Legislation.
Subcommittee on Immigration, Citizenship, Refugees, Border Security,
and International Law. April 20, 2007.
26. Role of Family-Based Immigration in the U.S. Immigration
System. Subcommittee on Immigration, Citizenship, Refugees, Border
Security, and International Law. May 8, 2007.
27. Comprehensive Immigration Reform: Becoming Americans--U.S.
Immigrant Integration. Subcommittee on Immigration, Citizenship,
Refugees, Border Security, and International Law. May 16, 2007.
28. Comprehensive Immigration Reform: Impact of Immigration on
States and Localities. Subcommittee on Immigration, Citizenship,
Refugees, Border Security, and International Law. May 17, 2007.
29. An Update--Piracy on University Networks. Subcommittee on
Courts, the Internet, and Intellectual Property. March 8, 2007.
30. Free Flow of Information Act of 2007. Committee on the
Judiciary. June 14, 2007. (H.R. 2102).
31. Emmett Till Unsolved Civil Rights Crime Act. Subcommittee on
the Constitution jointly with the Subcommittee on Crime, Terrorism, and
Homeland Security. June 12, 2007. (H.R. 923).
32. Criminal Justice Responses to Offenders with Mental Illness.
Subcommittee on Crime, Terrorism, and Homeland Security. March 27,
2007.
33. Reforming Section 115 of the Copyright Act for the Digital Age.
Subcommittee on Courts, the Internet and Intellectual Property. March
22, 2007.
34. U.S. Economy, U.S. Workers and Immigration Reform. Subcommittee
on Immigration, Citizenship, Refugees, Border Security, and
International Law. May 3, 2007.
35. U.S. Economy, U.S. Workers and Immigration Reform. Subcommittee
on Immigration, Citizenship, Refugees, Border Security, and
International Law. May 9, 2007.
36. Comprehensive Immigration Reform: The Future of Undocumented
Immigrant Students. Subcommittee on Immigration, Citizenship, Refugees,
Border Security, and International Law. May 18, 2007.
37. Comprehensive Immigration Reform: Perspectives from Faith-Based
and Immigrant Communities. Subcommittee on Immigration, Citizenship,
Refugees, Border Security, and International Law. May 22, 2007.
38. Impact of Ledbetter v. Goodyear on the Effective Enforcement of
Civil Rights Laws. Subcommittee on the Constitution. June 28, 2007.
39. Comprehensive Immigration Reform: Becoming Americans--U.S.
Immigrant Integration. Subcommittee on Immigration, Citizenship,
Refugees, Border Security, and International Law. May 23, 2007.
40. Comprehensive Immigration Reform: Labor Movement Perspectives.
Subcommittee on Immigration, Citizenship, Refugees, Border Security,
and International Law. May 24, 2007.
41. Comprehensive Immigration Reform: Business Community
Perspectives. Subcommittee on Immigration, Citizenship, Refugees,
Border Security, and International Law. June 6, 2007.
42. Comprehensive Immigration Reform: Government Perspectives on
Immigration Statistics. Subcommittee on Immigration, Citizenship,
Refugees, Border Security, and International Law. June 6, 2007.
43. Comprehensive Immigration Reform: Government Perspectives on
Immigration Statistics. Subcommittee on Immigration, Citizenship,
Refugees, Border Security, and International Law. June 19, 2007.
44. Changing Tides: Exploring the Current State of Civil Rights
Enforcement Within the Department of Justice. Subcommittee on the
Constitution. March 22, 2007.
45. Constitutional Limitations on Domestic Surveillance.
Subcommittee on the Constitution. June 7, 2007.
46. African-American Farmers Benefit Relief Act of 2007 and Pigford
Claims Remedy Act of 2007. Subcommittee on the Constitution. June 21,
2007. (H.R. 558, H.R. 899).
47. Security Through Regularized Immigration and a Vibrant Economy
(STRIVE) Act of 2007. Subcommittee on Immigration, Citizenship,
Refugees, Border Security, and International Law. September 6, 2007.
(H.R. 1645).
48. Federal Judicial Compensation. Subcommittee on Courts, the
Internet, and Intellectual Property. April 19, 2007.
49. Ensuring Artists Fair Compensation: Updating the Performance
Right and Platform Parity for the 21st Century. Subcommittee on Courts,
the Internet, and Intellectual Rights. July 31, 2007.
50. USCIS Fee Increase Rule. Subcommittee on Immigration,
Citizenship, Refugees, Border Security, and International Law.
September 20, 2007.
51. Second Chance Act of 2007. Subcommittee on Crime, Terrorism,
and Homeland Security. March 20, 2007. (H.R. 1593).
52. Rendition to Torture: The Case of Maher Arar. Subcommittee on
the Constitution jointly with the Committee on Foreign Affairs. October
18, 2007.
53. Detention and Removal: Immigration Detainee Medical Care.
Subcommittee on Immigration, Citizenship, Refugees, Border Security,
and International Law. October 4, 2007.
54. U.S. Environmental Protection Agency's Response to Air Quality
Issues Arising from the Terrorist Attacks on September 11, 2001: Were
there Substantive Due Process Violations? Subcommittee on the
Constitution. June 25, 2007.
55. The Katrina Impact on Crime and the Criminal Justice System in
New Orleans. Subcommittee on Crime, Terrorism, and Homeland Security.
April 10, 2007.
56. Continuing Investigation into the U.S. Attorneys Controversy
and Related Matters (Part I). Committee on the Judiciary. May 23, 2007.
57. Use and Misuse of Presidential Clemency Power for Executive
Branch Officials. Committee on the Judiciary. July 11, 2007.
58. United States Department of Justice. Committee on the
Judiciary. May 10, 2007.
59. ADA Restoration Act of 2007. Subcommittee on the Constitution.
October 4, 2007. (H.R. 3195).
60. Save America Comprehensive Immigration Act of 2007.
Subcommittee on Immigration, Citizenship, Refugees, Border Security,
and International Law. November 8, 2007. (H.R. 750).
61. Allegations of Selective Prosecution: The Erosion of Public
Confidence in Our Federal Justice System. Subcommittee on Crime,
Terrorism, and Homeland Security jointly with the Subcommittee on
Commercial and Administrative Law. October 23, 2007.
62. Private Prison Information Act and Review of the Prison
Litigation Reform Act: A Decade of Reform or an Increase in Prison and
Abuses? Subcommittee on Crime, Terrorism, and Homeland Security.
November 8, 2007. (H.R. 1889).
63. Legacy of the Trans-Atlantic Slave Trade. Subcommittee on the
Constitution. December 18, 2007.
64. Naturalization Delays: Causes, Consequences, and Solutions.
Subcommittee on Immigration, Citizenship, Refugees, Border Security,
and International Law. January 17, 2008.
65. Patent Reform Act of 2007. Subcommittee on Courts, the
Internet, and Intellectual Property. April 26, 2007. (H.R. 1908).
66. Stifling or Stimulating--The Role of Gene Patents in Research
and Genetic Testing. Subcommittee on Courts, the Internet, and
Intellectual Property. October 30, 2007.
67. International Piracy: The Challenges of Protecting Intellectual
Property in the 21st Century. Subcommittee on Courts, the Internet, and
Intellectual Property. October 18, 2007.
68. Reauthorization of the Juvenile Justice and Delinquency
Prevention Act of 1974. Printed as Juvenile Justice and Delinquency
Prevention Act: Overview and Perspectives. Subcommittee on Crime,
Terrorism, and Homeland Security jointly with the Committee on
Education and Labor. July 12, 2007.
69. Mandatory Binding Arbitration Agreements: Are They Fair for
Consumers? Subcommittee on Commercial and Administrative Law. June 12,
2007.
70. Internet Tax Freedom Act: Internet Tax Moratorium. Subcommittee
on Commercial and Administrative Law. May 22, 2007.
71. Local Law Enforcement Hate Crimes Prevention Act of 2007.
Subcommittee on Crime, Terrorism, and Homeland Security. April 17,
2007. (H.R. 1592).
72. COPS Improvements Act of 2007, the John R. Justice Prosecutors
and Defenders Incentive Act of 2007, and the Witness Security and
Protection Act of 2007. Subcommittee on Crime, Terrorism, and Homeland
Security. April 24, 2007. (H.R. 1700, H.R. 916, H.R. 933).
73. Continuing Investigation into the U.S. Attorneys Controversy
and Related Matters (Part II). Subcommittee on Commercial and
Administrative Law. June 21, 2007.
74. Reform of the State Secrets Privilege. Subcommittee on the
Constitution. January 29, 2008.
75. Continuing Investigation into the U.S. Attorneys Controversy
and Related Matters (Part III). Subcommittee on Commercial and
Administrative Law. July 12, 2007.
76. Prioritizing Resources and Organization for Intellectual
Property Act of 2007. Subcommittee on Courts, the Internet, and
Intellectual Property. December 13, 2007. (H.R. 4279)
77. Credit Card Interchange Fees. Antitrust Task Force. July 19,
2007.
78. Warrantless Surveillance and the Foreign Intelligence
Surveillance Act: The Role of Checks and Balances in Protecting
Americans' Privacy Rights (Part I). Committee on the Judiciary.
September 5, 2007.
79. Warrantless Surveillance and the Foreign Intelligence
Surveillance Act: The Role of Checks and Balances in Protecting
Americans' Privacy Rights (Part II). Committee on the Judiciary.
September 18, 2007.
80. Problems with ICE Interrogation, Detention, and Removal
Procedures. Subcommittee on Immigration, Citizenship, Refugees, Border
Security, and International Law. February 13, 2008.
81. H-2B Program. Subcommittee on Immigration, Citizenship,
Refugees, Border Security, and International Law. April 16, 2008.
82. Paying With Their Lives: The Status of Compensation for 9/11
Health Effects. Subcommittee on Immigration, Citizenship, Refugees,
Border Security, and International Law jointly with the Subcommittee on
Courts, the Internet, and Intellectual Property. April, 1, 2008.
83. Combating Modern Slavery: Reauthorization of Anti-Trafficking
Programs. Committee on the Judiciary. October 31, 2007.
84. Prices at the Pump: Market Failure and the Oil Industry.
Antitrust Task Force. May 16, 2007.
85. Impact of Our Antitrust Laws on Community Pharmacies and Their
Patients. Antitrust Task Force. October 18, 2007.
86. Federal Bureau of Investigation. Committee on the Judiciary.
July 26, 2007.
87. Sex Crimes and the Internet. Committee on the Judiciary.
October 17, 2007.
88. National Football League's System for Compensating Retired
Players: An Uneven Playing Field? Subcommittee on Commercial and
Administrative Law. June 26, 2007.
89. Need for Green Cards for Highly Skilled Workers. Subcommittee
on Immigration, Citizenship, Refugees, Border Security, and
International Law. June 12, 2008.
90. Working Families in Financial Crisis: Medical Debt and
Bankruptcy. Subcommittee on Commercial and Administrative Law. July 17,
2007.
91. Employment Section of the Civil Rights Division of the U.S.
Department of Justice. Subcommittee on the Constitution. September 25,
2007.
92. Immigration Needs of America's Fighting Men and Women.
Subcommittee on Immigration, Citizenship, Refugees, Border Security,
and International Law. May 20, 2008.
93. Employer Access to Criminal Background Checks: The Need for
Efficiency and Accuracy. Subcommittee on Crime, Terrorism, and Homeland
Security. April 26, 2007.
94. Torture and the Cruel, Inhuman, and Degrading Treatment of
Detainees: The Effectiveness and Consequences of ``Enhanced''
Interrogation. Subcommittee on the Constitution. November 8, 2007.
95. Net Neutrality and Free Speech on the Internet. Antitrust Task
Force. March 11, 2008.
96. National Security Letters Reform Act of 2007. Subcommittee on
the Constitution. April 15, 2008. (H.R. 3189).
97. From the Department of Justice to Guantanamo Bay:
Administration Lawyers and Administration Interrogation Rules (Part I).
Subcommittee on the Constitution. May 6, 2008.
98. To provide for and approve the settlement of certain land
claims of the Bay Mills Indian Community, and to provide for and
approve the settlement of certain land claims of the Sault Ste. Marie
Tribe of Chippewa Indians''. Committee on the Judiciary. March 14,
2008. (H.R. 2176, H.R. 4115).
99. Federal Bureau of Investigation (Part II). Committee on the
Judiciary. April 23, 2008.
100. Voter Suppression. Subcommittee on the Constitution.
101. U.S. Department of Homeland Security Inspector General Report
OIG-08-18, ``The Removal of a Canadian Citizen to Syria''. Subcommittee
on the Constitution jointly with the Committee on Foreign Affairs. June
5, 2008.
102. Retail Gas Prices (Part I): Consumer Effects. Antitrust Task
Force. May 7, 2008.
103. War Profiteering and Other Contractor Crimes Committed
Overseas. The War Profiteering Prevention Act of 2007, and the
Transparency and Accountability in Security Contracting Act of 2007.
Subcommittee on Crime, Terrorism, and Homeland Security. June 19, 2007.
(H.R. 400, H.R. 369).
104. Wasted Visas, Growing Backlogs. Subcommittee on Immigration,
Citizenship, Refugees, Border Security, and International Law. April
30, 2008.
105. Bail Bond Fairness Act of 2007. Subcommittee on Crime,
Terrorism, and Homeland Security. June 7, 2007. (H.R. 2286).
106. Competition in the Airline Industry. Antitrust Task Force.
April 24, 2007.
107. Design Law--Are Special Provisions Needed to Protect Unique
Industries? Subcommittee on Courts, the Internet, and Intellectual
Property. February 14, 2008.
108. Court Security Improvement Act of 2007. Subcommittee on Crime,
Terrorism, and Homeland Security. May 3, 2007. (H.R. 660).
109. Internet Spyware (I-SPY) Prevention Act of 2007, and Securing
Aircraft Cockpits Against Lasers Act of 2007. Subcommittee on Crime,
Terrorism, and Homeland Security. May 1, 2007. (H.R. 1525, H.R. 1615).
110. Mandatory Minimum Sentencing Laws--the Issues. Subcommittee on
Crime, Terrorism, and Homeland Security. June 26, 2007.
111. Drug Enforcement Administration's Regulation of Medicine.
Subcommittee on Crime, Terrorism, and Homeland Security. July 12, 2007.
112. Law Enforcement Confidential Informant Practices. Subcommittee
on Crime, Terrorism, and Homeland Security jointly with the
Subcommittee on the Constitution. July 19, 2007.
113. Death in Custody Act of 2007. Subcommittee on Crime,
Terrorism, and Homeland Security. July 24, 2007. (H.R. 2908).
114. Department of Homeland Security. Committee on the Judiciary.
March 5, 2008.
115. U.S. Patent and Trademark Office. Subcommittee on Courts, the
Internet, and Intellectual Property. February 27, 2008.
116. Establishing Consistent Enforcement Policies in the Context of
Online Wagers. Committee on the Judiciary. November 14, 2007.
117. Problems with Immigration Detainee Medical Care. Subcommittee
on Immigration, Citizenship, Refugees, Border Security, and
International Law. June 4, 2008.
118. Stop AIDS in Prison Act of 2007, and Drug Endangered Children
Act of 2007. Subcommittee on Crime, Terrorism, and Homeland Security.
May 22, 2007. (H.R. 1943, H.R. 1199).
119. Department of Justice. Committee on the Judiciary. February 7,
2008.
120. Implementation of the ``Law Enforcement Officers Safety Act of
2004'' (Pub. L. No. 108-277) and Additional Legislative Efforts Aimed
at Expanding the Authority to Carry Concealed Firearms. Subcommittee on
Crime, Terrorism, and Homeland Security. September 6, 2007.
121. Gang Crime Prevention and the Need to Foster Innovative
Solutions at the Federal Level. Subcommittee on Crime, Terrorism, and
Homeland Security. October 7, 2007.
122. Organized Retail Theft Prevention: Fostering a Comprehensive
Public-Private Response. Subcommittee on Crime, Terrorism, and Homeland
Security. October 25, 2007.
123. Genocide and the Rule of Law. Subcommittee on Crime,
Terrorism, and Homeland Security. October 23, 2007.
124. Enhanced Financial Recovery and Equitable Retirement Treatment
Act of 2007. Subcommittee on Crime, Terrorism, and Homeland Security.
November 1, 2007. (H.R. 2878).
125. Managing Arson Through Criminal History (MATCH) Act of 2007.
Subcommittee on Crime, Terrorism, and Homeland Security. November 6,
2007. (H.R. 1759).
126. Promoting Inmate Rehabilitation and Successful Release
Planning. Subcommittee on Crime, Terrorism, and Homeland Security.
December 6, 2007.
127. Oversight of State-Run Juvenile Correctional Facilities Known
as ``Boot Camps''. Subcommittee on Crime, Terrorism, and Homeland
Security. December 13, 2007.
128. Privacy and Cybercrime Enforcement Act of 2007. Subcommittee
on Crime, Terrorism, and Homeland Security. December 18, 2007. (H.R.
4175).
129. Justice Department's Office of Legal Counsel. Subcommittee on
the Constitution. February 14, 2008.
130. Enforcement of Federal Criminal Law to Protect Americans
Working for U.S. Contractors in Iraq. Subcommittee on Crime, Terrorism,
and Homeland Security. December 19, 2007.
131. Promoting the Use of Orphan Works: Balancing the Interests of
Copyright Owners and Users. Subcommittee on Courts, the Internet, and
Intellectual Property. March 13, 2008.
132. Electronic Employment Verification Systems: Needed Safeguards
to Protect Privacy and Prevent Misuse. Subcommittee on Immigration,
Citizenship, Refugees, Border Security, and International Law. June 10,
2008.
133. Enforcement of Federal Espionage Laws. Subcommittee on Crime,
Terrorism, and Homeland Security. January 29, 2008.
134. Cracked Justice--Addressing the Unfairness in Cocaine
Sentencing. Subcommittee on Crime, Terrorism, and Homeland Security.
February 6, 2008.
135. Department of Homeland Security Law Enforcement Operations.
Subcommittee on Crime, Terrorism, and Homeland Security. March 11,
2008.
136. Internet Tax Freedom Act. Subcommittee on Commercial and
Administrative Law. July 26, 2007.
137. False Claims Act Correction Act. Subcommittee on Courts, the
Internet, and Intellectual Property jointly with the Subcommittee on
the Constitution. June 19, 2008. (H.R. 4854).
138. Legislative Proposals Before the 110th Congress to Amend
Federal Restitution Laws. Subcommittee on Crime, Terrorism, and
Homeland Security. April 3, 2008.
139. American Workers in Crisis: Does the Chapter 11 Business
Bankruptcy Law Treat Employees and Retirees Fairly? Subcommittee on
Commercial and Administrative Law. September 6, 2007.
140. Child Soldiers Accountability Act of 2007. Subcommittee on
Crime, Terrorism, and Homeland Security. April 8, 2008. (S. 2135).
141. Performance Rights Act. Subcommittee on Courts, the Internet,
and Intellectual Property. June 11, 2008. (H.R. 4789).
142. Privacy in the Hands of the Government: The Privacy and Civil
Liberties Oversight Board and the Privacy Officer for the U.S.
Department of Homeland Security. Subcommittee on Commercial and
Administrative Law. July 24, 2007.
143. Mobile Workforce State Income Tax Fairness and Simplification
Act of 2007. Subcommittee on Commercial and Administrative Law.
November 1, 2007. (H.R. 3359).
144. Ensuring Legal Redress for American Victims of State-Sponsored
Terrorism. Committee on the Judiciary. June 17, 2008.
145. Reauthorization and Improvement of DNA Initiatives of the
Justice For All Act of 2004. Subcommittee on Crime, Terrorism, and
Homeland Security. April 10, 2008.
146. Elder Justice Act, the Elder Abuse Victims Act of 2008, the
School Safety Enhancements Act of 2007, and A Child Is Missing Alert
and Recovery Center Act. Subcommittee on Crime, Terrorism, and Homeland
Security. April 17, 2008. (H.R. 1783, H.R. 5352, H.R. 2352, H.R. 5464).
147. Prevent All Cigarette Trafficking Act of 2007 and the Smuggled
Tobacco Prevention Act of 2008. Subcommittee on Crime, Terrorism, and
Homeland Security. May 1, 2008. (H.R. 4081, H.R. 5689).
148. Federal State and Local Efforts to Prepare for the 2008
Election. Subcommittee on the Constitution. September 24, 2008.
149. Prison Abuse Remedies Act of 2007. Subcommittee on Crime,
Terrorism, and Homeland Security. April 22, 2008. (H.R. 4109)
150. Federal Prison Industries--Examining the Effects of Section
827 of the National Defense Authorization Act of 2008. Subcommittee on
Crime, Terrorism, and Homeland Security. May 6, 2008.
151. Addressing Gangs: What's Effective? What's Not? Subcommittee
on Crime, Terrorism, and Homeland Security. June 10, 2008.
152. Habeas Corpus and Detentions at Guantanamo Bay. Subcommittee
on the Constitution. June 26, 2007.
153. To authorize the Edward Byrne Memorial Justice Assistance
Grant Program at fiscal year 2006 levels through 2012. Subcommittee on
Crime, Terrorism, and Homeland Security. May 20, 2008. (H.R. 3546).
154. FBI Whistleblowers. Subcommittee on Crime, Terrorism, and
Homeland Security. May 21, 2008.
155. State Secrets Protection Act of 2008. Subcommittee on the
Constitution. July 31, 2008. (H.R. 5607).
156. Voting Section of the Civil Rights Division of the U.S.
Department of Justice. Subcommittee on the Constitution. October 30,
2007.
157. Regulatory Improvement Act of 2007. Subcommittee on Commercial
and Administrative Law. September 19, 2007. (H.R. 3564).
158. Antitrust Agencies: Department of Justice Antitrust Division
and Federal Trade Commission Bureau of Competition. Antitrust Task
Force. September 25, 2007.
159. Straightening Out the Mortgage Mess: How Can We Protect Home
Ownership and Provide Relief to Consumers in Financial Distress? (Part
I). Subcommittee on Commercial and Administrative Law. September 25,
2007.
160. Sunshine in the Courtroom Act of 2007. Committee on the
Judiciary. September 27, 2007. (H.R. 2128).
161. United States Trustee Program: Watchdog or Attack Dog?
Subcommittee on Commercial and Administrative Law. October 2, 2007.
162. Jena 6 and the Role of Federal Intervention in Hate Crimes and
Race-Related Violence in Public Schools. Committee on the Judiciary.
October 16, 2007.
163. Arbitration Fairness Act of 2007. Subcommittee on Commercial
and Administrative Law. October 25, 2007. (H.R. 3010).
164. Straightening Out the Mortgage Mess: How Can We Protect Home
Ownership and Provide Relief to Consumers in Financial Distress? (Part
II). Subcommittee on Commercial and Administrative Law. October 30,
2007.
165. Congressional Review Act. Subcommittee on Commercial and
Administrative Law. November 6, 2007.
166. Protecting the Playroom: Holding Foreign Manufacturers
Accountable for Defective Products. Subcommittee on Commercial and
Administrative Law. November 11, 2007.
167. Sales Tax Fairness and Simplification Act. Subcommittee on
Commercial and Administrative Law. December 6, 2007. (H. R. 3396).
168. Applicability of Federal Criminal Laws to the Interrogation of
Detainees. Committee on the Judiciary. December 20, 2007.
169. The Growing Mortgage Foreclosure Crisis: Identifying Solutions
and Dispelling Myths. Subcommittee on Commercial and Administrative
Law. January 29, 2008.
170. State Video Tax Fairness Act of 2007. Subcommittee on
Commercial and Administrative Law. February 14, 2008. (H.R. 3679).
171. Railroad Antitrust Enforcement Act of 2007. Antitrust Task
Force. February 25, 2008. (H.R. 1650).
172. Implementation of the U.S. Department of Justice's Special
Counsel Regulations. Subcommittee on Commercial and Administrative Law.
February 26, 2007.
173. Automobile Arbitration Fairness Act of 2008. Subcommittee on
Commercial and Administrative Law. March 6, 2007. (H.R. 5312).
174. Deferred Prosecution: Should Corporate Settlement Agreements
Be Without Guidelines? Subcommittee on Commercial and Administrative
Law. March 11, 2008.
175. To amend the Bankruptcy Abuse Prevention and Consumer
Protection Act of 2005 to exempt from the means test in bankruptcy
cases, for a limited period, qualifying reserve-component members who,
after September 11, 2001, are called to active duty or to perform a
homeland defense activity for not less than 60 days. Subcommittee on
Commercial and Administrative Law. April 1, 2008. (H.R. 4044).
176. Protecting Americans from Unsafe Foreign Products Act.
Subcommittee on Commercial and Administrative Law. May 1, 2008. (H.R.
5913).
177. Rulemaking Process and the Unitary Executive Theory.
Subcommittee on Commercial and Administrative Law. May 6, 2008.
178. Allegations of Selective Prosecution: The Erosion of Public
Confidence in Our Federal Justice System (Part II). Subcommittee on
Commercial and Administrative Law jointly with the Subcommittee on
Crime, Terrorism, and Homeland Security. May 14, 2008.
179. Credit Card Fair Free Act of 2008. Antitrust Task Force. May
15, 2008. (H.R. 5546).
180. Retail Gas Prices (Part II): Competition in the Oil Industry.
Antitrust Task Force. May 22, 2008.
181. Protecting Employees and Retirees in Business Bankruptcies Act
of 2007. Subcommittee on Commercial and Administrative Law. June 5,
2008. (H.R. 3652).
182. Fairness in Nursing Home Arbitration Act of 2008. Subcommittee
on Commercial and Administrative Law. June 10, 2008. (H.R. 6126).
183. Enforcement of the Fair Housing Act of 1968. Subcommittee on
the Constitution. June 12, 2008.
184. From the Department of Justice to Guantanamo Bay:
Administration Lawyers and Administration Interrogation Rules (Part
II). Subcommittee on the Constitution. June 18, 2008.
185. Revelations by Former White House Press Secretary Scott
McClellan. Committee on the Judiciary. June 20, 2008.
186. Online Pharmacies and the Problem of Internet Drug Abuse.
Subcommittee on Crime, Terrorism, and Homeland Security. June 24, 2008.
187. Business Activity Tax Simplification Act of 2008. Subcommittee
on Commercial and Administrative Law. June 24, 2008. (H.R. 5267).
188. Executive Office for United States Attorneys. Subcommittee on
Commercial and Administrative Law. June 25, 2008.
189. From the Department of Justice to Guantanamo Bay:
Administration Lawyers and Administration Interrogation Rules (Part
III). Subcommittee on the Constitution. June 26, 2008.
190. Private Prison Information Act of 2007. Subcommittee on Crime,
Terrorism, and Homeland Security. June 26, 2008. (H.R. 1889).
191. Politicization of the Justice Department and Allegations of
Selective Prosecution. Subcommittee on Commercial and Administrative
Law. July 10, 2008.
192. From the Department of Justice to Guantanamo Bay:
Administration Lawyers and Administration Interrogation Rules (Part
IV). Subcommittee on the Constitution. July 15, 2008.
193. Competition on the Internet. Antitrust Task Force. July 15,
2008.
194. National Silver Alert Act, the Silver Alert Grant Program Act
of 2008, and the Kristen's Act Reauthorization of 2007. Subcommittee on
Crime, Terrorism, and Homeland Security. July 15, 2008. (H.R. 6064,
H.R. 5898, H.R. 423).
195. Reauthorization of the U.S. Parole Commission. Subcommittee on
Crime, Terrorism, and Homeland Security. July 16, 2008.
196. From the Department of Justice to Guantanamo Bay:
Administration Lawyers and Administration Interrogation Rules (Part V).
Committee on the Judiciary. July 17, 2008.
197. U.S. Department of Justice. Committee on the Judiciary. July
23, 2008.
198. Immigration Raids: Postville and Beyond. Subcommittee on
Immigration, Citizenship, Refugees, Border Security, and International
Law. July 24, 2008.
199. Lessons Learned from the 2005 Presidential Election.
Subcommittee on the Constitution. July 24, 2008.
200. Executive Power and Its Constitutional Limitations. Committee
on the Judiciary. July 25, 2008.
201. Prevention of Equine Cruelty Act of 2008 and the Animal
Cruelty Statistics Act of 2008. Subcommittee on Crime, Terrorism, and
Homeland Security. July 31, 2008. (H.R. 6598, H.R. 6597).
202. Sunshine in Litigation Act of 2008. Subcommittee on Commercial
and Administrative Law. July 31, 2008. (H.R. 5884).
203. Competition in the Package Delivery Industry. Committee on the
Judiciary. September 9, 2008.
204. Fair Copyright in Research Works Act. Subcommittee on Courts,
the Internet, and Intellectual Property. September 11, 2008. (H.R.
6845).
205. Juvenile Justice Accountability and Improvement Act of 2007.
Subcommittee on Crime, Terrorism, and Homeland Security. September 11,
2008. (H.R. 4300).
206. Federal Bureau of Investigation (Part III). Committee on the
Judiciary. September 16, 2008.
207. Bankruptcy Trustee Compensation. Subcommittee on Commercial
and Administrative Law. September 16, 2008.
208. Department of Justice, Office of Justice Programs Oversight.
Subcommittee on Crime, Terrorism, and Homeland Security. September 18,
2008.
209. Cell Tax Fairness Act of 2008. Subcommittee on Commercial and
Administrative Law. September 18, 2008. (H.R. 5793).
210. E-fencing Enforcement Act of 2008, the Organized Retail Crime
Act of 2008, and the Combating Organized Retail Crime Act of 2008.
Subcommittee Crime, and Terrorism, and Homeland Security. September 22,
2008. (H.R. 6713, H.R. 6491, S. 3434).
211. Executive Office for Immigration Review. Subcommittee on
Immigration, Citizenship, Refugees, Border Security, and International
Law. September 23, 2008.
212. Lehman Brothers, Sharper Image, Bennigan's, and Beyond: Is
Chapter 11 Bankruptcy Working? Subcommittee on Commercial and
Administrative Law. September 26, 2008.
213. Continuing Investigation into the U.S. Attorneys Controversy
and Related Matters (Part IV). Committee on the Judiciary. October 3,
2008.
Committee Prints
Serial No. and Title
----------
1. Federal Rules of Appellate Procedure. December 1, 2007.
2. Federal Rules of Civil Procedure. December 1, 2007.
3. Federal Rules of Criminal Procedure. December 1, 2007.
4. Federal Rules of Evidence. December 1, 2007.
House Documents
H. Doc. No. and Title
----------
110-24. A letter from the Chief Justice, Supreme Court of the
United States, transmitting amendment to the Federal Rules of Appellate
Procedure that has been adopted by the Supreme Court, pursuant to 28
U.S.C. 2074. Referred to the Committee on the Judiciary. April 30,
2007. (Executive Communication 1374).
110-25. A letter from the Chief Justice, Supreme Court of the
United States, transmitting amendment to the Federal Rules of
Bankruptcy Procedure that have been adopted by the Supreme Court,
pursuant to 28 U.S.C. 2075. Referred to the Committee on the Judiciary.
April 30, 2007. (Executive Communication 1375).
110-26. A letter from the Chief Justice, Supreme Court of the
United States, transmitting amendments to the Federal Rules of Criminal
Procedure that have been adopted by the Supreme Court, pursuant to 28
U.S.C. 2074. Referred to the Committee on the Judiciary. April 30,
2007. (Executive Communication 1376).
110-27. A letter from the Chief Justice, Supreme Court of the
United States, transmitting amendments to the Federal Rules of Civil
Procedure that have been adopted by the Supreme Court, pursuant to 28
U.S.C. 2072. Referred to the Committee on the Judiciary. April 30,
2007. (Executive Communication 1377).
110-96. A letter from the Secretary, Department of Health and Human
Services, transmitting a draft of proposed legislation entitled the
``Medicare Funding Warning Response Act of 2008''. Referred jointly to
the Committees on Energy and Commerce, Ways and Means, and the
Judiciary. February 21, 2008. (Executive Communication 5439).
110-117. A letter from the Chief Justice, Supreme Court of the
United States, transmitting amendments to the Federal Rules of Civil
Procedure that have been adopted by the Supreme Court, pursuant to 28
U.S.C. 2072. Referred to the Committee on the Judiciary. June 3, 2008.
(Executive Communication 6881).
110-118. A letter from the Chief Justice, Supreme Court of the
United States, transmitting amendments to the Federal Rules of Criminal
Procedure that have been adopted by the Supreme Court, pursuant to 28
U.S.C. 2074. Referred to the Committee on the Judiciary. June 3, 2008.
(Executive Communication 6879).
110-119. A letter from the Chief Justice, Supreme Court of the
United States, transmitting amendments to the Federal Rules of
Bankruptcy Procedure that have been adopted by the Supreme Court,
pursuant to 28 U.S.C. 2075. Referred to the Committee on the Judiciary.
June 3, 2008. (Executive Communication 6880).
Public Laws
A variety of legislation within the Committee's jurisdiction was
enacted into law during the 110th Congress. The public and private
laws, along with approved resolutions, are listed below and are more
fully detailed in the subsequent sections of this report recounting the
activities of the Committee and its individual subcommittees.
Public Law 110-6--To amend the Antitrust Modernization Commission
Act of 2002, to extend the term of the Antitrust Modernization
Commission and to make a technical correction. (H.R. 742--Approved
February 26, 2007).
Public Law 110-22--To amend title 18, United States Code, to
strengthen prohibitions against animal fighting, and for other
purposes. ``Animal Fighting Prohibition Enforcement Act of 2007.''
(H.R. 137--Approved May 3, 2007).
Public Law 110-24--To amend the Ethics in Government Act of 1978 to
extend the authority to withhold from public availability a financial
disclosure report filed by an individual who is a judicial officer or
judicial employee, to the extent necessary to protect the safety of
that individual or a family member of that individual, and for other
purposes. ``Judicial Disclosure Responsibility Act.'' (H.R. 1130--
Approved May 3, 2007).
Public Law 110-34--To amend chapter 35 of title 28, United States
Code, to preserve the independence of United States attorneys.
``Preserving United States Attorney Independence Act of 2007.'' (S.
214--Approved June 14, 2007).
Public Law 110-36--To increase the number of Iraqi and Afghani
translators and interpreters who may be admitted to the United States
as special immigrants, and for other purposes. (S. 1104--Approved April
12, 2007).
Public Law 110-41--To amend title 4, United States Code, to
authorize the Governor of a State, territory, or possession of the
United States to order that the National flag be flown at half-staff in
that State, territory, or possession in the event of the death of a
member of the Armed Forces from that State, territory, or possession
who dies while serving on active duty. ``Army Specialist Joseph P.
Micks Federal Flag Code Amendment Act of 2007.'' (H.R. 692--Approved
June 29, 2007).
Public Law 110-53--To provide for the implementation of the
recommendations of the National Commission on Terrorist Attacks Upon
the United States. ``Implementing Recommendations of the 9/11
Commission Act of 2007.'' (H.R. 1--Approved August 3, 2007).
Public Law 110-55--To amend the Foreign Intelligence Surveillance
Act of 1978 to provide additional procedures for authorizing certain
acquisitions of foreign intelligence information and for other
purposes. ``Protect America Act of 2007.'' (S. 1927--Approved August 5,
2007).
Public Law 110-79--Granting the consent and approval of Congress to
an interstate forest fire protection compact. (S. 975--Approved August
13, 2007).
Public Law 110-81--To provide greater transparency in the
legislative process. ``Honest Leadership and Open Government Act of
2007.'' (S. 1--Approved September 14, 2007).
Public Law 110-108--To amend the Internet Tax Freedom Act to extend
the moratorium on certain taxes relating to the Internet and to
electronic commerce. ``Internet Tax Freedom Act Amendments Act of
2007.'' (H.R. 3678--Approved October 31, 2007).
Public Law 110-113--To provide nationwide subpoena authority for
actions brought under the September 11 Victim Compensation Fund of
2001. ``Procedural Fairness for September 11 Victims Act of 2007.'' (S.
2106--Approved November 8, 2007).
Public Law 110-151--To amend section 1091 of title 18, United
States Code, to allow the prosecution of genocide in appropriate
circumstances. ``Genocide Accountability Act of 2007.'' (S. 888--
Approved December 21, 2007).
Public Law 110-177--To amend title 18, United States Code, to
protect judges, prosecutors, witnesses, victims, and their family
members, and for other purposes. ``Court Security Improvement Act of
2007.'' (H.R. 660--Approved January 7, 2008).
Public Law 110-179--To amend title 18, United States Code, with
respect to fraud in connection with major disaster or emergency funds.
``Emergency and Disaster Assistance Fraud Penalty Enhancement Act of
2007.'' (S. 863--Approved January 7, 2008).
Public Law 110-180--To improve the National Instant Criminal
Background Check System, and for other purposes. ``NICS Improvement
Amendments Act of 2007.'' (H.R. 2640--Approved January 8, 2008).
Public Law 110-182--To extend the Protect America Act of 2007 for
15 days. (H.R. 5104--Approved January 31, 2008).
Public Law 110-199--To reauthorize the grant program for reentry of
offenders into the community in the Omnibus Crime Control and Safe
Streets Act of 1968, to improve reentry planning and implementation,
and for other purposes. ``Second Chance Act of 2007.'' (H.R. 1593--
Approved April 9, 2008).
Public Law 110-207--To amend title 36, United States Code, to
revise the congressional charter of the Military Order of the Purple
Heart of the United States of America, Incorporated, to authorize
associate membership in the corporation for the spouse and siblings of
a recipient of the Purple Heart medal. ``Purple Heart Family Equity Act
of 2007.'' (H.R. 1119--Approved April 30, 2008).
Public Law 110-229--To authorize certain programs and activities in
the Department of the Interior, the Forest Service, and the Department
of Energy, to implement further the Act approving the Covenant to
Establish a Commonwealth of the Northern Mariana Islands in Political
Union with the United States of America, to amend the Compact of Free
Association Amendments Act of 2003, and for other purposes.
``Consolidated Natural Resources Act of 2008.'' (S. 2739--Approved May
8, 2008).
Public Law 110-239--To amend title 4, United States Code, to
encourage the display of the flag of the United States on Father's Day.
(H.R. 2356--Approved June 3, 2008).
Public Law 110-241--To amend the Fair Credit Reporting Act to make
technical corrections to the definition of willful noncompliance with
respect to violations involving the printing of an expiration date on
certain credit and debit card receipts before the date of the enactment
of this Act. ``Credit and Debit Card Receipt Clarification Act of
2007.'' (H.R. 4008--Approved June 3, 2008).
Public Law 110-242--A bill to make technical corrections to section
1244 of the National Defense Authorization Act for Fiscal Year 2008,
which provides special immigrant status for certain Iraqis, and for
other purposes. (S. 2829--Approved June 3, 2008).
Public Law 110-251--To assist members of the Armed Forces in
obtaining United States citizenship, and for other purposes. ``Kendell
Frederick Citizenship Assistance Act.'' (S. 2516--Approved June 26,
2008).
Public Law 110-254--A bill to grant a Federal charter to Korean War
Veterans Association, Incorporated. (S. 1692--Approved June 30, 2007).
Public Law 110-257--To remove the African National Congress from
treatment as a terrorist organization for certain acts or events,
provide relief for certain members of the African National Congress
regarding admissibility, and for other purposes. (H.R. 5690--Approved
July 1, 2008).
Public Law 110-258--A bill to revise the short title of the Fannie
Lou Hamer, Rosa Parks, and Coretta Scott King Voting Rights Act
Reauthorization and Amendments Act of 2006. (S. 188--Approved July 1,
2008).
Public Law 110-261--To amend the Foreign Intelligence Surveillance
Act of 1978 to establish a procedure for authorizing certain
acquisitions of foreign intelligence, and for other purposes. ``FISA
Amendments Act of 2008.'' (H.R. 6304--Approved July 10, 2008).
Public Law 110-286--To impose import sanctions on Burmese
gemstones, expand the number of individuals against whom the visa ban
is applicable, expand the blocking of assets and other prohibited
activities, and for other purposes. ``Burma Democracy Promotion Act of
2007.'' (H.R. 3890--Approved July 29, 2008).
Public Law 110-290--To amend title 5, United States Code, to
authorize appropriations for the Administrative Conference of the
United States through fiscal year 2011, and for other purposes.
``Regulatory Improvement Act of 2007.'' (H.R. 3564--Approved July 30,
2008).
Public Law 110-294--A bill to authorize the Edward Byrne Memorial
Justice Assistance Grant Program at fiscal year 2006 levels through
2012. (S. 231--Approved July 20, 2008).
Public Law 110-296--To extend the pilot program for volunteer
groups to obtain criminal history background checks. ``Criminal History
Background Checks Pilot Extension Act of 2008.'' (S. 3218--Approved
July 30, 2008).
Public Law 110-298--To establish an awards mechanism to honor
exceptional acts of bravery in the line of duty by Federal, State, and
local law enforcement officers. ``Law Enforcement Congressional Badge
of Bravery Act of 2008.'' (S. 2565--Approved July 31, 2008).
Public Law 110-301--To resolve pending claims against Libya by
United States nationals, and for other purposes. ``Libyan Claims
Resolution Act.'' (S. 3370--Approved August 4, 2008).
Public Law 110-312--To provide for the continued performance of the
functions of the United States Parole Commission. ``United States
Parole Commission Extension Act of 2008.'' (S. 3294--Approved August
12, 2008).
Public Law 110-313--A bill to amend title 35, United States Code,
and the Trademark Act of 1946 to provide that the Secretary of
Commerce, in consultation with the Director of the United States Patent
and Trademark Office, shall appoint administrative patent judges and
administrative trademark judges, and for other purposes. (S. 3295--
Approved August 12, 2008).
Public Law 110-315--To amend and extend the Higher Education Act of
1965, and for other purposes. ``College Opportunity and Affordability
Act of 2008.'' (H.R. 4137--Approved August 14, 2008).
Public Law 110-322--To amend the Federal Rules of Evidence to
address the waiver of attorney-client privilege and the work product
doctrine. (S. 2450--Approved September 19, 2008).
Public Law 110-325--ADA Amendments Act of 2008.'' (S. 3406--
Approved September 25, 2008).
Public Law 110-326--To amend title 18, United States Code, to
provide secret service protection to former Vice Presidents, and for
other purposes. ``Former Vice President Protection Act of 2008.'' (H.R.
5938--Approved September 26, 2008).
Public Law 110-327--To amend the Improving America's Schools Act of
1994 to make permanent the favorable treatment of need-based
educational aid under the antitrust laws. ``Need-Based Educational Aid
Act of 2008.'' (H.R. 1777--Approved September 30, 2008).
Public Law 110-336--Library of Congress Sound Recording and Film
Preservation Programs Reauthorization Act of 2008. (H.R. 5893--Approved
October 2, 2008).
Public Law 110-340--To prohibit the recruitment or use of child
soldiers, to designate persons who recruit or use child soldiers as
inadmissible aliens, to allow the deportation of persons who recruit or
use child soldiers, and for other purposes. ``Child Soldiers
Accountability Act.'' (S. 2135--Approved October 3, 2008).
Public Law 110-342--Expressing the consent and approval of Congress
to an interstate compact regarding water resources in the Great Lakes-
St. Lawrence River Basin. ``Great Lakes-St. Lawrence River Basin Water
Resources Compact.'' (S.J. Res. 45--Approved October 3, 2008).
Public Law 110-344--To provide for the investigation of certain
unsolved civil rights crimes, and for other purposes. ``Emmett Till
Unsolved Civil Rights Crime Act of 2007.'' (H.R. 923--Approved October
7, 2008).
Public Law 110-345--To extend the grant program for drug-endangered
children. ``Drug Endangered Children Act of 2007.'' (H.R. 1199--
Approved October 7, 2008).
Public Law 110-358--To amend title 18, United States Code, to
provide for more effective prosecution of cases involving child
pornography, and for other purposes. ``Effective Child Pornography
Prosecution Act of 2007.'' (H.R. 4120--Approved October 8, 2008).
Public Law 110-360--To reauthorize the Debbie Smith DNA Backlog
Grant Program, and for other purposes. ``Debbie Smith Reauthorization
Act of 2007.'' (H.R. 5057--Approved October 8, 2008).
Public Law 110-362--Extending for 5 years the program relating to
waiver of the foreign country residence requirement with respect to
international medical graduates. (H.R. 5571--Approved October 8, 2008).
Public Law 110-382--To establish a liaison with the Federal Bureau
of Investigation in United States Citizenship and Immigration Services
to expedite naturalization applications filed by members of the Armed
Forces and to establish a deadline for processing such applications.
``Military Personnel Citizenship Processing Act.'' (S. 2840--Approved
October 9, 2008).
Public Law 110-384--To direct the United States Sentencing
Commission to assure appropriate punishment enhancements for those
involved in receiving stolen property where that property consists of
grave markers of veterans, and for other purposes. ``Let Our Veterans
Rest in Peace Act of 2008.'' (H.R. 3480--Approved October 10, 2008).
Public Law 110-391--To extend the special immigrant nonminister
religious worker program and for other purposes. ``Special Immigrant
Nonminister Religious Worker Program Act.'' (S. 3606--Approved October
10, 2008).
Public Law 110-400--To require convicted sex offenders to register
online identifiers, and for other purposes. ``Keeping the Internet
Devoid of Sexual Predators Act of 2008.'' (S. 431--Approved October 13,
2008).
Public Law 110-401--To require the Department of Justice to develop
and implement a National Strategy Child Exploitation Prevention and
Interdiction, to improve the Internet Crimes Against Children Task
Force, to increase resources for regional computer forensic labs, and
to make other improvements to increase the ability of law enforcement
agencies to investigate and prosecute child predators. ``Combating
Child Exploitation Act of 2008.'' (S. 1738--Approved October 13, 2008).
Public Law 110-402--A bill to extend the authority of the United
States Supreme Court Police to protect court officials off the Supreme
Court Grounds and change the title of the Administrative Assistant to
the Chief Justice. (S. 3296--Approved October 13, 2008).
Public Law 110-403--To enhance remedies for violations of
intellectual property laws, and for other purposes. ``Prioritizing
Resources and Organization for Intellectual Property Act of 2008.'' (S.
3325--Approved October 13, 2008).
Public Law 110-406--To make improvements in the operation and
administration of the Federal courts, and for other purposes.
``Judicial Administration and Technical Amendments Act of 2008.'' (S.
3569--Approved October 13, 2008).
Public Law 110-407--To amend titles 46 and 18, United States Code,
with respect to the operation of submersible vessels and semi-
submersible vessels without nationality. ``Drug Trafficking Vessel
Interdiction Act of 2008.'' (S. 3598--Approved October 13, 2008).
Public Law 110-415--To facilitate the creation of methamphetamine
precursor electronic logbook systems, and for other purposes.
``Methamphetamine Production Prevention Act of 2008.'' (S. 1276--
Approved October 14, 2008).
Public Law 110-416--To amend title I of the Omnibus Crime Control
and Safe Streets Act of 1968 to provide grants for the improved mental
health treatment and services provided to offenders with mental
illnesses, and for other purposes. ``Mentally Ill Offender Treatment
and Crime Reduction Reauthorization and Improvement Act of 2008.'' (S.
2304--Approved October 14, 2008).
Public Law 110-421--To amend title I of the Omnibus Crime Control
and Safe Streets Act of 1968 to extend the authorization of the
Bulletproof Vest Partnership Grant Program through fiscal year 2012.
``Bulletproof Vest Partnership Grant Act of 2008.'' (H.R. 6045--
Approved October 15, 2008).
Public Law 110-424--To authorize funding to conduct a national
training program for State and local prosecutors. (H.R. 6083--October
15, 2008).
Public Law 110-425--To amend the Controlled Substances Act to
address online pharmacies. ``Ryan Haight Online Pharmacy Consumer
Protection Act of 2008.'' (H.R. 6353--Approved October 15, 2008).
Public Law 110-431--A bill to authorize funding for the National
Crime Victim Law Institute to provide support for victims of crime
under Crime Victims Legal Assistance Programs as a part of the Victims
of Crime Act of 1984. (S. 3641--Approved October 15, 2008).
Public Law 110-434--To amend chapter 13 of title 17, United States
Code (relating to the vessel hull design protection), to clarify the
definitions of a hull and a deck. ``Vessel Hull Design Protection
Amendments of 2008.'' (H.R. 6531--Approved October 16, 2008 ).
Public Law 110-435--To amend section 114 of title 17, United States
Code, to provide for agreements for the reproduction and performance of
sound recordings by webcasters. ``Webcaster Settlement Act of 2008.''
(H.R. 7084--Approved October 16, 2008).
Public Law 110-438--A bill to amend title 11, United States Code,
to exempt for a limited period, from the application of the means-test
presumption of abuse under chapter 7, qualifying members of reserve
components of the Armed Forces and members of the National Guard who,
after September 11, 2001, are called to active duty or to perform a
homeland defense activity for not less than 90 days. ``National Guard
and Reservists Debt Relief Act of 2008.'' (S. 3197--Approved October
20, 2008).
Public Law 110-457--To authorize appropriations for fiscal years
2008 through 2011 for the Trafficking Victims Protection Act of 2000,
to enhance measures to combat trafficking in persons, and for other
purposes. ``William Wilberforce Trafficking Victims Protection
Reauthorization Act of 2008.'' (H.R. 7311--Approved 12/23/08).
Conference Appointments
Members of the Committee were named by the Speaker as
conferees on the bills (H.R. 1 and H.R. 4137) which contained
legislative language within the Committee's Rule X
jurisdiction. Also, Members of the Committee were named by the
Speaker as conferees on the bills (H.R. 1585 and H.R. 2419)
which were not referred to the Committee but which contained
legislative language within the Committee's Rule X
jurisdiction.
H.R. 1, the ``Implementing Recommendations of the 9/11 Commission Act
of 2007''
Summary.--Provide for the implementation of the
recommendations of the National Commission on Terrorist Attacks
Upon the United States. This legislation is detailed further by
the Subcommittee on Immigration in its section of the report.
Legislative History.--H.R. 1, the ``Implementing
Recommendations of the 9/11 Commission Act of 2007,'' was
introduced by Representative Bennie Thompson (D-MS) on January
5, 2007. The legislation had 205 cosponsors and was jointly
referred to the House Committees on Homeland Security; Energy
and Commerce; Judiciary; Intelligence (Permanent Select);
Foreign Affairs; Transportation and Infrastructure; Oversight
and Government Reform; Ways and Means; and Senate Committees on
Homeland Security and Governmental Affairs. The legislation was
considered pursuant to H. Res. 6 and passed the House on
January 9, 2007 by a roll call vote of 299-128 (Roll No. 15).
On July 9, 2007, the Senate Committees were discharged and
the Senate insisting upon its amendment, requested a conference
and appointed conferees. On July 17, 2007, the House disagreed
with the Senate amendment and agreed to a conference. The
Speaker appointed the following Committee Members as conferees
from the Committee on the Judiciary for consideration of secs.
406, 501, 601, 702, and Title VIII of the House bill, and secs.
123, 501-503, 601-603, 1002, and 1432 of the Senate amendment,
and modifications committed to conference: Representatives John
Conyers, Jr. (D-MI), Zoe Lofgren (D-CA), and F. James
Sensenbrenner (R-WI). The conference Report to accompany H.R. 1
was reported to the House on July 25, 2007 as H. Rept. 110-259.
The Senate agreed to the conference report on July 26, 2007 and
the House considered the report pursuant to H. Res. 567 the
following day, July 27, 2007. The measure passed the House on
July 27, 2007 by a roll call vote of 371-40 (Roll no. 757).
H.R. 1 was signed into law as Public Law No. 110-53 by the
President on August 3, 2007.
On February 28, 2008, the Committee held a hearing on the
Foreign Intelligence Surveillance Act. This hearing was
classified, and no further information is publicly available.
H.R. 1585, the ``National Defense Authorization Act for Fiscal Year
2008''
Summary.--H.R. 1585 authorize appropriations for fiscal
year 2008 for military activities of the Department of Defense,
to prescribe military personnel strengths for fiscal year 2008,
and for other purposes. Passed the House May 17, 2007 (397
yeas; 27 nays). Passed the Senate, amended, October 1, 2007 (92
yeas; 3 nays). The Senate requested a conference and appointed
conferees October 1, 2007. The House agreed to a conference and
appointed conferees December 5, 2007 (including from the
Committee on the Judiciary). Conference report filed in the
House December 6, 2007 (H. Rept. 110-477). The House agreed to
the conference report December 12, 2007 (370 yeas; 49 nays).
The Senate agreed to the conference report December 14, 2007
(90 yeas; 3 nays). Vetoed by the President December 28, 2007.
H.R. 2419 the ``Farm Bill Extension Act of 2007''
Summary.--H.R. 2419 provides for the continuation of
agricultural programs through fiscal year 2012, and for other
purposes. Passed the House July 27, 2007 (231 yeas; 191 nays).
Passed the Senate, amended, December 14, 2007 (79 yeas; 14
nays). The Senate requested a conference December 14, 2007. The
Senate appointed conferees February 4, 2008. The House agreed
to the conference and appointed conferees April 4, 2008
(including from the Committee on the Judiciary). Conference
report filed in the House May 13, 2008 (H. Rept. 110-627). The
House agreed to the conference report May 14, 2008 (318 yeas;
106 nays). The Senate agreed to the conference report May 15,
2008 (81 yeas; 15 nays). Vetoed by the President May 21, 2008.
Veto overridden in the House May 21, 2008 (316 yeas; 108 nays).
Veto overridden in the Senate May 22, 2008 (82 yeas; 13 nays).
Became Public Law 110-234 May 22, 2008.
H.R. 4137, the ``Higher Education Opportunity Act''
Summary.--Amends the Higher Education Act of 1965 to revise
and reauthorize HEA programs.
Legislative History.--H.R. 4137 was introduced by
Representatives George Miller (D-CA) on November 9, 2007. The
bill was referred to the Committee on Education and Labor, and
in addition to the Committees on the Judiciary, Science and
Technology, and Financial Services, for a period to be
subsequently determined by the Speaker, in each case for
consideration of such provisions as fall within the
jurisdiction of the committee concerned. The Committee on
Education and Labor reported the bill to the House on December
19, 2007 as H. Rept. 110-500, Part I. On December 19, 2007, the
Committee was discharged from the bill. The measure was
considered by the House on February 7, 2008 pursuant to H. Res.
956 and adopted the measure as amended in the nature of a
substitute as agreed to by the Committee of the Whole House on
the state of the Union. The legislation passed by a roll call
vote of 354-58 (Roll No. 40).
On July 29, 2008, the Senate insisted on its amendment and
asked for a conference. Senate conferees were appointed. On the
same day, the House disagreed to the Senate amendment and
agreed to a conference. The Speaker appointed the following
conferees from the Committee on the Judiciary for consideration
of secs. 951 and 952 of the House bill, and secs. 951 and 952
of the Senate amendment, and modifications committed to
conference, Representatives John Conyers, Jr. (D-MI); Maxine
Waters (D-CA), and Louie Gohmert (R-TX). The conference Report
to accompany H.R. 4137 was reported to the House on July 30,
2007 as H. Rept. 110-803. On July 31, 2008, both the House by a
roll call vote of 380-49 (Roll No. 544) and the Senate by a
roll call vote of 83-8 (Roll No. 194) agreed to the conference
report. The measure was signed into law as Public Law No. 110-
315 by the President on August 14, 2008.
Summary of Activities of the Committee on the Judiciary
During the 110th Congress, the full Judiciary Committee
retained original jurisdiction with respect to a number of
legislative and oversight matters. This included exclusive
jurisdiction over antitrust and liability issues. In addition,
a number of specific agency oversight hearings and legislative
issues were handled by the Committee and it's Subcommittees.
Antitrust Legislative Activities
During the 110th Congress, the full Judiciary Committee
retained original jurisdiction over antitrust legislation and
oversight matters. Antitrust enforcement serves as a bulwark in
the free market to prevent market power from collecting in the
hands of a few to the detriment of the consumer. U.S. antitrust
laws exist to preserve competition (not individual competitors)
in the marketplace, with the ultimate goal of reducing prices
and increasing choices for consumers. The Federal antitrust
laws (primarily the Sherman Antitrust Act, the Clayton Act, and
the Federal Trade Commission Act) are enforced jointly by the
Federal Trade Commission (FTC) and the Antitrust Division of
the Department of Justice (DOJ). Other federal agencies have
authority to examine competitive aspects of market transactions
within their jurisdiction.
H.R. 971, the ``Community Pharmacy Fairness Act of 2007''
Summary.--On October 18, 2007 the Task Force convened a
hearing on the ``Impact of our Antitrust Laws on Community
Pharmacies and their Patients.'' Testimony was heard from Mike
James, Vice President, Government Relations, Association of
Community Pharmacists Congressional Network; Peter Rankin,
Senior Associate, Charles River Associates; David Wales, Deputy
Director, Bureau of Competition, Federal Trade Commission;
David Balto, on behalf of the National Association of Community
Pharmacists; and Robert Dozier, Executive Director, Mississippi
Independent Pharmacists Association.
Legislative History.--H.R. 971 was introduced on February
8, 2007 by Representative Anthony Weiner (D-NY) and was
cosponsored by 192 Members. H.R. 971 would allow independent
pharmacies to collectively bargain so that they can negotiate
with the insurance companies on the reimbursement rates and
terms. H.R. 971 allows pharmacies negotiating contracts with
health insurers to receive the same treatment under the
antitrust laws as bargaining units recognized under the
National Labor Relations Act (NLRA). This would permit
pharmacies to be considered employees under the NLRA for
purposes of the Act and not subject to treble damages under the
antitrust laws. The Act defines independent pharmacies as those
that are neither owned nor operated by a publically traded
company. Under the reported version of the bill, an independent
pharmacy is defined as a pharmacy having less than 10% market
share in a PDP or 1% nationally. The Full Committee met on
November 7, 2007 in open session and reported the legislation,
as amended, favorably to the House. On September 28, 2008 the
legislation was report to the House as H. Rept. 110-898. No
further action was taken on the measure during the 110th
Congress.
H.R. 1650, the ``Railroad Antitrust Enforcement Act of 2007''
Summary.--The ``Railroad Antitrust Enforcement Act of
2007'' would eliminate certain carveouts from the Federal
antitrust laws enjoyed by railroad common carriers, thereby
subjecting railroad industry practices to the pro-competitive
influence of the antitrust laws. The bill will extend to the
railroad industry remedies and enforcement mechanisms generally
applicable to other industries under the Federal antitrust
laws. Those harmed by antitrust violations perpetrated by a
rail carrier would not have the full range of remedies
available under the Federal antitrust laws. The bill is
prospective in effect. There is an additional 180-day grace
period for conduct that began pursuant to immunity under the
previous law and that is continuing at the date of enactment.
Except with respect to conferring antitrust immunity, the bill
would fully preserve the Surface Transportation Board (STB),
regulatory authority. With respect to reviewing railroad
mergers and acquisitions, the STB would retain its public
interest authority alongside the Agencies' antitrust authority.
Legislative History.--H.R. 1650 was introduced by Rep.
Tammy Baldwin (D-WI) on March 22, 2007. Identical legislation
was introduced in the Senate, S. 772 on March 6, 2007 by
Senator Herb Kohl (D-WI). H.R. 1650 was co-sponsored by 27
members. On February 25, 2008, the Task Force convened a
hearing with the following witnesses: Rep. Tammy Baldwin; Ms.
Susan M. Diehl, Senior Vice President of Logistics and Supply
Chain Management for Holcim (USA) Inc.; Mr. Terry Huval,
Director of Utilities for the Lafayette Utilities System; Mr.
G. Paul Moates, a partner in the Washington, D.C. office of
Sidley Austin LLP, on behalf of the Association of American
Railroads; and Dr. Darren Bush, Associate Professor of Law at
the University of Houston Law Center.
On April 30, 2008, the Committee ordered the bill favorably
reported as amended by voice vote. On September 18, 2008, the
Committee reported the bill to the House as H. Rept. No. 110-
860, part 1. No further action was taken on the measure during
the 110th Congress.
H.R. 5546, the ``Credit Card Fair Fee Act of 2008''
Summary.--On July 19, 2007, the Task Force held an
oversight hearing to examine the impact of credit card
interchange fees, fees charged when a consumer uses any payment
card at a retailer. Testimony was heard from: Steve Smith,
President and Chief Executive Officer of K-VA-T Food Stores,
Inc.; John Buhrmaster, President of First National Bank of
Scotia, New York; Ed Mierzwinski, Consumer Program Director of
U.S. PIRG; Tim Muris, O'Melveny & Meyers; and Mallory Duncan,
Senior Vice President and General Counsel of the National
Retail Federation.
During this hearing, panelists expressed their concerns
that the large credit card companies could charge excessive
interchange fees because of market power; that retailers have
little ability to negotiate the fees; and that there is a lack
of transparency with regard to how the credit card companies
calculate their fees. After the hearing, Chairman John Conyers,
Jr. (D-MI) and Representative Chris Cannon (R-UT) introduced
H.R. 5546, the ``Credit Card Fair Fee Act of 2008'' on March 6,
2008.
H.R. 5546, the ``Credit Card Fair Fee Act of 2008'' creates
a limited antitrust immunity for providers of a single covered
electronic payment system (e.g., credit cards) and merchants to
negotiate voluntary agreements and, if necessary, participate
in market-based proceedings before a panel of experts to
determine the appropriate interchange fee. The bill as reported
stripped the three expert panel provisions from the underlying
legislation.
Legislative History.--H.R. 5546 was introduced by Chairman
John Conyers, Jr. (D-MI) and Rep. Chris Cannon (R-UT) on March
6, 2008. Additional original co-sponsors were Reps. John
Boozman (R-AZ), Chris Carney (D-PA), Bill Delahunt (D-MA),
Louie Gohmert (R-TX), Ralph Hall (D-TX), Zoe Lofgren (D-CA),
John Peterson (R-PA), Todd Platts (R-PA), Bill Shuster (R-PA),
John Sullivan (R-OK), Anthony Weiner (D-NY), Peter Welch (D-
VT), and Joe Wilson (R-SC). There were 45 cosponsors of the
legislation.
On May 15, 2008, the Task Force convened a hearing on H.R.
5546. The witnesses were: Joshua R. Floum, Executive Vice
President, General Counsel and Secretary, Visa, U.S.A.; Joshua
L. Peirez, Group Executive, Global Public Policy and Associate
General Counsel, MasterCard Worldwide; Steve Cannon, Chairman,
Constantine Cannon, LLP; Tom Robinson, CEO, Rotten Robbie and
Vice Chairman, Government Relations, National Association of
Convenience Stores; Ed Mierzwinski, U.S. PIRG; and John Blum,
Vice President of Operations, Chartway Federal Credit Union.
On July 16, 2008, the Committee ordered the bill favorably
reported as amended by a roll call vote of 19 to 16. On October
3, 2008, the Committee reported the bill to the House as H.
Rept. No. 110-913. No further action was taken on the measure
during the 110th Congress.
Antitrust Oversight Activities
During the 110th Congress, the Antitrust Task Force held a
number of hearings on consumer issues such as retail gasoline
prices, the impact of credit card exchange fees, community
pharmacies, and net neutrality. Additionally, the Antitrust
Task Force examined the impact of proposed mergers in the
airline industry and the package delivery services. The Task
Force began its work with oversight hearings on the findings
and recommendations of both the Antitrust Modernization
Commission and the Federal antitrust enforcement agencies.
Hearing on ``The Findings and Recommendations of the Antitrust
Modernization Commission''
Summary.--On May 8, 2007, the Task Force met to examine the
findings and recommendations of the Antitrust Modernization
Commission. Deborah Garza, Chair of the Commission, and Jon
Yarowsky, Vice-Chair, testified.
The Antitrust Modernization Commission undertook a
comprehensive, three-year review of the U.S. antitrust laws, as
well as the policies and practices of the Department of
Justice's Antitrust Division and the Federal Trade Commission
in implementing those laws. The Commission reached three
primary conclusions. First, free-market competition should
remain the touchstone of the United States' economic policy.
The Commission's conclusion in this regard is that robust
competition among businesses leads to better quality products
and services, lower prices, and higher levels of innovation.
Second, the core antitrust laws--Sherman Act Sections 1 and 2
and the Clayton Act Section 7--and their application by the
courts and federal enforcement agencies, are sound and help to
safeguard competition in today's economy. Third, new or
different rules are not needed for industries in which
innovation, intellectual property, and technological innovation
are central features. The Commission found that unlike some
other areas of the law, the core antitrust laws are general in
nature and have been applied to many different industries to
protect free-market competition successfully over a long period
of time despite changes in the economy and the increasing pace
of technological advancement.
Hearing on the ``Antitrust Agencies: Department of Justice Antitrust
Division and Federal Trade Commission's Bureau of Competition''
Summary.--On September 25, 2007, the Judiciary Committee's
Task Force on Antitrust and Competition Policy held an
oversight hearing to focus on the management and priorities of
each agency, to provide Members of the Task Force an
opportunity to examine antitrust issues of topical interest,
and to assess ways in which the Committee can provide both
agencies with sufficient resources to ensure the efficient and
effective application of the antitrust laws to promote
competition in America's free market economy. The Honorable
Thomas O. Barnett, Assistant Attorney General, Department of
Justice Antitrust Division; and The Honorable Deborah Platt
Majoras, Chairman, Federal Trade Commission, testified at this
hearing.
Hearings on Retail Gas Prices
Summary.--On May 16, 2007, the Task Force convened the
first in a series of three hearings on retail gasoline prices.
A number of factors affect the price of retail gas, including
the price of crude oil, refinery capacity and output,
environmental factors, market trading, and others. The May 16,
2007 hearing, ``Prices at the Pump: Market Failure and the Oil
Industry,'' focused on competition in the crude oil market and
the refinery industry. Testimony was heard from Representative
Bart Stupak (D-MI); Representative Heather Wilson (R-NM); the
Honorable Richard Blumenthal, Connecticut State Attorney
General; Mark Cooper, Director of Research, Consumer Federation
of America; and Dr. John Felmy, Chief Economist, American
Petroleum Institute.
In May 2008, the Task Force held a two-part hearing to
examine the impact and causes of record retail gas prices. On
May 7, 2008, the Task Force convened a hearing, ``Retail Gas
Prices, Part 1: Consumer Effects,'' examining the effects of
the rising price of retail gasoline on consumers. Witnesses at
the hearing included Bill Douglass, C.E.O. of Douglass
Distributing Company; David Owen, President, National
Association of Small Trucking Companies; Dr. Mark Cooper,
Director of Research, Consumer Federation of America; and Lou
Pugliaresi, President, Energy Policy Research Foundation, Inc.
During this hearing, witnesses discussed the direct economic
impact of the rising price of gas, including its effect on
consumers' financial stability and discretionary spending. The
panel also examine the broader economic effects of high gas
prices, from the impact on heavily fuel-dependent industries to
trickle-down effects throughout other sectors of the economy.
On May 22, 2008, the Task Force continued its review of
retail gas prices with the hearing ``Retail Gas Prices, Part 2:
Competition in the Oil Industry.'' Testimony was heard from
Steve Simon, Senior Vice President of ExxonMobil Corporation;
Peter Robertson, Vice Chairman of the Board of Chevron
Corporation; John Hofmeister, U.S. President of Shell Oil
Company; John Lowe, Executive Vice President, Exploration and
Production for ConocoPhillips; and Robert Malone, Chairman and
President of BP America. This hearing examined the reasons
underlying the rising price of retail gasoline and the level of
competition in the oil industry overall, both on the
``upstream,'' or exploration and production side, as well as
the ``downstream,'' or refining and distribution side. The Task
Force examined whether any of the major integrated oil
companies had engaged in anticompetitive behavior or possibly
violated federal antitrust laws during the 2008 summer run-up
in retail gasoline prices. The Task Force also consider the
role of various competitive factors in the increase in retail
gasoline prices, including increased domestic demand for oil,
increased worldwide demand for oil, the role of speculators in
the rising price of crude oil, and domestic refinery capacity
constraints, among others.
Hearing on ``Competition and the Future of Digital Music''
Summary.--Technological developments are dramatically
changing the ways in which consumers can obtain music. In
addition to the traditional offerings of broadcast radio and
record stores, consumers can choose from digital music
delivered via the Internet or satellite, as well as by
broadcast or compact disc and other ``hard copy'' formats.
Questions as to the potential implications of these
developments for competition in the digital music marketplace
were brought into sharp relief by the announcement that XM
Satellite Radio and Sirius Satellite Radio planned to merge. On
February 28, 2007, the Task Force met to examine these issues
against the backdrop of the proposed XM-Sirius merger. The
witnesses at the hearing included: Mel Karmazin, CEO, Sirius
Satellite Radio; David Rehr, President, NAB; Gigi Sohn, Public
Knowledge; Mark Cooper, Consumer Federation; and Charles
Biggio, Wilson Sonsini.
Hearing on ``Competition on the Internet''
Summary.--On July 15, 2008, the full Committee convened
this hearing focusing on competition on the Internet, examining
competition in online advertising, online search, and privacy,
among other issues. Testimony was heard from Michael J.
Callahan, Executive Vice President, General Counsel and
Secretary of Yahoo, Inc.; Brad Smith, Senior Vice President,
General Counsel, and Corporate Secretary, Microsoft Corp.;
David Drummond, Senior Vice President, Corporate Development
and Chief Legal Officer of Google, Inc.; Professor Frank
Pasquale, Associate Professor of Law, Seton Hall Law School;
Tim Carter, President & CEO, AsktheBuilder.com; and David
Sable, Vice Chairman and Chief Operating Officer, Wunderman.
Recent transactions and near-transactions among Google, Inc.,
Yahoo, Inc., and Microsoft Corp. had raised a number of
concerns regarding their possible anticompetitive effects in
such areas as online advertising, online search, and web
platform interoperability. The hearing examined the state of
competition with respect to competition in these various online
markets.
Hearing on ``Net Neutrality and Free Speech on the Internet''
Summary.--The Task Force convened this hearing on March 11,
2008 to explore how network neutrality principles, government
enforcement policies, and private business practices currently
protect and inhibit the freedom of speech. Witnesses at this
hearing were Damian Kulash, lead singer of the band OK Go;
Susan Crawford, Yale University Law School; Michele Combs,
Christian Coalition of America; Caroline Fredrickson, American
Civil Liberties Union; Christopher Yoo, University of
Pennsylvania Law School; and Rick Carnes, Songwriters Guild of
America.
Over the past few years, the Internet has become a dominant
venue for the expression of ideas and public discourse. From
social networking to get-out-the-vote drives, the Internet has
become a leading tool for speech and action. Web sites like
Facebook, MySpace, LinkedIn, and Monster have changed the way
people of all ages connect socially and professionally, and
political candidates raise more money online with each election
cycle. Newspaper web sites and independent blogs have
revolutionized the ways in which news and media are
disseminated and consumed, and the Internet has opened up new
performance venues to emerging artists and entertainers.
Technological innovation on the Internet has made it among the
most powerful outlets for creativity and free speech.
Because of the Internet's importance in promoting and
facilitating speech, proponents of net neutrality have raised
concerns that a lack of competition among broadband access
providers allows providers to stifle and censor speech. The
nexus between competition, net neutrality, and free speech have
surfaced as an issue for the Congress to consider.
Hearing on ``Competition in the Airline Industry''
Summary.--On April 24, 2008, the Task Force convened a
hearing to examine the impact of the proposed merger between
Delta Air Lines and Northwest Airlines and the state of
competition in the airline industry. Delta and Northwest
announced their plans to merge on April 14, 2008, a $3.6
billion merger agreement that would create the largest airline
in the United States. Industry experts speculated that the
merger could trigger a round of further consolidation within
the industry, possibly involving United, Continental Airlines,
US Airways, and American Airlines. Mergers among these large
national carriers could enhance consumer welfare by creating
financially stable companies offering passengers more flights
and destinations within a single, integrated network. At the
same time, consolidation in the industry raises anticompetitive
concerns, including possible reduction in seat capacity and
increases in ticket fares.
Witnesses at the hearing included Richard Anderson, CEO,
Delta Air Lines; Douglas Steenland, CEO, Northwest Airlines; R.
Thomas Buffenbarger, International President, International
Association of Machinists and Aerospace Workers; Douglas
Moormann, Vice President, Economic Development for the
Cincinnati USA Regional Chamber; Clifford Winston, Senior
Fellow, Economic Studies Program, Brookings Institute; and Veda
Shook, International Vice President, Association of Flight
Attendants--CWA.
Hearing on ``Competition in the Package Delivery Industry''
Summary.--On September 9, 2008, the full Committee convened
this hearing to examine the state of competition in the
domestic package delivery industry. The prior month, DHL had
announced plans to outsource all of its ``lift'' (airport to
airport air transportation) to UPS. This would have resulted in
a critical component of DHL's most lucrative business segment
being controlled by one of its competitors. The package
delivery industry (the domestic market for the transportation
and delivery of packages, parcels, and certain types of mail)
has both an air and ground transportation component. Virtually
all air transportation falls within the segment of the industry
known as ``express delivery,'' in which 1- or 2-day package
delivery is guaranteed. Since 2000, the package delivery market
has become increasingly concentrated. As a result of the
acquisition of Emery Worldwide by UPS and Airborne Express by
DHL, the number of market participants has dwindled from 6 to
4: FedEx, UPS, U.S. Postal Service (USPS), and DHL. Currently,
USPS outsources lift for its express delivery service to FedEx,
UPS, and ABX. As a result, an additional consequence of the
proposed agreement would be to concentrate lift for the express
delivery segment of the package delivery industry into the
hands of two companies: FedEx and UPS.
Testimony was received from two panels of witnesses. The
first panel was Representatives Marcy Kaptur (D-OH), Betty
Sutton (D-OH), Mike Turner (R-OH), and Senators Sherrod Brown
(D-OH) and George Voinovich (R-OH). Witnesses on the second
panel were John Mullen, CEO of DHL Worldwide; Burt Wallace,
Senior Vice President, Transportation for UPS; Lieutenant
Governor Lee Fisher of Ohio; Captain Dave Ross, President of
Teamsters Local 1224; Mayor David Raizk of Wilmington, Ohio;
Captain John Prater, International President of the Air Line
Pilots Association (ALPA); and antitrust expert David Balto.
Committee Legislative Activities
H.R. 1433, the ``District of Columbia House Voting Rights Act of 2007''
Summary.--H.R. 1433 would provide the District of Columbia
with full representation in the U.S. House of Representatives.
The bill permanently expands the U.S. House of Representatives
from 435 to 437 seats. The two-seat increase will provide a
vote to the District of Columbia and a new, at-large seat
through the One Hundred Twelfth Congress to the State next
entitled to increase its congressional representation. Based on
the 2000 Census, Utah is the State next entitled to increase
its congressional representation.
Legislative History.--H.R. 1433 was introduced on March 9,
2007, by Delegate Norton and Representative Davis and referred
to the Committee on the Judiciary and the Committee on
Oversight and Government Reform. On March 14, 2007, the
Committee on the Judiciary held a hearing on H.R. 1433. The
hearing witnesses were Viet D. Dinh, former U.S. Assistant
Attorney General for Legal Policy at the U.S. Department of
Justice; Bruce Spiva, founding partner of Spiva & Hartnett and
Chair of the Board of DC Vote; Rick Bress, partner in the
Washington, DC, office of Latham & Watkins; and Jonathan
Turley, professor of law at George Washington University. On
March 15, 2007, the Committee on the Judiciary reported H.R.
1433 favorably by a roll call vote of 21 to 13. On March 22,
2007, the U.S. House of Representatives proceeded with general
debate and debate on a motion to commit, with further
proceedings on the motion postponed. There was no further House
action on H.R. 1433.
H.R. 2102, the ``Free Flow of Information Act of 2007''
Summary.--H.R. 2102 ensures that members of the press may
utilize confidential sources without causing harm to themselves
or their sources. It does this by providing a qualified
privilege that prevents a reporter's source material from being
revealed except under certain narrow circumstances, such as
where it is necessary to prevent an act of terrorism or other
significant and specified harm to national security or imminent
death or significant bodily harm. The bill thus strikes a
balance with respect to promoting the free dissemination of
information and ensuring effective law enforcement and the fair
administration of justice.
Legislative History.--H.R. 2102, the ``Free Flow of
Information Act of 2007'' was introduced by Rep. Rich Boucher
(D-VA) on May 2, 2007. On June 14, 2007, the Committee met in
open session to receive testimony from: Jim Taricani,
investigative journalist; William Safire, New York Times
columnist; Rachel Brand, Assistant Attorney General for Legal
Policy, U.S. Department of Justice; Lee Levine, partner with
Levine Sullivan Koch & Schulz, L.L.P.; and Professor Randall
Eliason, G.W.U. Law School. The bill was markup by the
Committee on August 1, 2007 as amended by a voice vote. On
October 10, 2007 the legislation was reported to the House as
H. Rept. 110-370. Pursuant to H. Res. 742, the measure was
considered by the House on October 16, 2007 and passed the
House by a roll call vote of 398-21 (Roll No. 973). H.R. 2102
was placed on the Senate Legislative Calendar on October 18,
2007. No further action was taken on the legislation during the
110th Congress.
H.R. 2128, the ``Sunshine in the Courtroom Act of 2007''
Summary.--This legislation would allow the ``photographing,
electronic recording, broadcasting, or televising'' of federal
court proceedings.
Legislative History.--H.R. 2128, the ``Sunshine in the
Courtroom Act of 2007,'' was introduced on May 3, 2007 and was
referred to the Committee on the Judiciary. The bill was
referred to the Subcommittee on June 4, 2007. The bill was
discharged from the Subcommittee on September 20, 2007. The
Committee met in open session on September 27, 2007 to hear
testimony from: Representative Ted Poe (R-TX); the Honorable
Nancy Gertner, U.S. District Court, District of Massachusetts;
Susan Swain, President and Co-Chief Operating Office, CSPAN;
Barbara Cochran, Radio-Television News Directors Association;
Fred Graham, Anchor, Court TV; the Honorable John Tunheim,
Chair, Judicial Conference Committee on Court Administration
and Case Management; District Judge, U.S. District Court,
Minnesota (on behalf of the Judicial Conference of the United
States); and John Richter, U.S. Attorney, Western District of
Oklahoma (on behalf of the U.S. Department of Justice). October
24, 2007 the Committee on the Judiciary met in open session
mark-up and ordered favorably reported H.R. 2128, as amended,
by a roll call of 17-11. There was no further action on H.R.
2128.
H.R. 2176, to provide for and approve the settlement of certain land
claims of the Bay Mills Indian Community and H.R. 4115, to
provide for and approve the settlement of certain land claims
of the Sault Ste. Marie Tribe of Chippewa Indians
Summary.--H.R. 2176 would provide for and approve the
settlement of certain land claims of the Bay Mills Indian
Community (``Bay Mills Tribe''), and H.R. 4115, would provide
for and approve the settlement of certain land claims of the
Sault St. Marie Tribe of Chippewa Indians (Sault Ste. Marie
Tribe).
Legislative History.--H.R. 2176 was introduced by
Representative Bart Stupak on May 3, 2007. H.R. 4115 was
introduced by Representative John Dingell (D-MI) on November 8,
2007. On March 6, 2008, the Committee received a sequential
referral of both bills.
On March 14, 2008, the Committee convened a hearing on H.R.
2176 and H.R. 4115. The witnesses at this hearing were
Representative Carolyn Kilpatrick (D-MI); Representative
Shelley Berkley (D-MI); Carl Artman, Assistant Interior
Secretary for Indian Affairs, Department of the Interior; Chief
Fred Cantu, Saginaw Chippewa Tribe of Michigan; Alicia Walker,
Chairman, Sault St. Marie Chippewa Tribe; Kathryn Tierney,
Tribal Attorney, Bay Mills Indian Community; and Cynthia
Abrams, Board Member, National Coalition Against Legalized
Gambling, who submitted a statement for the record.
On April 2, 2008, the Committee met and ordered reported
H.R. 2176 and H.R. 4115 unfavorably without amendment by a roll
call vote of 29-0. On April 4, 2008, both bills were reported
to the House as H. Rept. 110-541, Part 2 (H.R. 2176) and H.
Rept. 110-542, Part 2 (H.R. 4115). There was no further action
on H.R. 4115 during the remaining 110th Congress.
The House considered H.R. 2176 on June 25, 2008 pursuant to
H. Res. 1298 and the measure failed passage by a roll call vote
of 121-298 (Roll No. 458). There was no further action on H.R.
2176 during the 110th Congress.
H.R. 3678, the ``Internet Tax Freedom Act Amendments Act of 2007''
Summary.--H.R. 3678, the ``Internet Tax Freedom Act
Amendments Act of 2007,'' would amend the Internet Tax Freedom
Act to extend the moratorium on certain taxes relating to the
Internet and to electronic commerce from November 1, 2007,
until November 1, 2011, and make other clarifications to the
law. An oversight hearing on this issue was held by the
Subcommittee on Commercial and Administrative Law and is
discussed in a subsequent section of this report.
Legislative History.--On September 27, 2007, Chairman John
Conyers, Jr. (D-MI) introduced H.R. 3678. The Committee met in
open session to consider the legislation and ordered the bill
reported favorably, as amended by a roll call vote of 38-0. The
report was filed in the House on October 12, 2007 as H. Rept.
110-372. The legislation was considered under suspension of the
rules on October 16, 2007 and passed, as amended, by a recorded
vote of 405-2 (Roll No. 968).
On October 25, 2007, the bill passed the Senate with an
amendment by unanimous consent. The House suspended the rules
and agreed to the Senate amendment on October 30, 2007 by a
recorded vote of 402-0 (Roll No. 1014). The legislation was
signed into law by the President on October 30, 2007 as Public
Law 110-108.
H. Res. 1448, that the Committee on the Judiciary shall inquire whether
the House should impeach G. Thomas Porteous, a judge of the
United States District Court for the Eastern District of
Louisiana
Summary.--H. Res. 1448 authorized and directed the
Committee on the Judiciary to inquire whether the House should
impeach G. Thomas Porteous, a judge of the United States
District Court for the Eastern District of Louisiana.
Legislative History.--H. Res. 1448 was introduced on
September 17, 2008 by Chairman John Conyers, Jr. (D-MI) and
Ranking Member Lamar Smith (D-TX). Also, on the same day, the
House agreed to the resolution without objection and the
Committee established a task force to conduct an inquiry of the
matter. The following day, September 18, 2008, the Committee
appointed members to the task force.
Committee Oversight
INVESTIGATION INTO U.S. ATTORNEY REMOVALS AND THE POLITICIZATION OF THE
DEPARTMENT OF JUSTICE
As the 110th Congress convened, reports surfaced indicating
that a large group of United States Attorneys had been asked to
resign their positions under troubling circumstances. The
resulting Committee inquiry--led in large part by the
Subcommittee on Commercial and Administrative Law--eventually
grew to address broader questions about the extent to which
core functions of the Department of Justice such as criminal
prosecution decisions and hiring of career personnel had been
improperly politicized.
Hiring and Firing of U.S. Attorneys and other Department Personnel
The controversy began when reports surfaced of United
States Attorneys around the country being forced from office
under suspicious circumstances.\1\ Several Members of Congress
expressed concern about these firings, and on January 17, 2007,
Chairman Conyers and Courts, the Internet, and Intellectual
Property Subcommittee Chairman Howard Berman wrote to Attorney
General Alberto Gonzales requesting information about the
matter.
---------------------------------------------------------------------------
\1\ See, e.g., Thornton and Soto, Lam Asked to Step Down, San Diego
Union Tribune, January 12, 2007.
---------------------------------------------------------------------------
In February and March 2007, both the House and Senate
Judiciary Committees held hearings to explore the reasons for
the firings and to address concerns that political
considerations may have influenced the Administration's
decisions. At a March 6, 2007, hearing of the Subcommittee on
Commercial and Administrative Law, Principal Associate Deputy
Attorney General Will Moschella testified before the Commercial
and Administrative Law Subcommittee on this subject, providing
both a private briefing and public testimony regarding the
reasons for the forced resignations. He claimed that, with one
exception, the U.S. Attorneys had been fired because of their
poor performance. Under questioning by Chairman Conyers, Mr.
Moschella stated that the White House had played only a very
modest role in the matter, stating that ``because these are
political appointees,'' it would be ``unremarkable'' to send
the list to the White House and ``let them know [o]ur proposal
and whether they agreed with it.'' \2\
---------------------------------------------------------------------------
\2\ ``H.R. 580, Restoring Checks and Balances in the Confirmation
Process of U.S. Attorneys,'' 110th Cong., pg. 24 (2007).
---------------------------------------------------------------------------
That same day, the Subcommittee also heard from six of the
removed U.S. Attorneys, who appeared under subpoena. These
prosecutors described the circumstances of their removal,
explaining that they had been given virtually no explanation of
why they were being asked to resign, and rejecting the charges
of poor performance that the Administration had subsequently
leveled against them.\3\ Concern about the firings was further
heightened when two of the U.S. Attorneys testified that they
had received what they felt were inappropriate communications
from Members of Congress or their staff about pending
prosecution matters. United States Attorney David Iglesias
described such calls from Senator Pete Domenici and
Representative Heather Wilson. United States Attorney John
McKay also described receiving a ``disconcerting'' call
regarding his handling of election cases from the chief of
staff to United States Representative Doc Hastings.\4\
---------------------------------------------------------------------------
\3\ March 6, 2007, Testimony of former United States Attorneys
Carol Lam, David Iglesias, Daniel Bogden, Bud Cummins, and John McKay
Before the House Judiciary Committee Subcommittee on Commercial and
Administrative Law at passim.
\4\ March 6, 2007, Testimony of former United States Attorney John
McKay Before the House Judiciary Committee Subcommittee on Commercial
and Administrative Law at 24.
---------------------------------------------------------------------------
To address these questions, Chairman Conyers and Commercial
and Administrative Law Subcommittee Chair Linda Sanchez sought
access to documents and interviews with White House and
Department of Justice personnel at the center of the
firings.\5\ That request was followed by a Subcommittee vote
authorizing the Chairman to issue subpoenas to compel
production of documents and to obtain testimony from witnesses
such as Karl Rove, Harriet Miers, Monica Goodling, and others
who appeared to have played significant roles in the matter.\6\
---------------------------------------------------------------------------
\5\ March 8, 2007, Letter from Chairman John Conyers, Jr. and
Subcommittee Chair Linda Sanchez to Attorney General Alberto Gonzales;
March 9, 2007, Letter from Chairman John Conyers, Jr. and Subcommittee
Chair Linda Sanchez to White House Counsel Fred Fielding.
\6\ March 21, 2007, Subcommittee Meeting to Consider Subpoena
Authorization Concerning the Recent Termination of United States
Attorneys and Related Subjects, 110th Cong. (2007).
---------------------------------------------------------------------------
As the investigation progressed, it became clear that the
Department of Justice would not provide full information about
the matter on a voluntary basis. Accordingly, on April 10,
2007, Chairman Conyers issued a document subpoena to Attorney
General Gonzales.\7\
---------------------------------------------------------------------------
\7\ April 10, 2007, Subpoena Issued by Chairman John Conyers, Jr.
to Attorney General Alberto Gonzales.
---------------------------------------------------------------------------
Documents obtained from the Department of Justice only
raised more questions about the firings. There were multiple
drafts of lists of U.S. Attorneys to be fired that had passed
between the White House and the Department.\8\ None of the
documents produced, however, explained exactly how or by whom
the removed U.S. Attorneys were placed on the list. Committee
staff (working jointly with Senate Judiciary Committee staff)
also conducted a series of 11 on-the-record interviews of
Department of Justice personnel, but the more the Committee
learned, the more questions it raised regarding the true
reasons for these removals.
---------------------------------------------------------------------------
\8\ OAG 20-21, OAG 34-25, DAG 14-17, OAG 45-48. Documents provided
by the Department of Justice in response to the Committee's request
were marked with Bates numbers that indicated the office from which the
document came, as well as a page number assigned to it. For example,
``OAG 20'' was page 20 of the documents produced by the Office of the
Attorney General.
---------------------------------------------------------------------------
The Committee's investigation established that the
``performance-based'' reasons offered by the Administration to
justify these firings were not true; \9\ as respected former
Deputy Attorney General James Comey testified on May 3, 2007,
the removed U.S. Attorneys were in almost all cases top
performers.\10\ This only further raised suspicion about the
real reasons for the firings. Indeed, based on the Department
documents and interviews obtained by the Committee, it became
increasingly apparent that at least some of the U.S. Attorneys
were removed for various political motives.
---------------------------------------------------------------------------
\9\ Additional Views of Chairman Conyers and Subcommittee Chair
Sanchez Submitted in Support of Contempt Resolution for Harriet Miers
and Josh Bolten at 43-51.
\10\ Continuing Investigation into the U.S. Attorneys Controversy,
110th Cong., (2007).
---------------------------------------------------------------------------
Bud Cummins, for example, was apparently removed at least
in part simply to make way for Karl Rove's aide Tim Griffin to
obtain U.S. Attorney experience to enhance his future
employment and political prospects.\11\ Of far greater concern,
United States Attorney David Iglesias appears to have been
removed because New Mexico Republicans had complained about his
refusal to bring particular vote fraud prosecutions where he
did not think there was an appropriate basis to prosecute, and
also because he angered New Mexico Members of Congress who had
hoped he would bring other prosecutions ahead of the 2006
elections.\12\ In a number of other cases, serious concerns
about the role of politics in the firings still remain.\13\
---------------------------------------------------------------------------
\11\ Additional Views of Chairman Conyers and Subcommittee Chair
Sanchez Submitted in Support of Contempt Resolution for Harriet Miers
and Josh Bolten at 36-37.
\12\ Id. at 24-28.
\13\ Id. at 29-35.
---------------------------------------------------------------------------
The Department's Liaison to the White House, Monica
Goodling, testified before the full Committee on May 23, 2007,
under subpoena and limited use immunity granted after she had
invoked her Fifth Amendment rights against self-
incrimination.\14\ At this hearing, Ms. Goodling acknowledged
that she had ``crossed the line'' \15\ and considered political
factors in hiring career prosecutors and immigration judges and
in approving Department personnel for important details to
Department leadership offices. This testimony led to
investigations by the Department's Office of the Inspector
General and Office of Professional Responsibility, and reports
finding widespread use of improper political considerations--
and in some cases unlawful use--in Department hiring for a
diverse array of positions including honors program entry-level
positions, career Assistant United States Attorney jobs, summer
internships, details to top Department offices, and immigration
judgeships.\16\
---------------------------------------------------------------------------
\14\ Continuing Investigation into the U.S. Attorneys Controversy
and Related Matters: Hearing Before the H. Comm. on the Judiciary,
110th Cong. (2007)
\15\ The Continuing Investigation into the U.S. Attorneys
Controversy and Related Matters, 110th Cong. pg 34, (2007).
\16\ Joint Report by the Offices of the Inspector General and
Professional Responsibility, An Investigation of Allegations of
Politicized Hiring in the Department of Justice Honors Program and the
Summer Law Intern Program, June 2008; Joint Report by the Offices of
the Inspector General and Professional Responsibility, An Investigation
of Allegations of Politicized Hiring by Monica Goodling and Other Staff
in the Office of the Attorney General, July 2008.
---------------------------------------------------------------------------
Ms. Goodling's testimony also confirmed Committee concerns
that the Administration had deliberately obscured the role of
the White House in this matter, telling Members that Deputy
Attorney General McNulty had warned her away from a Senate
briefing on the issue because, if she were present, Senators
might be encouraged to ask questions about the actions of the
White House.\17\ Ms. Goodling's testimony provided important
information for the Committee's investigation; however, it
still did not explain who had identified these U.S. Attorneys
for firing or why, as she denied having much information on
that subject.
---------------------------------------------------------------------------
\17\ May 23, 2007 Prepared Statement of Monica Goodling at 3.
---------------------------------------------------------------------------
Eventually, the Committee exhausted all sources of
information from within the Department of Justice without being
able to answer key mysteries about the firings. As Mr. Conyers
put it in questioning the Attorney General, there was one
obvious place to look for answers: ``The breadcrumbs in this
investigation have always led to 1600 Pennsylvania Avenue.''
Accordingly, on June 13, 2007, the Chairman issued subpoenas
for White House documents and for the appearance of Harriet
Miers regarding these matters.\18\ That same day, Senate
Judiciary Committee Chairman Leahy issued an identical document
subpoena to the White House, as well as a subpoena for the
testimony of Karl Rove aide Sara Taylor. Chairman Conyers also
subpoenaed White House documents known to be contained on the
computer servers of the Republican National Committee, which
had been used by White House personnel, apparently to avoid
federal recordkeeping requirements.\19\
---------------------------------------------------------------------------
\18\ June 13, 2007, Subpoenas issued by Chairman John Conyers, Jr.
to Harriet Miers and Josh Bolten.
\19\ July 13, 2008, Subpoena issued by Chairman John Conyers, Jr.
to Republican National Committee Chair Mike Duncan.
---------------------------------------------------------------------------
On July 12, 2007, the Commercial and Administrative Law
Subcommittee convened to hear the testimony of Harriet Miers.
Ms. Miers refused to appear for the hearing, however, making
the unprecedented claim that, as a former aide to President
Bush, she was immune from Congressional subpoena.\20\ The
Administration similarly refused to produce any subpoenaed
documents, claiming that all White House records related to the
U.S. Attorney removals were covered by executive privilege. The
Administration also declined to provide a ``privilege log''
describing the documents that were being withheld.\21\ The RNC
also refused to provide most of the subpoenaed documents or a
privilege log, claiming that White House orders prevented it
from doing so.\22\
---------------------------------------------------------------------------
\20\ July 10, 2007, Letter From George T. Manning to Chairman John
Conyers, Jr.
\21\ June 28, 2007, Letter from White House Counsel Fred Fielding
to Chairmen John Conyers, Jr. and Patrick J. Leahy.
\22\ July 31, 2007, Letter from Robert Kelner to Chairman John
Conyers, Jr.
---------------------------------------------------------------------------
On July 25, 2007, after numerous efforts to negotiate a
resolution to this matter, the full Judiciary Committee voted
22-17 to recommend that the House of Representatives find
Harriet Miers and White House Chief of Staff Josh Bolten, as
custodian of White House documents, in contempt of
Congress.\23\ On February 14, 2008, the full House cited Ms.
Miers and Bolten for contempt, and referred them to the U.S.
Attorney for the District of Columbia for criminal prosecution,
by a roll call vote of 223-32.\24\ This was the first vote to
cite a person for contempt of Congress in over 25 years.
---------------------------------------------------------------------------
\23\ Meeting to Consider: a Resolution and Report Recommending to
the House of Representatives that Former White House Counsel Harriet
Miers and White House Chief of Staff Joshua Bolten be Cited for
Contempt of Congress, 110th Cong. (2007).
\24\ Roll Call Vote No. 60, H. Res. 982, U.S. House of
Representatives, February 14, 2008.
---------------------------------------------------------------------------
The U.S. Attorney refused to act on the contempt referral,
however, at the direction of Michael Mukasey, who had replaced
Alberto Gonzales as Attorney General.\25\ In response, Chairman
Conyers used the authority granted to him to take the matter to
court on behalf of the Committee. On March 10, 2008, the
Committee filed a civil action in the U.S. District Court
seeking a legal ruling that the Administration's theories of
immunity from subpoena and executive privilege are legally
unsound.\26\
---------------------------------------------------------------------------
\25\ February 29, 2008, Letter from Attorney General Michael
Mukasey to Speaker of the House Nancy Pelosi.
\26\ Committee on the Judiciary v. Miers, Civil Action No. 08-0409
(JDB) (United States District Court for the District of Columbia, July
31, 2008).
---------------------------------------------------------------------------
On July 31, 2008, Judge Bates granted the Committee's
motion for partial summary judgment and ruled that, as the
Committee had asserted, Harriet Miers was not immune from
Congressional subpoena and that she was required to appear and
testify before the Committee.\27\ Judge Bates also ruled that
the Administration had no valid excuse for refusing to produce
non-privileged documents, and that the Administration was
obligated to provide a more detailed listing and description of
any documents withheld from the Committee's subpoena on
executive privilege grounds than it previously had done.\28\
The matter is now pending in the United States Court of Appeals
for the District of Columbia, and the Judge's order has been
stayed during the appeal.\29\
---------------------------------------------------------------------------
\27\ Memorandum Opinion and Order, Committee on the Judiciary v.
Miers, Civil Action No. 08-0409 (JDB) (United States District Court for
the District of Columbia, July 31, 2008).
\28\ Memorandum Opinion and Order, Committee on the Judiciary v.
Miers, Civil Action No. 08-0409 (JDB) (United States District Court for
the District of Columbia, July 31, 2008).
\29\ October 6, 2008, Opinion and Order Granting Motion for Stay
Pending Appeal, Committee on the Judiciary v. Miers, Appeal No. 08-
5357, United States Court of Appeals for the District of Columbia
Circuit.
---------------------------------------------------------------------------
On September 29, 2008, the Department's Office of the
Inspector General and Office of Professional Responsibility
released their own detailed report on the forced resignation of
these U.S. Attorneys.\30\ The report confirmed the Committee's
initial conclusions that the so-called performance-based
reasons offered by the Administration to justify these firings
were in large part untrue, and that a number of the firings
were politically motivated, concluding that ``political
partisan considerations were an important factor in the removal
of several of the U.S. Attorneys.'' \31\ The report further
concluded that inaccurate and misleading statements were made
to the Congress and the public on this matter, and that a
number of laws may have been violated by both the firings and
the statements.\32\ Finally, the report describes a widespread
refusal by White House witnesses to cooperate with the
Department's investigation and the refusal of the White House
to make key documents available, and concludes that because of
this obstruction, Department investigators ``were unable to
determine the role the White House played in these removals.''
\33\
---------------------------------------------------------------------------
\30\ Joint Report of the Department's Offices of the Inspector
General and Professional Responsibility, An Investigation Into the
Removal of Nine U.S. Attorneys, September 2008.
\31\ Joint Report of the Department's Offices of the Inspector
General and Professional Responsibility, An Investigation Into the
Removal of Nine U.S. Attorneys, September 2008, at 325-26.
\32\ Id. at 357-58.
\33\ Id. at 338.
---------------------------------------------------------------------------
Because of the seriousness of their findings and the limits
on their authority to compel White House cooperation, the
Department watchdogs called in this report for the appointment
of a federal prosecutor to continue the investigation and
evaluate whether criminal charges should be brought.\34\
Accepting this recommendation, Attorney General Mukasey
appointed Norah M. Dannehy, the Acting United States Attorney
for the District of Connecticut, to continue the
investigation.\35\
---------------------------------------------------------------------------
\34\ Id. at 358.
\35\ Statement by Attorney General Michael B. Mukasey on the Report
of an Investigation into the Removal of Nine U.S. Attorneys in 2006,
Sept. 29, 2008, available at http://www.usdoj.gov/opa/pr/2008/
September/08-opa-859.html.
---------------------------------------------------------------------------
Allegations of Selective Prosecution
The Committee also investigated concerns that some U.S.
Attorneys who were not removed from their jobs--including those
described by Kyle Sampson as ``loyal Bushies'' \36\--improperly
considered partisan political factors in carrying out their
prosecution duties. These concerns were reinforced and
heightened by an academic study published by Professors Donald
Shields and John Cragan in February 2007 and updated for
presentation at an October 23, 2007, joint hearing of the
Crime, Terrorism, and Homeland Security Subcommittee and the
Commercial and Administrative Law Subcommittee that found
federal prosecutors during the Bush Administration have
investigated Democratic officeholders far more frequently than
Republican officeholders, and that there was ``less than one
chance in 10,000'' that the over-representation of Democrats
was by chance, concluding that selective prosecution of
Democrats must have occurred.\37\
---------------------------------------------------------------------------
\36\ E-mail from Kyle Sampson to Deputy White House Counsel David
Leitch, responding to a ``Question from Karl Rove,'' Jan. 9, 2005; see
also Krugman, Department of Injustice, New York Times, March 7, 2007
(``The bigger scandal, however, almost surely involves prosecutors
still in office. The Gonzales Eight were fired because they wouldn't go
along with the Bush administration's politicization of justice. But
statistical evidence suggests that many other prosecutors decided to
protect their jobs or further their careers by doing what the
administration wanted them to do: harass Democrats while turning a
blind eye to Republican malfeasance.'').
\37\ Shields & Cragan, The Political Profiling of Elected
Democratic Officials: When Rhetorical Vision Participation Runs Amok
(2007), available at http://www.epluribusmedia.org/columns/2007/
20070212_political_profiling.html.
---------------------------------------------------------------------------
The Committee's investigation has generated bipartisan
concern about the subject. In summer 2007, the Committee
received a bipartisan petition signed by 44 former State
attorneys general calling for action.\38\ And at the
Subcommittees' joint hearing, former Reagan and George H. W.
Bush Attorney General Richard Thornburgh stated his concern
about ``apparent political prosecution'' and warned that
citizens ``may no longer'' have ``confidence that the
Department of Justice is conducting itself in a fair and
impartial manner without actual political influence or the
appearance of political influence.'' \39\
---------------------------------------------------------------------------
\38\ See Editorial, Time to Vote Contempt, New York Times, Feb. 14,
2008, (``There are people in jail today, including a former governor of
Alabama, who have raised credible charges that they were put there for
political reasons.''); Horton, A Primer In Political Prosecution, Oct.
24, 2007; Kalson, The Wecht Indictment, July 22, 2007; Cohen, The
United States Attorneys Scandal Comes to Mississippi, Oct. 11, 2007;
Letter from 44 former State attorneys general to Chairman John Conyers,
Jr., H. Comm. on the Judiciary, and Chairman Patrick Leahy, S. Comm. on
the Judiciary, July 13, 2007. That attorneys general letter
specifically addressed the prosecution of former Alabama Governor Don
Siegelman, described below.
\39\ Thornburgh, Oct. 23, 2007, Subcomms. on Crime, Terrorism, and
Homeland Security and on Commercial and Admin. Law, Hearing at 12.
---------------------------------------------------------------------------
Against this background, Committee Majority staff have
investigated numerous allegations of selective prosecution that
have surfaced around the country. In the early stages of its
work, the Committee focused particularly on three cases where
concerns about politically-motivated prosecutions have been
especially intense: the Georgia Thompson case in Milwaukee,
Wisconsin, the prosecution of the Democratic former Governor of
Alabama Don Siegelman, and the criminal prosecution of
Allegheny County coroner Cyril Wecht in Pittsburgh,
Pennsylvania. Staff has also examined several cases brought
against a group of judges and a practicing attorney in Jackson,
Mississippi, including Mississippi Supreme Court Justice Oliver
Diaz and trial attorney Paul Minor. The facts and circumstances
of these and other prosecutions, as revealed by a detailed
staff investigation, are summarized in a report prepared for
Chairman Conyers by Committee Majority staff and released on
April 17, 2008.\40\
---------------------------------------------------------------------------
\40\ Staff Report on Allegations of Selective Prosecution in Our
Federal Criminal Justice System, April 17, 2008.
---------------------------------------------------------------------------
As part of this investigation concerning selective
prosecution and the U.S. Attorney removals, the Committee has
pursued testimony from former White House Deputy Chief of Staff
Karl Rove, issuing a subpoena for his testimony on May 22,
2008. When Mr. Rove refused to appear in response to subpoena,
the Committee voted to recommend that the full House of
Representatives find him in contempt of Congress.
The Committee has also pursued access to documents needed
to appropriately complete this investigation. Despite efforts
to obtain relevant materials on a voluntary basis,\41\ however,
and a subpoena issued on June 27, 2008, the Department of
Justice has refused to provide any non-public information or
documents regarding the Siegelman and Wecht cases, as well as
other documents called for by the subpoena.\42\ On December 10,
2008, Chairman Conyers sent a letter to the Attorney General to
remind him that the Committee was still seeking these materials
and to ensure that they be preserved as required by law.
---------------------------------------------------------------------------
\41\ Letters from Chairman John Conyers, Jr. and other members of
the H. Comm. on the Judiciary to Attorney General Alberto Gonzales,
July 17, 2007, and Sept. 10, 2007.
\42\ Id.
---------------------------------------------------------------------------
Recent developments have only heightened concern about
cases investigated by the Committee. For example, on March 27,
2008, the federal appeals court in Atlanta, Georgia ruled that
Don Siegelman should be released from prison pending his
appeal, having concluded that ``Siegelman has satisfied the
criteria set out in the statute, and has specifically met his
burden of showing that his appeal raises substantial questions
of law or fact'' regarding the viability of his conviction.\43\
---------------------------------------------------------------------------
\43\ Order filed March 27, 2008, in United States v. Siegelman, et
al, Appeal No. 07-13163-B, Eleventh Circuit Court of Appeals.
---------------------------------------------------------------------------
And more recently, new information has surfaced describing
additional acts of apparent misconduct by the Siegelman
prosecution team. On November 7, 2008, Chairman Conyers wrote
the Attorney General transmitting troubling documents provided
by a Department whistleblower; these documents suggested that
the Siegelman jury had improperly communicated with the
prosecution during trial, contacts that were never disclosed to
the defense or the judge.\44\ Chairman Conyers also transmitted
documents suggesting that the Republican-connected U.S.
Attorney, who had agreed to recuse herself from the case at the
insistence of the defense, had nevertheless communicated
information and a litigation strategy recommendation to the
active members of the prosecution team. Commentators have
expressed extensive concern about this new information, among
them law professor Carl Tobias, who said the e-mails raise
``legitimate questions'' about the prosecution's conduct.\45\
According to a November 26, 2008, filing by the Department in
the Siegelman appeal, in response to Mr. Conyers' letter it has
reopened its internal investigation of the issue of improper
contacts between the prosecution team and members of the
jury.\46\
---------------------------------------------------------------------------
\44\ November 7, 2008, Letter from Chairman John Conyers, Jr. to
Attorney General Michael Mukasey.
\45\ Chander, ``House Judiciary Chairman Conyers says Siegelman
Case E-mails Raise Questions,'' Birmingham News, November 14, 2008.
\46\ Response to Defendant-Appellant Siegelman's Notice of
Supplemental Information Relevant to Issues on Appeal, filed November
26, 2008, in United States v. Siegelman, et al, Appeal No. 07-13163-B,
Eleventh Circuit Court of Appeals.
---------------------------------------------------------------------------
On April 17, 2008, along with the release of the Committee
Majority staff's report on this subject, Chairman Conyers,
Chair Sanchez, and Representatives Davis and Baldwin requested
a full investigation of the Siegelman, Wecht, and other cases
by the Office of Professional Responsibility and the Office of
the Inspector General; the Office of Professional
Responsibility has launched such an investigation.\47\
---------------------------------------------------------------------------
\47\ May 5, 2008, Letter from H. Marshall Jarrett to Hon. John
Conyers Jr. stating that the Office of Professional Responsibility is
investigating ``allegations of selective prosecution relating to the
prosecutions of Don Siegelman, Georgia Thompson, and Oliver Diaz and
Paul Minor.''
---------------------------------------------------------------------------
Committee Hearings and Meetings on U.S. Attorney Removals and
Politicization of the Department of Justice
Hearing on H.R. 580, Restoring Check and Balances in the
Confirmation of U.S. Attorneys
On March 6, 2007, six of the terminated U.S. Attorneys--Ms.
Lam, Mr. Iglesias, Mr. Cummins, Mr. McKay, Mr. Bogden, and Mr.
Charlton--and William E. Moschella, Principal Associate Deputy
Attorney General, U.S. Department of Justice, testified before
the Commercial and Administrative Law Subcommittee. Mr.
Moschella also provided private briefings on February 28 and
March 5 to Commercial and Administrative Law Subcommittee
Members and staff. Other witnesses at the hearing included:
Judiciary Committee member Rep. Darrell Issa; Asa Hutchinson, a
former Member of the House of Representatives and former U.S.
Attorney; John A. Smietanka, former U.S. Attorney; Atlee
Wampler, III, President of the National Association of Former
United States Attorneys; George J. Terwilliger, III, Former
Deputy Attorney General; and T.J. Halstead, Legislative
Attorney, Congressional Research Service American Law Division.
Oversight Hearing on Ensuring Executive Branch
Accountability
On March 29, 2007, the Commercial and Administrative Law
Subcommittee heard testimony assessing the validity of White
House assertions concerning executive privilege in the U.S.
Attorney controversy. The witnesses included John Podesta,
former White House Chief of Staff to President Bill Clinton;
Beth Nolan, former White House Counsel to President Bill
Clinton; Frederick A.O. Schwarz, Jr., Senior Counsel, Brennan
Center for Justice; and Noel J. Francisco, former Associate
Counsel to President George W. Bush. Ms. Nolan indicated that
she had testified four times before congressional committees on
matters directly related to her White House duties, including
three times while she was still serving in that position.
Oversight Hearing on the Continuing Investigation into the
U.S. Attorneys Controversy
On May 3, 2007, former Deputy Attorney General James B.
Comey testified before the Commercial and Administrative Law
Subcommittee.
Oversight Hearing on the United States Department of
Justice
On May 10, 2007, Attorney General Gonzales appeared before
the full Judiciary Committee for an oversight hearing that
focused on the U.S. Attorneys controversy.
Oversight Hearing on the Continuing Investigation into the
U.S. Attorneys Controversy and Related Matters
After a grant of limited use immunity, Monica Goodling,
former Senior Counsel to Attorney General Alberto Gonzales and
the Department's White House Liaison, appeared before the full
Committee on May 23, 2007.
Oversight Hearing on the Continuing Investigation into the
U.S. Attorneys Controversy and Related Matters
On June 21, 2007, Deputy Attorney General Paul McNulty
testified before the Commercial and Administrative Law
Subcommittee.
Hearing on the Continuing Investigation into the U.S.
Attorneys Controversy and Related Matters
Former White House Counsel Harriet Miers refused to comply
with a subpoena requiring her appearance before the Commercial
and Administrative Law Subcommittee on July 12, 2007. Ms. Miers
not only failed to provide testimony or documents; she failed
even to appear for the hearing. Subcommittee Chair Linda
Sanchez proceeded to overrule the White House's claims of
immunity and privilege with respect to Ms. Miers, and the
ruling was sustained by Subcommittee Members in a roll call
vote of 7-5.
Meeting to consider the executive privilege claims asserted
by White House Counsel in response to the subpoena
for the production of documents issued to Joshua
Bolten, White House Chief of Staff, or appropriate
custodian of records
On July 17, 2007, Chairman Conyers and Subcommittee Chair
Sanchez wrote to White House Counsel Fred Fielding, notifying
him that the Commercial and Administrative Law Subcommittee
would formally consider the White House's privilege claims with
regard to subpoenaed White House documents at a July 19, 2007,
meeting, and again urged compliance with the June 13
subpoena.\48\ Notwithstanding that letter, Mr. Bolten still did
not comply with his subpoena. The Commercial and Administrative
Law Subcommittee then met on July 19, Subcommittee Chair
Sanchez ruled against the privilege claims with respect to Mr.
Bolten's refusal to produce any documents pursuant to the
subpoena issued to him, and that ruling was upheld by a 7-3
vote.
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\48\ July 17, 2007, Letter from Chairman John Conyers, Jr. and
Subcommittee Chair Linda Sanchez to White House Counsel Fred Fielding.
---------------------------------------------------------------------------
Meeting to consider a resolution and report recommending to
the House of Representatives that former White
House Counsel Harriet Miers and White House Chief
of Staff Joshua Bolten be found in contempt of
Congress
On July 25, 2007, the full Committee, by a roll call vote
of 22-17, recommended that the House find Harriet Miers and
Josh Bolten in contempt of Congress.
Oversight Hearing on Allegations of Selective Prosecution:
The Erosion of Public Confidence in our Federal
Justice System, Parts I and II
On October 23, 2007, the Crime, Terrorism, and Homeland
Security Subcommittee and the Commercial and Administrative Law
Subcommittee held a joint hearing exploring several cases of
alleged selective prosecution, including the prosecutions of
former Democratic Alabama Governor Don Siegelman, Wisconsin
state government employee Georgia Thompson, and prominent
Pittsburgh Democrat Cyril Wecht. Testimony was received from
former Attorney General Richard Thornburgh, Professor Donald C.
Shields, and former Alabama U.S. Attorney Doug Jones. Part II
of the hearing was held on May 14, 2008, at which testimony was
received from Representative Paul W. Hodes (D-NH), consultant
Allen Raymond, attorney Paul Twomey, and Professor Mark C.
Miller.
Oversight Hearing on the Politicization of the Justice
Department and Allegations of Selective Prosecution
Former White House Deputy Chief of Staff Karl Rove refused
to comply with a subpoena requiring his appearance before the
Commercial and Administrative Law Subcommittee on July 10,
2008, failing to appear for the hearing to answer questions.
Subcommittee Chair Sanchez proceeded to overrule the claims of
immunity and privilege with respect to Mr. Rove, and the ruling
was sustained by Subcommittee Members in a roll call vote of 7-
1.
Oversight Hearing on the Continuing Investigation into the
U.S. Attorneys Controversy and Related Matters
Department of Justice Inspector General Glenn Fine
testified before the Committee on October 3, 2008, regarding
the joint investigation by his office and the Department's
Office of Professional Responsibility into the U.S. Attorney
removals and related matters.
ADDITIONAL OVERSIGHT CONCERNING USE AND ABUSE OF EXECUTIVE AUTHORITY
In addition to its work on the U.S. Attorney firings and
improper politicization in the Justice Department, the
Committee focused significant attention on other oversight
activities concerning use and abuse of Executive authority in
the Bush Administration--including signing statements, clemency
power, and warrantless surveillance. On signing statements, the
Committee helped commission two GAO studies that have provided
the first actual documentation of failure of the Executive
Branch to execute statutory provisions to which the President
objected in signing statements.\49\ On warrantless
surveillance, after a series of hearings and review of
classified and unclassified documents, 23 Committee members
issued a comprehensive statement concerning the legality of the
Administration's program and the issue of retroactive immunity
for telecommunications carriers.\50\
---------------------------------------------------------------------------
\49\ See GAO Informal Opinion B-308603 (June 18, 2007); GAO
Informal Opinion B-309928 (December 20, 2007).
\50\ See ``Statement of Undersigned Members of House Judiciary
Committee Concerning the Administration's Terrorist Surveillance
Program and the Issue of Retroactive Immunity (March 12, 2008).
---------------------------------------------------------------------------
Committee hearings in this area included the following:
Oversight Hearing on Presidential Signing Statements under the Bush
Administration
On January 31, 2007, the Committee held its first hearing
in the 110th Congress. The hearing focused on presidential
signing statements and their use during the Bush
Administration. Witnesses included former Representative Mickey
Edwards; John Elwood, Deputy Assistant Attorney General in the
Office of Legal Counsel; American Bar Association President
Karen Mathis; Harvard law professor Charles Ogletree; and
Georgetown University law professor Nicholas Rosenkranz.
Oversight Hearing on the Use and Misuse of Presidential Clemency Power
for Executive Branch Officials
On July 11, 2007, the Committee held an oversight hearing
focusing on the presidential clemency power. Witnesses included
former Ambassador Joseph C. Wilson IV; Roger Adams from the
Justice Department's Office of the Pardon Attorney; attorney
David Rivkin, Jr.; Ohio State University law professor Douglas
Berman; and Tom Cochran, Assistant Federal Public Defender for
the Middle District of North Carolina.
Oversight Hearing on Warrantless Surveillance and the Foreign
Intelligence Surveillance Act: The Role of Checks and Balances
in Protection of Americans' Privacy Rights
On September 5, 2007, the Committee heard testimony
regarding warrantless surveillance and the Foreign Intelligence
Surveillance Act from witnesses including: former
Representative Bob Barr; former CIA Assistant General Counsel
Suzanne Spaulding; University of Virginia law professor Robert
Turner; and Morton Halperin, Director of U.S. Advocacy at the
Open Society Institute.
Oversight Hearing on Warrantless Surveillance and the Foreign
Intelligence Surveillance Act: The Role of Checks and Balances
in Protection of Americans' Privacy Rights, Part II
On September 18, 2007, the Committee continued its
September 5, 2007, consideration of testimony on warrantless
surveillance and FISA. Witnesses included Director of National
Intelligence Mike McConnell and Assistant Attorney General for
National Security Kenneth Wainstein.
Classified Oversight Hearings on the Foreign Intelligence Surveillance
Act
On February 28, 2008, and March 5, 2008, the Committee held
hearings on the Foreign Intelligence Surveillance Act. These
hearings were classified, and no further information is
publicly available.
Oversight Hearing on Revelations by Former White House Press Secretary
Scott McClellan
On June 20, 2008, the Committee heard testimony from Scott
McClellan, former White House Press Secretary under President
George W. Bush.
Oversight Hearing on Executive Power and its Constitutional Limitations
On July 25, 2008, the Judiciary Committee held a hearing
focusing on the power of the Executive Branch. The first panel
of witnesses included Representatives Maurice Hinchey (D-NY),
Walter Jones (R-NC), Dennis Kucinich (D-OH), and Brad Miller
(D-NC). The second panel included former Representatives
Elizabeth Holtzman and Bob Barr; former Salt Lake City, Utah
Mayor Ross C. ``Rocky'' Anderson, founder and president of High
Roads for Human Rights; Northwestern University law professor
Stephen Presser; former Associate Deputy Attorney General Bruce
Fein; author and former Los Angeles County prosecutor Vincent
Bugliosi; George Mason University law professor Jeremy Rabkin;
Elliott Adams, president of the board at Veterans for Peace;
and Frederick A.O. Schwarz, Jr., senior counsel at the Brennan
Center for Justice.
OVERSIGHT HEARINGS OF EXECUTIVE BRANCH AGENCIES
In addition to the oversight hearings described above, the
Committee also held a number of oversight hearings on Executive
Branch agencies, including the Department of Justice, the
Federal Bureau of Investigation, and the Department of Homeland
Security.
In addition to the hearing with Attorney General Alberto
Gonzales described above, which focused largely on the U.S.
Attorney controversy and related matters, the Committee held
two other oversight hearings on the Department of Justice.
During those hearings, the Committee learned from Attorney
General Michael Mukasey, among other things, that he would not
authorize a criminal investigation into the CIA's use of
waterboarding because the CIA had relied on the Department's
legal advice. Mr. Mukasey also expressed reluctance to provide
the Committee with all Office of Legal Counsel opinions on
issues of national security and presidential power, claiming
that they pertain to the deliberative process of the Executive
Branch.
The Committee also held three oversight hearings on the
FBI, all with FBI Director Robert S. Mueller III. In these
hearings, the Committee learned more about the incident in
which then Deputy Attorney General Jim Comey dispatched
Director Mueller to Attorney General John Ashcroft's hospital
room on March 10, 2004, when White House Counsel Alberto
Gonzales and White House Chief of Staff Andrew Card attempted
to get an ill Mr. Ashcroft to sign off on the Administration's
warrantless surveillance program. The Committee also learned
that Director Mueller had taken notes of these events, a
redacted version of which he produced in response to the
Committee's July 26, 2007 request.
Additionally, the Committee learned that Director Mueller
had removed his agents from engaging in CIA enhanced
interrogation techniques because it was not the FBI's protocol
to use coercion in its interrogations or questioning. He
further explained that the FBI contacted the Defense Department
and the Justice Department regarding CIA interrogation
techniques the FBI thought might be inappropriate. The
Committee also learned that the FBI was in discussions with the
National Academy of Sciences to do an independent review of the
scientific evidence obtained in the anthrax investigation
(Amerithrax).
As part of the Committee's oversight of the FBI, the
Committee also held a hearing on the Inspector General's March
2007 Report on the FBI's use of National Security Letters
(NSLs). From that hearing, and the report itself, the Committee
learned that the FBI had inaccurately reported to Congress the
number of NSLs it had issued, and had engaged in illegal uses
of NSLs, including using so-called ``exigent letters''--
emergency requests for telephone and other data--in non-
emergencies without even a pending investigation, as a means to
bypass normal NSL procedures. Following the release of the IG
report, the FBI has reportedly abandoned this improper use of
exigent letters.
Oversight Hearing on ``The Inspector General's Independent Report on
the FBI's Use of National Security Letters''
On March 20, 2007, the Committee held a hearing regarding a
March 2007 report by the Inspector General of the Justice
Department, on the FBI's use of National Security Letters.
Witnesses included Glenn Fine, Justice Department Inspector
General, and Valerie Caproni, FBI General Counsel.
Oversight Hearing on the United States Department of Justice
On May 10, 2007, the Committee held an oversight hearing on
the Department of Justice. The sole witness was Attorney
General Alberto Gonzales.
Oversight Hearing on the Federal Bureau of Investigation
On July 26, 2007, the Committee held an oversight hearing
on the Federal Bureau of Investigation. The witness was FBI
Director Robert S. Mueller III.
Oversight Hearing on the Department of Justice
On February 7, 2008, newly-confirmed Attorney General
Michael B. Mukasey appeared at an oversight hearing on the
Department of Justice.
Oversight Hearing on the Department of Homeland Security
On March 5, 2008, the Committee conducted its first-ever
full-Committee oversight hearing on the Department of Homeland
Security since Congress created the agency in 2005. Secretary
Michael Chertoff testified before the Committee to discuss
several areas over which the Committee has jurisdiction,
including immigration, border security, and criminal
enforcement by DHS.
Oversight Hearing on the Federal Bureau of Investigation
On April 23, 2008, the Judiciary Committee held an
oversight hearing on the Federal Bureau of Investigation. FBI
Director Robert S. Mueller III was the sole witness.
Oversight Hearing on the Department of Justice
Attorney General Michael B. Mukasey testified again before
the Committee at its July 23, 2008 oversight hearing on the
Department of Justice.
Oversight Hearing on the Federal Bureau of Investigation
On September 16, 2008, the Committee heard testimony again
from FBI Director Robert S. Mueller III.
OTHER COMMITTEE OVERSIGHT HEARINGS
Oversight Hearing on Jena 6 and the Role of Federal Intervention in
Hate Crimes and Race-Related Violence in Public Schools
On October 16, 2007, the Committee held a hearing on
concerns that improper race-related factors had tainted the
administration of justice following events at a public high
school in Jena, Louisiana, involving six African American
students who became known as The Jena 6. The day after African
American students at the high school had sat together under a
tree where white students had usually congregated, three nooses
were found hanging from the tree. Tensions escalated, and a
fight broke out. No one was seriously injured; one white
student received medical attention, but was able to participate
in a school program later that same day. The white students
received only brief school suspensions; the African American
students were not only expelled, but were arrested and charged
as adults with felony offenses, including attempted murder. No
charges were brought against the white students involved in the
fight, or against the noose-hangers. These events garnered
national attention.
At the hearing, the Committee heard testimony from: Lisa
Krigsten, Counsel to the Assistant Attorney General in the
Civil Rights Division; Donald Washington, U.S. Attorney for the
Western District of Louisiana; Richard Cohen, President and
C.E.O. of the Southern Poverty Law Center; the Reverend Alfred
C. Sharpton, President, National Action Network; Harvard Law
Professor Charles Ogletree; and the Reverend Brian Moran,
Pastor of the Jena Antioch Baptist Church and President of the
NAACP Jena Chapter. The hearing focused on the events and their
community impacts, the federal guidelines for prosecuting
juveniles as adults, and the role of the Department of
Justice's Community Relations Service.
Oversight Hearing on Sex Crimes and the Internet
On October 17, 2007, the Committee held a hearing on
combating the use of the Internet to facilitate the commission
of sex crimes against children. Witnesses at the hearing
included: Alicia Kozakiewicz; Representatives Earl Pomeroy (D-
N), Nick Lampson (D-TX), Marilyn Musgrave (R-CO), Christopher
P. Carney (D-PA), Debbie Wasserman Schultz (D-FL), and Cathy
McMorris Rodgers (R-WA); Michael A. Mason, Executive Assistant
Director of the FBI's Criminal Cyber Response and Services
Branch; Laurence E. Rothenberg, Deputy Assistant Attorney
General in the Office of Legal Policy; Flint Waters of the
Wyoming Internet Crimes Against Children Task Force; Michelle
Collins, Director of the Exploited Child Division at the
National Center for Missing and Exploited Children; Grier Weeks
of Protect, Inc.; John Ryan, General Counsel of AOL; and
Elizabeth Banker, Assistant General Counsel of Yahoo! Inc.
Oversight Hearing on Establishing Consistent Enforcement Policies in
the Context of Online Wagers
On November 14, 2007, the Committee held a hearing to
examine the selective nature of the federal government's
enforcement efforts in the area of online gambling. The hearing
also considered the Treasury Department's proposed regulations
implementing the Unlawful Internet Gambling Enforcement Act of
2006, and examined the impact of the federal ban on online
gambling on the intellectual property industry. Testimony was
received from Representatives Shelley Berkley (D-NV) and Bob
Goodlatte (R-VA); Catherine Hanaway, U.S. Attorney for the
Eastern District of Missouri; Valerie Abend, Assistant
Secretary at the Department of the Treasury; New York
University law professor Joseph Weiler, Director of the Jean
Monnet Center for International and Regional Economic Law and
Justice; Annie Duke of the Poker Players Alliance; Thomas
McClusky, Vice President of Government Affairs at the Family
Research Council; and Michael Colopy, Vice President for
Communications at Aristotle Inc.
The Unlawful Internet Gambling Enforcement Act of 2006
(UIGEA) \51\ augmented the federal gambling laws by requiring
U.S. payment systems to identify and block unlawful Internet
gambling transactions. Unlike other gambling laws, it is
specific to Internet gambling. It contains exemptions for
certain activities related to fantasy sports, and is silent on
the legality of various forms of Internet use by the horse
racing industry.
---------------------------------------------------------------------------
\51\ 31 U.S.C. Sec. Sec. 5361-5367.
---------------------------------------------------------------------------
In a case brought by the Government of Antigua and Barbuda,
the World Trade Organization (WTO) ruled that the UIGEA
violated U.S. obligations.\52\ The WTO also held that the U.S.
was not entitled to assert a ``morals'' defense because it
maintains a discriminatory policy with respect to Internet
wagers, declining to prosecute U.S. companies such as off-track
betting parlors and Internet betting operators for offering
online gambling services but prosecuting offshore companies for
doing so. The WTO ruled that Antigua could suspend its
intellectual property obligations as a retaliatory measure.
---------------------------------------------------------------------------
\52\ Appellate Body Report, United States--Measures Affecting the
Cross-Border Supply of Gambling and Betting Services, available at
http://www.wto.org/english/tratop_e/dispu_e/cases_e/ds285_e.htm.
---------------------------------------------------------------------------
In October 2007, the Treasury Department issued proposed
UIGEA implementing regulations.\53\ Despite calls for
postponing the new regulations, amid widespread concern that
the regulations were vague, and costly for financial
institutions to implement, and that compliance could impair
efficiency of the nation's payment system and unduly hamper its
ability to compete with foreign-based enterprises, Treasury
issued a final rule in November 2008.\54\
---------------------------------------------------------------------------
\53\ The comment period ended on December 12, 2007, 72 Fed. Reg.
56680.
\54\ Agencies Issue Final Rule to Implement Unlawful Internet
Gambling Enforcement Act, Release, U.S. Department of the Treasury,
Nov. 12, 2008, available at http://www.ustreas.gov/press/releases/
hp1266.htm.
---------------------------------------------------------------------------
Oversight Hearing on Ensuring Legal Redress for American Victims of
State-Sponsored Terrorism
On June 17, 2008, the Committee held a hearing to examine
the nature of the claims by U.S. nationals--U.S. POWs and
civilians--against the Government of Iraq for harm suffered
under the government of Iraq during the 1991 Gulf War, which
the Bush Administration has blocked. Testimony was received
from Representatives Bruce Braley (D-IA) and Joe Sestak (D-PA),
sponsors of legislation to settle those claims by holding the
Government of Iraq liable for a portion of damages awarded;
from former Ambassador John Norton Moore and attorney Dan Wolf,
counsel for the plaintiffs in two of the cases involved; and
Capt. Lawrence Randolph Slade and George Charchalis, plaintiffs
in those two cases.
Under international law, sovereign nations have generally
been immune from liability in the courts of other nations. As
the level of international interactions has increased, various
exceptions have been recognized; Congress enacted the Foreign
Sovereign Immunities Act of 1978 (FSIA) in an effort to codify
these exceptions as they were then recognized, and has amended
the law since then in an effort to reflect later developments.
One such exception allows a U.S. national who is a victim of a
terrorist act such as torture, extrajudicial killing, or
hostage taking to bring civil suit against a foreign state
involved in committing or facilitating the terrorist act, if
the foreign state is designated as a state sponsor of terrorism
by the State Department at the time the act occurred, or is
later so designated because of the act.\55\ In such cases, any
commercial property of the foreign state located in the U.S.
may be attached in satisfaction of a judgment.\56\ In 1998, in
response to a contrary court ruling,\57\ Congress enacted
legislation to clarify its intent to create a private right of
action.\58\
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\55\ P.L. 104-132, Title II, Sec. 221 (April 23, 1996); 110 Stat.
1241; 28 U.S. C. 1605(a)(7).
\56\ 28 U.S. C. 1610(b)(2).
\57\ Flatow v. Islamic Republic of Iran, 999 F. Supp. 1 (D.D.C.
1998).
\58\ P.L. 104-208, Title I, Sec. 101(c) (Sept. 30, 1996), 110 Stat.
3009-172; codified at 28 U.S.C. Sec. 1605 note.
---------------------------------------------------------------------------
The Executive Branch has resisted, in both the Clinton and
Bush Administrations, using frozen assets of foreign states to
satisfy judgments, variously citing treaty obligations to
protect foreign diplomatic and consular properties, a desire to
maintain the frozen assets for diplomatic leverage, and the
fear that allowing the attachment of frozen assets would
subject U.S. assets in foreign states to similar treatment. In
conjunction with the 2003 war against Iraq, President Bush took
a series of actions to place Iraq's U.S. assets out of reach to
victims of terrorism committed by the Iraqi government during
the first Gulf War. He placed the assets into a Development
Fund for Iraq, dedicated for post-war reconstruction;\59\ and
prohibited attachment of any assets in the Development
Fund;\60\ and declared, based on general authority Congress had
recently granted him to exempt Iraq from laws governing
terrorist-supporting states,\61\ that the terrorism exception
to FSIA would not apply to Iraq.\62\
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\59\ E.O. 13290, 68 Fed. Reg. 14,305-08 (March 24, 2003). Assets
that had previously been ordered attached in satisfaction of judgments
against Iraq were excluded from the Executive Order, as was Iraq's
diplomatic and consular property.
\60\ E.O. 13303, 68 Fed. Reg. 31, 931 (May 28, 2003).
\61\ Emergency Wartime Supplemental Appropriations Act for FY2003,
P.L. 108-11, Sec. 1503 (April 16, 2003).
\62\ Memorandum for the Secretary of State (Presidential
Determination No. 2003-23)(May 7, 2003), available at http://
whitehouse.gov/news/releases/2003/05/20030507-13.html.
---------------------------------------------------------------------------
In the FY 2008 National Defense Authorization Act, Congress
amended FSIA to enable victims whose claims against state
sponsors of terrorism had been dismissed for lack of a federal
cause of action to re-file their claims and enforce judgments
by attaching the defendant state's assets.\63\ President Bush
vetoed the bill, solely on the basis of this provision, and
insisted that it be revised to permit him to waive the
provision as to Iraq. The same day he signed the revised bill
into law,\64\ he exercised his waiver authority.\65\ The Bush
Administration has made no apparent efforts to persuade the
Iraqi government to help the American victims of Iraqi
terrorism obtain relief, as Congress urged in adding the waiver
provision.
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\63\ P.L. 110-181, Sec. 1083.
\64\ P.L. 110-181, Sec. 1083(d).
\65\ White House Memorandum of Justification for Waiver of Section
1083 of the National Defense Authorization Act (January 28, 2008),
available at http://www.whitehouse.gov/news/releases/2008/01/20080128-
12.html.
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The legislation sponsored by Representatives Braley and
Sestak, introduced in response to the veto and waiver, was
approved by the Committee by voice vote on July 30, 2008, and
passed the House by voice vote on September 15, 2008. No
further action occurred before the 110th Congress adjourned.
SUBCOMMITTEE ON COMMERCIAL AND ADMINISTRATIVE LAW \1\
LINDA T. SANCHEZ, California,
Chairwoman
CHRIS CANNON, Utah JOHN CONYERS, Jr., Michigan
JIM JORDAN, Ohio HENRY C. ``HANK'' JOHNSON, Jr.,
RIC KELLER, Florida Georgia
TOM FEENEY, Florida ZOE LOFGREN, California
TRENT FRANKS, Arizona WILLIAM D. DELAHUNT, Massachusetts
MELVIN WATT, North Carolina
STEVE COHEN, Tennessee
Tabulation of subcommittee legislation and activity
Legislation referred to the Subcommittee......................... 50
Legislation reported favorably to the full Committee............. 8
Legislation reported adversely to the full Committee............. 0
Legislation reported without recommendation to the full Committee 0
Legislation reported as original measure to the full Committee... 0
Legislation discharged from the Subcommittee..................... 0
Legislation pending before the full Committee.................... 3
Legislation reported to the House................................ 5
Legislation discharged from the Committee........................ 0
Legislation pending in the House................................. 1
Legislation passed by the House.................................. 5
Legislation pending in the Senate................................ 4
Legislation vetoed by the President.............................. 0
Legislation enacted into public law.............................. 1
Legislation enacted into public law as part of another bill...... --
Legislation on which hearings were held.......................... 15
Days of legislative hearings..................................... 15
Days of oversight hearings....................................... 29
Legislative Activities
ADMINISTRATIVE LAW
H.R. 3564, Regulatory Improvement Act of 2007
Summary.--The Administrative Conference of the United
States (ACUS or Conference) was an independent, nonpartisan
agency devoted to analyzing the administrative law process and
providing guidance to Congress. Although reauthorized on
October 30, 2004,\66\ it was not appropriated funds. In light
of the fact that the Conference's authorization expired on
September 30, 2007, H.R. 3564, the ``Regulatory Improvement Act
of 2007,'' was introduced to reauthorize the Conference. As
enacted, the measure authorizes $3.2 million for each of fiscal
years 2009 through 2011.
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\1\ Subcommittee chairmanship and assignments approved January 26,
2007, and February 28, 2007.
\66\ Federal Regulatory Improvement Act of 2004, Pub. L. No. 108-
401, 118 Stat. 2255 (2004).
---------------------------------------------------------------------------
Legislative History.--On September 18, 2007, Subcommittee
on Commercial and Administrative Law Ranking Member Chris B.
Cannon (R-UT) (for himself and with Subcommittee Chairwoman
Linda Sanchez (D-CA)) introduced H.R. 3564, the ``Regulatory
Improvement Act of 2007,'' which authorizes appropriations for
ACUS for four additional years. On September 19, 2007, the
Subcommittee on Commercial and Administrative Law held a
hearing on H.R. 3564. Witnesses included: Professor Jody
Freeman, Harvard Law School; Mort Rosenberg, Congressional
Research Service; Curtis Copeland, Congressional Research
Service; and Professor Jeffrey S. Lubbers, Washington College
of Law, American University, with additional material submitted
by the American Bar Association, and correspondence from
Justices Stephen Breyer and Antonin Scalia. On September 19,
2007, the Subcommittee ordered the bill favorably reported
without amendment by voice vote. On October 10, 2007, the
Committee ordered the bill favorably reported without amendment
by voice vote. On October 18, 2007, the Committee reported H.R.
3564 as H. Rept. No. 110-390 (2007). On October 22, 2007, the
House passed the bill under suspension of the rules by voice
vote. Thereafter, the Senate, on June 27, 2008, by unanimous
consent passed the bill with an agreed amendment by Senator
Coburn to modify the measure's authorization of appropriations.
On July 14, 2008, the House, under suspension of the rules,
agreed to the Senate amendment by voice vote. The bill was
signed into law by the President on July 30, 2008 as Public Law
No. 110-290.
H.R. 5593, the ``Congressional Review Act Improvement Act''
Summary.--The Congressional Review Act (CRA) is a
congressional review mechanism of agency rules. The CRA
requires all agencies promulgating a rule \67\ to submit a
report to both Houses of Congress and to the Comptroller
General at the Government Accountability Office (GAO). This
report would contain a copy of the rule, a concise general
statement describing the rule (including whether it is a major
rule \68\), and the proposed effective date of the rule.\69\
H.R. 5593 amends the CRA to reduce administrative burdens and
duplicative paperwork by repealing the requirement that
agencies submit copies of final rules and reports thereon to
both the House and Senate. The bill requires the House and
Senate to receive a weekly list of all final rules published in
the Federal Register from the Comptroller General and to have
such list printed in the Congressional Record with a statement
of referral for each rule. Agencies would still be required to
submit copies of final rules and reports thereon to the House
and Senate that were not printed in the Federal Register. The
bill does not affect the authority of Congress under the CRA to
disapprove an agency rule.
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\67\ The term rule ``means the whole or part of an agency statement
of general . . . applicability and future effect designed to implement,
interpret, or prescribe law or policy.'' 5 U.S.C. Sec. 804(3).
\68\ A major rule is defined as a rule that will likely have an
annual effect on the economy of $100 million or more, increase costs or
prices for consumers, industries or state and local governments, or
have significant adverse effects on the econonmy.
\69\ 5 U.S.C. Sec. Sec. 801-808. On March 29, 1996, President Bill
Clinton signed the Small Business Regulatory Enforcement Fairness Act
of 1996, P.L. 104-121, 110 Stat. 857-874. Subtitle E of that Act
established the procedures for congressional review of agency rules.
---------------------------------------------------------------------------
Legislative History.--On March 11, 2008, Subcommittee Chair
Linda Sanchez introduced H.R. 5593, ``Congressional Review Act
Improvement Act,'' with Chairman John Conyers, Ranking Member
Lamar Smith, and Subcommittee Ranking Member Chris Cannon as
original cosponsors. The Subcommittee met in open session on
April 24, 2008 and ordered H.R. 5593 favorably reported,
without amendment, by voice vote, a quorum being present. On
April 31, 2008, the Committee met in open session and ordered
the bill H.R. 5593 favorably reported without amendment, by
voice vote, a quorum being present. H.R. 5593 passed the House
by voice vote on the suspension calendar on June 9, 2008.
BANKRUPTCY
H.R. 3609, the ``Emergency Home Ownership and Mortgage Equity
Protection Act of 2007''
Summary.--During the 110th Congress, the nation's mortgage
foreclosure crisis approached ``heights not seen since the
Great Depression.'' \70\ The societal and economic costs of
home foreclosures devastated American families, their
neighbors, communities and municipalities across the United
States. Foreclosures depress home values across entire
communities. A single foreclosure ``could impose direct costs
on local government agencies totaling more than $34,000.'' \71\
---------------------------------------------------------------------------
\70\ Nelson D. Schwartz, Can the Mortgage Crisis Swallow a Town?,
N.Y. Times, Sept. 4, 2007.
\71\ William C. Apgar et al., The Municipal Cost of Foreclosures: A
Chicago Case Study, Homeownership Preservation Foundation Housing
Finance Policy Research Paper No. 2005-1, at 1 (Feb. 27, 2005).
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Unfortunately, a loophole in the current bankruptcy law has
exacerbated the problem by not allowing American families
facing foreclosure to modify their home mortgages as part of
their bankruptcy reorganization. Under Chapter 13 bankruptcy (a
form of bankruptcy relief whereby an individual must repay his
or her debts out of future earnings), a homeowner cannot
address the problems that most likely triggered the
foreclosure, i.e., exploding adjustable rate mortgages,
prepayment penalties, and hidden fees. Although Chapter 13
prohibits home mortgages from being modified, virtually every
other type of debt--secured and unsecured--can be modified,
including mortgages secured by vacation homes and investment
properties.
Legislative History.--On September 25, 2007, the
Subcommittee on Commercial and Administrative Law held a
hearing on ``Straightening Out the Mortgage Mess: How Can We
Protect Home Ownership and Provide Relief to Consumers in
Financial Distress?'' Witnesses included: the Honorable Marilyn
Morgan, United States Bankruptcy Court for the Northern
District of California; Steve Bartlett, President and CEO,
Financial Services Roundtable, Washington, D.C.; Eric Stein,
President, Center for Community Self-Help on behalf of the
Center for Responsible Lending; and John Rao with the National
Consumer Law Center, Inc. on behalf of the National Association
of Consumer Bankruptcy Attorneys.
On September 20, 2007, Rep. Brad Miller (D-NC) introduced
H.R. 3609, the ``Emergency Home Ownership and Mortgage Equity
Protection Act of 2007,'' to address the shortcoming in current
law by allowing bankruptcy judges to modify the terms of
certain home mortgages for primary residences, under specified
circumstances.
On October 4, 2007, the Subcommittee ordered H.R. 3609
reported favorably without amendment by a roll call vote of 5
to 4.
On October 30, 2007, the Subcommittee held a hearing on
``Straightening Out the Mortgage Mess: How Can We Protect Home
Ownership and Provide Relief to Consumers in Financial
Distress?--Part II.'' Witnesses included: William E. Brewer,
Jr., Esq. on behalf of the National Association of Consumer
Bankruptcy Attorneys; David G. Kittle, Chairman-Elect, Mortgage
Bankers Association; Mark M. Zandi, Ph.D., Chief Economist,
Moody's Economy.com, Inc.; and Richard Levin on behalf of the
National Bankruptcy Conference.
On November 7, 2007 the Committee commenced its markup of
the measure, which was concluded on December 12, 2007. The bill
was ordered to be reported favorably, as amended, by a roll
call vote of 17 to 15. No report was filed.
On January 29, 2008, the Subcommittee held a hearing on the
``Growing Mortgage Foreclosure Crisis: Identifying Solutions
and Dispelling Myths.'' Witnesses included: Former Secretary of
the U.S. Department of Housing and Urban Development Jack Kemp;
Wade Henderson, President and CEO of the Leadership Conference
on Civil Rights; David G. Kittle, Chairman-Elect, Mortgage
Bankers Association; Mark M. Zandi, Ph.D., Chief Economist,
Moody's Economy.com, Inc.; Faith Schwartz, Executive Director,
HOPE NOW Alliance; John Dodds, Director, Philadelphia
Unemployment Project; and James H. Carr, Chief Operating
Officer, National Community Reinvestment Corporation.
No further action was taken on the measure during the 110th
Congress.
H.R. 4044, a bill to amend the Bankruptcy Abuse Prevention and Consumer
Protection Act of 2005 to exempt from the means test in
bankruptcy cases, for a limited period, qualifying reserve-
component members who, after September 11, 2001, are called to
active duty or to perform a homeland defense activity for not
less than 60 days; S. 3197, the ``National Guard and Reservists
Debt Relief Act of 2008''
Summary.--The Bankruptcy Abuse Prevention and Consumer
Protection Act of 2005 (the 2005 Bankruptcy Act) was signed
into law by President George W. Bush on April 20, 2005.\72\ The
2005 Bankruptcy Act effected the most comprehensive overhaul of
bankruptcy law in more than 25 years, particularly with respect
to consumer bankruptcy. These consumer bankruptcy amendments
included, for example, the establishment of a means testing
mechanism to determine a debtor's ability to repay debts. Under
this test, a Chapter 7 bankruptcy case is presumed to be an
abuse if it appears that the debtor has income in excess of
certain thresholds.
---------------------------------------------------------------------------
\72\ Pub. L. No. 109-8, 119 Stat. 23 (2005).
---------------------------------------------------------------------------
Legislative History.--On November 1, 2007, Rep. Janice
Schakowsky (D-IL) introduced H.R. 4044, a bill to amend the
Bankruptcy Abuse Prevention and Consumer Protection Act of 2005
to exempt from the means test in bankruptcy cases, for a
limited period, qualifying reserve-component members who, after
September 11, 2001, are called to active duty or to perform a
homeland defense activity for not less than 60 days. The bill
would have exempted certain qualifying National Guard members
and reserve component members of the Armed Services from the
means test's presumption of abuse. This bipartisan legislation
was intended to respond to the fact that some who serve in the
National Guard and the Reserves encounter financial
difficulties during or in the wake of their service and that
they merit relief from the additional proof requirements of the
means test.
On April 1, 2008, the Subcommittee on Commercial and
Administrative Law held a hearing on H.R. 4044. Witnesses
included: Representatives Janice Schakowsky (D-IL) and Dana
Rohrabacher (R-CA); Raymond C. Kelley, National Legislative
Director of AMVETS; Professor Jack Williams on behalf of the
American Bankruptcy Institute; and Ed Boltz, Esq. on behalf of
the National Association of Consumer Bankruptcy Attorneys. On
April 24, 2008, the Subcommittee ordered the bill favorably
reported, with an amendment, by voice vote. On April 30, 2008
and on June 11, 2008, the Committee met in open session and
ordered the bill favorably reported on June 11, 2008, with an
amendment, by voice vote. On June 20, 2008, the Committee
reported the bill, as amended, as H. Rept. No. 110-726. On June
23, 2008, the House passed the bill, as amended, under
suspension of the rules by voice vote. The bill was received in
the Senate on the following day and referred to the Committee
on the Judiciary.
Although no further action on this measure was taken,
Senator Dick Durbin (D-IL), on June 26, 2008, introduced S.
3197, the ``National Guard and Reservists Debt Relief Act of
2008,'' a bill that was substantially identical to H.R. 4044,
as ordered to be reported by the House Committee on the
Judiciary. On September 30, 2008, the Senate passed S. 3197
with an amendment on unanimous consent. On October 2, 2008, the
House began its consideration of the bill and, on the following
day, the House passed the bill under suspension of the rules by
a roll call vote of 411 to 0. On October 20, 2008, the measure
was signed into law by the President as Public Law No. 110-438.
H.R. 7328, the ``Homeowners' Protection Act of 2008''
Summary.--As of December 2008, reports indicated that a
record ten percent of all American homeowners with mortgages
were either facing foreclosure or otherwise delinquent on their
payments.\73\ That same month, Credit Suisse released its
estimate that 8.1 million families could lose their homes to
foreclosure by the end of 2012 and that if the recession
becomes severe, which seems increasingly possible every day,
the number of foreclosures could rise to 10.2 million.\74\
Further, the chief regulator of national banks acknowledged
that most U.S. mortgages modified in a voluntary effort to keep
struggling borrowers in their homes and stem foreclosures fell
back into delinquency within six months.\75\ Voluntary mortgage
modifications do not work in part because many mortgages have
been securitized, which makes reaching an agreement among all
those who have an interest in a mortgage extremely difficult.
The problem is further compounded by the fact that some
investors have sued while others have threatened to sue
servicers if they modify these loans.
---------------------------------------------------------------------------
\73\ Kathleen M. Howley, Mortgage Delinquencies, Foreclosures Rise
to Record, Bloomberg.com (Dec. 5, 2008).
\74\ Credit Suisse, Foreclosure Update: Over 8 Million Foreclosures
Expected, Fixed Income Research (Dec. 4, 2008).
\75\ Alison Vekshin, Majority of Modified Loans Fail Again,
Regulator Says, Bloomberg.com (Dec. 8, 2008).
---------------------------------------------------------------------------
Legislative History.--On December 10, 2008, Chairman John
Conyers, Jr. (for himself and Representatives William Delahunt
(D-MA) and Jerrold Nadler (D-NY)) introduced H.R. 7328, the
``Homeowners' Protection Act of 2008.'' The bill was not
further considered prior to the end of the 110th Congress.
U.S. ATTORNEYS INVESTIGATION
Hearing on H.R. 580, ``Restoring Checks and Balances in the
Confirmation Process of U.S. Attorneys''
Summary.--On March 9, 2006, the Republican-led Congress at
the behest of the Bush administration amended the USA PATRIOT
Act with respect to interim appointment of U.S. Attorneys.\76\
The amendment eliminated judicial input in the interim
appointment process and, perhaps more importantly, conferred
unprecedented authority that could permit U.S. Attorneys
appointed on an interim basis to serve indefinitely without
Senate confirmation. Documents from the Justice Department
indicated that some Administration officials had considered the
use of this authority to replace fired U.S. Attorneys with
party loyalists. Representative Howard Berman (D-CA) introduced
H.R. 580, which sought to restore the interim appointment
process to the procedure in place prior to the 2005 amendment.
---------------------------------------------------------------------------
\76\ USA PATRIOT Improvement and Reauthorization Act of 2005, Pub.
L. No. 109-177, tit. V, Sec. 502, 120 Stat. 246 (2006).
---------------------------------------------------------------------------
The Subcommittee held a hearing on March 6, 2007 in order
to further probe the U.S. Attorney firings, the rationale for
the 2005 amendment to the USA PATRIOT Act, the merits of H.R.
580, and other related matters. Witnesses at the hearing
included: Carol C. Lam, former United States Attorney for the
Southern District of California; David C. Iglesias, former
United States Attorney for the District of New Mexico; H.E.
Cummins III, former United States Attorney for the Eastern
District of Arkansas; John McKay, former United States Attorney
for the Western District of Washington; Daniel Bogden, former
United States Attorney for the District of Nevada; Paul K.
Charlton, former United States Attorney for the District of
Arizona; William E. Moschella, Principal Associate Deputy
Attorney General, Department of Justice; John A. Smietanka,
partner with Smietanka, Buckleitner, Steffes & Gezon and former
Untied States Attorney for the Western District of Michigan;
T.J. Halstead, Legislative Attorney, American Law Division,
Congressional Research Service; Atlee W. Wampler III, President
of the National Association of Former United States Attorneys;
Representative Darrell Issa (R-CA); former Representative Asa
Hutchinson (R-AR); and George Terwilliger, former Deputy
Attorney General of the Department of Justice.
Legislative History.--After the hearing on H.R. 580 on
March 6, 2007, the Committee met in open session on March 15,
2007 and ordered the bill H.R. 580 favorably reported with an
amendment, by voice vote, a quorum being present. H.R. 580, as
amended by the Committee, is intended to clarify that section
546 of title 28 of the United States Code is the exclusive
means for appointing an individual to temporarily preform the
functions of a United States Attorney for a district in which
the office of United States Attorney is vacant. It specifies
that such individual may serve until the earlier of either: (1)
the qualification of a United States Attorney appointed by the
President pursuant to section 541 of title 28 of the United
States Code; or (2) the expiration of 120 days after
appointment by the Attorney General of the individual as
interim United States Attorney. Upon the expiration of 120
days, and if no permanent United States Attorney has been
appointed with Senate confirmation, the district court for such
district may appoint a United States Attorney to serve until
the vacancy is filled.
On March 26, 2007, H.R. 580 as amended passed in the House
on the suspension calendar by a recorded vote of 329-78. On May
22, 2007, the House passed companion legislation (S. 214 as
amended) on the suspension calendar by a recorded vote of 306-
114. S. 214 as amended became Public Law No. 110-34.
STATE TAXATION AFFECTING INTERSTATE COMMERCE
H.R. 3359, the ``Mobile Workforce State Income Tax Fairness and
Simplification Act of 2007''
Summary.--H.R. 3359, the ``Mobile Workforce State Income
Tax Fairness and Simplification Act of 2007,'' would provide
for a uniform law setting at 60 work days within a calendar
year before businesses are required to withhold state income
taxes on its employees and employees are liable for paying
those taxes. The legislation exempts certain individuals
(professional athletes, entertainers, and certain public
figures) from the threshold, and allows states immediately to
impose state income taxes on those individuals.
Legislative History.--Representative Hank Johnson (D-GA)
introduced H.R. 3359 on August 3, 2007. On November 1, 2007,
the Subcommittee held a hearing on the legislation. Witnesses
who testified at the hearing included: Mr. Harley Duncan,
Executive Director of the Federation of Tax Administrators; Mr.
Douglas Lindholm, President and Executive Director of the
Council on State Taxation; Ms. Dee Nelson, a payroll manager at
Afognak Native Corp., Alutiiq LLC, and Subsidiaries, and
representing the American Payroll Association; and Mr. Walter
Hellerstein, a professor at the University of Georgia Law
School. The Subcommittee took no further action on H.R. 3359
prior to the end of the 110th Congress.
H.R. 3396, the ``Sales Tax Fairness and Simplification Act''
Summary.--H.R. 3396, the ``Sales Tax Fairness and
Simplification Act,'' would convey the sense of the Congress
that the Streamlined Sales and Use Tax Agreement (``SSUTA'')
meets the minimum simplification requirements to warrant
Congressional approval for States that implement the SSUTA to
require remote sellers to collect sales and use taxes. Notably,
H.R. 3396 would (1) authorize Member States to require the
collection and remittance of sales and use taxes by remote
sellers only after at least ten States, comprising at least
twenty percent of the total population of all states imposing a
sales tax, have become Member States and, (2) would provide for
an exemption from the requirement for remote sellers to collect
and remit sales and use taxes if the remote seller and its
affiliates collectively had gross remote annual taxable sales
nationwide of less than $5,000,000 in the calendar year
preceding the date of such sale or if the seller and its
affiliates collectively meet the $5,000,000 threshold, but have
less than $100,000 in gross remote taxable sales nationwide.
H.R. 3396 also imposes minimum simplification requirements for
the SSUTA, including a centralized, multi-state registration;
uniform definitions of products and product based exemptions;
uniform rules for sourcing; single, state level administration
of sales taxes; and, reasonable seller compensation for
expenses incurred by a seller for collecting and remitting
sales and use taxes.
Legislative History.--Representative William Delahunt (D-
MA) introduced H.R. 3396 on August 3, 2007. On December 6,
2007, the Subcommittee held a hearing on the legislation.
Witnesses who testified at the hearing included: Ms. Joan
Wagnon, Secretary of Revenue for the State of Kansas, and
President of the Streamlined Sales Tax Governing Board; Mr.
Wayne Zakrzewski, Vice President and Associate General Counsel
of Tax for J.C. Penney Corporation, Inc., and appearing on
behalf of the National Retail Federation; Mr. George Isaacson,
Senior Partner at Brann & Isaacson, and appearing on behalf of
the Direct Marketing Association; and Honorable Steven J.
Rauschenberger, Past President of the National Conference of
State Legislatures. The Subcommittee took no further action on
H.R. 3396 prior to the end of the 110th Congress.
H.R. 3679, the ``State Video Tax Fairness Act of 2007''
Summary.--H.R. 3679, the ``State Video Tax Fairness Act of
2007,'' would prohibit states from imposing discriminatory
taxes on any television service provider. This would include
services provided by satellite and cable television companies.
H.R. 3679 also defines ``discriminatory tax'' as ``any form of
direct or indirect tax that results in different net State
charges being imposed on substantially equivalent multichannel
video programming services based on the means by which those
services are delivered.''
Legislative History.--Chairman John Conyers, Jr. (D-MI)
introduced H.R. 3679 on September 27, 2007. On February 14,
2008, the Subcommittee held a hearing on the legislation.
Witnesses who testified at the hearing included: Mr. Mike
Palkovic, Executive Vice President of Operations at DirecTV;
Mr. Howard J. Symons, an attorney at Mintz, Levin, Cohn,
Ferris, Glovsky and Popeo, P.C., and representing the National
Cable and Telecommunications Association; Ms. Kristina
Rasmussen, the Director of Government Affairs at the National
Taxpayers Union; and Mr. David Quam, Director of Office of
Federal Relations for the National Governors Association. On
July 24, 2008, the Subcommittee marked up H.R. 3679, and
ordered it to be favorably reported, as amended, by voice vote.
The bill as amended added the word ``technology'' to ``Internet
protocol'' to conform with the description in certain state tax
laws of this method of delivering multichannel video
programming services. The bill as amended also clarified when a
state tax law or taxation system will constitute a
``discriminatory tax'' under the Act, to eliminate any possible
ambiguity that state tax discrimination is impermissible in all
its forms. The bill as amended also contained a grandfather
clause that limits the scope of this Act to provide that the
Act will not apply to any state tax law or taxation system in
effect prior to January 1, 2008. The six states most affected
by this provision are Florida, Kentucky, North Carolina, Ohio,
Tennessee, and Utah. The Committee took no further action on
H.R. 3679 prior to the end of the 110th Congress.
H.R. 5267, the ``Business Activity Tax Simplification Act of 2008''
Summary.--H.R. 5267, the ``Business Activity Tax
Simplification Act of 2008,'' would prohibit state taxation of
interstate commerce of out-of-state transactions involving all
forms of property, including intangible personal property and
services (currently, only sales of tangible personal property
are protected), and would prohibit state taxation of an out-of-
state entity unless such entity has a physical presence in the
taxing state. H.R. 5267 would effectively eliminate the current
economic presence standard followed by most state governments
for decades by prohibiting a State from imposing a business
activity tax on any person unless such person has a physical
presence in the State. ``Physical presence'' is established
only if the business activities within the state include any of
the following: the person has employees in a State; the person
uses a third party to provide services that enhance or maintain
the person's market in a State, unless the third party performs
market-enhancing services for at least one other business; or
the person leases or owns tangible personal property or real
property in a State. H.R. 5267 also provides that ``physical
presence'' does not include de minimis physical presence,
defined to include a presence in a state for up to 14 days in a
taxable year (or a greater number of days if provided by State
law) or presence in a state to conduct limited or transient
business activity. H.R. 5267 would also amend Public Law 86-272
by striking references to ``tangible personal property,''
thereby extending the prohibition on the imposition by States
of net income taxes where the only business activity of a
company is the solicitation in connection with all sales and
transactions, not just sales of tangible personal property.
Legislative History.--Representative Rick Boucher (D-VA)
introduced H.R. 5267 on February 7, 2008. On June 24, 2008, the
Subcommittee held a hearing on the legislation. Witnesses who
testified at the hearing included: Representative Rick Boucher
(D-VA), who introduced H.R. 5267; Representative Bob Goodlatte
(R-VA), who introduced earlier versions of H.R. 5267 in prior
Congresses; Mr. Mark Ducharme, Vice President and CFO of
Monterey Boats; Mr. R. Bruce Johnson, Commissioner of the Utah
State Tax Commission; Mr. Michael Petricone, Vice President of
Technology Policy at the Consumer Electronics Association; and
Mr. David C. Quam, Director of Office of Federal Relations at
the National Governors Association. The Subcommittee took no
further action on H.R. 5267 prior to the end of the 110th
Congress.
H.R. 5793, the ``Cell Tax Fairness Act of 2008''
Summary.--H.R. 5793, the ``Cell Tax Fairness Act of 2008,''
would impose on states a five-year moratorium on any new
discriminatory taxes on mobile services, mobile service
providers, and mobile service property. H.R. 5793 sets forth
the rules of construction to determine whether a new tax is
discriminatory, sets the burden of proof a party seeking relief
must meet when bringing proceedings under the Act, and allows
for specific relief for that party.
Legislative History.--Representative Zoe Lofgren (D-CA)
introduced H.R. 5793 on April 15, 2008. On September 18, 2008,
the Subcommittee held a hearing on the legislation. Witnesses
who testified at the hearing included: Honorable Gail W.
Mahoney, Commissioner of Jackson County, Michigan, and
testifying on behalf of the National Association of Counties;
Honorable James Clayborne, Illinois State Senator; Mr. Scott
Mackey, Esq., an attorney at Kimbell Sherman Ellis; and Mr.
Tillman L. Lay, Esq., an attorney at Spiegel & McDiarmid LLP,
and testifying on behalf of the U.S. Conference of Mayors, the
National League of Cities, the Government Finance Officers
Association, and the National Association of Telecommunications
Officers and Administrators. The Subcommittee took no further
action on H.R. 5793 prior to the end of the 110th Congress.
Legislative Hearing on the ``Internet Tax Freedom Act''
Summary.--The Internet Tax Freedom Act (ITFA) was enacted
on October 21, 1998 as Public Law No. 105-277. The ITFA placed
a 3-year moratorium on the ability of State and local
governments to (1) impose new taxes on Internet access, or (2)
impose any multiple or discriminatory taxes on electronic
commerce. The ITFA also grandfathered the State and local
access taxes that were ``generally imposed and actually
enforced prior to October 1, 1998.'' This initial Internet tax
moratorium expired on October 21, 2001. The Internet Tax
Nondiscrimination Act was then enacted on November 28, 2001 as
Public Law No. 107-75. It provided for a 2-year extension of
the prior moratorium, through November 1, 2003. The Internet
Tax Nondiscrimination Act of 2003 was enacted on December 3,
2004, as Public Law No. 108-435. It extended the moratorium for
an additional 4 years through November 1, 2007. Taxes on
Internet access that were in place before October 1, 1998, were
protected by a grandfather clause.
Legislative History.--On July 26, 2007, the Subcommittee
held a hearing on proposed legislation amending the Internet
Tax Freedom Act. The Subcommittee reviewed the issues
concerning the ITFA through two legislative bills (H.R. 743 and
H.R. 1077). Witnesses who testified at the hearing included:
Representative John Campbell (R-CA); Representative Anna G.
Eshoo (D-CA); Mr. David C. Quam, Director of Office of Federal
Relations at the National Governors Association; and Ms.
Meredith Garwood, Vice President Tax Policy at Time Warner
Cable. The Subcommittee took no further action on H.R. 743 or
H.R. 1077.
FEDERAL ARBITRATION ACT
H.R. 3010, the ``Arbitration Fairness Act of 2007''
Summary.--H.R. 3010, the ``Arbitration Fairness Act of
2007,'' would amend the Federal Arbitration Act to require that
agreements to arbitrate employment, consumer, franchise, or
civil rights disputes may be valid and enforceable only if they
were made voluntarily and after the dispute had arisen. H.R.
3010 would expand exemptions from the FAA to include
``employment dispute'', ``consumer dispute'', and ``franchise
dispute''. H.R. 3010 also would require a court rather than an
arbitrator to decide whether the Federal Arbitration Act
applies to disputes over contracts which include arbitration
clauses. Notably, H.R. 3010 would apply to claims and disputes
arising on or after the date of enactment of the legislation.
Legislative History.--Representative Hank Johnson (D-GA)
introduced H.R. 3010 on July 12, 2007. On October 25, 2007, the
Subcommittee held a hearing on the legislation. Witnesses who
testified at the hearing included: Ms. Laura MacCleery,
Director of Public Citizen's Congress Watch Division; Mr.
Richard Naimark, Senior Vice President of the American
Arbitration Association; Honorable Roy E. Barnes, of the The
Barnes Law Group, LLC; Mr. Ken Connor, an attorney with Wilkes
& McHugh, P.A.; Ms. Deborah Williams, a franchisee from
Maryland; Ms. Cathy Ventrell-Monsees, an attorney with the Law
Offices of Cathy Ventrell-Monsees, on behalf of the National
Employment Lawyers Association; Peter Rutledge, a professor at
the Catholic University of America, Columbus School of Law; and
Mr. Theodore G. Eppenstein, Esq., an attorney with Eppenstein
and Eppenstein. On July 15, 2008, the Subcommittee marked up
H.R. 3010, and ordered it to be favorably reported, by voice
vote. The Committee took no further action on H.R. 3010 prior
to the end of the 110th Congress.
H.R. 5312, the ``Automobile Arbitration Fairness Act of 2008''
Summary.--H.R. 5312, the ``Automobile Arbitration Fairness
Act of 2008,'' would amend the Federal Arbitration Act to
require that agreements to arbitrate motor vehicle consumer
sales or lease contracts may be valid and enforceable only if
they were made after the dispute had arisen. H.R. 5312 would
extend to consumers what motor vehicle dealers received in 2002
with the enactment of legislation requiring consent by both
parties to a motor vehicle franchise contract to arbitrate a
dispute. Leading up to the passage of that legislation, the
National Automobile Dealers Association, the primary group
supporting that legislation, stated that it would not oppose
future legislation limiting the use of mandatory binding
arbitration agreements. H.R. 5312 would provide that any party
to the arbitration agreement may request a written decision
from the arbitrator. H.R. 5312 also would provide that the
amendments made by this legislation will apply only to
contracts made, modified, or renewed on or after the date of
enactment of this legislation.
Legislative History.--Representative Linda Sanchez
introduced H.R. 5312 on February 7, 2008. On March 6, 2008, the
Subcommittee held a hearing on the legislation. Witnesses who
testified at the hearing included: Ms. Rosemary Shahan,
President of Consumers for Automobile Reliability and Safety;
Ms. Erika Rice, a consumer from Ohio; Mr. Richard Naimark,
Senior Vice President of the American Arbitration Association;
and Mr. Hallen Rosner, Esq., an attorney with Rosner &
Mansfield, LLP. On July 15, 2008, the Subcommittee marked up
H.R. 5312, and ordered it to be favorably reported, by voice
vote. The Committee took no further action on H.R. 5312 prior
to the end of the 110th Congress.
H.R. 6126, the ``Fairness in Nursing Home Arbitration Act of 2008''
Summary.--H.R. 6126, the ``Fairness in Nursing Home
Arbitration Act of 2008,'' would amend the Federal Arbitration
Act to make certain pre-dispute arbitration agreements between
the operators of long-term care facilities and their residents
invalid or unenforceable. In a pre-dispute arbitration
agreement, the parties agree to arbitrate a potential dispute
rather than seek redress through the courts. H.R. 6126 would
apply to agreements entered into or modified on or after the
date of the legislation's enactment. Under current law, the
operators of long-term care facilities can include clauses in
contracts with residents that provide for mandatory arbitration
if a dispute should arise. H.R. 6126 effectively requires
arbitration to be consented to by both parties.
Legislative History.--Representative Linda Sanchez
introduced H.R. 6126 on May 22, 2008. On June 10, 2008, the
Subcommittee held a hearing on H.R. 6126. Witnesses who
testified at the hearing included: Mr. William J. Hall, MD, who
appeared on behalf of AARP; Ms. Linda Stewart, RN, a nurse from
Texas; Mr. Gavin J. Gadberry, Esq., an attorney with Underwood,
Wilson, Berry, Stein and Johnson, PC, who appeared on behalf of
the American Health Care Association and the National Center
for Assisted Living; and Mr. Ken Connor, an attorney with
Wilkes & McHugh, P.A. On July 15, 2008, the Subcommittee marked
up H.R. 6126, and ordered it to be favorably reported, by a
roll call vote of 5 to 4. On July 30, 2008, the Committee
marked up H.R. 6126, and ordered it favorably reported, by a
roll call vote of 17 to 10. The legislation was reported to the
House on September 26, 2008 (H. Rept. No. 110-894).
TORT REFORM ISSUES
H.R. 5913, the ``Protecting Americans from Unsafe Foreign Products
Act''
Summary.--Because of the difficulties associated with
serving process on and establishing jurisdiction over foreign
manufacturers, many Americans harmed by defective foreign-made
products never get their day in court. H.R. 5913 was introduced
to eliminate the unfair competitive advantage enjoyed by
foreign manufacturers and ensure that they are held accountable
for injuries consumers suffer as a result of defective
products.
The legislation would amend current law to facilitate
service of process on foreign manufacturers by permitting
service on the manufacturer wherever they reside, are found,
have an agent, or transacts business. Service of process and
personal jurisdiction is proper so long as one of the following
two criteria is met: (1) the manufacturer knew or reasonably
should have known that the product or component would be
imported for or use in the U.S.; or (2) the manufacturer had
contacts with the U.S. whether or not such contacts occurred in
the place where the injury occurred.
Given the increase of imported products that do not meet
U.S. standards for heath, safety, and quality, and the fact
that neither the Consumer Product Safety Commission nor the
Food and Drug Administration have effectively prevented the
importation of defective products, more consumers have become
endangered. The purpose of this legislation is to improve
accountability of foreign manufacturers and promote consumer
safety.
Legislative History.--On April 29, 2008, Subcommittee Chair
Linda Sanchez introduced H.R. 5913, ``Protecting Americans from
Unsafe Foreign Products Act,'' with Chairman John Conyers, Rep.
Zoe Lofgren, Rep. Steve Cohen, and Rep. Raul Grijalva as
original cosponsors. The Subcommittee held a hearing on the
legislation on May 1, 2008. Witnesses at the hearing included:
Professor Ralph Steinhardt, George Washington School of Law;
Richard Schlueter, Esq., Childers Buck & Schlueter, LLP; Ed
Mierzwinski, Consumer Program Director, U.S. Public Interest
Research Group; and Victor Schwartz, Esq., Institute for Legal
Reform of the U.S. Chamber of Commerce. There was no further
consideration of H.R. 5913 in the 110th Congress.
H.R. 5884, the ``Sunshine in Litigation Act of 2008''
Summary.--H.R. 5884, the ``Sunshine in Litigation Act of
2008,'' would amend 28 U.S.C. Sec. 111 by adding a new section
1660 entitled ``Restrictions on protective orders and sealing
of cases and settlements.'' Section 1660's main provision would
prohibit a federal court from entering a protective order under
Rule 26(c) of the Federal Rules of Civil Procedure
``restricting the disclosure of information obtained through
discovery, an order approving a settlement agreement that would
restrict the disclosure of such information, or an order
restricting access to court records,'' unless the court finds
that: (1) the ``order would not restrict the disclosure of
information which is relevant to the protection of public
health or safety,'' or (2) ``the public interest in the
disclosure of the potential health or safety hazards is
outweighed by a specific and substantial interest in
maintaining the confidentiality of the information or records
in question'' and ``the requested . . . order is no broader
than necessary to protect the privacy interests asserted.''
H.R. 5884 would also prohibit court from entering an order
enforcing a settlement agreement in case involving ``public
health or safety'' that prohibits a party from disclosing the
existence of the agreement or evidence offered in the case.
Introduction of H.R. 5884 was prompted by concerns that federal
courts too often restrict the disclosure of health and safety
information produced in personal injury and other suits without
considering the public interest.
Legislative History.--H.R. 5884 was introduced by
Representative Robert Wexler (D-FL) on April 23, 2008. The Full
Committee referred the bill to the Subcommittee for a hearing.
The Subcommittee held a hearing on July 31, 2008. Four
witnesses testified: the Honorable Joseph F. Anderson, Jr.,
United States District Court Judge, United States District
Court for the District of South Carolina; John P. Freeman,
Distinguished Professor Emeritus of Law, University of South
Carolina School of Law; the Honorable Mark R. Kravitz, United
States District Court Judge, United States District Court for
the District of Connecticut, who testified on behalf of the
Judicial Conference of the United States; and Richard D.
Meadow, Partner, The Lanier Law Firm. H.R. 5884 was not
considered further prior to the end of the 110th Congress.
CLAIMS ISSUES
H.R. 4854, the ``False Claims Act Correction Act of 2007''
Summary.--On June 19, 2008, the Subcommittee held a joint
legislative hearing with the Subcommittee on Courts, the
Internet, and Intellectual Property on H.R. 4854, the ``False
Claims Act Correction Act of 2007.'' The witnesses at the
hearing included: Albert Campbell, a qui tam relator; Shelley
Slade, Esq., an attorney with Vogel, Slade & Goldstein, LLP;
Peter B. Hutt, II, Esq., an attorney with Akin Gump Strauss
Hauer & Feld, LLP; and James B. Helmer, Jr., the President of
Helmer, Martins, Rice & Popham Co., L.P.A.
On July 16, 2008, the Committee marked up H.R. 4854, and
ordered it favorably reported, by a voice vote. H.R. 4854 was
not considered further prior to the end of the 110th Congress.
Oversight Activities
ADMINISTRATIVE LAW, PROCESS, AND PROCEDURE
Executive Order 13422
Summary.--In 1993, President Clinton issued Executive Order
(EO) 12866, which governs White House review of agency
rules.\77\ The EO provides for centralized review of agency
rulemaking in the Office of Management and Budget, but affirms
the primacy of agencies' rulemaking authority. In January 2007,
President George W. Bush, ``[w]ith little fanfare,'' \78\
issued EO 13422, which made significant amendments to EO
12866.\79\ EO 13422 instituted greater specificity and market
analysis requirements for rules, required heightened scrutiny
of guidance documents, required greater emphasis on cost-
benefit analysis in the rulemaking process, and facilitated a
greater role for political appointees in this process.
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\77\ Exec. Ord. No. 12866, 58 Fed. Reg. 51,735 (Oct. 4, 1993).
\78\ Lisa Heinzerling, Deregulatory Review, Georgetown Law Faculty
Blog, http://gulcfac.typepad.com/georgetown_university_law/2007/01/
deregulatory_re.html (visited Jan. 24, 2007). A commentator similarly
noted, ``On Jan. 18, while the headlines in the U.S. focused on the war
in Iraq, the new Democratic Congress, and actress Lindsay Lohan's
alcohol problem, the Bush administration rewrote the book on federal
regulation.'' Cindy Skrzycki, Bush Gains Power on Rules After Losing
Congress, Bloomberg.com, at http://bloomberg.com/apps/
news?pid=206700001&refer=columnist.
\79\ Exec. Ord. No. 13422, 72 Fed. Reg. 2,763 (Jan. 23, 2007).
---------------------------------------------------------------------------
At the request of the Committee, the Congressional Research
Service (CRS) reviewed EO 13422 and issued a report.\80\ CRS
concluded, inter alia, that the executive order represented ``a
clear expansion of presidential authority over rulemaking
agencies'' and that it ``can be viewed as part of a broader
statement of presidential authority presented throughout the
Bush Administration--from declining to provide access to
executive branch documents and information to presidential
signing statements indicating that certain statutory provisions
will be interpreted consistent with the President's view of the
`unitary executive.' '' Similarly, the New York Times noted
that the directive gave ``the White House much greater control
over the rules and policy statements that the government
develops to protect public health, safety, the environment,
civil rights and privacy.'' \81\ Critics of the new executive
order questioned whether it was an attempt to establish
standards for rulemaking that are inconsistent with statutory
requirements.\82\ Paul Krugman, in a New York Times commentary
noted, for example, that EO 13422 ``will make it even easier
for political appointees to overrule the professionals,
tailoring government regulations to suit the interests of
companies that support the G.O.P.'' \83\ On the other hand,
OMB's General Counsel, Jeffrey Rosen, explained: ``Simply put:
what we are doing here is `good government.' We are building
upon a process that has been used by presidents of both parties
to try to institutionalize best practices.'' \84\ Proponents of
EO 13422 argue that it represents ``long overdue action to
constrain the growing burden of federal regulation on the
economy.'' \85\
---------------------------------------------------------------------------
\80\ Curtis W. Copeland, Changes to the OMB Regulatory Review
Process by Executive Order 13422, Congressional Research Service Report
for Congress, RL 33862, at 14 (Feb. 5, 2007).
\81\ Robert Pear, Bush Directive Increases Sway on Regulation, N.Y.
Times, Jan. 30, 2007, at A1.
\82\ See, e.g., Press Release, Public Citizen, New Executive Order
Is Latest White House Power Grab (Jan. 18, 2007), at http://
www.citizen.org/pressroom/release.cfm?ID=2361; Garrett Epps, The Power
of King George, Salon.com (Feb. 1, 2007) (describing EO 13422 as a
``power grab'' by the Bush Administration), at http://www.salon.com/
opinion/feature/2007/02/01/presidential_ power/.
\83\ Paul Krugman, Op-Ed., The Green-Zoning of America, N.Y. Times,
Feb. 5, 2007, at A25.
\84\ Cindy Skrzycki, Bush Gains Power on Rules After Losing
Congress, Bloomberg.com, at http://bloomberg.com/apps/
news?pid=206700001&refer=columnist. In another statement to the press,
Mr. Rosen noted, ``This is a class good-government measure that will
make federal agencies more open and accountable.'' Robert Pear, Bush
Directive Increases Sway on Regulation, N.Y. Times, Jan. 30, 2007, at
A1. Paul Noe, a former OIRA advisor, similarly noted, ``The executive
order promotes better-informed and more accountable regulatory
decisions.'' Cindy Skrzycki, Bush Gains Power on Rules After Losing
Congress, Bloomberg.com, at http://bloomberg.com/apps/
news?pid=206700001&refer=columnist.
\85\ Bruce Bartlett, Regulatory Respite, Wash Times, Feb. 7, 2007.
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On February 13, 2007, the Subcommittee on Commercial and
Administrative Law held a hearing on the issues presented by EO
13422, entitled ``Amending Executive Order 12866: Good
Governance or Regulatory Usurpation?'' Witnesses included:
Steven D. Aitken, Acting Administrator, Office of Information
and Regulatory Affairs, Office of Management and Budget;
Professor Sally Katzen of the University of Michigan Law
School; Curtis W. Copeland, Specialist in American National
Government at the Congressional Research Service; Paul Noe, a
partner with C&M Capitolink LLC; and Professor Peter L. Strauss
of Columbia University School of Law.
Rulemaking Process and the Unitary Executive Theory
Summary.--Over the course of the George W. Bush
Administration, the Office of Information and Regulatory
Affairs (OIRA) returned to the role it had during the Reagan
Administration, even describing itself in an annual report as
the ``gatekeeper for new rulemakings.'' \86\ The Administrator
of OIRA explained that one of his office's functions is ``to
protect people from poorly designed rules,'' and that OIRA
review is a way to ``combat the tunnel vision that plagues the
thinking of single-mission regulators.'' \87\ This return to
the gatekeeper perspective of OIRA's role has implications for
an array of OIRA's functions.\88\ At the request of the
Committee, the Congressional Research Service (CRS) reviewed
the actions of OIRA and noted various instances of its
heightened role in the rulemaking process:
---------------------------------------------------------------------------
\86\ Curtis Copeland, Federal Rulemaking: The Role of the Office of
Information and Regulatory Affairs, Congressional Research Service
Report for Congress RLS 32397, at 21 (May 28, 2004) (quoting Office of
Management and Budget, Stimulating Smarter Regulation: 2002 Report to
Congress on the Costs and Benefits of Federal Regulations and Unfunded
Mandates on State, Local, and Tribal Entities, Dec. 2002).
\87\ John Graham, Administrator, OIRA, Remarks to the Board of
Trustees, The Keystone Center, at Washington, DC (June 18, 2002), at
http://www.whitehouse.gov/omb/inforeg/keystone_ speech061802.html.
\88\ See, e.g., Interim Report on the Administrative Law, Process
and Procedure Project for the 21st Century, Subcomm. on Commercial and
Administrative Law of the H. Comm. on the Judiciary, 109th Cong. 56
(2006) available at http://judiciary.house.gov/Media/PDFS/Printers/
109th/31505.pdf.
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The development of a detailed economic
analysis circular and what agency officials described
as a perceptible ``stepping up the bar'' in the amount
of support required from agencies for their rules, with
OIRA reportedly more often looking for regulatory
benefits to be quantified and a cost-benefit analysis
for every regulatory option that the agency considered,
not just the option selected;
The issuance of 21 letters returning rules
to the agencies between July 2001 and March 2002--three
times the number of return letters issued during the
last six years of the Clinton Administration. However,
OIRA returned only two rules in 2003, one rule in 2004,
one rule in 2005, no rules in 2006, and one rule in
2007. OIRA officials indicated that the pace of return
letters declined after 2002 because agencies had gotten
the message about the seriousness of OIRA reviews;
The issuance of 13 ``prompt letters''
between September 2001 and December 2003 suggesting
that agencies develop regulations in a particular area
or encouraging ongoing efforts. However, OIRA issued
two prompt letters in 2004, none in 2005, one in 2006,
and none in 2007;
The increased use of ``informal'' OIRA
reviews in which agencies share preliminary drafts of
rules and analyses before final decisionmaking at the
agencies--a period when OIRA says it can have its
greatest impact on the rules, but when OIRA says that
some of the transparency requirements in Executive
Order 12866 do not apply;
Extensions of OIRA review for certain rules
for months or years beyond the 90-day time limit
delineated in the executive order;
Using a general statutory requirement that
OIRA provide Congress with ``recommendations for
reform'' to request the public to identify rules that
it believes should be eliminated or reformed;
A leadership role for OIRA in the
development of electronic rulemaking, which has led to
the development of a centralized rulemaking docket, but
which some observers believe can lead to increased
presidential influence over the agencies;
The development of an OMB bulletin on peer
review that, in its original form, some believed could
have led to a centralized system within OMB that could
be vulnerable to political manipulation or control;
The development of a proposed bulletin
standardizing agency risk assessment procedures that
the National Academy of Sciences concluded was
``fundamentally flawed,'' and that OIRA later withdrew;
and
the development of a ``good guidance
practices'' bulletin that standardizes certain agency
guidance practices.
According to CRS, these initiatives ``represent the
strongest assertion of presidential power in the area of
rulemaking in at least 20 years.'' \89\
---------------------------------------------------------------------------
\89\ Id.
---------------------------------------------------------------------------
Other developments also appeared to illustrate the
Administration's heightened involvement in the rulemaking
process. For example, the Environmental Protection Agency (EPA)
may have weakened some of its limits on smog-forming ozone
``after an unusual last-minute intervention by President Bush,
according to documents released by the EPA.'' \90\ Although the
EPA's Clean Air Scientific Advisory Committee supported the
EPA's proposed ozone standard rule, OIRA Administrator Dudley
``urged the EPA to consider the effects of cutting ozone
further on `economic values and on personal comfort and well-
being.' '' \91\ President Bush intervened and he ``decided on a
requirement weaker than what the EPA wanted.'' \92\ Another
example concern's the Administration apparent effort to delay
final approval of a regulation first initiated four years ago
that would have protected the endangered right whale from being
killed by commercial ships.\93\
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\90\ Juliet Eilperin, Ozone Rules Weakened at Bush's Behest, Wash.
Post., Mar. 14, 2008, at A1.
\91\ Id. (quoting OIRA Administrator Susan Dudley).
\92\ Cindy Skrzycki, It's Not a Backroom Deal If the Call Is Made
in the Oval Office, Wash. Post, Apr. 8, 2008, at D2.
\93\ H. Josef Hebert, Delay in Ruling on Endangered Right Whales
Criticized, Wash. Post, Apr. 30, 2008.
---------------------------------------------------------------------------
On May 6, 2008, the Subcommittee on Commercial and
Administrative Law held a hearing entitled, ``Rulemaking
Process and the Unitary Executive Theory.'' Witnesses included:
Susan E. Dudley, Administrator, Office of Information and
Regulatory Affairs, Office of Management and Budget; Dr. Curtis
W. Copeland, Specialist in American National Government,
Congressional Research Service; Professor Peter L. Strauss,
Columbia Law School; Dr. Rick Melberth, Director of Regulatory
Policy, OMB Watch; and James L. Gattuso, Esq., Senior Fellow in
Regulatory Policy, Roe Institute for Economic Policy Studies at
The Heritage Foundation. The hearing highlighted various ways
where the current Administration may have expanded its control
over the rulemaking process. In particular, the hearing
identified various manifestations of the Administration's
enhanced role in rulemaking, including its increased use of
return letters, quality assessments, peer reviews, and cost-
benefit risk assessments. The ramifications of these efforts
were considered as well as the impact of President Bush's
Executive Order 13422, which substantially increased the
Administration's control of the rulemaking process.
Oversight Hearing on the ``Congressional Review Act''
Summary.--The Congressional Review Act (CRA) is a
congressional review mechanism of agency rules. The CRA
requires all agencies promulgating a rule \94\ to submit a
report to both Houses of Congress and to the Comptroller
General at the Government Accountability Office (GAO) that
contains a copy of the rule, a concise general statement
describing the rule (including whether it is a major rule
\95\), and the proposed effective date of the rule.\96\ The CRA
authorizes Congress, pursuant to a joint resolution of
disapproval, to disapprove an agency rule that it determines to
be too burdensome, excessive, inappropriate, duplicative, or
otherwise objectionable. For a joint resolution of disapproval
to become law, it must pass both Houses of Congress and be
signed by the President. If a joint resolution is enacted into
law, the rule is deemed not to have had any effect at any
time.\97\ Additionally, the CRA prohibits an agency from
reissuing a rule that is substantially the same as the
disapproved rule. Such a resolution must be introduced within
the specified review period, which is at least 60 days.\98\
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\94\ The term rule ``means the whole or part of an agency statement
of general . . . applicability and future effect designed to implement,
interpret, or prescribe law or policy.'' 5 U.S.C. Sec. 804(3).
\95\ A major rule is defined as a rule that will likely have an
annual effect on the economy of $100 million or more, increase costs or
prices for consumers, industries or state and local governments, or
have significant adverse effects on the economy.
\96\ 5 U.S.C. Sec. Sec. 801-808. On March 29, 1996, President Bill
Clinton signed the Small Business Regulatory Enforcement Fairness Act
of 1996, P.L. 104-121, 110 Stat. 857-874. Subtitle E of that Act
established the procedures for congressional review of agency rules.
\97\ 5 U.S.C. Sec. 801(f) (2007).
\98\ 5 U.S.C. Sec. 801(a)(3)-(4) (2007).
---------------------------------------------------------------------------
In more than 12 years, the disapproval mechanism
established by the CRA has yielded only one congressional
disapproval, the OSHA disapproval, which was the result of a
confluence of unusual factors.\99\ These factors include: ``the
White House and both Houses of Congress in the hands of the
same political party, a contentious rule promulgated in the
waning days of an outgoing administration, longstanding
opposition to the rule by some in Congress and by a broad
coalition of business interests, and encouragement of repeal by
the President.'' \100\
---------------------------------------------------------------------------
\99\ Id.
\100\ Morton Rosenberg, Congressional Review of Agency Rulemaking:
An Update and Assessment of the Congressional Review Act After Ten
Years, Congressional Research Service Report for Congress, RL 30116, at
1 (May 8, 2008).
---------------------------------------------------------------------------
Because of the burdens of implementing the CRA and its
infrequent use, the Subcommittee held a hearing on November 6,
2007 that explored possible approaches to reforming the CRA.
Witnesses at the hearing included: the Honorable John V.
Sullivan, Parliamentarian, House of Representatives; Morton
Rosenberg, Congressional Research Service; and Professor Sally
Katzen, George Mason University School of Law.
BANKRUPTCY
Executive Compensation in Chapter 11 Cases
Summary.--In recent years, there have been numerous high
profile Chapter 11 cases where workers made major concessions
with regard to their job security, compensation, pensions, and
health benefits, while the chief executives received high
incentive and retention bonuses. The poential inequity of such
disparate pay packages is further heightened where the
company's financial difficulties stem from bad decisions made
by management. ``All too often,'' as one bankruptcy judge
recently observed, executive retention plans ``have been widely
used to lavishly reward--at the expense of the creditor body--
the very executives whose bad decisions or lack of foresight
were responsible for the debtor's financial plight.'' \101\
---------------------------------------------------------------------------
\101\ In re U.S. Airways, Inc., 329 B.R. 793, 797 (Bankr. E.D. Va.
2005).
---------------------------------------------------------------------------
In response to these abuses, Senator Edward Kennedy (D-MA)
proposed an amendment intended to cap executive compensation in
Chapter 11 cases, which was passed as part of comprehensive
bankruptcy reform legislation enacted into law in 2005.\102\
These reforms, however, may have had limited effect, as
demonstrated by recent court decisions.\103\ Given these
continuing problems, House Judiciary Committee Chairman John C.
Conyers, Jr. introduced legislation in the last Congress
intended to reform executive compensation in corporate
bankruptcies.\104\ The issue of executive compensation in
Chapter 11 cases had not been the subject of an oversight
hearing before the House Judiciary Committee for at least the
last four Congresses.
---------------------------------------------------------------------------
\102\ Bankruptcy Abuse Prevention and Consumer Protection Act of
2005, Pub. L. No. 109-8, Sec. 331, 119 Stat. 23, 102-03 (2005).
\103\ Cf. In re Dana Corp., 2006 WL 3479406 (Bankr. S.D.N.Y. Nov.
30, 2006); In re Dana Corp., 351 B.R. 96 (Bankr. S.D.N.Y. 2006).
\104\ H.R. 5113, 109th Cong. (2006).
---------------------------------------------------------------------------
On April 17, 2008, the Subcommittee on Commercial and
Administrative Law held an oversight hearing on ``Executive
Compensation in Chapter 11 Bankruptcy Cases: How Much Is Too
Much?'' Witnesses included: Damon Silvers, Associate General
Counsel for the American Federation of Labor and Congress of
Industrial Organizations; Antoinette Muoneke, a flight
attendant with United Airlines on behalf of the Association of
Flight Attendants; Mark S. Wintner, a partner with Stroock &
Stroock & Lavan, LLP; and Richard Levin on behalf of the
National Bankruptcy Conference. The hearing provided an
opportunity to consider this issue from the perspective of
labor and management as well as that of the National Bankruptcy
Conference.\105\ It also provided an opportunity for the
Subcommittee to determine whether the current law adequately
addresses this issue.
---------------------------------------------------------------------------
\105\ The National Bankruptcy Conference is a nonpartisan
organization comprised of the nation's leading bankruptcy scholars and
practitioners. It was informally organized in the 1930's at the request
of Congress to assist in the drafting of major Depression-era
bankruptcy law amendments. National Bankruptcy Conference, Mission
Statement, http://www.nationalbankruptcyconference.org/mission.cfm.
---------------------------------------------------------------------------
Implementation of the Bankruptcy Abuse Prevention and Consumer
Protection Act of 2005
Summary.--The Bankruptcy Abuse Prevention and Consumer
Protection Act of 2005 (the 2005 Act) \106\ was signed into law
by President George W. Bush on April 20, 2005. The Act is the
most comprehensive overhaul of the Bankruptcy Code in more than
25 years, particularly with respect to its consumer bankruptcy
reforms. These consumer bankruptcy amendments included, for
example, the establishment of a means testing mechanism to
determine a debtor's ability to repay debts and a requirement
that consumer debtors receive credit counseling prior to filing
for bankruptcy relief.
---------------------------------------------------------------------------
\106\ Pub. L. No. 109-8, 119 Stat. 23 (2005). Pursuant to section
1501 of the Act, most of its provisions became effective on October 17,
2005.
---------------------------------------------------------------------------
Over the two years since its enactment, consumer advocates
have become increasingly concerned that some of the 2005 Act's
requirements are unduly burdensome for debtors in dire
financial distress.\107\ Their concerns are heightened by the
growing inability of many Americans to meet their repayment
obligations on subprime mortgages.\108\ For example,
foreclosures in the United States for the month of March 2007
increased by 47 percent over the prior year.\109\ These
advocacy groups warned that ``primarily low-income subprime
mortgage borrowers face often insurmountable bankruptcy hurdles
to hold onto their homes.'' \110\ Based on a survey conducted
by the National Association of Consumer Bankruptcy Attorneys
(NACBA),\111\ 81 percent of bankruptcy attorneys surveyed
agreed that it is more difficult ``for people facing
foreclosure to file [bankruptcy] to save their homes than
before bankruptcy law changes were enacted in 2005.'' \112\
---------------------------------------------------------------------------
\107\ Press Release, National Association of Consumer Bankruptcy
Attorneys, Consumer Federation of America & Center for Responsible
Lending, Consumer Groups: Fix Bankruptcy Laws So Hundreds of Thousands
of Americans Can Avoid Home Foreclosures in Subprime Mortgage Crisis
(Apr. 12, 2007) (on file with the Subcomm. on Commercial and
Administrative Law of the House Comm. on the Judiciary).
\108\ See, e.g., Ruth Simon, More Borrowers Fall Behind on Home
Loans, WalL St. J., Apr. 11, 2007 (noting that the mortgage-delinquency
rate is at its ``highest level'' since 2000 and that delinquencies were
``also up sharply for home-equity loans and lines of credit'').
\109\ Press Release, RealtyTrac, Inc., Foreclosure Activity
Increases 7 Percent in March -Foreclosure Filings Up 47 Percent From
Year Ago; Nevada, Colorado, California Post Highest Foreclosure Rates
(Apr. 18, 2007). For March 2007, the national foreclosure rate was
reported to be one foreclosure filing for every 775 U.S. households.
Id. According to this report, ``The five states with the most
foreclosure filings in March--California, Florida, Texas, Michigan and
Ohio--together accounted for 50 percent of the nation's total.'' Id.
\110\ Press Release, National Association of Consumer Bankruptcy
Attorneys, Consumer Federation of America & Center for Responsible
Lending, Consumer Groups: Fix Bankruptcy Laws So Hundreds of Thousands
of Americans Can Avoid Home Foreclosures in Subprime Mortgage Crisis
(Apr. 12, 2007) (on file with the Subcomm. on Commercial and
Administrative Law of the House Comm. on the Judiciary).
\111\ NACBA is a nonprofit organization with more than 2,500
consumer bankruptcy attorneys nationwide. Id. at 4.
\112\ Id. The survey, conducted from April 2 to 9, 2007 by NACBA of
its members, received responses from 640 attorneys, representing 26
percent of NACBA's membership. Id.
---------------------------------------------------------------------------
To assess the value and benefit to consumers of pre-filing
credit counseling, House Judiciary Committee Chairman John
Conyers, Jr., along with other Members of Congress, requested
the Government Accountability Office in 2005 to examine: (1)
the process by which credit counseling and financial training
providers are approved; (2) the content and results of the
counseling and education sessions; (3) the fees charged; and
(4) the availability of and challenges to accessing
services.\113\ In response to this request, the GAO made
several findings of possible concern. Although the GAO found
that the providers generally complied with the Act, it was
unable to ``find evidence that agencies that provided prefiling
credit counseling discouraged clients from filing for
bankruptcy and very few clients appeared to be entering into
repayment plans administered by these agencies.'' \114\ The GAO
also noted that ``it is not clear whether the prefiling
requirement is serving its intended purpose . . . of helping
consumers make an informed choice about bankruptcy and its
alternatives.'' \115\ It continued, ``Anecdotal evidence
suggests that by the time that most consumers receive the
prefiling counseling, their financial situations are dire,
leaving them with no viable alternative to bankruptcy.'' \116\
The GAO noted that there was a dearth of data on ``the outcomes
of counseling sessions.'' \117\ Such data, it observed, ``could
help program managers and policymakers determine how well the
prefiling requirement is serving its intended purpose.'' \118\
---------------------------------------------------------------------------
\113\ Letter from Rep. John Conyers Jr. (D-MI) et al. to David M.
Walker, Comptroller General of the United States (Oct. 18, 2005) (on
file with the Comm. on the Judiciary).
\114\ U.S. Government Accountability Office Report, Bankruptcy
Reform: Value of Credit Counseling Is Not Clear, GAO-Pub. No. 07-203,
at 3 (Apr. 2007).
\115\ Id.
\116\ Id.
\117\ Id.
\118\ Id.
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On May 1, 2007, the Subcommittee on Commercial and
Administrative Law held an oversight hearing on the ``Second
Anniversary of the Enactment of the Bankruptcy Abuse Prevention
and Consumer Protection Act of 2005: Are Consumers Really Being
Protected Under the Act?'' Witnesses included: Henry J. Sommer,
President of the National Association of Consumer Bankruptcy
Attorneys; Shirley Jones Burroughs, a chapter 13 debtor; Yvonne
Jones, Director of Financial Markets and Community Investment
at the United States Government Accountability Office; and
Steve Bartlett, President and CEO, Financial Services
Roundtable.
Medical Debt
Summary.--In recent years, the cost of healthcare in the
United States has ``risen precipitously.'' \119\ Healthcare
spending accounts for 16 percent of the national Gross Domestic
Product, which reflects a 13.8 percent increase from 2000.\120\
By 2015, these costs are projected to be $4 trillion.\121\
Correlatively, health insurance premiums have increased by 73.8
percent since 2000, while median income increased only 11.6
percent.\122\ The United States, however, does not provide
health care for all of its citizens unlike many other
industrialized nations. Medicare and Medicaid cover only the
elderly and indigent. In addition, some families earn ``too
much money to qualify for public health insurance but too
little to afford a private policy'' and as a result they are
``caught in a Catch 22 that puts many U.S. workers at risk of
financial ruin.'' \123\ As a result, many go without insurance.
Approximately 45 million or 15 percent of Americans did not
have health insurance in 2005, reflecting a 3 percent increase
over the previous year.\124\
---------------------------------------------------------------------------
\119\ Cindy Zeldin & Mark Rukavina, Borrowing To Stay Healthy: How
Credit Card Debt Is Related to Medical Expenses, Demos/The Access
Project, at 2 (2006).
\120\ Id.
\121\ Lisa Baertlein, Health Care Crisis Squeezes Working Families,
Wash. Post, May 23, 2007.
\122\ Cindy Zeldin & Mark Rukavina, Borrowing To Stay Healthy: How
Credit Card Debt Is Related to Medical Expenses, Demos/The Access
Project, at 2 (2006).
\123\ Lisa Baertlein, Health Care Crisis Squeezes Working Families,
Wash. Post, May 23, 2007. For example,
Volunteer Cindy Holland has no medical insurance, and her husband's
health benefits as a full-time paramedic do not extend to family
members and their three children go without.
John Holland, like most Americans, gets his health insurance
through his job as a paramedic with a private ambulance company, which
pays half the expense.
When Cindy, 36, shopped for coverage for herself and their
children, she found it would cost about $1,000 a month, excluding
dental insurance.
``It would kill us financially to do the insurance--if we want to
keep a roof over our head and food in my kids. You end up rolling the
dice,'' said Cindy, a California native who works a pair of part-time
jobs on top of firefighting.
\124\ Id. On January 24, 2007, House Judiciary Chairman John
Conyers, Jr. introduced H.R. 676, the ``United States National Health
Insurance Act.'' The Act establishes a program that would provide
Americans with free health care that includes all medically necessary
care, such as primary care and prevention, prescription drugs,
emergency care, and mental health services. The measure prohibits an
institution from participating in the program unless it is a public or
nonprofit institution and gives patients the freedom to choose among
participating physicians and institutions.
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Even the insured face economic distress. According to one
recent study, ``29 percent of low- and middle-income households
with credit card debt reported that medical expenses
contributed to current level of credit card debt.'' \125\ The
study suggests that ``medical debt among the insured results
from a variety of causes and the interaction of a number of
factors, including the adequacy of people's insurance plans,
the nature of their medical needs, the cost of their
treatments, and their financial resources.'' \126\ In
particular, the study identified several reasons why the
insured accrued debt, including the cost of premiums and
deductibles, coverage caps, and uninsured medical
conditions.\127\
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\125\ Cindy Zeldin & Mark Rukavina, Borrowing To Stay Healthy: How
Credit Card Debt Is Related to Medical Expenses, Demos/The Access
Project, at 1 (2006). This study also found: Within that group, 69
percent had a major medical expense in the previous three years.
Overall, 20 percent of indebted low- and middle-income households
reported both having a major medical expense in the previous three
years and that medical expenses contributed to their current level of
credit card debt. Id. Another study, which surveyed 383 people living
in Missouri, found that ``[m]edical bills can cripple hardworking
families.'' Sidney D. Watson et al., Living in the Red--Medical Debt
and Housing Security in Missouri, Survey Findings and Profiles of
Working Families, The Access Project, at 1 (2007).
\126\ Carol Pryor et al., The Illusion of Coverage: How Health
Insurance Fails People When They Got Sick, The Access Project, at 5
(2007).
\127\ Id. at 5-6; see also Mark Rukavina et al., Not Making the
Grade: Lessons Learned from the Massachusetts Student Health Insurance
Mandate, The Access Project (May 2007) (finding mandatory health
insurance coverage for students attending institutions of higher
learning in Massachusetts was inadequate as the program allowed
unreasonable levels of cost-sharing).
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A 2005 study demonstrated a significant connection between
medical debt and financial hardship.\128\ The study, which
surveyed 1,692 low and moderate income people in various
locales around the nation, \129\ found that one-quarter of the
respondents stated that they had housing problems as a result
of their medical debt.\130\ These problems included: (1) the
inability to qualify for a mortgage; (2) the inability to make
rent or mortgage payments; (3) being rejected from renting a
home; and (4) being forced to move to less expensive
housing.\131\ Some of the respondents reported that they were
evicted or were rendered homeless because of medical debt.\132\
The financial ramifications of medical debt represent only part
of the problem. Research shows that ``privately insured adults
with medical debt are more likely than those without debt to
skip recommended treatments, leave drug prescriptions unfilled,
and postpone care due to cost[.]'' \133\
---------------------------------------------------------------------------
\128\ Robert W. Seifert, Home Sick--How Medical Debt Undermines
Housing Security, The Access Project (Nov. 2005).
\129\ These locales were Bridgeport, Connecticut; Des Moines, Iowa;
Phoenix, Arizona; Providence, Rhode Island; St. Louis, Missouri; Tulsa,
Oklahoma; and West Palm Beach, Florida. Id. at 27.
\130\ Id. at 1.
\131\ Id.
\132\ Id.
\133\ Carol Pryor et al., The Illusion of Coverage: How Health
Insurance Fails People When They Got Sick, The Access Project, at 3
(2007).
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On July 17, 2007, the Subcommittee on Commercial and
Administrative Law held a hearing on ``Working Families in
Financial Crisis: Medical Debt and Bankruptcy.'' Witnesses
included: Professor Elizabeth Warren, Leo Gottlieb Professor of
Law, Harvard Law School; Dr. David Himmelstein, Associate
Professor of Medicine, Harvard Medical School, and a primary
care physician at Cambridge Hospital in Cambridge,
Massachusetts; Donna Smith, a former chapter 7 debtor; Mark
Rukavina, Executive Director, The Access Project; Clifford J.
White, III, Director, Executive Office for United States
Trustees; and Professor Todd Zywicki, George Mason University
School of Law.
Treatment of Employees and Retirees under Chapter 11
Chapter 11, in essence, is a statutorily orchestrated
mechanism by which parties, ``having divergent, if not mutually
exclusive, interests are given an opportunity to work out their
economic differences with the shared goal of maximizing the
return for all.'' \134\ As one writer observed, ``Much
bankruptcy law and analysis searches for an `equitable'
resolution of issues as a way of placing some flex in the
joints of what is perceived to be an otherwise rigid statutory
scheme.'' \135\ Chapter 11 offers: (1) Immediate relief from
the forces which threaten to destroy the debtor beyond repair,
in combination with provisions to keep it in operation while
the salvage job is assayed and undertaken; and (2) a legal
framework in which non-consenting creditors and other parties
can be bound by the desires of a majority of their peers, or
otherwise prevented from fractious disruption of the debtor's
affairs.\136\
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\134\ Susan Jensen-Conklin, Do Confirmed Chapter 11 Plans
Consummate? The Results of a Study and Analysis of the Law, 97 COMM. L.
J. 297, 299 (1992).
\135\ Thomas H. Jackson, Of Liquidation, Continuation, and Delay:
An Analysis of Bankruptcy Policy and Nonbankruptcy Rules, 60 Am. Bankr.
L. J. 399, 399 (1986).
\136\ Paul F. Festersen, Equitable Poers in Bankruptcy
Rehabilitation: Protection of the Debtor and the Doomsday Principle, 46
Am. Bankr. L. J. 311, 311 (1972).
---------------------------------------------------------------------------
In recent years, there have been numerous news reports
about the financial collapse of such corporate giants as Enron,
WorldCom, Global Crossing, Delta Airlines, Delphi Corporation
and Northwest Airlines. In 2002 alone, the ten largest
companies filing for bankruptcy employed nearly 445,000
employees.\137\ In many of these cases, workers made major
concessions with regard to their job security, compensation,
pensions, and health benefits. As the Wall Street Journal
observed, once bankruptcy intervenes ``workers have to get in
line with other unsecured creditors for severance benefits,
unused vacation pay, expenses and commissions--a process that
can leave them with mere pennies on the dollars that they're
owed.'' \138\ Pensions funded by a company's stock are
typically rendered worthless once bankruptcy intervenes.\139\
---------------------------------------------------------------------------
\137\ Shawn Young, In Bankruptcy, Getting Laid Off Hurts Even
Worse--WorldCom's Ex-Employees Suffer Loss of Severance, End of Health
Insurance--Moving into the Garage, Wall St. J., Sept. 20, 2002, at A1.
\138\ Id.
\139\ See, e.g., Andrew Countryman, New Pension Rules Change Little
in Post-Enron Era, Chi Trib., Nov. 3, 2002 (``Perhaps the must enduring
legacy of the Enron affair is the decimated 401(k) accounts of
thousands of Enron workers); Simon Romero, Winnick Offers Restitution,
N.Y. Times (Oct. 2, 2002), (reporting that several thousand employees
of Global Crossing lost their retirement money when the company's stock
collapsed as a result of insider fraud); Shawn Young, In Bankruptcy,
Getting Laid Off Hurts Even Worse--WorldCom's Ex-Employees Suffer Loss
of Severance, End of Health Insurance--Moving into the Garage, Wall St.
J. (Sept. 20, 2002), at A1 (reporting that WorldCom employees' stock-
backed pensions became ``essentially worthless'' in the wake of a
``massive accounting scandal'' and the company's subsequent
bankruptcy).
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In contrast, the chief executives of these debtors often
received extravagant incentive and retention bonuses. The
inequity of such disparate pay packages is further heightened
where the company's financial difficulties stem from bad
decisions made by management. ``All too often,'' as one
bankruptcy judge observed, executive retention plans ``have
been widely used to lavishly reward--at the expense of the
creditor body--the very executives whose bad decisions or lack
of foresight were responsible for the debtor's financial
plight.'' \140\
---------------------------------------------------------------------------
\140\ In re U.S. Airways, Inc., 329 B.R. 793, 797 (Bankr. E.D. Va.
2005). While Bankruptcy Code section 503 restricts the use of key
employee retention plans, the Chapter 11 bar has already pursued
alternatives to avoid its restrictions. If, for example, the
compensation package is intended to incentivize management, the
arrangement may then be scrutinized under Bankruptcy Code section 363's
``more liberal business judgment review.'' In re Global Home Products,
LLC, 2007 WL 689747, at *5 (Bankr. D. Del. Mar. 6, 2007). Section
363(b) allows a Chapter 11 debtor to use property of the bankruptcy
estate that is not in the ordinary course of the debtor's business,
providing parties in interest, such as creditors, receive notice of the
undertaking and have an opportunity to object. 11 U.S.C.A. Sec. 363(b)
(2006).Where there is a legitimate business justification for the
undertaking, such as giving the debtor's officers an incentive package
or performance bonus, the courts will defer to the debtor. See, e.g.,
Dai-Ichi Kangyo Bank, Ltd. V. Montgomery Ward Holding Corp. (In re
Montgomery Ward Holding Corp., 242 B.R. 147, 159 (D. Del. 1999) (citing
``a sound business purpose'' may justify an employee incentive plan);
In re Global Home Products, LLC, 2007 WL 689747, at *5 (Bankr. D. Del.
Mar. 6, 2007); In re U.S. Airways, Inc., 329 B.R. 793, 795 (Bankr. E.D.
Va. 2005). The court in U.S. Airways, for example, found that with
respect to the debtor's management employees (below the officer level),
the proposed severance payments were appropriate. In re U.S. Airways,
Inc., 329 B.R. at 801.
---------------------------------------------------------------------------
With respect to the rejection of collective bargaining
agreements pursuant to Bankruptcy Code section 1113, several
issues are presented. First, there is a split among the federal
circuits as to what constitutes sufficient grounds for
rejecting a collective bargaining agreement within the meaning
of section 1113. Under that provision, a court may approve the
rejection of a collective bargaining agreement if it is
``necessary to permit the reorganization of the debtor.'' \141\
The Third Circuit interprets this phrase to mean ``necessary to
prevent liquidation,'' \142\ whereas the Second Circuit applies
``a more debtor-friendly'' standard,\143\ that focuses on the
``debtor's ultimate long-term economic health.'' \144\ As a
result, the Second Circuit is often the venue sought by
reorganizing debtors to file for relief under Chapter 11
because of its more employer favorable standard. It is ``among
the reasons that Delphi, a Michigan company, filed for
bankruptcy in New York.'' \145\ As one commentator observed:
``In case after case, bankruptcy courts have applied
Congressional intent favoring long-term rehabilitation to sweep
aside wage and benefits concessions won at the bargaining
table.'' \146\
---------------------------------------------------------------------------
\141\ 11 U.S.C.A. Sec. 1113(b)(1) (2006).
\142\ Wheeling Pittsburgh Steel Corp. v. United Steelworkers, 791
F.2d 1074, 1088 (3rd Cir. 1986) (noting that ``it appears from the
legislators'' remarks that they placed the emphasis in determining
whether and what modifications should be made to a negotiated
collective bargaining agreement on the somewhat shorter term goal of
preventing the debtor's liquidation'').
\143\ Commentary, Samuel J. Gerdano, The Future of Collective
Bargaining Under Bankruptcy--The Brave New World Facing the Old Economy
Industries, American Bankruptcy Institute (Mar. 2006) at http://
www.abiworld.org/AM/Template.cfm?Section=Home&TEMPLATE=/CM/
ContentDisplay.cfm&CONTENTID=41342 (last visited Sept. 4, 2007).
\144\ Alan N. Resnick & Henry J. Sommer, 7 Collier on Bankruptcy
para. 1113.06[2][b] (15th ed. rev'd 2007); see, e.g., Truck Drivers
Local 807, Int'l Brotherhood of Teamsters, Chauffeurs, Warehouseman &
Helpers of America v. Carey Transp. Inc., 816 F.2d 82, 89 (2nd Cir.
1987) (``Thus, in virtually every case, it becomes impossible to weigh
necessity as to reorganization without looking into the debtor's
ultimate future and estimating what the debtor needs to attain
financial health.'').
\145\ Commentary, Samuel J. Gerdano, The Future of Collective
Bargaining Under Bankruptcy--The Brave New World Facing the Old Economy
Industries, American Bankruptcy Institute (Mar. 2006) at http://
www.abiworld.org/AM/Template.cfm?Section=Home&TEMPLATE=/CM/
ContentDisplay.cfm&CONTENTID=41342 (last visited Sept. 4, 2007).
\146\ Id.
---------------------------------------------------------------------------
Second, Chapter 11 may also restrict other options
available to workers. For example, the Second Circuit in In re
Northwest Airlines Corp., earlier this year held that a labor
union may be enjoined from striking in response to the
rejection of its collective bargaining agreement pursuant to
Bankruptcy Code section 1113.\147\ This is apparently ``the
first federal appeals court to deny workers the right to strike
following contract rejection in bankruptcy.'' \148\
---------------------------------------------------------------------------
\147\ 483 F.3d 160 (2d Cir. 2007).
\148\ Press Release, Association of Flight Attendants--CWA, AFL-
CIO, The Potential Impact of the Northwest Airlines Injunction on the
Labor Movement, at 1 (on file with the H. Comm. on the Judiciary).
---------------------------------------------------------------------------
On September 6, 2007, the Subcommittee on Commercial and
Administrative Law held a hearing on ``American Workers in
Crisis: Does the Chapter 11 Business Bankruptcy Law Treat
Employees and Retirees Fairly?'' Witnesses included: Kim
Townsend, United Auto Workers Local 138; Michael L. Bernstein,
Arnold & Porter; Fred Redmond, International Vice President for
Human Affairs, United Steelworkers; Captain John Prater,
President, Air Line Pilots Association, International; Greg
Davidowitch, President, United Master Executive Council,
Association of Flight Attendants--CWA; and Richard L. Trumka,
Secretary-Treasurer of the AFL-CIO.
United States Trustee Program
Summary.--The United States Trustee Program is charged with
supervising the administration of bankruptcy cases and private
trustees.\149\ Its mission is to protect and preserve the
integrity of our nation's bankruptcy system by regulating the
conduct of parties, ensuring compliance with applicable laws
and procedures, bringing civil actions to address bankruptcy
abuse, securing the just and efficient resolution of bankruptcy
cases, and referring bankruptcy crimes for prosecution. The
Program is itself overseen by the Executive Office for United
States Trustees (EOUST), which provides policy and management
direction to United States Trustees. The Program operates
through a system of 21 regions nationwide, except for North
Carolina and Alabama.\150\
---------------------------------------------------------------------------
\149\ 28 U.S.C.A. Sec. Sec. 581-89a (2006).
\150\ Bankruptcy Judges, United States Trustees, and Family Farmer
Bankruptcy Act of 1986, Pub. L. No. 99-554, 28 U.S.C.A. Sec. 581 n.
(2006). With respect to North Carolina and Alabama, the bankruptcy
system is administered by a bankruptcy administrator appointed by the
Judicial Conference. Id.
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Specific responsibilities of United States Trustees include
appointing and supervising private trustees who administer
Chapter 7,\151\ 12,\152\ and 13 \153\ bankruptcy estates;
taking legal action to enforce the requirements of the
Bankruptcy Code and to ferret out fraud and abuse; referring
matters for investigation and criminal prosecution when
appropriate; ensuring that bankruptcy estates are administered
promptly and efficiently, and that professional fees are
reasonable; appointing and convening creditors' committees in
Chapter 11 business reorganization cases;\154\ and reviewing
disclosure statements and retention applications for
professional persons retained to represent certain interested
parties in bankruptcy cases.
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\151\ Under Chapter 7, a debtor's non-exempt assets are collected
and liquidated to satisfy the claims of creditors. The United States
Trustee appoints a private trustee who serves as a fiduciary for the
debtor's creditors and administers the Chapter 7 bankruptcy estate. An
eligible debtor may receive a discharge from his or her unsecured debts
under Chapter 7, except for certain debts prohibited from discharge
under the Bankruptcy Code.
\152\ Chapter 12 permits an eligible family farmer to reorganize
the farm's financial obligations while continuing his or her farming
operations. The United States Trustee typically appoints a standing
trustee who serves as a fiduciary for the debtor's creditors and
oversees the fulfillment of debtor's obligations under a repayment
plan. Upon completion of the plan payments, the Chapter 12 debtor is
eligible to receive a discharge.
\153\ Chapter 13 is used primarily by individual consumers to
reorganize their financial affairs pursuant to a repayment plan
approved by the court. To be eligible for Chapter 13 relief, a consumer
must have regular income and may not have more than a certain amount of
debt. A standing trustee appointed by the United States Trustee serves
as a fiduciary for the debtor's creditors and oversees the fulfillment
of the debtor's obligations under a repayment plan. Upon completion of
the plan payments, the Chapter 13 debtor is eligible to receive a
discharge.
\154\ Chapter 11 provides an individual or business entity the
opportunity to reorganize financial liabilities while remaining in
business. The debtor, typically with the participation of its
creditors, prepares a reorganization plan to repay all or part of its
debts.
---------------------------------------------------------------------------
On October 2, 2007, the Subcommittee on Commercial and
Administrative Law held an oversight hearing on the ``United
States Trustee Program: Watchdog or Attack Dog?'' Witnesses
included: Clifford White, III, Director, Executive Office for
United States Trustees; the Honorable A. Jay Cristol, United
States Bankruptcy Judge for the Southern District of Florida;
the Honorable Eugene Wedoff, United States Bankruptcy Judge for
the Northern District of Illinois; Paul Uyehara, an attorney
with the Community Legal Services Language Access Project in
Philadelphia, Pennsylvania, on behalf of the National
Association of Consumer Bankruptcy Attorneys; and Mary Powers,
a former United States Trustee Program trial attorney. The
hearing provided an opportunity to consider the work and
responsibilities of the United States Trustee Program,
particularly in light of recent criticisms concerning its
enforcement efforts in the area of consumer bankruptcy.
Bankruptcy Trustee Compensation
Summary.--Bankruptcy trustees supervise the administration
of chapter 7 cases on behalf of, and as a fiduciary for, the
chapter 7 estate. Their principal function is to collect and
liquidate the property of the estate and to distribute the
proceeds to the estate's creditors. Trustees are indispensable
to the functioning of the bankruptcy system. Most chapter 7
cases are handled by trustees with only minimal involvement by
the bankruptcy court. Despite their importance, trustees
receive only a $60 per-case fee as compensation for their
services in most cases. Serious questions have been raised as
to whether this minimal compensation is adequate to attract and
retain qualified trustees.
On September 16, 2008, the Subcommittee held a hearing on
the subject of chapter 7 bankruptcy trustee compensation. The
hearing provided an opportunity for Subcommittee members to
hear testimony on the adequacy of trustee compensation, the
effect of compensation levels on the functioning of the
bankruptcy system, and proposals to increase trustee
compensation. Four witnesses testified: Edward Crane, former
President, National Association of Bankruptcy Trustees; Robert
Furr, President, National Association of Bankruptcy Trustees;
the Honorable Margaret D. McGarity, United States Bankruptcy
Judge, United States Bankruptcy Court for the Eastern District
of Wisconsin; and Jack Williams, Professor of Law, Georgia
State University College of Law, and Scholar-in-Residence,
American Bankruptcy Institute.
Viability of Chapter 11
Summary.--The Bankruptcy Abuse Prevention and Consumer
Protection Act of 2005 (the 2005 Act) was signed into law by
President George W. Bush on April 20, 2005.\155\ Although much
of the debate concerning the 2005 Act's amendments focused on
consumer bankruptcy,\156\ there were a number of significant
amendments to Chapter 11 of the Bankruptcy Code. After nearly
three years since the enactment of these amendments, some
question whether these amendments have worked as intended and
whether they have had an adverse impact on a debtor's ability
to reorganize, especially in light of recently filed cases.
There are concerns that the 2005 Act has made it more difficult
for business debtors in Chapter 11 to reorganize.\157\ In sum,
they claim that these ``changes that, for the most part, will
adversely affect the ability of businesses to reorganize.''
\158\
---------------------------------------------------------------------------
\155\ Pub. L. No. 109-8, 119 Stat. 23 (2005).
\156\ See, e.g., Susan Jensen, A Legislative History of the
Bankruptcy Abuse and Consumer Protection Act of 2005, 79 Am. Bankr. L.
J. 485, 486 (2005).
\157\ See, e.g, Harvey R. Miller, Chapter 11 in Transition--From
Boom to Bust and Into the Future, 81 Am. Bankr. L. J. 375, 378 (2007)
(``The changes in the Bankruptcy Law, which culminated in the 2005
amendments, make bankruptcy unappealing to most debtor
organizations.''); Richard Levin & Alesia Ranney-Marinell, The Creeping
Repeal of Chapter 11: The Significant Business Provisions of the
Bankruptcy Abuse Protection and Consumer Protection Act, 79 Am. Bankr.
L. J. 603 (2005).
\158\ Richard Levin & Alesia Ranney-Marinell, The Creeping Repeal
of Chapter 11: The Significant Business Provisions of the Bankruptcy
Abuse Protection and Consumer Protection Act, 79 Am. Bankr. L. J. 603,
(2005).
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With respect to the 2005 Act's amendments to the Bankruptcy
Code exempting certain types of financial contracts from the
Code, some fear that these ``financial safe harbors are indeed
a `bankruptcy opt-out clause' for a certain class of
capitalists because their money is more important than everyone
else's.'' \159\ They argue that the 2005 Act's expanded
exemption for credit derivatives from the Bankruptcy Code was
done ``with little or no consideration of the larger
implications of credit derivatives for chapter 11 policy.''
\160\ Concerns have also been raised about the 2005 Act's
amendments to Bankruptcy Code section 365 dealing with
nonresidential leases.\161\ Others fear that the financial
impact of the administrative expense priority for reclamation
creditors ``on certain types of debtors (for example,
retailers) is likely to be substantial, as administrative
expense claims must be paid in full in cash as a condition to
confirming a plan.'' \162\ Commentators assert that the 2005
Act's amendments to Chapter 11 ``were particularly hard on
retailers.'' \163\ And, there are many in the bankruptcy
community who believe that external developments have weakened
Chapter 11's viability as a venue for a successful
reorganization. These developments include the growing trend
for businesses to be highly leveraged, the decreasing quality
of new issue loans,\164\ the increasing use of state law
authorized asset-backed securitizations that make assets
``bankruptcy-remote,'' and the exponential rise in credit
default swaps.\165\
---------------------------------------------------------------------------
\159\ Rhett G. Campbell, Financial Markets Contracts and BAPCPA, 79
Am. Bankr. L. J. 697, 712 (2005).
\160\ Stephen J. Lubben, Credit Derivatives and the Future of
Chapter, 81 Am. Bankr. L. J. 405, (2007).
\161\ Richard Levin & Alesia Ranney-Marinell, The Creeping Repeal
of Chapter 11: The Significant Business Provisions of the Bankruptcy
Abuse Protection and Consumer Protection Act, 79 Am. Bankr. L. J. 603,
624 (2005).
\162\ Id. at 605. Especially with respect to larger debtors, the
authors also expressed concern that this provision will require the
debtor to establish a `` system to monitor reclamation demands and to
segregate or track reclaimed goods,'' and that this, ``even if
possible, will create a substantial administrative burden in terms of
time and expense that they will not be equipped to handle.'' Id.
\163\ Pallavi Gogoi, Bankrupt Retailers: Pushed to the Brink--
Changes in the law have sharply reduced retailers' ability to
reorganize, driving many to liquidate quickly, Business Week, Aug. 11,
2008.
\164\ Harvey R. Miller, Chapter 11 in Transition--From Boom to Bust
and Into the Future, 81 Am. Bankr. L. J. 375, 378 (2007) (noting that
the ``total amount of below investment grade debt has materially
increased since 2000 while the riskiest debt has increased the most'').
\165\ Stephen J. Lubben, Credit Derivatives and the Future of
Chapter, 81 Am. Bankr. L. J. 405 (2007).
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On September 26, 2008, the Subcommittee on Commercial and
Administrative Law held an oversight hearing on ``Lehman
Brothers, Sharper Image, Bennigan's, and Beyond: Does Chapter
11 Bankruptcy Still Work?'' Witnesses included: Professor Jay
Westbrook, University of Texas, School of Law; Professor Barry
E. Adler, New York University School of Law; and Lawrence
Gottlieb, Esq., Cooley Godward Kronish LLP. The hearing
examined--in light of the 2005 amendments to Chapter 11 of the
Bankruptcy Code and other developments--whether Chapter 11 was
working as Congress intended. As part of this examination, the
hearing focused on certain recently filed high profile
bankruptcy business cases, including those filed by Lehman
Brothers and retailers.
PRIVACY
Privacy and Civil Liberties Oversight Board and the Privacy Officer for
the U.S. Department of Homeland Security
Summary.--In 2002, the National Commission on Terrorist
Attacks Upon the United States was established to ``examine and
report upon the facts and causes relating to the terrorist
attacks of September 11, 2001.'' \166\ The Commission made
three privacy-related recommendations,\167\ one of which
pertained to the establishment of a board to protect our
citizens' privacy:
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\166\ Intelligence Authorization Act for Fiscal Year 2003, Pub. L.
No. 107-306, title VI, Sec. Sec. 602(1), (5), 604, 116 Stat. 2383,
2408-13 (2002).
\167\ The other privacy-related recommendations were as follows:
As the President determines the guidelines for information sharing
among government agencies and by those agencies with the private
sector, he should safeguard the privacy of individuals about whom
information is shared.
The burden of proof for retaining a particular governmental power
should be on the executive, to explain (a) that the power actually
materially enhances security and (b) that there is adequate supervision
of the executive's use of the powers to ensure protection of civil
liberties. If the power is granted, there must be adequate guidelines
and oversight to properly confine its use. Id. at 394-95.
With respect to its first recommendation, the Commission explained
that this recommendation related to another Commission recommendation
for agencies to ``open up the sharing of information'' among themselves
and with the private sector and to have the President take
responsibility for determining what information can be shared and the
conditions under which it can be shared. As part of the President's
determinative process, the Commission suggested that the protection of
privacy rights should be considered as a ``key element.'' Id. at 395.
As to its second recommendation, the Commission noted that while
the provisions of the USA PATRIOT Act facilitating the sharing of
information among intelligence agencies ``appear, on balance, to be
beneficial,'' the Commission cited ``concerns regarding the shifting
balance of power to the government'' relating to the Act. Accordingly,
it observed that a ``full and informed debate'' on the Act ``would be
healthy.'' Id. at 395.
At this time of increased and consolidated government
authority, there should be a board within the executive
branch to oversee adherence to the guidelines we
recommend and the commitment the government makes to
defend our civil liberties. \168\
---------------------------------------------------------------------------
\168\ Id. at 395.
In response to this recommendation, the Privacy and Civil
Liberties Oversight Board was created as part of the
Intelligence Reform and Terrorism Prevention Act of 2004.\169\
Pursuant to the Act, the Board was established within the
Executive Office of the President and its five members were
appointed by the President, who then serve at the pleasure of
the President.\170\ The Act specified the Board's functions.
For the purpose of providing advice to the President or to
Federal agencies, the Board is required to review proposed
regulations and executive branch policies ``related to efforts
to protect the Nation from terrorism, including the development
and adoption of information sharing guidelines.'' \171\ In
addition, the Board must review the implementation of laws,
regulations, and policies pertaining to efforts to protect the
Nation from terrorism.\172\ The Board must also advise the
President and any Federal agency ``to ensure that privacy and
civil liberties are appropriately considered in the development
and implementation of such regulations and executive branch
policies.'' \173\ Further, the Board, as part of its oversight
responsibilities, must review ``the information sharing
practices of the departments, agencies, and elements of the
executive branch to determine whether or not such practices
appropriately protect privacy and civil liberties and adhere to
the information sharing guidelines . . . and to other
applicable laws, regulations, and executive branch policies
regarding the protection of privacy and civil liberties.\174\
Finally, the Board must annually report to Congress ``on the
Board's major activities during the preceding period.'' \175\
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\169\ Pub. L. No. 108-458, Sec. 1061, 118 Stat. 3638, 3684 (2004).
\170\ Id. at Sec. 1061(b), (e), 118 Stat. 3684-87. The chair and
vice chair are confirmed by the Senate. Id. at Sec. 1061(e)(1)(B), 118
Stat. 3686.
\171\ Pub. L. No. 108-458, Sec. 1061(c)(1)(A), 118 Stat. 3638, 3684
(2004).
\172\ Id. at Sec. 1061(c)(1)(B), 118 Stat. 3684-85.
\173\ Id. at Sec. 1061(c)(1)(C), 118 Stat. 3685. In providing
advice on proposals to retain or enhance a particular governmental
power, the Board must consider whether the department, agency, or
element of the executive branch concerned has explained:
(i) that there is adequate supervision of the use by the executive
branch of the power to ensure protection of privacy and civil
liberties;
(ii) that there are adequate guidelines and oversight to properly
confine the use of the power; and
(iii) that the need for the power, including the risk presented to
the national security if the Federal Government does not take certain
actions, is balanced with the need to protect privacy and civil
liberties. Id. at Sec. 1061(c)(1)(D), 118 Stat. 3685.
\174\ Id. at Sec. 1061(c)(2)(B), 118 Stat. 3685.
\175\ Id. at Sec. 1061(c)(4), 118 Stat. 3685.
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On April 20, 2007, the Board issued its first report to
Congress. The 42-page report provided background on
organizational matters as well as the Board's outreach and
education efforts. It also included a section discussing issue
identification and prioritization. Shortly after the Board
issued its report, Lanny Davis, one of the Board members,
resigned on May 14, 2007.\176\ In his letter of resignation,
Mr. Davis explained: ``My reasons for resignation are based on
my respectful disagreement with administration officials and
most members of the Board over (1) the scope of the Board's
oversight responsibilities; and (2) the interpretation of an
ambiguous statute and the degree of the Board intended by
congress under that statute.'' \177\ With regard to his first
reason, Mr. Davis cited the Board's ``refusal to include a more
lengthy and critical section in the congressional report
concerning FBI abuses of National Security Letters.'' \178\ In
substantiation of his second reason, Mr. Davis cited the
``extensive `redlining' of the Board's report to the congress
by administration officials, and the majority of the Board's
willingness to accept most of these proposed edits and
deletions.'' \179\ In the 110th Congress, legislation was
introduced in both the House and Senate that would strengthen
the independence of the Board and to equip it with greater
authorities.\180\
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\176\ Letter from Lanny J. Davis to the Privacy and Civil Liberties
Oversight Board Members (May 14, 2007) (on file with the CAL
Subcommittee).
\177\ Id. at 1.
\178\ Id.
\179\ Id. at 2.
\180\ H.R. 1, 110th Cong. (2007); S. 4, 110th Cong. (2007).
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Since the September 11th terrorist attacks, Congress has
sought to balance two competing goals: keeping the nation
secure and protecting the privacy rights of our nation's
citizens. The desire to achieve and maintain this balance was
reflected in the debate concerning the creation of DHS. In
2002, the Subcommittee held a hearing on various privacy and
administrative law issues presented by the anticipated creation
of the Department.\181\ Among the matters considered were
issues concerning how the new Department would ensure the
privacy of personally identifiable information as it
``establishes necessary databases that coordinate with other
agencies of the Government.'' \182\ Concerns were expressed on
a bipartisan basis about the agency's ability to collect,
manage, share, and secure personally identifiable
information.\183\ In response to persuasive testimony received
at the hearing, the Judiciary Committee, on a bipartisan basis,
successfully amended legislation creating the Department to
require the appointment of a privacy officer.\184\ The first
statutorily-mandated privacy office was signed into law as part
of the Homeland Security Act of 2002 on November 25, 2002.\185\
The current DHS Chief Privacy Officer was appointed by
Secretary Michael Chertoff on July 23, 2006.
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\181\ Administrative Law, Adjudicatory Issues, and Privacy
Ramifications of Creating a Department of Homeland Security: Hearing
Before the Subcomm. on Commercial and Administrative Law of the House
Comm. on the Judiciary, 107th Congress (2002).
\182\ Id. at 2.
\183\ See, e.g., id. at 4 (statements of Rep. Mark Green (R-WI) and
Rep. Maxine Waters (D-CA)).
\184\ H. Rept. No. 107-609, at 9-10 (2002).
\185\ Pub. L. No. 107-296, Sec. 222, 116 Stat. 2135, 2155 (2002).
Section 222 provides:
The Secretary shall appoint a senior official in the Department to
assume primary responsibility for privacy policy, including--
(1) assuring that the use of technologies sustain, and do not
erode, privacy protections relating to the use, collection, and
disclosure of personal information;
(2) assuring that personal information contained in Privacy Act
systems of records is handled in full compliance with fair information
practices as set out in the Privacy Act of 1974;
(3) evaluating legislative and regulatory proposals involving
collection, use, and disclosure of personal information by the Federal
Government;
(4) conducting a privacy impact assessment of proposed rules of the
Department or that of the Department on the privacy of personal
information, including the type of personal information collected and
the number of people affected; and
(5) preparing a report to Congress on an annual basis on activities
of the Department that affect privacy, including complaints of privacy
violations, implementation of the Privacy Act of 1974, internal
controls, and other matters. Id.
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On July 24, 2007, the Subcommittee on Commercial and
Administrative Law held a hearing on ``Privacy in the Hands of
the Government: The Privacy and Civil Liberties Oversight Board
and the Privacy Officer for the U.S. Department of Homeland
Security.'' Witnesses at the hearing included: Lanny Davis,
former member of the Privacy and Civil Liberties Oversight
Board; Alan Charles Raul, Vice Chair, Privacy and Civil
Liberties Oversight Board; Hugo Teufel III, Chief Privacy
Officer, U.S. Department of Homeland Security; and Linda
Koontz, Director, Information Management Issues, U.S.
Government Accountability Office. The hearing provided an
opportunity to review the work and performance of the
principals charged with protecting the privacy of our Nation's
citizens at the Privacy and Civil Liberties Oversight Board and
the Department of Homeland Security.
ARBITRATION
The Federal Arbitration Act
Summary.--The Subcommittee has jurisdiction over the
Federal Arbitration Act, Title 9 of the United States Code.
Title 9 was adopted as a means to put arbitration agreements on
the same footing as other contracts, and as a way to avoid the
costly and time consuming litigation process. Arbitration law
establishes alternative dispute resolution procedures for
certain types of disputes with an eye towards keeping those
disputes out of court, thereby facilitating efficient
adjudication. The Act supersedes all state laws in conflict
with the spirit of the Act. In order to facilitate settlements
by arbitration, Title 9 provides a strong presumption that
courts will enforce determinations arrived at under this
process. Avenues for judicial review of arbitration
determinations do exist and occasionally have been utilized by
the parties. The Supreme Court has upheld arbitration clauses
in a wide array of contracts by recognizing Congress' expansive
powers under the Commerce Clause.
Although businesses initially used arbitration to resolve
disputes voluntarily among each other, businesses have expanded
the use of arbitration into their interactions with consumers
and employees. Anecdotally and empirically, businesses have
exploited their greater bargaining power by drafting
arbitration clauses and inserting them within their contracts.
These binding clauses can disadvantage consumers, employees,
and franchisees. Because of the prevalence of arbitration
clauses, individuals may have little choice but to accept an
arbitration clause mandated by a business, an employer, or a
franchisor. Ironically, during the passage of the Federal
Arbitration Act, Congress did not intend to allow binding
arbitration agreements on individuals if the contracts were
between parties of unequal bargaining power.\186\
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\186\ Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395,
414 (1967) (Black, J. dissenting) (citing Hearing on S. 4213 and S.
4214 Before the Subcomm. of the S. Comm. on the Judiciary, 67th Cong.,
9-11 (1923)).
---------------------------------------------------------------------------
Because arbitration avoids the public court system in favor
of a private industry of arbitration groups, individuals lose
some of the benefits and rights associated with traditional
litigation. These benefits and rights include lower initial
financial hurdles, pretrial discovery, formal civil procedure
rules, proximity to the resolution forum, access to counsel,
class action options, and fairness. Arbitration clauses may
even negate the protection of some federal statutes.
On June 12, 2007, the Subcommittee held an oversight
hearing on the Federal Arbitration Act. Witnesses at the
hearing included Mr. F. Paul Bland, Jr., an attorney with
Public Justice; Ms. Jordan Fogel, a homeowner from Texas; Mr.
Mark J. Levin, Esq., an attorney with Ballard Spahr Andrews and
Ingersoll, LLP; and Mr. David S. Schwartz, a professor at the
University of Wisconsin Law School. The hearing provided an
opportunity for the Subcommittee to review the use of
arbitration and to determine whether mandatory binding
arbitration clauses in consumer contracts are an equitable use
of the arbitration process.
Oversight Hearing on the National Football League's System for
Compensating Retired Players: An Uneven Playing Field?
Summary.--Recently, the National Football League (NFL) and
National Football League Players Association (NFLPA) have been
criticized for their treatment of injured retired football
players. A number of high-profile incidents have contributed to
this increased scrutiny, including the Fourth Circuit's
decision to award the estate of Mike Webster, the former star
center for the Pittsburgh Steelers, more than $1.1 million in
disability payments to which the NFL's retirement plan claimed
he was not entitled; \187\ the suicide of former Eagles safety
Andre Waters and the subsequent assessment by a leading
neuropathologist that brain damage sustained during Waters'
football career led to his depression; \188\ former New York
Giants linebacker Harry Carson's use of his Hall of Fame
induction speech to request that the NFL improve its treatment
of retired players; \189\ and the heated public spat about
disability and pension benefits between then-NFLPA President
Gene Upshaw and many of the retired players.\190\
---------------------------------------------------------------------------
\187\ Jani v. Bert Bell/Pete Rozelle NFL Player Ret. Plan, 2006
U.S. App. LEXIS 30594 (4th Cir. 2006).
\188\ Alan Schwarz, Expert Ties Ex-Player's Suicide to Brain Damage
from Football, N.Y. Times, Jan. 18, 2007, at D1.
\189\ Pro Football Hall of Fame, Harry Carson's Enshrinement Speech
Transcript, Aug. 5, 2006, available at http://www.profootballhof.com/
history/release.jsp?release_id=2177.
\190\ Greg Johnson, A Break-Neck Place, L.A. Times, June 6, 2007,
at D1. For example, after Pro Football Hall of Fame member Joe
DeLamielleure complained about the modest union-provided health and
pension benefits awarded to some NFL retirees, NFLPA President Gene
Upshaw said, ``A guy like DeLamielleure says the things he said about
me, you think I'm going to invite him to dinner? No. I'm going to break
his . . . damn neck.'' Id.
---------------------------------------------------------------------------
As part of its review of arbitration provisions, the
Subcommittee examined the complex process that NFL retirees
must navigate in order to obtain disability benefits. The
retirement plan provides, in certain circumstances, for an
arbitrator to ultimately determine whether a retired player
should receive medical benefits.\191\ Arbitration, a process in
which the parties to a dispute have a third-party decide the
outcome of the dispute, has been used as a means of dispute
resolution for thousands of years.\192\ It is commonly
designated in collective agreements between employers and
employees as the way to resolve disputes where the parties
select a neutral third party (an arbiter) to hold a formal or
informal hearing on the disagreement.\193\ The practice of
arbitration is governed by both federal and state law. While
the Federal Arbitration Act,\194\ by its own terms, is not
applicable to employment contracts, federal courts are
increasingly applying the law in labor disputes.\195\
---------------------------------------------------------------------------
\191\ Bert Bell/Pete Rozelle NFL Player Retirement Plan: Plan
Document Sec. 8.3(b-c) (2001).
\192\ See Jean R. Sternlight, Creeping Mandatory Arbitration: Is it
Just?, 57 Stan. L. Rev. 1631, 1635 (Apr. 2005).
\193\ Cornel University Law School, Legal Information Institute:
Collective Bargaining, available at http://fatty.law.cornell.edu/wex/
index.php/Collective_bargaining.
\194\ Federal Arbitration Act, ch. 213, 43 Stat. 883 (1925)
(codified as amended at 9 U.S.C. Sec. 1, et seq.).
\195\ Id.
---------------------------------------------------------------------------
On June 26, 2007, the Subcommittee held a hearing to
determine whether arbitration should have a more prominent role
in the complicated disability benefits procedure and whether an
arbitrator should ultimately decide whether a retired player
should receive benefits. Witnesses at the hearing included:
Mike Ditka, retired National Football League (NFL) player and
coach; Harry Carson, retired NFL player; Curt Marsh, retired
NFL player; Brent Boyd, retired NFL player; Dennis Curran, a
representative from the NFL; Douglas Ell, a representative from
the National Football League Players Association (NFLPA) and
counsel to the Bert Bell/Pete Rozelle NFL Players Retirement
Plan; Cyril V. Smith, partner at Zuckerman Spaeder LLP and
counsel for the estate of Mike Webster; and Martha Jo Wagner,
employee benefits partner at Venable LLP.
STATE TAXATION AFFECTING INTERSTATE COMMERCE
Oversight Hearing on the ``Internet Tax Freedom Act: Internet Tax
Moratorium''
Summary.--The Internet Tax Freedom Act (ITFA), which was
enacted on October 21, 1998 during the 105th Congress,\196\
established an Internet tax moratorium that was originally
intended to foster the growth of the Internet and electronic
commerce. Although commonly misunderstood as a moratorium on
all taxes related to an Internet transaction, ITFA does not
prohibit states from requiring in-state consumers to pay sales
and use taxes on goods purchased online, nor does it prevent
states from requiring out-of-state sellers with a substantial
physical presence in the state to collect and remit sales and
use taxes.\197\ Instead, the primary purposes of ITFA were to
establish a three-year moratorium to prevent state and
localities from imposing new taxes on Internet access,\198\ to
ensure that multiple states could not tax the same electronic
commerce transaction, and to ensure that commerce over the
Internet would not be singled out for new discriminatory tax
treatment.\199\ ITFA also allowed state and local Internet
access taxes levied prior to ITFA's enactment to be protected
by a grandfather clause.\200\ Subsequent laws extended the
temporary moratorium, revised definitions, and expanded or
extended certain grandfather protections until November 1,
2007.\201\
---------------------------------------------------------------------------
\196\ The Internet Tax Freedom Act comprises Titles XI and XII of
Division C of the Omnibus Consolidated and Emergency Supplemental
Appropriations Act (H.R. 4328, Pub. L. No. 105-277, 112 Stat. 2681,
719-728 (1998)). It can be found at 47 U.S.C. 151 note Sec. 1100.
\197\ Any imposed tax must be consistent with the guidance given by
the Supreme Court in Complete Auto Transit, Inc. v. Brady, 430 U.S. 274
(1977), and Quill Corp. v. North Dakota, 504 U.S. 298 (1992).
\198\ Simply defined, Internet access is the service by which users
connect to the Internet, such as by dial-up, cable modem, Wi-Fi, and
wireless cell phone. However, the definition of ``Internet access'' in
ITFA has led to differing interpretations.
\199\ ITFA prohibits states and localities from levying different
rates of taxes on similar goods or services whether procured through
electronic commerce or through other means, such as from a brick-and-
mortar business.
\200\ New Mexico, North Dakota, Ohio (on commercial use only),
South Dakota, Texas (on monthly charges over $25), and Wisconsin
currently impose a sales tax (or equivalent tax) on Internet access.
Tax Cybrary: State Summaries, available at http://www.vertexinc.com/
taxcybrary/internet/state_by_state.asp. In addition, Hawaii levies its
general excise tax, New Hampshire its communications services tax
(imposed on all two-way communications equipment), and Washington State
its business and occupation tax (a gross receipts tax levied on
business) on Internet access.
\201\ The Internet Tax Nondiscrimination Act (Pub. L. No. 107-75,
115 Stat. 703 (2001)) extended the moratorium until November 1, 2003.
The Internet Tax Nondiscrimination Act (Pub. L. No. 108-435, 118 Stat.
2615 (2004)) extended the moratorium until November 1, 2007 and
reimposed the moratorium retroactively to November 1, 2003.
---------------------------------------------------------------------------
On May 22, 2007, the Subcommittee held an oversight hearing
to examine significant issues concerning ITFA. With the
impending expiration of the Internet tax moratorium, the
Subcommittee considered whether the moratorium should be
extended permanently, temporarily, or simply be allowed to
lapse.\202\ Furthermore, the Subcommittee weighed whether to
continue granting grandfather protection to states and
localities that had previously imposed and collected taxes on
Internet access.\203\ The Subcommittee also considered
definitions in ITFA that have been the source of some
apprehension and legal uncertainty for state and local
governments, providers of Internet access service,
telecommunications companies, and other entities. Witnesses at
the hearing included: David C. Quam, Director of Federal
Relations at the National Governors Association; Mark Murphy,
Fiscal Policy Analyst for the American Federation of State,
County and Municipal Employees; Jerry Johnson, Vice Chairman of
the Oklahoma Tax Commission; Scott Mackey, Partner at Kimbell
Sherman Ellis; and John Rutledge, Senior Fellow at the
Heartland Institute.
---------------------------------------------------------------------------
\202\ The past Congresses have only enacted temporary moratoriums.
The 108th Congress reimposed the temporary moratorium retroactive to
the end of the prior moratorium (November 1, 2003). However, the 107th
Congress did not make the temporary moratorium retroactive to the end
of the prior moratorium (October 21, 2001). Therefore, about a five-
week period existed when there was no moratorium in place.
\203\ ITFA exempted from the moratorium taxes on Internet access
that were ``generally imposed and actually enforced prior to October 1,
1998.'' Sec. 1104(a)(1) of ITFA. The grandfathering protection has been
extended through Pub. L. Nos. 107-75 and 108-435. However, grandfather
protection ended for pre-November 2003 enforced Internet access taxes
(primarily on DSL services) on November 1, 2005 and for Wisconsin's
Internet access taxes on November 1, 2006. See footnote 5 for the
jurisdictions which currently tax Internet access. Also, according to a
GAO report, eliminating grandfather protection could cost state and
local governments an estimated $120 million per year. Internet Access
Tax Moratorium: Revenue Impacts Will Vary by State, GAO-06-273 (Jan.
2006).
---------------------------------------------------------------------------
Legislation to address the expiring tax moratorium was
introduced on September 27, 2007 as H.R. 3678, the ``Internet
Tax Freedom Act Amendments Act of 2007.''
PRODUCT LIABILITY
Oversight Hearing on Protecting the Playroom: Holding Foreign
Manufacturers Accountable for Defective Products
Summary.--Given the increase of imported products that do
not meet U.S. standards for heath, safety, and quality, and the
fact that the Consumer Product Safety Commission has been
largely ineffective in preventing the importation of defective
products, consumers have been exposed to unnecessary harm. When
consumers are injured by foreign-made products, current law
leaves them little recourse in receiving compensation from a
foreign manufacturer.
Consumers seeking to hold foreign manufacturers accountable
face a number of daunting barriers. First, a consumer must
establish personal jurisdiction, an increasingly difficult task
given the uncertainty of the law. A consumer must then navigate
the complex service of process requirements when serving a
manufacturer in a foreign country. This may include translating
materials into the language of that country. Even if the
consumer succeeds in having the matter heard and winning a
favorable judgment, collecting compensation may be difficult as
most countries resist enforcing U.S. judgments.
On November 15, 2007, the Subcommittee held a hearing that
probed these barriers and explored ways in which the law could
be changed so that U.S. consumers could hold foreign
manufacturers accountable for injuries suffered as a result of
defective products. Witnesses at the hearing included:
Professor Andrew Popper, American University Washington College
of Law; Pamela Gilbert, Esq., Cuneo, Gilbert & LaDuca, LLP;
Thomas Gowan, Esq., The Locks Law Firm; and Victor Schwartz,
Esq., Institute for Legal Reform, of the U.S. Chamber of
Commerce.
DEPARTMENT OF JUSTICE MATTERS
Oversight Hearing on the Implementation of the U.S. Department of
Justice's Special Counsel Regulations
Summary.--When the independent counsel law expired after
June 30, 1999, the Attorney General promulgated specific
regulations concerning the appointment of outside, temporary
counsels.\204\ According to the regulations, such ``special
counsels'' are to be appointed by the Attorney General to
conduct investigations and possible prosecutions of certain
sensitive criminal matters where the Department may have a
conflict of interest and where the circumstances determine that
it would be in the public interest.\205\ The regulations
specify that a special counsel must be selected from outside
the government.\206\ According to Justice Department drafters
of the regulations, this is a critical safeguard for a fair and
independent investigation because a Special Counsel would have
``no vested interest in the Department of Justice, no long-term
job at stake and no political identification with or antipathy
toward the Administration.'' \207\ Although a special counsel
comes from outside of the government, he or she shall have the
full power and prosecutorial functions of any U.S. Attorney.
---------------------------------------------------------------------------
\204\ Jack Maskell, Independent Counsel Law Expiration and the
Appointment of ``Special Counsels,'' Congressional Research Service
Report for Congress, RL 31246, at 4 (Jan. 15, 2002).
\205\ 28 CFR Sec. 600.1(a)-(b).
\206\ 28 CFR Sec. 600.3. (emphasis added).
\207\ H.R. 2083, the ``Special Counsel Act of 1999'': Hearing
Before the Subcomm. on Commercial and Administrative Law of the H.
Comm. on the Judiciary, 106th Cong. (1999) (statement of James K.
Robinson, Assist. Attorney General, Criminal Div., U.S. Dep't of
Justice).
---------------------------------------------------------------------------
Soon after the special counsel regulations were issued,
Attorney General Janet Reno appointed former Senator John
Danforth on September 9, 1999 as a special counsel to
investigate whether law enforcement personnel used excessive
force or other improper conduct in the Branch Davidian incident
near Waco, Texas.\208\ At the conclusion of a 14-month
investigation, Senator Danforth found no evidence of illegal
acts by federal agents in the 51-day standoff with the Branch
Davidians.\209\
---------------------------------------------------------------------------
\208\ Jack Maskell, Independent Counsel Law Expiration and the
Appointment of ``Special Counsels,'' Congressional Research Service
Report for Congress, RL 31246, at 4 (Jan. 15, 2002).
\209\ Dan Eggen, FBI Resisted Waco Investigation, Says Special
Counsel, Wash. Post, June 1, 2001.
---------------------------------------------------------------------------
Despite several opportunities to do so, Attorney Generals
in the Bush Administration have yet to utilize the special
counsel regulations. Some prominent examples where the Bush
Administration refused to appoint a special counsel under the
regulations are the following: the investigation of the alleged
unauthorized disclosure of a CIA employee's identity, the CIA's
destruction of detainee interrogation videotapes, and the
investigation into the firings of U.S. Attorneys.
In order to review Department of Justice's utilization of
the Special Counsel regulations and to consider whether
legislation in this area would be appropriate, the Subcommittee
held a hearing on February 26, 2008. Witnesses at the hearing
included: Patrick Fitzgerald, former ``special counsel,'' \210\
U.S. Attorney, Northern District of Illinois; Carol Elder
Bruce, former Independent Counsel, Partner, Venable LLP;
Professor Neal Katyal, Georgetown University Law School; Barry
Coburn, Partner, Coburn & Coffman PLLC; and Lee A. Casey,
Partner, Baker Hostetler.
---------------------------------------------------------------------------
\210\ While Patrick Fitzgerald was given the title ``Special
Counsel,'' he was not appointed as a Special Counsel under the
Department of Justice's regulations. Letter from James B. Comey, Acting
Attorney General, U.S. Dep't of Justice, to Patrick J. Fitzgerald, U.S.
Attorney, Northern District of Illinois (Feb. 6, 2004) (on file with
the Committee on the Judiciary).
---------------------------------------------------------------------------
Oversight Hearing on Deferred Prosecution: Should Corporate Settlement
Agreements Be Without Guidelines?
Summary.--In a deferred prosecution agreement (DPA) or non-
prosecution agreement (NPA), a corporation against which the
government has sufficient evidence to file criminal charges
enters into an agreement with the government to period of
probation, subject to specific conditions. A DPA differs from
an NPA in that a DPA typically includes a formal charging
document--an indictment or a complaint--and the agreement is
normally filed with the court, while in the NPA context, there
is typically no charging document and the agreement is normally
maintained by the parties rather than filed with a court. The
obligations imposed pursuant to the agreements usually include
payment of a substantial monetary penalty, implementation of
stringent corporate governance and compliance measures,
cooperation with the government's ongoing investigation (often
requiring waivers of the corporation's attorney-client
privilege and work-product protection), waivers of speedy trial
rights and statute of limitations defenses, and agreement to
external oversight by an independent monitor approved by the
government.
Since at least 1993, DPAs and NPAs have been used in a
variety of cases involving a range of crimes, including
security and commodities fraud, Foreign Corrupt Practices Act
violations, health care fraud, and money laundering and tax
offenses. The use of DPAs and NPAs has grown exponentially in
the wake of the demise of Arthur Anderson, LLP in 2002, where a
criminal conviction had substantial collateral consequences.
On March 11, 2008, the Subcommittee conducted an oversight
hearing of DPAs and NPAs. Because there were minimal guidelines
on corporate settlement agreements until the eve of the
Subcommittee's hearing, the Subcommittee examined how
agreements should be structured and how independent monitors
should be selected. Specifically, the Subcommittee explored New
Jersey U.S. Attorney Christopher Christie's appointment of John
Ashcroft, his former Attorney General, to serve as an
independent corporate monitor and collect fees potentially
between $28 and $52 million. Witnesses at the hearing included:
John Ashcroft, former Attorney General, The Ashcroft Group,
LLC; David Nahmias, U.S. Attorney, Northern District of
Georgia; Timothy Dickinson, Partner, Paul Hastings LLP;
Professor Brandon Garrett, University of Virginia School of
Law; and George Terwilliger, Partner, White & Case LLP.
Oversight Hearing on the Executive Office for United States Attorneys
Summary.--The Subcommittee has oversight jurisdiction over
five components of the Justice Department, including the
Executive Office for United States Attorneys (EOUSA). The U.S.
Attorneys serve as the nation's principal litigators under the
direction of the Attorney General. There are 93 U.S. Attorneys
stationed throughout the United States, Puerto Rico, the Virgin
Islands, Guam, and the Northern Mariana Islands. U.S. Attorneys
are appointed by, and serve at the discretion of, the President
of the United States, with advice and consent of the United
States Senate. One U.S. Attorney is assigned to each of the
judicial districts, with the exception of Guam and the Northern
Mariana Islands, where a single U.S. Attorney serves both
districts. Each U.S. Attorney is the chief federal law
enforcement officer of the U.S. within his or her particular
jurisdiction.
EOUSA was created on April 6, 1953, by AG Order No. 8-53 to
serve as a close liaison between the Justice Department in
Washington, D.C. and the 93 U.S. Attorneys.\211\ It is the
responsibility of EOUSA to provide support to the U.S. Attorney
offices throughout the country in the following areas: general
executive assistance and direction; policy development;
administrative management direction and oversight; operations;
and coordination with other components within the Justice
Department and other federal agencies.
---------------------------------------------------------------------------
\211\ Department of Justice Website, http://www.usdoj.gov/usao/
eousa/index.html.
---------------------------------------------------------------------------
On June 25, 2008, the Subcommittee conducted an oversight
of EOUSA that examined, among other things, the operation of
EOUSA in the aftermath of the U.S. Attorneys controversy, the
March 2008 decision to eliminate the public corruption and
environmental crimes section in the U.S. Attorney's Office for
the Central District of California, the Administration's FY
2009 budget request for U.S. Attorneys, the increase in
immigration prosecutions relative to the prosecutions of other
crimes, and the Justice Department's record on terrorism
prosecutions. Witnesses at the hearing included: Kenneth E.
Melson, Director, Executive Office for United States Attorneys;
Richard L. Delonis, President, National Association of
Assistant United States Attorneys; Professor Jonathan Turley,
George Washington Law School; and Heather Williams, First
Assistant to the Federal Public Defender, District of Arizona.
U.S. Attorneys Investigation
At the beginning of the 110th Congress, reports appeared
that several U.S. Attorneys had been asked to resign by the
Justice Department under suspicious circumstances.\212\ Because
of concerns that the U.S. Attorneys may have been dismissed for
improper partisan reasons, the Subcommittee initiated an
investigation into the firings. The investigation eventually
grew to address broader questions about the extent to which
core functions of the Justice Department such as criminal
prosecution decisions and hiring of career personnel may have
been improperly politicized. A more detailed description of the
investigation can be found in the full Judiciary Committee's
oversight activities report.
---------------------------------------------------------------------------
\212\ See, e.g., David Johnston, Dismissed U.S. Attorneys Received
Strong Evaluations, N.Y. Times, Feb. 25, 2007, at A19; Dan Eggen,
Justice Department Fires 8th U.S. Attorney; Dispute Over Death Penalty
Cited, Wash. Post, Feb. 24, 2007, at A2; Dan Eggen, Fired Prosecutor
Disputes Justice Dept. Allegation; He Calls Testimony `Unfair';
Meanwhile, Senate Panel Votes to Limit Attorney General's Power, Wash.
Post, Feb. 9, 2007, at A6; Marisa Taylor & Greg Gordon, U.S. Attorneys'
Selection Is Questioned, Seattle Times, Jan. 28, 2007, at A8 (noting
that the Attorney General ``is transforming the ranks of the nation's
top federal prosecutors by firing some and appointing conservative
loyalists from the Bush Administration's inner circle who critics say
are unlikely to buck Washington, D.C.''); Onell R. Soto & Kelly
Thornton, Lam to Resign Feb. 15 as Speculation Swirls; Some See
Politics at Play in Ouster of U.S. Attorney, San Diego Union-Trib.,
Jan. 17, 2007, at A1.
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Meeting to Consider a Resolution to Authorize Issuance of Subpoenas to
Former United States Attorneys
On March 1, 2007, the Subcommittee approved by voice vote,
a quorum being present, a resolution authorizing the Chairman
of the Judiciary Committee to issue subpoenas to Carol C. Lam,
former United States Attorney for the Southern District of
California; David C. Iglesias, former United States Attorney
for the District of New Mexico; H.E. Cummins III, former United
States Attorney for the Eastern District of Arkansas; and John
McKay, former United States Attorney for the Western District
of Washington, for the purpose of securing their appearance and
testimony.
Meeting to Consider Resolutions to Authorize Issuance of Subpoenas to
Former United States Attorneys
On March 6, 2007, the Subcommittee approved by voice vote,
a quorum being present, resolutions authorizing the Chairman of
the Judiciary Committee to issue subpoenas to Daniel Bogden,
former United States Attorney for the District of Nevada and
Paul K. Charlton, former United States Attorney for the
District of Arizona, for the purpose of securing their
appearance and testimony.
Meeting to Authorize Issuance of Subpoenas Concerning the Recent
Termination of United States Attorneys and Related Subjects
By voice vote, a quorum being present, the Subcommittee
authorized Chairman Conyers on March 21, 2007 to issue
subpoenas to J. Scott Jennings, Special Assistant to the
President, Office of Political Affairs; William Kelley, Deputy
White House Counsel; Harriet Miers, former White House Counsel;
Karl Rove, Deputy Chief of Staff and Senior Advisor to the
President; Joshua Bolton, White House Chief of Staff; and Fred
Fielding, White House Counsel, in order to obtain testimony and
documents.
Oversight Hearing on Ensuring Executive Branch Accountability
Summary.--Critics contend that in a wide variety of areas,
the Bush Administration has failed to provide the Congress and
the public with important information about their operations.
As a result, the Bush Administration has been criticized for
lacking sufficient transparency and accountability. In response
to requests for information about the U.S. Attorneys
controversy being investigated by the Subcommittee, the White
House adopted an extremely restrictive view and refused to
produce any information about communications or conduct inside
the White House (though assertedly not involving the President)
on this matter or to permit White House officials to provide
information to Congress through testimony under oath or even
through interviews with a transcript. This is despite the fact
that information already available shows that White House
officials were directly and deeply involved in the controversy.
On March 29, 2007, the Subcommittee reviewed the White
House's assertions concerning efforts to resist the provision
of testimony and documents to Congress in the U.S. Attorneys
controversy. Witnesses at the hearing included: John Podesta,
President and Chief Executive Officer of the Center for
American Progress and former White House Chief of Staff to
President Bill Clinton; Beth Nolan, a partner with Crowell &
Moring and former White House Counsel to President Bill
Clinton; Frederick A.O. Schwarz, Jr., Senior Counsel at the
Brennan Center for Justice; and Noel J. Francisco, a partner at
Jones Day and former Associate Counsel to President George W.
Bush.
Meeting to Consider a Resolution to Authorize Issuance of Subpoenas to
James Comey
On May 1, 2007, the Subcommittee approved by voice vote, a
quorum being present, a resolution authorizing the Chairman of
the Judiciary Committee to issue a subpoena to James Comey,
former Deputy Attorney General, for the purpose of securing his
appearance and testimony.
Oversight Hearing on The Continuing Investigation into the U.S.
Attorneys Controversy (James Comey)
On May 3, 2007, former Deputy Attorney General James Comey
testified before the Subcommittee regarding his knowledge of
the U.S. Attorney firings, performance of particular U.S.
Attorneys, and related matters.
Oversight Hearing on: The Continuing Investigation into the U.S.
Attorneys Controversy and Related Matters (Paul McNulty)
On June 21, 2007, Deputy Attorney General Paul McNulty
testified before the Subcommittee regarding his knowledge of
the U.S. Attorney firings, performance of particular U.S.
Attorneys, and related matters.
Meeting to Consider a Resolution to Authorize Issuance of Subpoena to
the Republican National Committee
On July 12, 2007, the Subcommittee approved by voice vote,
a quorum being present, a resolution authorizing the Chairman
of the Judiciary Committee to issue a subpoena to Republican
National Committee (RNC), for the purpose of securing
documents.
Oversight Hearing on: The Continuing Investigation into the U.S.
Attorneys Controversy and Related Matters (Harriet Miers)
Former White House Counsel Harriet Miers refused to comply
with a subpoena requiring her appearance before the
Subcommittee on July 12, 2007. Ms. Miers not only failed to
provide testimony or documents, but she also failed to appear
for the hearing. Subcommittee Chair Linda Sanchez proceeded to
overrule the claims of immunity and privilege with respect to
Ms. Miers, and the ruling was sustained by Subcommittee Members
in a recorded vote of 7-5.
Meeting to consider the Executive Privilege claims asserted by White
House Counsel in response to the subpoena for the production of
documents issued to Joshua Bolten, White House Chief of Staff,
or appropriate custodian of records
The Subcommittee met on July 19, 2007 to consider the
executive privilege claims asserted by White House Counsel Fred
Fielding in response to the subpoena for the production of
documents issued to Joshua Bolten, White House Chief of Staff,
or appropriate custodian of records. Subcommittee Chair Linda
Sanchez ruled against the privilege claims with respect to Mr.
Bolten's refusal to produce any documents pursuant to the
subpoena issued to him, and that ruling was upheld by a 7-3
vote.
Joint Hearing on Allegations of Selective Prosecution: The Erosion of
Public Confidence in Our Federal Justice System
On October 23, 2007, the Subcommittee held a joint hearing
with the Subcommittee on Crime, Terrorism, and Homeland
Security exploring several cases of alleged selective
prosecution, including the prosecutions of former Democratic
Alabama Governor Don Siegelman, Wisconsin state employee
Georgia Thompson, and prominent Democrat Cyril Wecht in
Pittsburgh. Witnesses at the hearing included: former Attorney
General Richard Thornburgh, Professor Donald C. Shields, and
former Alabama U.S. Attorney Doug Jones.
Allegations of Selective Prosecution Part II: The Erosion of Public
Confidence in Our Federal Justice System
On May 14, 2008, the Subcommittee held the second of two
joint hearings with the Subcommittee on Crime, Terrorism, and
Homeland Security exploring several cases of alleged selective
prosecution. The witnesses at the hearing included: Honorable
Paul W. Hodes (D-NH); consultant Allen Raymond and the author
of ``How to Rig an Election''; Paul Twomey, Esq., counsel for
the New Hampshire Democratic Party; and Mark C. Miller, the
author of ``Fooled Again'' and a professor at New York
University.
Oversight Hearing on the Politicization of the Justice Department and
Allegations of Selective Prosecution (Karl Rove)
Former White House Deputy Chief of Staff Karl Rove refused
to comply with a subpoena requiring his appearance before the
Subcommittee on July 10, 2008, failing to appear for the
hearing to answer questions. Subcommittee Chair Linda Sanchez
proceeded to overrule the claims of immunity and privilege with
respect to Mr. Rove, and the ruling was sustained by
Subcommittee Members in a recorded vote of 7-1.
Meeting to Consider a Resolution to Authorize Issuance of Subpoena to
Attorney General Michael Mukasey for Certain Documents
Previously Requested
On June 21, 2008, the Subcommittee approved by voice vote,
a quorum being present, a resolution authorizing the Chairman
of the Judiciary Committee to issue a subpoena to Attorney
General Michael Mukasey, for the purpose of securing documents
related to several Justice Department oversight requests,
including documents related to the U.S. Attorneys
investigation.
SUBCOMMITTEE ON THE CONSTITUTION, CIVIL RIGHTS, and CIVIL LIBERTIES \1\
---------------------------------------------------------------------------
\1\ Subcommittee chairmanship and assignments approved January 26,
2007, and February 28, 2007.
---------------------------------------------------------------------------
JERROLD NADLER, New York, Chairman
TRENT FRANKS, Arizona ARTUR DAVIS, Alabama
MIKE PENCE, Indiana DEBBIE WASSERMAN SCHULTZ, Florida
DARRELL ISSA, California KEITH ELLISON, Minnesota
STEVE KING, Iowa JOHN CONYERS, Jr., Michigan
JIM JORDAN, Ohio ROBERT C. ``BOBBY'' SCOTT,
Virginia
MELVIN L. WATT, North Carolina
STEVE COHEN, Tennessee
Tabulation of subcommittee legislation and activity
Legislation referred to the Subcommittee......................... 169
Legislation on which hearings were held.......................... 9
Legislation reported favorably to the full Committee............. 3
Legislation reported adversely to the full Committee............. 0
Legislation reported without recommendation to the full Committee 0
Legislation reported as original measure to the full Committee... 0
Legislation discharged from the Subcommittee..................... 0
Legislation pending before the full Committee.................... 3
Legislation reported to the House................................ 3
Legislation discharged from the Committee........................ 1
Legislation pending in the House................................. 0
Legislation failed passage by the House.......................... 0
Legislation passed by the House.................................. 4
Legislation pending in the Senate................................ 2
Legislation vetoed by the President (not overridden)............. 0
Legislation enacted into Public Law.............................. 2
Days of legislative hearings..................................... 8
Days of oversight hearings....................................... 21
Legislative Activities
H.R. 40, the Commission to Study Reparation Proposals for African-
Americans Act
Summary.--H.R. 40, the ``Commission to Study Reparation
Proposals for African-Americans Act'' was introduced by
Representative John Conyers, Jr. to create a commission
responsible for examining the fundamental injustice, cruelty,
and brutality, and inhumanity of slavery in the United States
and the lingering negative effects of the institution of
slavery. After examining these issues, the Commission would
recommend appropriate remedies to Congress.
Legislative History.--Representative John Conyers, Jr.
introduced H.R. 40 on January 4, 2007, and the bill was
referred to the Committee on the Judiciary. On February 2,
2007, H.R. 40 was referred to the Subcommittee on the
Constitution, Civil Rights, and Civil Liberties. On December
18, 2007, the Subcommittee on the Constitution, Civil Rights,
and Civil Liberties held a hearing on H.R. 40 entitled ``The
Legacy of the Trans-Atlantic Slave Trade.'' The hearing
witnesses were the Honorable JoAnn Watson, Councilwoman,
Detroit City Council; Ms. Kibibi Tyehimba, Co-Chair, National
Coalition of Blacks for Reparations in America (N'COBRA); Mr.
H. Thomas Wells, Jr., President-Elect, American Bar
Association; Professor Charles Ogletree, Jesse Climenko
Professor of Law, Harvard Law; Professor Eric Miller, Assistant
Professor of Law, St. Louis University School of Law; Bishop M.
Thomas Shaw, Bishop, Episcopal Diocese of Massachusetts;
Professor Stephan Thernstrom, Winthrop Professor of History,
Harvard University; and Mr. Roger Clegg, President, Center for
Equal Opportunity. There was no further action on H.R. 40 in
the Committee on the Judiciary or U.S. House of
Representatives.
H.R. 558--the ``African-American Farmers Benefits Relief Act of 2007''
Summary.--H.R. 558 provides de novo review for qualifying
claims filed under the consolidated class action lawsuits of
Pigford v. Veneman and Brewington v. Veneman.
Legislative History.--H.R. 558, the ``African-American
Farmers Benefits Relief Act of 2007,'' was introduced by House
Judiciary Committee member Artur Davis on January 18, 2007. On
June 21, 2007, the Subcommittee on the Constitution, Civil
Rights and Civil Liberties held a hearing on H.R. 558 and a
related bill, H.R. 899, the ``Pigford Claims Remedy Act of
2007.'' Testimony was received from the following witnesses:
The Honorable Charles E. Grassley, United States Senate; John
Zippert, Director of Program Operations, The Federation of
Southern Cooperatives Land Assistance Fund; Cassandra Jones
Harvard, Associate Professor of Law, University of Baltimore
School of Law; Phillip L. Fraas, Esq., Pigford Class Counsel;
The Honorable A. Donald McEachin, Virginia House of Delegates
and Dr. John W. Boyd Jr., President, National Black Farmers
Association. The substance of H.R. 558 was incorporated into
H.R. 3073, the ``Pigford Claims Remedy Act of 2007,'' and
enacted as Section 14012 of H.R. 2419, the ``Food,
Conservation, and Energy Act of 2008,'' Public Law No. 110-234,
on May 22, 2008, following an initial veto by President Bush.
H.R. 692, Army Specialist Joseph P. Micks Federal Flag Code Amendment
Act of 2007
Summary--The Army Specialist Joseph P. Micks Federal Flag
Code Amendment Act of 2007--Amends federal law with regard to
the flying of the national flag at half-staff to: (1) allow a
governor of a state, territory, or possession of the United
States to proclaim that the national flag be flown at half-
staff upon the death of a member of the Armed Forces from the
governor's state, territory, or possession who dies while
serving on active duty; (2) provide the same authority to the
Mayor of the District of Columbia with respect to present or
former District officials and members of the Armed Forces from
the District; and (3) require, when a governor or Mayor of the
District issues such a proclamation, the national flag flown at
any federal installation or facility in that state, territory,
possession, or District to be flown at half-staff consistent
with that proclamation.
Legislative History.--H.R. 692 was introduced on January
24, 2007 by Rep. Bart Stupak. It was reported favorably to the
House by a voice vote on April 25, 2007 (H. Rept. 110-139), and
placed on the Union Calendar, Calendar No. 81. On motion to
suspend the rules and pass the bill, as amended Agreed to by
the Yeas and Nays (2/3 required): 408-4 (Roll No. 346). On June
7, the Senate Committee on the Judiciary reported the bill
favorably and without amendment, and without a written report.
It was placed on the Senate Legislative Calendar under General
Orders on June 7, 2007. (Calendar No. 191). It passed the
Senate without amendment by Unanimous Consent on June 14, 2007.
The President Signed it on June 29, 2007. Pub. L. No. (110-41).
H.R. 899--the ``Pigford Claims Remedy Act of 2007''
Summary.--H.R. 899 declares that any Pigford claimant
(relating to a racial discrimination action against the
Department of Agriculture) who has not previously obtained a
determination on the merits of a Pigford claim may, in a civil
action, obtain that determination. The legislation asserts that
it is Congress' intent that this Act be liberally construed so
as to effectuate its remedial purpose of giving a full
determination on the merits for each denied Pigford claim. For
the purposes of the legislation, a ``Pigford claimant'' is
defined as an individual who previously submitted a late-filing
request under the consent decree in the case of Pigford v.
Glickman (1999); and a ``Pigford claim'' as a discrimination
complaint as defined and documented by such consent decree.
Legislative History.--H.R. 899, the ``Pigford Claims Remedy
Act of 2007,'' was introduced by House Judiciary Committee
member Robert C. ``Bobby'' Scott on February 7, 2007. On June
21, 2007, the Subcommittee on the Constitution, Civil Rights
and Civil Liberties held a hearing on H.R. 899 and a related
bill, H.R. 558, the ``African-American Farmers Benefits Relief
Act of 2007.'' Testimony was received from the following
witnesses: The Honorable Charles E. Grassley, United States
Senate; John Zippert, Director of Program Operations, The
Federation of Southern Cooperatives Land Assistance Fund;
Cassandra Jones Harvard, Associate Professor of Law, University
of Baltimore School of Law; Phillip L. Fraas, Esq., Pigford
Class Counsel; The Honorable A. Donald McEachin, Virginia House
of Delegates and Dr. John W. Boyd Jr., President, National
Black Farmers Association. The substance of H.R. 899 was
incorporated into H.R. 3073, the ``Pigford Claims Remedy Act of
2007,'' and enacted as Section 14012 of H.R. 2419, the ``Food,
Conservation, and Energy Act of 2008,'' Public Law No. 110-234,
on May 22, 2008, following an initial veto by President Bush.
H.R. 923--the ``Emmett Till Unsolved Civil Rights Crime Act of 2007''
Summary.--H.R. 923, as introduced, establishes an Unsolved
Crimes Section in the Civil Rights Division of the Department
of Justice (DOJ) and an Unsolved Civil Rights Crime
Investigative Office in the Civil Rights Unit of the Federal
Bureau of Investigation (FBI) with the responsibility of
investigating violations of criminal civil rights statutes in
which the alleged violation occurred before January 1, 1970 and
resulted in death. The legislation also amends the Crime
Control Act of 1990 to authorize staff of an Inspector General
to assist the National Center for Missing and Exploited
Children by conducting reviews of inactive case files to
develop recommendations for further investigations and engaging
in similar activities.
As amended, the legislation allows for the expanded
prosecution of unsolved civil rights crimes resulting in death
that occurred on or before December 31, 1969, by authorizing
additional funding to the Criminal Section of the Civil Rights
Section of the Department of Justice, the Civil Rights Section
of the Federal Bureau of Investigation (FBI), and the FBI's
Community Relations Department. The bill would designate
specific administrative authority for the investigation and
prosecution of unsolved Civil Rights Era crimes and require an
annual accounting to Congress on the progress of the
investigative initiatives, with a 10-year sunset provision. In
addition, the legislation amends the Crime Control Act of 1990
to authorize Inspector General staff to assist the National
Center for Missing and Exploited Children by conducting reviews
of inactive case files to develop recommendations for further
investigations.
Legislative History.--H.R. 923, the ``Emmett Till Unsolved
Civil Rights Crime Act of 2007,'' was introduced by
Representative John Lewis on February 8, 2007. On June 12,
2007, the Subcommittee on the Constitution, Civil Rights, and
Civil Liberties and the Subcommittee on Crime, Terrorism, and
Homeland Security jointly held hearings on H.R. 923. Testimony
was received from Myrlie Evers-Williams, activist, community
leader and widow of slain civil rights activist Medgar Evers;
Richard Cohen, President and Chief Executive Officer of the
Southern Poverty Law Center; G. Douglas Jones, former United
States Attorney for the Northern District of Alabama; Rita
Bender, attorney, activist and widow of slain civil rights
activist Michael Schwerner; Alvin Sykes, President of the
Emmett Till Justice Campaign, Inc.; and Grace Chung Becker,
Deputy Assistant Attorney General in the Department of Justice
Civil Rights Division. On June 12, 2007, the Subcommittee on
Constitution, Civil Rights, and Civil Liberties met in open
session and ordered the bill H.R. 923 favorably reported, as
amended, by voice vote, a quorum being present. On June 13,
2007, the Committee met in open session and ordered the bill
H.R. 923 favorably reported with an amendment, by voice vote, a
quorum being present. (H. Rept. No. 110-200.). On June 22,
2007, H.R. 923 was passed by the House by a roll call vote of
422 to 2. On September 24, 2008, H.R. 923 was passed by the
Senate, without amendment, by unanimous consent. The President
signed H.R. 923 on October 7, 2008, which became Public Law No.
110-344.
H.R. 1905, the ``District of Columbia House Voting Rights Act of 2007''
Summary.--H.R. 1905, the ``District of Columbia House
Voting Rights Act of 2007'' was introduced by Delegate Eleanor
Holmes Norton and Representative Tom Davis in a bipartisan
attempt to secure full representation in the U.S. House of
Representatives for the citizens of the District of Columbia.
H.R. 1905 permanently expands the U.S. House of Representatives
from 435 to 437 seats, providing a seat to the District of
Columbia and a new, at-large seat to Utah. Based on the 2000
Census, Utah is the state next in line to enlarge its
Congressional delegation.
Legislative History.--Delegate Norton and Representative
Davis introduced H.R. 1905 on April 18, 2007, and the bill was
referred to the Committee on the Judiciary. On April 19, 2007,
H.R. 1905 passed the House by a roll call vote of 241 to 177.
The following day, the bill was received in the Senate, read
twice, and referred to the Senate Committee on Finance. Prior
to House passage of H.R. 1905, the House Committee on the
Judiciary considered similar legislation, H.R. 1433. H.R. 1433
was introduced on March 9, 2007, by Delegate Norton and
Representative Davis and referred to the Committee on the
Judiciary and the Committee on Oversight and Government Reform.
On March 14, 2007, the Committee on the Judiciary held a
hearing on H.R. 1433. The hearing witnesses were Viet D. Dinh,
former U.S. Assistant Attorney General for Legal Policy at the
U.S. Department of Justice; Bruce Spiva, founding partner of
Spiva & Hartnett and Chair of the Board of DC Vote; Rick Bress,
partner in the Washington, DC office of Latham & Watkins; and
Jonathan Turley, professor of law at George Washington
University. On March 15, 2007, the Committee on the Judiciary
reported H.R. 1433 favorably by a roll call vote of 21 to 13.
On March 22, 2007, the U.S. House of Representatives proceeded
with general debate and debate on a motion to commit, with
further proceedings on the motion postponed. There was no
further House action on H.R. 1433.
H.R. 1281, the ``Deceptive Practices and Voter Intimidation Prevention
Act of 2007''
Summary.--H.R. 1281, the ``Deceptive Practices and Voter
Intimidation Prevention Act of 2007'' was introduced by
Representative Rahm Emanuel and Representative John Conyers,
Jr. to protect a citizen's right to vote by criminalizing
deceptive electioneering practices. H.R. 1281 prohibits a
person from knowingly providing false information with the
intent to prevent another person from voting, increases
criminal penalties for voter intimidation, and requires the
U.S. Attorney General to respond to deceptive practices with
corrective measures.
Legislative History.--Representative Rahm Emanuel and
Representative John Conyers, Jr. introduced H.R. 1905 on March
1, 2007, and the bill was referred to the Committee on the
Judiciary. On March 7, 2007, the Committee on the Judiciary
held a hearing on H.R. 1281 entitled ``Protecting the Right to
Vote: Election Deception and Irregularities in Recent Federal
Elections.'' The hearing witnesses were Senator Barack Obama
(D-IL); Senator Ben Cardin (D-MD); Representative Loretta
Sanchez (D-CA); Representative Steve King (R-IA);
Representative Brian Bilbray (R-CA); Representative Rahm
Emanuel (D-IL); Donna Brazile, Chair, DNC Voting Rights
Institute; Eve Sandberg, Associate Professor of Politics,
Oberlin College; John Fund, Wall Street Journalist columnist;
and Ralph Neas, President and CEO of People for the American
Way. On March 29, 2007, the Committee on the Judiciary reported
H.R. 1281 favorably by voice vote. On June 25, 2007, Committee
on the Judiciary Chairman John Conyers, Jr. moved to suspend
the rules and the U.S. House of Representatives passed H.R.
1281 by voice vote. The following day, the bill was received in
the U.S. Senate, read twice, and referred to the Senate
Committee on the Judiciary.
H.R. 1995, the ``Tulsa-Greenwood Race Riot Claims Accountability Act of
2007''
Summary.--H.R. 1995 provides that any Greenwood, Oklahoma,
claimant (a survivor or descendant of victims of the Tulsa,
Oklahoma, Race Riot of 1921) who has not previously obtained a
determination on the merits of a Greenwood claim may, in a
civil action commenced within five years after enactment of
this Act, obtain that determination.
Legislative History.--H.R. 1995, ``Tulsa-Greenwood Race
Riot Claims Accountability Act of 2007,'' was introduced by
House Judiciary Committee Chairman John Conyers, Jr. on April
23, 2007. On April 24, 2007, the Subcommittee on the
Constitution, Civil Rights and Civil Liberties held a hearing
on H.R. 1995. Testimony was received from the following
witnesses: John Hope Franklin Ph.D., James B. Duke Professor
Emeritus of History, Duke University School of Law; Alfred L.
Brophy Ph.D., Professor of Law, University of Alabama School of
Law; Olivia Hooker Ph.D., Professor of Psychology (retired),
Fordham University and Professor Charles Ogletree, Jesse
Climenko Professor of Law, Harvard Law School.
H.R. 2316, the ``Honest Leadership and Open Government Act of 2007''
Summary.--H.R. 2316 would have required registered
lobbyists to provide quarterly reports to the House clerk and
secretary of the Senate regarding the ``bundled'' contributions
totaling more than $5,000 in a quarter that they provide to a
covered recipient.
Under the bill, bundled contributions include contributions
that are received by a registered lobbyist and forwarded to a
covered recipient, or contributions that are somehow credited
or attributed to a lobbyist through records, designations or
other means of tracking, such as placing the lobbyist's name on
a check's memo line or using another symbol. The bill's
definition of ``covered recipients'' applies to federal
candidates, federal officeholders, leadership political action
committees or political party committees.
The required reports would disclose the name of the
lobbyist, the name of his or her employer, and the name of the
covered recipient to whom the contributions were given, as well
as the amount of the contributions made or a good-faith
estimate thereof. The report would be due within 45 days of the
end of the quarterly period. These reports would not include
certain information that is included in other required
disclosure reports.
The bill also required a lobbyist, within 25 days of the
end of a quarterly reporting period, to send a notification by
certified mail to a covered recipient outlining the information
that will be included in the lobbyists' report, and the source
of each contribution. According to the committee report, this
would allow the recipient of bundled contributions to raise
questions with the lobbyist, and take appropriate action,
before the lobbyist files his or her report with Congress. As
modified, the bill requires the statement to notify the
recipient that he or she has the right to respond in order to
challenge or correct any information before the lobbyist files
the disclosure report.
The bill also would have Members and senior staff from
influencing hiring decisions or practices of private entities
for partisan political gain. Violations can result in not only
fines, but imprisonment for up to 15 years. The measure would
have required the disclosure of lobbying activities by many
coalitions, as well as the past executive branch and
congressional employment of registered lobbyists. It would have
required lobbyists to file more detailed reports disclosing
their contacts with Congress, as well as certifications that
the lobbyist did not give a gift or pay for travel in violation
of the rules. These reports were to be filed electronically and
more frequently, quarterly rather than semiannually, and then
be made available to the public for free over the Internet in a
timely fashion. Finally, the legislation provided for stronger
enforcement. This measure significantly increased the penalties
for noncompliance with Lobbying Disclosure Act requirements.
Civil penalties are increased from the current $50,000 per
violation to $100,000, and there are new criminal penalties for
knowing, willful and corrupt violations, with potential
sentences of imprisonment up to 5 years.
Legislative History.--H.R. 2316 was introduced by Chairman
John Conyers, Jr. on May 15, 2007 and referred to the Committee
on the Judiciary, and in addition to the Committees on Rules,
and House Administration. A markup session was held on May 17,
2007. It was ordered reported, as amended by a voice vote. (H.
Rept. 110-161, Part I). It was placed on the Union Calendar,
Calendar No. 97. On May 27, 2007, it was considered, pursuant
to a rule (H. Res. 437). The following amendments were
considered: H. Amdt. 232, offered by Mr. Conyers. The amendment
clarifies the application of the bill's provisions regarding
the posting of financial disclosure forms on the Internet. The
Conyers amendment was agreed to by voice vote. H. Amdt. 233,
offered by Mr. Dreier. The amendment requires that when Members
and House employees end their service in the House, they be
given notice of the exact dates in which their post-employment
restrictions apply and also requires that that information be
made available on the Internet. The Dreier amendment was agreed
to by voice vote. H. Amdt. 234, offered by Mr. Conyers.
Amendment sought to place a one-year ban on flag and general
officers of the Armed Services from receiving compensation from
any company that does greater than $50 million in business with
the Department of Defense. The Conyers amendment passed by
voice vote, and Mr. Smith of Texas demanded a recorded vote.
The amendment subsequently failed by recorded vote: 152-271, 1
Present (Roll No. 421). H. Amdt. 235 offered by Mr. Castle. An
amendment stating that it is the sense of Congress that the use
of a family relationship by a lobbyist who is an immediate
family member of a Member of Congress to gain special
advantages over other lobbyists is inappropriate. The Castle
amendment was agreed to by voice vote. H. Amdt. 236 offered by
Mr. Cardoza. The amendment gives judges the discretion to
increase the sentence for public officials convicted of
bribery, fraud, extortion or theft of public funds greater than
$10,000. The Cardoza amendment was agreed to by voice vote. Mr.
Chabot moved to recommit with instructions to Judiciary to
require the bill to be reported back to the House with
amendments to limit gifts to Members, Officers, and Employees
of the House from State and local governments. The motion to
recommit with instructions Agreed to by recorded vote: 346-71,
2 Present (Roll No. 422). The bill passed the House by a
recorded vote: 396-22, 1 Present (Roll No. 423). The bill was
received in the Senate. It was placed on Senate Legislative
Calendar under General Orders. Calendar No. 182. See S. 1 for
further action.
H.R. 2317, the ``Lobbying Transparency Act of 2007''
Summary.--H.R. 2317 required the quarterly disclosure of
campaign contributions that are ``bundled'' by lobbyists. Under
the bill, lobbyists would have been required to provide such
information in the quarterly reports that would be filed with
congressional officials.
Legislative History.--Rep. Chris Van Hollen (D-MD)
introduced H.R. 2317 on May 15, 2007. On May 17, 2007, it was
marked up by the Judiciary Committee and ordered reported, as
amended, by a voice vote. H. Rept. 110-162. It was placed on
the Union Calendar, Calendar No. 98. On May 24, 2007 it was
considered by the House of Representatives. Ranking Minority
Member Lamar Smith (R-TX) moved to recommit with instructions
to Judiciary to require the bill to be reported back to the
House with an amendment inserting a multicandidate political
committee described the Federal Election Campaign Act of 1971.
The motion to recommit with instructions Agreed to by the Yeas
and Nays: 228-192 (Roll No. 419). The bill passed by the Yeas
and Nays: 382-37 (Roll No. 420). On June 4, 2007 it was placed
on Senate Legislative Calendar under General Orders. Calendar
No. 183. See S. 1 for further action.
H.R. 2356, To amend title 4, United States Code, to encourage the
display of the flag of the United States on Father's Day
Summary.--H.R. 2356 amends the Flag Code to add Father's
Day, the third Sunday in June, to the official occasions for
the display of the U.S. flag.
Legislative History.--H.R. 2356 was introduced on May 17,
2007, by Rep. Scott of Georgia, and referred to the House
Committee on the Judiciary. It was referred to the Subcommittee
on the Constitution, Civil Rights, and Civil Liberties on June
4, 2007. On June 11, 2007, Rep. Baldwin moved to suspend the
rules and pass the bill. The motion was agreed to by a roll
call vote of 386-0 (Roll No. 448). On May 15, 2008, it passed
Senate without amendment by Unanimous Consent. The President
signed it on June 3, 2008, and it became Public Law No. 110-
239.
H.R. 2826, To amend titles 28 and 10, United States Code, to restore
habeas corpus for individuals detained by the United States at
Naval Station, Guantanamo Bay, Cuba, and for other purposes
Summary.--Introduced by Representative Ike Skelton and
Representative John Conyers, Jr. on June 22, 2007 to restore
habeas corpus rights to enemy combatants detained at Guantanamo
Bay.
Legislative History.--On September 6, 2007, the
Subcommittee met in open session and favorably reported H.R.
2826 by a roll call vote of 7 to 4. H.R. 2826 was forwarded to
the Committee, but no further action was taken during this
Congress.
H.R. 3073, the ``Pigford Claims Remedy Act of 2007''
Summary.--H.R. 3073 provides a mechanism for a
determination on the merits of the claims of persons who met
the class criteria in a civil action relating to racial
discrimination by the Department of Agriculture but who were
denied that determination. For the purposes of the legislation,
a ``Pigford claimant'' was defined as an individual who
previously submitted a late-filing request under the consent
decree in the case of Pigford v. Glickman (1999); and ``Pigford
claim'' as a discrimination complaint as defined and documented
by such consent decree. The legislation also directs the
Secretary of Agriculture to provide a claimant with a report on
farm credit loans made within the claimant's county or adjacent
county during a specified period which shall contain
information on all accepted applicants (but without any
personally identifiable information), including: (1) the
applicant's race; (2) the application and loan decision dates;
and (3) the location of the office making the loan decision.
Legislative History.--H.R. 3073, the ``Pigford Claims
Remedy Act of 2007,'' was introduced by House Judiciary
Committee Chairman John Conyers, Jr. on July 18, 2007 and
referred jointly to the Committee on the Judiciary and the
Committee on Agriculture. The legislation was the follow-up
product of a hearing held on June 21, 2007, on H.R. 558, the
``African-American Farmers Benefits Relief Act of 2007'' and
H.R. 899, the ``Pigford Claims Remedy Act of 2007.'' On July
17, 2007, the Subcommittee on the Constitution, Civil Rights
and Civil Liberties met in open session and ordered favorably
reported the bill H.R. 3073, without amendment, by voice vote.
The Pigford Claims Remedy Act was enacted as Section 14012 of
H.R. 2419, the ``Food, Conservation, and Energy Act of 2008,''
Public Law No. 110-234, on May 22, 2008, following an initial
veto by President Bush.
H.R. 3189, the ``National Security Letters Reform Act of 2007'' (April
15, 2008)
Summary.--The September 11, 2001 attacks prompted a review
of the law enforcement and intelligence tools which were
designed to detect and prevent terrorist attacks. Specifically,
the Administration expressed concern about the delays in
effectuating the preparation and ultimate dissemination of
NSLs.\213\ The PATRIOT Act substantially expanded the FBI's
preexisting authority to obtain information through NSLs by
amending three of the four existing NSL statutes and adding a
fifth.\214\ In each of the three NSL statutes available
exclusively to the FBI--the ECPA, RFPA, and FCRA--Section 505
of the PATRIOT Act broadened the previously more rigorous FBI
authority in four major areas.
---------------------------------------------------------------------------
\213\ Hearing Before the H. Comm. On the Judiciary, 107th Cong. 57-
58 (2001) (Administration's Draft of Anti-Terrorism Act of 2001).
\214\ Charles Doyle, National Security Letters in Foreign
Intelligence Investigations: Legal Background and Recent Amendments,
CRS Report, March 17, 2006, at 4 [hereinafter Doyle CRS Report].
---------------------------------------------------------------------------
The PATRIOT Act: (1) eliminated the requirement that the
information sought by a NSL must pertain to a foreign power or
an agent of a foreign power, and instead substituted the lower
threshold that the information requested be relevant to or
sought for an authorized investigation to protect against
international terrorism or espionage; (2) expanded the FBI
issuing authority beyond FBI headquarters officials to include
the heads of FBI field offices (i.e., Special Agents in
Charge); (3) added the caveat that no such investigation of an
American can be predicated exclusively on the basis of
activities protected by the First Amendment; and (4) permitted
NSLs to obtain information from communications providers,
financial institutions, and consumer credit agencies about
persons other than the subjects of FBI national security
investigations so long as the requested information is relevant
to an authorized investigation.\215\ Similarly, subsection
358(g) of the Act amended the FCRA to add a fifth and final
NSL, which, notably, allowed any federal government agency (not
merely the FBI) investigating or analyzing international
terrorism to obtain a consumer's full credit report.\216\
---------------------------------------------------------------------------
\215\ P.L. 107-56, Sec. 505, 115 Stat. 365-66 (2001).
\216\ P.L. 107-56, Sec. 358(g), 115 Stat. 327 (2001). Prior to this
amendment, the FBI could use FCRA NSLs only to obtain basic financial
institution and consumer-identifying information about the person's
bank accounts, places of employment, and addresses. See 15 U.S.C. 1681u
(2000).
---------------------------------------------------------------------------
H.R. 3189, the ``NSL Reform Act,'' would remedy the
deficiencies in issuing and using NSLs. Specifically, the
legislation would address: the documentation of deficient
process by FBI agents issuing national security letters and
utilizing their results; the broad scope of national security
letters, lack of transparency in their issuance, and the
problems raised by gag orders and use of information that are
authorized under existing law; the need for statutory
safeguards and judicial review; and the protections of
constitutional rights and personal privacy, while permitting
appropriate federal investigations of threats to national
security.
The Justice Department's Office of the Inspector General
(OIG) issued a report, ``A Review of the FBI's Use of National
Security Letters: Assessment of Corrective Actions and
Examination of NSL Usage in 2006 which raised concerns
regarding the manner in which our government agencies approach
the investigations of individuals. The Report released in March
2007 revealed that the FBI has reported inaccurate and
incomplete data to Congress. It further exposed that the FBI
had engaged in improper methods to acquire data on individuals.
Moreover, the Report indicated that even information about
individuals who are irrelevant to terrorism investigations is
nonetheless indefinitely retained and never purged from FBI
database systems.
At an April 15, 2007 legislative hearing on H.R. 3189
before the Subcommittee on Constitution, Civil Rights and Civil
Liberties of the House Judiciary Committee, Inspector General
Glenn Fine testified on the findings and recommendations
included in the recent 2008 released report.
On April 15, 2008, the Subcommittee held a hearing on the
use of National Security Letters by the FBI. Mr. Glenn Fine,
Justice Department Inspector General; Ms. Valerie Caproni, FBI
General Counsel; Jameel Jaffer, director of the ACLU's National
Security Project; Bruce Fein, adjunct scholar with the American
Enterprise Institute, resident scholar at the Heritage
Foundation, lecturer at the Brookings Institution, and adjunct
professor at George Washington University; Michael Woods,
former chief of the FBI's National Security Unit (1997-2002);
and David Kris, former Associate Deputy Attorney General (2000-
2003) and currently an adjunct professor at Georgetown
University Law Center.
In this hearing, the subcommittee explored the need to
revise and improve the FBI's use of national security letters
(NSLs), in light of the abuses documented in the 2007 and 2008
Justice Department's Inspector General's Reports regarding
NSLs. H.R. 3189, introduced by Representative Jerrold Nadler,
was a potential legislative solution, which would incorporate
the pre-PATRIOT Act NSL issuance standard requiring ``specific
and articulable facts giving reason to believe that the
information or records sought . . . pertain to a foreign power
or agent of a foreign power,''; provide the recipient of an NSL
the right to challenge the NSL and its nondisclosure
requirement; provide a cause of action to any person aggrieved
by the illegal provision of records pertaining to that person
as a result of an NSL issued contrary to law; place a time
limit on an NSL gag order and allow for a court approved
extension; and provide for minimization procedures to ensure
that information obtained pursuant to an NSL regarding persons
who are no longer of interest in an authorized investigation is
destroyed.
Legislative History.--On June 24, 2008, the Subcommittee
met in open session and favorably reported H.R. 3189 by a roll
call vote of 7 to 3. The Subcommittee forwarded H.R. 3189 to
the Committee, but no further action was taken during the 100th
Congress.
H.R. 3195, the ``ADA Amendments Act of 2008''
Summary.--H.R. 3195, the ADA Amendments Act of 2008 amends
the definition of disability in the Americans with Disabilities
Act of 1990 (ADA), Pub. L. No. 101-386 (1990), 42 U.S.C.
Sec. Sec. 12101-12213, and provides related rules of
construction for applying the amended definition. The bill
restores protection for the broad range of individuals with
disabilities as originally envisioned by Congress by responding
to the Supreme Court's narrow interpretation of the definition
of disability. Through its decisions, the Supreme Court has
prevented individuals that Congress unquestionably intended to
cover from qualifying as disabled and entitled to protection
under the ADA, thus barring these individuals from ever getting
the chance to prove their case of unlawful disability
discrimination. H.R. 3195 restores Congressional intent by
prohibiting consideration of mitigating measures that help
control or lessen the impact of an impairment when determining
whether an impairment is sufficiently limiting to qualify as a
disability. It also reduces the burden of establishing that an
impairment qualifies as a disability by defining terms in the
definition that have proven most troubling for the courts. H.R.
3195 requires a broad construction of the definition of
disability and clarifies agency authority to promulgate
regulations.
Legislative History.--H.R. 3195 was introduced by House
Majority Leader Steny H. Hoyer (D-MD) and Representative F.
James Sensenbrenner, Jr. (R-WI) on July 26, 2007. The
Subcommittee on the Constitution, Civil Rights, and Civil
Liberties held a hearing on the legislation on October 4, 2007,
at which the following witnesses testified: Majority Leader
Steny H. Hoyer; Cheryl Sensenbrenner, Chair, American
Association of People with Disabilities; Stephen C. Orr,
plaintiff in Orr v. Wal-Mart; Michael C. Collins, Executive
Director, National Council on Disability; Lawrence Z. Lorber,
U.S. Chamber of Commerce; Chai R. Feldblum, Professor,
Georgetown University Law Center. On June 18, 2008, H.R. 3195
was ordered reported (as amended) by the House Judiciary
Committee by a roll call vote of 27 to 0. On June 25, 2008, the
House passed H.R. 3195 by a roll call vote of 402-17. On
September 11, 2008, the Senate passed by unanimous consent S.
3406, a similar measure that was introduced on July 31, 2008 by
Tom Harkin (D-IA). S. 3406 retained most of the language of
H.R. 3195 but differed in its treatment of the term
``substantially limits'' in the ADA's definition of disability.
H.R. 3195 redefined ``substantially limits'' as ``materially
restricts'' to set a lower standard for qualifying as disabled;
S. 3406 retained the term ``substantially limits'' but, through
findings and statutory rules of construction, set a lower
standard that, like H.R. 3195, makes it easier to qualify as
disabled. Thus, while the language of the two bills differed,
Congressional intent and the result achieved by both bills was
the same. On September 17, 2008, the House passed by voice vote
S. 3406, which became Public Law No. 110-325 on September 25,
2008.
H.R. 3685, the Employment Non-Discrimination Act of 2007
Summary--Millions of gay, lesbian, bisexual, and
heterosexual Americans can be fired from their jobs, refused
work, paid less and otherwise subjected to employment
discrimination because of their actual or perceived sexual
orientation with no recourse under Federal law. Currently, it
is legal in 30 states to fire someone based on their sexual
orientation.
Workplace discrimination based on sexual orientation,
affecting heterosexual, as well as gay, lesbian, bisexual, and
transgender Americans, has been widespread and well-documented
over the years. The Employment Non-Discrimination Act protects
all Americans who are or may be perceived to be gay, lesbian,
or bisexual by making it illegal to fire, refuse to hire,
refuse to promote employees based on notions of a person's
sexual orientation. Furthermore, employers are prohibited from
requiring gay, lesbian, or bisexual employees to work in a
discriminatorily hostile or abusive environment.
Specifically, ENDA extends Federal employment protections
to gay, lesbian, or bisexual workers similar to those
protections provided to a person based on race, religion, sex,
national origin, age or disability. The Act prohibits an
employer from using an individual's sexual orientation as the
basis for employment decisions, such as hiring, firing,
promotion or compensation. ENDA also creates a cause of action
for any individual--whether actually homosexual or
heterosexual--who is discriminated against because that
individual is `perceived' as homosexual due to the fact that
the individual does not conform to the sex or gender
stereotypes associated with that individual's sex. Furthermore,
ENDA provides for the similar procedures, while giving somewhat
more limited remedies as those under Title VII of the Civil
Rights Act of 1964.
Legislative History.--H.R. 3685 was introduced by Rep.
Frank on September 27, 2007, and referred to the Committee on
Education and Labor, the Committee on House Administration, the
Committee on Oversight and Government Reform, and the Committee
on the Judiciary. The Committee on Education and Labor reported
the bill on October 22, 2007 (H. Rept. 110-406, Part I). The
Committee on House Administration, the Committee on Oversight
and Government Reform, and the Committee on Judiciary were
discharged.
The House considered H.R. 3685 on November 7, 2007. The
House considered the following amendments:
H. Amdt. 882 offered by Rep. George Miller, providing
explicitly that any religious corporation, school, association
or society that is exempt under either Section 702(a) or
703(e)(2) of Title VII's religious exemptions is exempt under
END; it clarifies that the scope of Title VII's exemption is
exactly the scope of ENDA's exemption and clarifying that ENDA
does not alter the Defense of Marriage Act (DOMA) in any way.
It strikes language referencing ``a same-sex couple who are not
married'' in the Employee Benefits section of ENDA. It also
inserts language clarifying that the term ``married'' has the
meaning given such term in DOMA, directly incorporating DOMA's
definition of marriage. The Miller amendment was agreed to by
recorded vote: 402-25 (Roll No. 1054).
H. Amdt. 883, offered by Rep. Souder, to strike paragraph
(3) of section 8(a), which prohibits employers from
conditioning employment on a person being married or being
eligible to be married. The Souder amendment was agreed to by
recorded vote: 325-101 (Roll No. 1055).
H. Amdt. 884, offered by Rep. Baldwin, to expand ENDA's
protections to persons discriminated against based on gender
identity, defined as the gender-related identity, appearance,
or mannerisms or other gender-related characteristics of an
individual, with or without regard to the individual's
designated sex at birth, including language concerning shared
facilities, dress, and grooming standards, as well as a
paragraph stating that the construction of additional
facilities are not required. By unanimous consent, the Baldwin
amendment was withdrawn.
Rep. Forbes moved to recommit with instructions to
Education and Labor. The instructions contained in the motion
seek to require the bill to be reported back to the House with
an amendment to add at the end of section 8(c) that ``nothing
in this Act may be construed to modify, limit, restrict, or in
any way overturn any State or Federal definition of marriage as
between one man and one woman, including the use of this Act as
a legal predicate in litigation on the issue of marriage.'' The
motion to recommit with instructions failed by the Yeas and
Nays: 198-222 (Roll No. 1056).
The bill passed by the Yeas and Nays: 235-184 (Roll No.
1057). On November 13, 2007 it was placed on Senate Legislative
Calendar under General Orders. Calendar No. 479. No further
action was taken.
H.R. 3773, the ``Responsible Electronic Surveillance That is Overseen,
Reviewed, and Effective Act of 2007 (the RESTORE Act of 2007)''
Summary.--The purpose of H.R. 3773 was to provide a
mechanism, through December 2009, to conduct foreign electronic
surveillance for the purpose of defense against terrorism and
other national security threats, without the need for
individual warrants for overseas targets, while protecting the
civil liberties of Americans whose communications may be
intercepted in the process. It would also require increased
accountability through data collection, auditing, and mandatory
reporting to Congress. And it would provide additional
resources for the National Security Agency and Department of
Justice to ensure that there are no backlogs of critical
intelligence gathering. It removed any `foreign-to-foreign'
ambiguity by making it clear that purely foreign communications
do not require a court order even when they transit the U.S. or
the acquisition is in the United States as a result of changes
in communications technology since FISA was first enacted. The
RESTORE Act specifically prevented the extension of any Fourth
Amendment or statutory protections to overseas targets such as
Osama Bin Laden or other members of terrorist organizations.
Legislative History.--Chairman John Conyers, Jr. introduced
H.R. 3773 on October 9, 2007 and referred to the Committee on
the Judiciary, and to the Permanent Select Committee on
Intelligence. On October 10, 2007, the Judiciary Committee held
a mark-up session and ordered the bill reported, as amended, by
a roll call vote of 20-14. (H. Rept. 110-373, Part I). The
Committee on Intelligence reported the bill, as amended the
same day. (H. Rept. 110-373, Part II). The bill was considered
by the House on November 15, 2007. Rep. Lamar Smith moved to
recommit to the Judiciary Committee with instructions to amend
the bill and report it back to the House ``promptly.'' The
motion to recommit with instructions failed by the Yeas and
Nays: 194-222 (Roll No. 1119). The bill passed by recorded
vote: 227-189 (Roll No. 1120). It was received in the Senate.
Read twice. Placed on Senate Legislative Calendar under General
Orders. Calendar No. 517. On February 12, 2008, the Senate
struck all after the Enacting Clause and substituted the
language of S. 2248 as amended. It passed the Senate with an
amendment by Unanimous Consent. No further action was taken.
H.R. 5038, the ``Caging Prohibition Act of 2008''
Summary.--H.R. 5038, the ``Caging Prohibition Act of 2008''
was introduced by Representative John Conyers, Jr. to prohibit
the pernicious practice of voter caging that has been used to
prevent or discourage eligible voters from casting their vote
on Election Day and having that vote counted. H.R. 5038 clearly
defines and criminalizes voter caging and other questionable
challenges intended to disqualify eligible voters and requires
persons other than election officials to base voter challenges
on first hand knowledge.
Legislative History.--Representative John Conyers, Jr.
introduced H.R. 5038 on January 17, 2008, and the bill was
referred to the Committee on the Judiciary. On February 4,
2008, H.R. 5038 was referred to the Subcommittee on the
Constitution, Civil Rights, and Civil Liberties and the
Subcommittee on Crime, Terrorism, and Homeland Security. On
July 24, 2008, the issue of caging was examined at a
Subcommittee on the Constitution, Civil Rights, and Civil
Liberties hearing entitled ``Lessons Learned from the 2004
Presidential Elections. Hearing witnesses were J. Kenneth
Blackwell, Ronald Reagan Distinguished Fellow, The Buckeye
Institute for Public Policy Solutions; Dan Tokaji, Associate
Professor of Law & Associate Director, Election Law, Ohio State
University, Michael E. Moritz College of Law; Cleta Mitchell,
Partner, Foley & Lardner LLP; Gilda Daniels, Assistant
Professor of Law, University of Baltimore School of Law; Hans
Von Spakovsky, Visiting Scholar, The Heritage Foundation; and
J. Gerald Hebert, Executive Director & Director of Litigation,
The Campaign Legal Center. There was no further action on H.R.
5038 in the Committee on the Judiciary or U.S. House of
Representatives.
H.R. 5607, the ``State Secret Protection Act of 2008''
Summary.--H.R. 5607, the State Secret Protection Act of
2008, codifies the common law state secret privilege and
provides uniform standards and procedures for courts to apply
when considering governmental claims of state secret privilege
in civil litigation. H.R. 5607 responds to concerns that the
courts have failed to apply consistent standards and have been
reluctant to test government claims of secrecy, often failing
to examine the evidence that the government seeks to withhold
or deferring to government assertions of harm and, as a result,
dismissing cases prematurely and unfairly. Modeled on the
Classified Information Procedures Act--legislation passed by
Congress in 1980 to govern court handling of secret information
in criminal cases--but adjusted for civil litigation, H.R. 5607
protects legitimate secrets from harmful disclosure while
preventing abuse and maximizing the ability of litigants to
achieve justice in the courts.
Legislative History.--On January 29, 2008, the Subcommittee
on Constitution, Civil Rights, and Civil Liberties held an
oversight hearing on reform of the state secrets privilege, at
which the following witnesses testified: H. Thomas Wells, Jr.,
President-Elect, American Bar Association; Judith Loether,
daughter of one of the victims of the plane crash at issue in
U.S. v. Reynolds; Hon. Patricia Wald, retired Chief Judge for
the U.S. Court of Appeals for the D.C. Circuit; Patrick
Philbin, partner at Kirkland & Ellis; and Kevin Bankston,
Senior Attorney, Electronic Frontier Foundation. Based on the
findings of this hearing, Rep. Nadler (D-NY) introduced H.R.
5607 on March 13, 2008. On July 31, 2008, the Subcommittee on
Constitution, Civil Rights, and Civil Liberties held a
legislative hearing on H.R. 5607, at which the following
witnesses testified: Meredith Fuchs, General Counsel, National
Security Archives; Steven Shapiro, Legal Director, American
Civil Liberties Union; Michael A. Vatis, partner, Steptoe &
Johnson, LLP; Bruce Fein, Chairman, The American Freedom
Agenda. Letters in support of H.R. 5607 were submitted by Hon.
William S. Sessions, retired Chief Judge of the U.S. District
court for the Western District of Texas and former Director of
the FBI; Hon. Patricia Wald, retired Chief Judge for the U.S.
Court of Appeals for the D.C. Circuit; The Constitution
Project; Human Rights First; Common Cause; and Public Citizen.
On September 18, 2008, the Subcommittee on Constitution, Civil
Rights, and Civil Liberties reported the bill reported
favorably (as amended) to the House Judiciary Committee by a
roll call vote of 6-3.
S. 1, the ``Honest Leadership and Open Government Act of 2007''
Summary.--Responding to concerns about the role of money in
politics, the Congress enacted legislation addressing a variety
of issues. S. 1, the final bill signed into law, contained the
following changes: it requires campaign committees to disclose
``bundled'' contributions by lobbyists in excess of $15,000 in
a six-month period. The disclosure would be available on a
publicly accessible Web site of the Federal Election
Commission. The measure extends to two years, for the Senate
only, the ``cooling off'' period in which senators may not
lobby after leaving office, while maintaining the current one-
year period for the House. It requires quarterly, rather than
semi-annual, reports from lobbyists on their lobbying
activities, while requiring twice-yearly reports on certain
contributions made by lobbyists to campaign committees, events
honoring members, presidential libraries, and for certain other
purposes. The measure also denies congressional pensions to
members convicted of certain felonies committed after enactment
of this measure. The bill makes changes to House and Senate
rules to impose new earmark disclosure requirements in the
Senate, and to bar members of both chambers from negotiating
for post-congressional employment unless such negotiations are
disclosed to the respective ethics committees.
Legislative History.--S. 1 was introduced by Sen. Harry
Reid on January 4, 2007. It passed the Senate, as amended, on
January 18, 2007, by a roll call vote of 96-2 (Roll No. 19). It
passed the House on July 31, 2007, on a motion to suspend the
rules and pass, as amended, by a roll call vote of 411-8 (Roll
No. 763). On August 2, 2007, the Senate agreed to House
amendment by Yea-Nay Vote. 83-14 (Roll No. 294). It was signed
by the President on September 14, 2007, and became Public Law
No. 110-81. The House of Representatives also considered two
other ethics reform bills, H.R. 2316, the ``Honest Leadership
and Open Government Act of 2007,'' and H.R. 2317, the
``Lobbying Transparency Act of 2007.''
On March 1, 2007, the Subcommittee on the Constitution,
Civil Rights, and Civil Liberties held a hearing on ``S. 1, the
Senate Approach to Lobbying Reform.'' Testifying before the
Subcommittee were Sarah Dufendach, Chief of Legislative
Affairs, Common Cause; Kenneth A. Gross, Skadden, Arps, Slate,
Meagher & Flom LLP; Thomas E. Mann, Senior Fellow, Governance
Studies, The Brookings Institution; and Bradley A. Smith,
Professor of Law, Capital University Law School.
Ms. Dufendach argued for an increased ``cooling off
period'' of from the existing one to two years, and in favor of
a provision that would require disclosure by a lobbying firm or
a firm that does not presently file federal lobbying reports
but that earns at least $100,000 a quarter to engage in paid
efforts to stimulate Astroturf lobbying. She also urged the
establishment of an independent ethics office for Congress.
Mr. Gross argued that the bundling provision should be
drafted so it is limited to contributions physically handled by
a lobbyist or those forwarded to a campaign in coded envelopes,
as is currently required under Federal Election Commission
rules. He also argued in favor of a narrowed ``astroturf''
provision, and against a broader restriction on post-employment
lobbying.
Mr. Mann testified in support of new ``bundling''
disclosure provisions, disclosure requirements for
``astroturf,'' or professional grassroots lobbying, and broader
post-employment restrictions on members and senior staff.
Prof. Smith expressed reservations about the
constitutionality of the ``astroturf'' provisions in the Senate
bill, and concerns about the vagueness of the ``bundling''
provisions. He also testified in support of earmark reform.
S. 188--A bill to revise the short title of the Fannie Lou Hamer, Rosa
Parks, and Coretta Scott King Voting Rights Act Reauthorization
and Amendments Act of 2006
Summary.--S. 188 amends the Fannie Lou Hamer, Rosa Parks,
and Coretta Scott King Voting Rights Act Reauthorization and
Amendments Act of 2006 to change the short title to the Fannie
Lou Hamer, Rosa Parks, Coretta Scott King, Cesar E. Chavez,
Barbara C. Jordan, William C. Velasquez, and Dr. Hector P.
Garcia Voting Rights Act Reauthorization and Amendments Act of
2006.
Legislative History.--S. 188, ``A bill to revise the short
title of the Fannie Lou Hamer, Rosa Parks, and Coretta Scott
King Voting Rights Act Reauthorization and Amendments Act of
2006,'' was introduced by Senator Ken Salazar on January 4,
2007. The House companion of the legislation, H.R. 745, was
introduced by Judiciary Committee member Sheila Jackson-Lee on
January 31, 2007. On February 2, 2007, the Senate Judiciary
Committee ordered S. 188 to be reported with amendments
favorably. On February 15, 2007, S. 188 passed the Senate, with
amendments, by unanimous consent. On June 17, 2008,
Representative Jackson-Lee moved that the House suspend the
rules and pass S. 188, where after the bill was agreed to by
voice vote. On July 1, 2008, S. 188 was signed by President and
became Public Law No. 110-258.
Resolution Authorizing the Chairman of the Committee on the Judiciary
to Issue a Subpoena to J. Kenneth Blackwell
On Tuesday, February 26, 2008, the Subcommittee on the
Constitution, Civil Rights and Civil Liberties met for the
purpose of considering whether to authorize the Chairman of the
Committee to issue a subpoena to former Ohio Secretary of State
J. Kenneth Blackwell. The Subcommittee sought Mr. Blackwell's
testimony as part of its ongoing oversight of voting rights
enforcement by the U.S. Department of Justice. While serving as
Secretary of State, Mr. Blackwell simultaneously served as co-
chair of the Bush-Cheney Ohio reelection campaign in 2004, and
campaigned for office himself when he ran as Republican
candidate for governor of Ohio in 2006. His conduct during the
2004 election was the subject of a 102-page report on vote
suppression produced in 2005 by the Democratic staff of the
House Judiciary Committee.\217\ As the chief election officer
during an election in which serious concerns regarding vote
suppression have been raised, the Committee believed Mr.
Blackwell's testimony was important to its ongoing oversight of
voting rights enforcement and vote suppression.
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\217\ Preserving Democracy: What Went Wrong in Ohio (Status Report
of the House Judiciary Committee Democratic Staff) (Jan. 5, 2005).
---------------------------------------------------------------------------
Resolution Authorizing the Chairman of the Committee on the Judiciary
to Issue a Subpoena to David Addington
On May 6, 2008, the Subcommittee met and by a voice vote
authorized the full Committee Chairman to issue a subpoena to
the Chief of Staff to the Vice President, David Addington. This
subpoena was issued on May 7, 2008, and compelled Mr.
Addington's testimony on June 26, 2008.\218\
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\218\ See May 7, 2008, Letter from Hon. John Conyers, Jr. to Mr.
David S. Addington.
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Resolution Authorizing the Chairman of the Committee on the Judiciary
to issue a Subpoena to Douglas Feith
On June 24, 2008, the Subcommittee met and by a bipartisan
vote of 9-3 authorized the full Committee Chairman to issue a
subpoena to former Undersecretary of Defense Douglas Feith.
This subpoena was issued on July 10, 2008, and compelled Mr.
Feith's testimony on July 15, 2008.
Resolution Authorizing the Chairman of the Committee on the Judiciary
to Issue a Subpoena to Christopher Coates
On July 31, 2008, the Subcommittee on the Constitution,
Civil Rights, and Civil Liberties met for the purpose of
considering whether to authorize the issuance of a subpoena to
Christopher Coates, Voting Section Chief, Department of
Justice, Civil Rights Division. The Subcommittee sought Mr.
Coates testimony as part of its ongoing oversight of voting
rights enforcement by the U.S. Department of Justice. While
states have primary authority for conducting elections, the
Department of Justice Civil Rights Division's Voting Section
should play a significant role in ensuring a fair election in
2008 through its enforcement of voting rights laws. Given the
controversy surrounding the last two presidential elections in
2000 and 2004, the Subcommittee felt it was important for Mr.
Coates to appear to explain how the Department of Justice (DOJ)
plans to implement its legislative mandate during the 2008
Presidential election to prevent voting rights problems and
ensure a fair election.
H. Con. Res. 44, Honoring and praising the National Association for the
Advancement of Colored People on the occasion of its 98th
anniversary
Summary.--H. Con. Res. 44 was introduced by Representative
Al Green to commemorate the 98th anniversary of the founding of
the National Association for the Advancement of Colored People
(NAACP). The NAACP is this nation's oldest and largest civil
rights organization. The NAACP was founded on February 12, 1909
by Ida Wells-Barnett, W.E.B. DuBois, Henry Moscowitz, Mary
White Ovington, Oswald Garrison Villiard, and William English
Walling. Since its inception, the NAACP has united students,
laborers, professionals, scholars, officials, and others of all
races to advance its vision of ``a society in which all
individuals have equal rights and there is no racial hatred or
racial discrimination.''
Legislative History.--Representative Al Green introduced H.
Con. Res. 44 on January 24, 2007, and the bill was referred to
the Committee on the Judiciary. On February 12, 2007,
Representative Howard Berman moved to suspend the rules and the
resolution passed the U.S. House of Representatives by voice
vote. The following day, the bill was received in the U.S.
Senate and referred to the Senate Committee on the Judiciary.
On March 1, 2007, the Senate Committee on the Judiciary
reported H. Con. Res. 44 without amendment and with a preamble.
On March 26, 2007, the resolution was agreed to without
amendment and with a preamble by unanimous consent in the U.S.
Senate.
H. Con. Res. 289, Honoring and praising the National Association for
the Advancement of Colored People on the occasion of its 99th
anniversary
Summary.--H. Con. Res. 289 was introduced by Representative
Al Green to commemorate the 99th anniversary of the founding of
the National Association for the Advancement of Colored People
(NAACP). The NAACP is this nation's oldest and largest civil
rights organization. The NAACP was founded on February 12, 1909
by Ida Wells-Barnett, W.E.B. DuBois, Henry Moscowitz, Mary
White Ovington, Oswald Garrison Villiard, and William English
Walling. Since its inception, the NAACP has united students,
laborers, professionals, scholars, officials, and others of all
races to advance its vision of ``a society in which all
individuals have equal rights and there is no racial hatred or
racial discrimination.''
Legislative History.--Representative Al Green introduced H.
Con. Res. 44 on February 7, 2008, and the bill was referred to
the Committee on the Judiciary. On February 13, 2008,
Representative Steve Cohen moved to suspend the rules and on
February 14, 2008, the resolution passed the U.S. House of
Representatives by a roll call vote of 403-0. On February 25,
2008, the bill was received in the U.S. Senate and referred to
the Senate Committee on the Judiciary. On March 5, 2008, the
Senate Committee on the Judiciary discharged H. Con. Res. 289
and the U.S. Senate agreed to H. Con. Res. 289 without
amendment and with a preamble by unanimous consent.
H. Con. Res. 381, Honoring and recognizing the dedication and
achievements of Thurgood Marshall on the 100th anniversary of
his birth
Summary.--H. Con. Res. 381 was introduced by Representative
Donald Payne to commemorate Thurgood Marshall's significant
contributions and accomplishments in the field of law on the
110th anniversary of his birth, July 2, 1908. Marshall
challenged the separate but equal status quo in his capacity as
Legal Director of the National Association for the Advancement
of Colored People (NAACP) from 1940 through 1967, winning 29
out of 32 cases before the Supreme Court, the most Supreme
Court cases won by any attorney. As a judge on the U.S. Court
of Appeals for the Second Circuit in 1961, Marshall authored
112 opinions between 1961 and 1965, with not one of them being
overturned. Marshall served as the first African American
Solicitor General from 1965 until 1967. From 1967 until 1991,
Marshall was appointed to the U.S. Supreme Court, making him
the first African American Supreme Court Justice.
Legislative History.--Representative Payne introduced H.
Con. Res. 381 on June 24, 2008, and the bill was referred to
the Committee on the Judiciary. On July 14, 2008,
Representative Adam Schiff moved to suspend the rules and the
resolution passed the U.S. House of Representatives by voice
vote. On July 16, 2008, the resolution was agreed to without
amendment and with a preamble by unanimous consent in the U.S.
Senate.
H. Res. 149, Supporting the goals of International Women's Day
Summary.--H. Res. 149 states that the House of
Representatives (1) supports the goals of International Women's
Day; (2) recognizes and honors the women in the United States
and in other countries who have fought and continue to struggle
for equality in the face of adversity; (3) reaffirms its
commitment to ending discrimination and violence against women
and girls, to ensuring the safety and welfare of women and
girls, and to pursuing policies that guarantee the basic human
rights of women and girls both in the United States and in
other countries; and (4) encourages the President to--(A)
reaffirm his commitment to pursue policies to protect
fundamental human rights and civil liberties, particularly
those of women and girls; and (B) issue a proclamation calling
upon the people of the United States to observe International
Women's Day with appropriate programs and activities.
Legislative History.--Rep. Janice Schakowsky introduced H.
Res. 149 on February 8, 2007. On February 8, 2007 it was
referred to the Committee on Foreign Affairs and to the
Committee on the Judiciary. On February 15, 2007, the Committee
on Foreign Affairs reported it by a voice vote. On March 6,
2007 Rep. Watson moved to suspend the rules and agree to the
resolution. The motion to suspend the rules was agreed to by a
roll call vote of 403-0 (Roll No. 122).
H. Res. 194, Apologizing for the enslavement and racial segregation of
African-Americans
Summary.--H. Res. 194 acknowledges that slavery is
incompatible with the basic principle recognized in the
Declaration of Independence that all men are created equal. The
resolution also acknowledges the fundamental injustice,
cruelty, brutality, and inhumanity of slavery and Jim Crow. The
resolution offers an apology to African-Americans on behalf of
the U.S. people for the wrongs committed against them and their
ancestors and commits to rectifying the lingering consequences
of slavery and Jim Crow and to stopping future human rights
violations.
Legislative History.--H. Res. 194 was introduced by
Judiciary Committee Member Steve Cohen on February 27, 2007. On
December 18, 2007, the Subcommittee on the Constitution, Civil
Rights and Civil Liberties held an oversight hearing on the
Legacy of the Trans-Atlantic Slave Trade, where the substance
of the resolution was discussed at length. Testimony was
received from the following witnesses: M. Thomas Shaw, Bishop,
The Episcopal Diocese of Massachusetts; Kibibi Tyehimba,
National Co-Chair, National Coalition of Blacks for Reparations
in America (N'COBRA); Stephan Thernstrom, Winthrop Professor of
History, Harvard University; The Honorable JoAnn Watson,
Council Member, Detroit City Council; Professor Charles
Ogletree, Jesse Climenko Professor of Law, Harvard Law School;
H. Thomas Wells, Jr., President-Elect, American Bar
Association; Roger Clegg, President and General Counsel, Center
for Equal Opportunity and Eric Miller, Assistant Professor of
Law, Saint Louis University School of Law. On July 29, 2008, H.
Res. 194 was passed by the House by voice vote.
H. Res. 431, Recognizing the 40th anniversary of Loving v. Virginia
legalizing interracial marriage within the United States
Summary.--H. Res. 431 was introduced by Representative
Tammy Baldwin to recognize the 40th anniversary of the decision
in the case Loving v. Virginia (388 U.S. 1 (1967)), which
legalized interracial marriage within the United States. On
June 12, 1967, in a unanimous decision, the Supreme Court
struck down Virginia's statute forbidding white and black
persons from marrying persons of another race. The convictions
of Mildred Jeter and Richard Perry Loving, the interracial
Virginia couple who challenged the law, were overturned.
Writing for the Court, Chief Justice Earl Warren conveyed that
``the Fourteenth Amendment requires that the freedom of choice
to marry not be restricted by invidious racial
discriminations.''
Legislative History.--Representative Baldwin introduced H.
Res. 431 on May 23, 2007, and the bill was referred to the
Committee on the Judiciary. On June 11, 2007, Representative
Baldwin moved to suspend the rules and the resolution passed
the U.S. House of Representatives by voice vote.
H. Res. 668, Recognizing the 50th anniversary of the September 25,
1957, desegregation of Little Rock Central High School by the
Little Rock Nine
Summary.--H. Res. 668 was introduced by Representative John
Conyers, Jr. to commemorate the 50th anniversary of the
desegregation of Little Rock Central High School by the Little
Rock Nine on September 25, 1957. Three years after the 1954
Brown v. Board decision (347 U.S. 483), the promise of equality
within education had not been realized by the Little Rock Nine.
In pursuit of that promise, the Little Rock Nine--Minnijean
Brown, Elizabeth Eckford, Ernest Green, Thelma Mothershed,
Melba Pattillo, Gloria Ray, Terrence Roberts, Jefferson Thomas,
and Carlotta Walls--attempted to integrate Little Rock Central
High. Despite death threats, verbal and physical assaults,
school closings, and other adversities, the Little Rock Nine
successfully integrated Little Rock Central High School on
September 25, 1957.
Legislative History.--Representative Conyers introduced H.
Res. 668 on September 20, 2007, and the bill was referred to
the Committee on the Judiciary. On September 24, 2007, Chairman
Conyers moved to suspend the rules and the resolution passed
the U.S. House of Representatives by a roll call vote of 387-0.
H. Res. 826, Expressing the Sense of the House of Representatives that
the hanging of nooses is a horrible act when used for the
purpose of intimidation and which under certain circumstances
can be a criminal act that should be thoroughly investigated by
Federal law enforcement authorities and that any criminal
violations should be vigorously prosecuted
Summary.--H. Res. 826 was introduced by Representative Al
Green to condemn the hanging of nooses. The noose, a symbol of
racial violence and hate, that had once been attributed to days
ago, has resurfaced in recent years. Between September and
December of 2007, there were approximately 50 noose incidents
across the country. Since 2001, more than 30 lawsuits have been
filed by the Equal Employment Opportunity Commission (EEOC) due
to nooses in the workplace. In the wake of the Jena 6
controversy, noose incidents occurred with a disturbing
frequency in our nation's schools. In 2007, noose incidents
occurred at North Carolina's High Point Andrews High School,
Columbia University, the University of Maryland, the University
of Delaware, Perdue University, and Central Michigan
University.
Legislative History.--Representative Green introduced H.
Res. 826 on November 14, 2007, and the bill was referred to the
Committee on the Judiciary. On December 5, 2007, Chairman John
Conyers, Jr. moved to suspend the rules and the resolution
passed the U.S. House of Representatives by voice vote.
H. Res. 1061, Commemorating the 40th anniversary of the assassination
of Dr. Martin Luther King, Jr. and encouraging people of the
United States to pause and remember the life and legacy of Dr.
Martin Luther King, Jr., and for other purposes
Summary.--H. Res. 1061 was introduced by Representative
John Lewis (D-GA) to celebrate the life and work of Dr. Martin
Luther King, Jr., our nation's greatest civil rights leader, on
the 40th anniversary of Dr. King's assassination. On April 4,
1968, Dr. King's life ended abruptly as he was fighting for the
rights of African American sanitation workers in Memphis,
Tennessee. In his short life, Dr. King had accomplished much,
his work culminating in the enactment of the Civil Rights Act
of 1964, the Voting Rights Act of 1965, and receipt of the
Nobel Peace Prize. H. Res. 1061 continues Dr. King's legacy by
renewing the country's commitment to Dr King's pursuit of
justice, equality, and peace.
Legislative History.--Representative Lewis introduced H.
Res. 1061 on March 31, 2008, and the bill was referred to the
Committee on the Judiciary. On September 24, 2007, Chairman
John Conyers, Jr. moved to suspend the rules and the resolution
passed the U.S. House of Representatives by voice vote.
H. Res. 1095, Recognizing and honoring the 40th anniversary of
congressional passage of title VIII of the Civil Rights Act of
1968 (the Fair Housing Act) and the 20th anniversary of the
Fair Housing Amendments Act of 1988
Summary.--H. Res. 1095 was introduced by Representative Al
Green to commemorate the 40th anniversary of the Fair Housing
Act and its amendments. On April 11, 1968, just days after the
assassination of Dr. Martin Luther King Jr., President Lyndon
B. Johnson signed into law the federal Fair Housing Act, which
prohibited discrimination in housing based on race, color,
religion or national origin. Twenty years later, in 1988, the
law was expanded by the Fair Housing Amendments Act to include
protections against discrimination based on sexual orientation,
familial status and disability. Today, the Fair Housing Act
remains an effective tool in our fight against discrimination.
Legislative History.--Representative Green introduced H.
Res. 1095 on April 9, 2008, and the bill was referred to the
Committee on the Judiciary. On April 15, 2008, Chairman John
Conyers, Jr. moved to suspend the rules and the resolution
passed the U.S. House of Representatives by voice vote.
H. Res. 1182, Expressing the sense of the House of Representatives that
American flags flown on Federal Government buildings and on
Federal property be made in the United States
Summary.--H. Res. 1182 expresses the sense of the House of
Representatives that all American flags flown over federal
buildings should be entirely produced in the United States.
Legislative History.--H. Res. 1182 was introduced by Rep.
Bob Filner on May 8, 2008. On July 14, 2008, on a motion to
suspend the rules and agree to the resolution was Agreed to by
voice vote.
H. Res. 1293, Commemorating the 44th anniversary of the deaths of civil
rights workers Andrew Goodman, James Chaney, and Michael
Schwerner in Philadelphia, Mississippi, while working in the
name of American democracy to register voters and secure civil
rights during the summer of 1964, which became known as
``Freedom Summer''
Summary.--H. Res. 1293 was introduced by Representative
John Lewis to salute civil rights activists Andrew Goodman,
James Chaney, and Michael Schwerner on the 44th anniversary of
their deaths during the Freedom Summer of 1964. These three
young men paid the ultimate sacrifice in their dedication to
ensuring that all Americans could exercise the right to vote.
While advancing the voting rights of Black Mississippians, on
June 21, 1964, Goodman, Chaney, and Schwerner left Meridian,
Mississippi's Congress on Racial Equality office for the nearby
town of Philadelphia to investigate the recent burning of a
Black church that had been operating as a Freedom School for
education and voter registration. The civil rights workers
never made it to their destination. They were arrested by
police officers in Philadelphia, who turned them over to area
Ku Klux Klan members. After more than six weeks of federal
inquiries and searches, their desecrated bodies were found,
buried under a mound of dirt. A federal criminal civil rights
investigation and prosecution led to convictions for some, but
a hung jury for others. Final justice would come 40 years
later, with a 2005 State prosecution.
Legislative History.--Representative Lewis introduced H.
Res. 1293 on June 20, 2008, and the bill was referred to the
Committee on the Judiciary. On June 23, 2007, Chairman John
Conyers, Jr. moved to suspend the rules and the resolution
passed the U.S. House of Representatives by voice vote.
H. Res. 1345, Impeaching George W. Bush, President of the United
States, of high crimes and misdemeanors
Summary.--The resolution was composed of one article of
impeachment against the President for deceiving Congress with
fabricated threats of Iraq WMDs to fraudulently obtain support
for an authorization of the use of military force against Iraq.
Legislative History.--H. Res. 1346, was introduced by Rep.
Dennis Kucinich July 15, 2008 and referred to the House
Committee on the Judiciary. On July 15, 2008, Mr. Kucinich rose
to a question of the privileges of the House and offered the
resolution. Mr. Kucinich moved to refer the resolution to the
Committee on the Judiciary. The motion to refer was agreed to
by the Yeas and Nays: 238-180 (Roll No. 492). The resolution
was referred to the House Committee on the Judiciary.
Oversight Activities
Oversight hearing on the Impact of Ledbetter v. Goodyear on the
Effective Enforcement of Civil Rights Laws
Summary.--On June 28, 2007, the Subcommittee held a hearing
on the impact of the Supreme Court's decision in Ledbetter v.
Goodyear \219\ on the effective enforcement of civil rights
laws. Testimony was received from: Lilly Ledbetter, plaintiff
in Ledbetter v. Goodyear; Martha Chamallas, Professor of Law,
The Ohio State University; Neal Mollen, Esq., on behalf of the
U.S. Chamber of Commerce; and Marcia Greenberger, Co-President,
National Women's Law Center.
---------------------------------------------------------------------------
\219\ Ledbetter v. Goodyear Tire & Rubber Company, Inc., __U.S.__,
127 S.Ct. 2162 (2007).
---------------------------------------------------------------------------
In Ledbetter, the Supreme Court ruled that employees cannot
challenge unlawful pay discrimination unless they file a claim
within six months of the discriminatory pay-setting decision.
In a sharply divided 5-4 decision, the Court interpreted Title
VII's 180-day statute of limitations period as running from the
date that an employer decides to pay an employee less rather
than each time an employee earns or is paid less as a result.
This ruling departed from prior interpretations of when victims
of pay discrimination can file timely charges under Title VII.
The case also raised questions about the effectiveness and
fairness of statutory caps on damages for victims of
discrimination based on sex, religion, or disability. In Ms.
Ledbetter's case, the jury's award of compensatory and punitive
damages against Goodyear for intentional sex discrimination was
reduced by 90% because of the caps on damages contained in
Section 1981a.
The Subcommittee's oversight hearing examined the two
issues arising from the Ledbetter case: (1) the Court's ruling
with respect to when victims of pay discrimination can file
timely charges; and (2) the adequacy and fairness of remedies
for victims of intentional employment discrimination. Ms.
Ledbetter testified that, after filing a complaint with the
EEOC shortly before her retirement, she discovered that she was
making from $600 to $1,500 per month less than her male
counterparts due to the cumulative effect of smaller raises, as
compared to those received by her male colleagues, during her
nineteen years working for Goodyear. Ms. Ledbetter explained
that, following a trial, the jury found that Goodyear
discriminated against her based on sex and awarded her more
than $3 million in compensatory and punitive damages, an amount
that she felt provided a deterrent effect on Goodyear.
Professor Martha Chamallas testified that the statutory caps on
damages undermine the deterrent effect of the law, are
arbitrary, and harm victims of the most egregious and severe
forms of discrimination. Both Professor Chamallas and Marcia
Greenberger testified that Congress should enact legislation to
correct the Supreme Court's ruling on the statute of limitation
for pay discrimination claims and to lift the statutory caps on
damages. Neal Mollen testified that the Court's ruling
regarding the time period for filing a claim of discrimination
was appropriate as it would encourage the prompt filing and
resolution of charges.
Joint oversight hearing on Rendition to Torture: the Case of Maher Arar
Summary.--On October 18, 2007, the Subcommittee held the
first of two joint hearings with the Subcommittee on
International Organizations, Human Rights, and Oversight of the
House Committee on Foreign Affairs on rendition to torture
(``extraordinary'' rendition). Testimony was received from:
Maher Arar; Kent Roach, Prichard-Wilson Chair, Faculty of Law,
University of Toronto; Frederick P. Hitz, Lecturer and Senior
Fellow, Center for National Security Law, University of
Virginia School of Law; Daniel Benjamin, Director, Center on
the United States and Europe, The Brookings Institution;
Michael John Garcia, Legislative Attorney, American Law
Division, Congressional Research Service; David D. Cole,
Professor of Law, Georgetown University Law Center.
This first hearing into rendition to torture featured
testimony from Maher Arar, a Canadian citizen who was sent by
U.S. officials to Syria, where he was imprisoned for nearly a
year and tortured, and also explored, more generally, the
evolution in the use of rendition as an interrogation tool
following the 9/11 terrorist attacks and the legality of this
practice.
Mr. Arar testified, via video hookup from Canada, that he
was stopped by U.S. immigration officials while transiting
through JFK airport in New York, detained for nearly two weeks,
and then sent to Syria against his wishes and despite telling
U.S. officials that he would be tortured there. Mr. Arar
described his year in a Syrian jail cell as being held ``in a
grave'' and how, during interrogations, he was beaten with a
shredded electrical cable, punched, and blindfolded. He
recalled being placed outside other interrogation rooms where
he could hear prisoners screaming in pain during
interrogations, explaining that ``the women's screams haunt me
the most.'' After nearly a year, Mr. Arar was finally released
by Syria without charge.
Professor Roach, who was appointed to the commission
convened by the Canadian government to investigate Mr. Arar's
case following his release by Syria and return to Canada,
testified that the Canadian Arar Commission concluded that
there was no evidence that Mr. Arar had any ties to terrorism,
and that Canadian intelligence officials mistakenly had passed
misinformation about Mr. Arar to U.S. intelligence officials.
Professor Roach explained that, despite secrecy concerns raised
by government officials, the Commission had been able to review
documents and testimony and publish an extensive report without
any harmful public disclosure of sensitive national security
information.
Fred Hitz testified that he opposed the rendition of
suspects for purposes of interrogation, explaining that the
practice undermines international intelligence cooperation. Mr.
Garcia explained applicable immigration removal laws and U.S.
obligations under the Convention Against Torture, while
Professor Cole testified that extraordinary rendition violates
U.S. and International Law. Daniel Benjamin testified that U.S.
rendition policy puts at risk the willingness of our allies to
cooperate with U.S. anti-terrorism efforts and diminishes our
moral standing in the world.
Oversight hearing on Torture and the Cruel, Inhuman, and Degrading
Treatment of Detainees: the Effectiveness and Consequences of
``Enhanced'' Interrogation
Summary.--On November 8, 2007, the Subcommittee held its
first oversight hearing to investigate the use of aggressive
and physically coercive interrogation techniques. This initial
hearing explored claims that aggressive interrogation--beyond
the standards set forth in the Army Field Manual--is necessary
and effective when questioning detainees in the
Administration's war on terror. Testimony was received from:
Malcolm W. Nance, Anti-Terrorism/Counter-Terrorism Intelligence
Specialist, former SERE Instructor; Steven Kleinman, Colonel,
USAFR, Intelligence and National Security Specialist, Senior
Intelligence Officer/Military Interrogator; Amrit Singh, Staff
Attorney, ACLU.
Malcolm Nance, a former instructor at the U.S. Navy
Survival, Evasion, Resistance and Escape (SERE) School, opposed
Administration claims that ``waterboarding'' a detainee does
not constitute torture and described the technique as ``an
overwhelming experience that induces horror, triggers a frantic
survival instinct'' and results in a subject answering
questions with ``a truth, a half-truth, or outright lie in
order to stop the procedure.'' Mr. Nance testified that, by
lowering the standard on how it treats detainees, the U.S. was
setting a harmful and dangerous standard for treatment of its
own service members and that the reported mistreatment of
detainees by the U.S. was increasing anti-American feelings in
the Middle East. Colonel Steven Kleinman, an expert
interrogator and human intelligence officer, testified that the
conclusion that coercion is an effective means of obtaining
reliable intelligence information ``is, in my professional
opinion, unequivocally false.'' He further testified that the
standards of conduct for interrogation contained in the Army
Field Manual are sufficiently flexible to allow for fully
effective interrogation. Amrit Singh, an attorney who has
reviewed hundreds of official documents obtained in a FOIA
lawsuit against the Administration, testified that official
authorization of harsh techniques had opened the door to
widespread abuse and torture of detainees as illustrated by the
widespread abuse of prisoners at Abu Ghraib prison in Iraq. All
three witnesses agreed that information gained through
aggressive, coercive interrogation is not reliable and that
using such techniques has damaged U.S. moral and legal standing
in the world.
Oversight hearing on Reform of the State Secrets Privilege
On January 29, 2008, the Subcommittee held an oversight
hearing to explore judicial development and executive branch
usage of the state secret privilege, and the need for
legislative action. Testimony was received from H. Thomas
Wells, Jr., President-Elect, American Bar Association; Judith
Loether, daughter of one of the victims of the plane crash at
issue in U.S. v. Reynolds; Hon. Patricia Wald, retired Chief
Judge for the U.S. Court of Appeals for the D.C. Circuit;
Patrick Philbin, partner at Kirkland & Ellis; and Kevin
Bankston, Senior Attorney, Electronic Frontier Foundation.
Mr. Wells explained that congressional reform was necessary
to address increased use of the privilege to seek dismissal of
cases at the pleadings stage, noting that ``[i]n the absence of
congressional guidance, courts have adopted divergent
approaches'' to these cases, with some courts ``deferring to
the Government without engaging in sufficient inquiry into the
Government's assertion of the privilege.'' Judge Wald agreed
that ``the courts sometimes are so deferential that if the
Government makes in its affidavits even a prima facie plausible
claim of state security being involved, they will shy away and
they will not go beyond that.'' Like the ABA, Judge Wald
supported legislation that would require ``serious judicial
review'' of state secret claims, including review of the actual
material that the government seeks to withhold. Judge Wald and
Mr. Bankston emphasized the need for judges to have sufficient
flexibility to fashion appropriate orders. ``The thrust of
legislation on state secrets should be to emphasize judicial
flexibility and creativity in finding alternatives to the
original material that will permit the case to proceed whenever
possible.'' Mr. Wells, Judge Wald, and Mr. Bankston emphasized
that Congress should enact procedures and standards that
require courts independently to review privilege claims, make
every effort to allow cases to proceed, avoid premature and
unjust dismissal of claims or cases, and require a
nonprivileged substitute (e.g., a summary or redacted version)
for privileged material where at all possible. Patrick Philbin
agreed that Congress has the constitutional authority to codify
the state secret privilege but cautioned against
``undermin[ing] the executive's authority to protect national
security information.'' Mr. Philbin testified that judges
should defer to the executive branch's judgment as to what
constitutes a state secret.
Oversight hearing on Justice Department's Office of Legal Counsel
Summary.--On February 14, 2008 the Subcommittee held the
first in a series of oversight hearings into the role of
Administration lawyers in the development of the
Administration's interrogation policies. At this first hearing,
testimony was received from: Steven G. Bradbury, Principal
Deputy Assistant Attorney General, Office of Legal Counsel,
U.S. Department of Justice.
Following the terrorist attacks of September 11, 2001, the
Administration embarked on a aggressive and highly
controversial program of harsh or ``enhanced'' interrogation of
detainees suspected of connection to terrorism. This program
was given legal approval by the Department of Justice in a
series of secret opinions authored by the Department's Office
of Legal Counsel. These OLC opinions authorized and justified
severe treatment of detainees by, among other things,
concluding that U.S. and International prohibitions on torture
and cruel, inhuman, or degrading treatment did not prohibit
``waterboarding,'' limiting ``torture'' to conduct causing
``severe organ failure or death,'' denying detainees the
baseline guarantee of ``humane'' treatment contained in the
Geneva Conventions, and proclaiming that the President could
authorize torture in his role as commander-in-chief. The
opinions that have been made public have been criticized as
poorly reasoned, result-oriented, and politically motivated.
Ultimately, a number of these opinions were formally withdrawn
by the Department.
Press reports indicated that Administration lawyers in the
White House, the Department of Defense, and the Department of
Justice all played in significant roles in developing and
approving these interrogation methods.\220\ Over the course of
2008, the Subcommittee held an extensive series of hearings to
explore the role played by these lawyers and assess whether any
U.S. or International laws may have been violated.
---------------------------------------------------------------------------
\220\ Sands, The Green Light, Vanity Fair, May 2008.
---------------------------------------------------------------------------
The first in this series, the Subcommittee's February 14,
2008, hearing provided an opportunity to explore the substance
and process of the OLC with the current head of that office,
Steven Bradbury, who reportedly authored several controversial
memoranda regarding interrogation of detained terror suspects.
Mr. Bradbury testified that, since 9/11, the Central
Intelligence Agency has operated a program of detention and
interrogation of ``high value al Qaeda terrorists'' and that
the CIA has used ``alternative'' or ``enhanced'' interrogation
methods that go beyond what is permitted by the Army Field
Manual. Mr. Bradbury acknowledged that certain detainees had
been subject to ``waterboarding,'' but testified that this
practice had not been used since 2003. Mr. Bradbury testified
that the OLC reviewed the CIA program ``from the very
beginning,'' and approved it. In explaining the OLC's analysis
under the U.S. anti-torture statute, Mr. Bradbury testified
that ``severe'' physical pain or suffering must take into
account both the intensity and duration of the suffering so
that something that doesn't last very long ``may not constitute
severe physical suffering. To constitute severe mental pain or
suffering, Mr. Bradbury testified that the interrogator would
have to intend to cause prolonged mental harm to be unlawful.
Mr. Bradbury further testified that interrogation techniques
used by the CIA had been adapted from the SERE (Survival,
Escape, Resistance, and Evasion) program, which is used by the
U.S. to train its service members for how they may be treated
by enemy nations who do not observe the laws of war.
From the Department of Justice to Guantanamo Bay: Administration
Lawyers and Administration Interrogation Rules, Part I
Summary.--On May 6, 2008, the Subcommittee held its second
hearing into the role of Administration lawyers in the
development of the Administration's interrogation policies.
Testimony was received from: David B. Rivkin, Jr., Partner,
Baker Hostetler, LLP; David J. Luban, Professor of Law,
Georgetown University Law Center; Marjorie Cohn, Professor of
Law, Thomas Jefferson School of Law; Philippe Sands, Professor
of Law, University College London.
At this hearing, Professor Phillipe Sands presented the
findings of his investigation into the development and legal
approval of the Administration's interrogation programs:
[T]he Administration has spun a narrative that is
false, claiming that the impetus for the new
interrogation techniques came from the bottom-up. That
is not true: the abuse was a result of pressures and
actions driven from the highest levels of government.
The Administration claims that it simply followed the
law. My investigation indicated that--driven by
ideology--the Administration consciously sought legal
advice to set aside international constraints on
detainee interrogations. The Administration relied on a
small number of political appointees, lawyers with no
real background in military law, with extreme views on
executive power, and with an abiding contempt for
international rules like the Geneva Conventions.
Professor Marjorie Cohn, President of the National Lawyers
Guild, testified that ``top U.S. officials are liable for war
crimes under the U.S. War Crimes Act and torture under the
Torture Statute.'' Georgetown law professor and legal ethics
expert David Luban questioned whether an appropriate process
had been followed in drafting these opinions and criticized
their substance, testifying that ``the torture memos take
enormous liberties with the law and reach eccentric
conclusions.'' David Rifkin of the law firm Baker Hostetler,
testifying for the minority, denounced what he described as a
``witch hunt'' against the Administration lawyers who
participated in drafting and approving interrogation policies.
Joint oversight hearing on the U.S. Department of Homeland Security
Inspector General Report OIG-08-18, The Removal of a Canadian
Citizen to Syria
Summary.--On June 5, 2008, the Subcommittee held a second
joint hearing with the Subcommittee on International
Organizations, Human Rights, and Oversight of the House
Committee on Foreign Affairs on the rendition of Maher Arar to
torture in Syria. Testimony was received from: Richard L.
Skinner, Office of Inspector General, U.S. Department of
Homeland Security; Clark Kent Ervin, Director, Homeland
Security Program, The Aspen Institute; Scott Horton,
Distinguished Visiting Professor, Hofstra Law School.
This second joint hearing on rendition to torture focused
on the DHS' Office of Inspector General investigation report
regarding Mr. Arar's case. That report was the result of a
four-year-long investigation, which initially had been
requested by Rep. John Conyers, Jr., then the Ranking Member of
the House Judiciary Committee in December 2003, just two months
after Mr. Arar had been released by Syria. The publicly-
released report of that investigation reveals troubling facts
regarding possible criminal misconduct. For example, the DHS
OIG concluded that, after finding that it was ``more likely
than not'' that Mr. Arar would be tortured if sent to Syria,
INS officials still concluded that the United States could send
Mr. Arar to Syria based on ``ambiguous'' assurances whose
validity was not examined. This decision was made by former INS
Commissioner James W. Ziglar, with attorneys from the Office of
the Deputy Attorney General making key decisions and consulting
with INS officials at various stages in the removal process.
During the June 5, 2008 hearing, current DHS Inspector
General Richard L. Skinner and former DHS Inspector General
Clark Ervin testified that they believe that the removal of Mr.
Arar to Syria may have violated criminal laws, including the
Convention Against Torture and Federal Torture Statute. Mr.
Ervin testified that the DHS OIG report led him to conclude
that United States officials intended to render Mr. Arar to
Syria, as opposed to Canada, because of the likelihood that he
would be tortured in Syria and the certainty that he would not
be tortured in Canada. Mr. Skinner and Mr. Horton agreed that a
prima facie case of criminal misconduct could be made based on
facts showing that high-ranking U.S. officials intentionally
deprived Mr. Arar of the means to challenge his detention and
transfer with the knowledge that he would be tortured upon
transfer to Syria.
From the Department of Justice to Guantanamo Bay: Administration
Lawyers and Administration Interrogation Rules, Part II
Summary.--On June 18, 2008, the Subcommittee held its third
hearing into the role of Administration lawyers in the
development of the Administration's interrogation policies.
Testimony was received from: Daniel Levin, White & Case, LLP;
David B. Rivkin, Jr., Partner, Baker & Hostetler; Lawrence
Wilkerson, Professor, College of William and Mary.
Daniel Levin, former Acting Assistant Attorney General in
charge of the Office of Legal Counsel described his experiences
in seeking to draft a new legal opinion on the federal torture
statute to replace the earlier John Yoo opinions that had been
withdrawn. Like David Luban, who testified at the
Subcommittee's May 6th hearing, he questioned the secretive
process used to draft the earlier opinions. He also
acknowledged under questioning that he had not voluntarily left
the office and was removed by Attorney General Alberto Gonzales
at a time when he was trying to complete more restrictive
opinions on interrogation. Colonel Lawrence Wilkerson, former
Chief of Staff to Colin Powell, testified that he had
investigated this issue for Secretary Powell and had concluded
that the flawed legal opinions developed to approve CIA
interrogations had been co-opted by senior Administration
officials such as David Addington and Defense Department Chief
Counsel Jim Haynes for military use. Col. Wilkerson also
described hearing from Secretary Powell that the Secretary
believed that President Bush himself was complicit in these
decisions. David Rivkin, appearing again for the minority at
this hearing, again defended the conduct and ethics of
Administration lawyers involved with interrogation issues.
Douglas Feith, former Undersecretary of Defense for policy,
was scheduled to appear at this hearing but withdrew his
agreement to appear the day before the hearing because he was
not willing to testify alongside Col. Wilkerson.
From the Department of Justice to Guantanamo Bay: Administration
Lawyers and Administration Interrogation Rules, Part III
Summary.--On June 26, 2008, the Subcommittee held its
fourth hearing into the role of Administration lawyers in the
development of the Administration's interrogation policies.
Testimony was received from: David Addington, Chief of Staff,
Vice President of the United States; Christopher Schroeder,
Charles S. Murphy Professor of law and Public Policy Studies,
Duke University; John Yoo, Professor, Boalt Hall School of Law,
University of California at Berkeley.
Mr. Addington and Professor Yoo defended their roles in
developing and approving the Administration's interrogation
program, while Professor Schroeder noted numerous criticisms of
both the process and substance of their work. Both Mr.
Addington and Mr. Yoo also minimized their responsibility for
Administration actions in this area, with Mr. Addington
testifying under questioning from Subcommittee Chairman Nadler
that he was not morally or legally responsible for any wrongs
that may have been committed in the Administration's
interrogation program. Under questioning from Chairman Conyers,
Professor Yoo was unwilling to identify any method of
interrogation that the President could not lawfully order, and
would not even say whether the President had legal authority to
order a suspect buried alive. Mr. Addington also distanced
himself from the controversial ``unitary executive'' theory of
Presidential theory, claiming ``I don't know what it is.''
From the Department of Justice to Guantanamo Bay: Administration
Lawyers and Administration Interrogation Rules, Part IV
Summary.--On July 15, 2008, the Subcommittee held its fifth
hearing into the role of Administration lawyers in the
development of the Administration's interrogation policies.
Testimony was received from: Douglas Feith, Georgetown
University (testifying pursuant to subpoena); Philippe Sands,
Professor of law, University College London; Deborah
Pearlstein, Visiting Scholar, Princeton University.
This hearing explored Mr. Feith's role in approving harsh
interrogations for use by the U.S. military and, under
questioning by Subcommittee Chairman Nadler, Mr. Feith asserted
that many extremely harsh interrogation techniques such as 20
hour interrogation sessions, stress positions, isolation,
nudity, and exploitation of phobias could be employed
consistent with the Geneva Conventions. Professors Pearlstein
and Sands sharply disputed that assertion, and much of the
hearing consisted of an extended between Mr. Feith and
Professor Sands--who had interviewed Mr. Feith for his book
regarding the Administration's development of interrogation
policy--regarding the honesty and accuracy of various prior
statements by both.
Professor Pearlstein testified that, based on her study of
the issues, she believed that ``senior civilian legal and
policy guidance was one of the key factors that led to the
record of abuse [of U.S. detainees]'' and that ``the pattern of
abuse [of U.S. detainees] followed a series of broad legal
decisions (as other witnesses have addressed) to change what
had been for decades settled U.S. law.''
From the Department of Justice to Guantanamo Bay: Administration
Lawyers and Administration Interrogation Rules, Part V
Summary.--On July 17, 2008, the Full Committee held the
sixth and final hearing regarding the role of Administration
lawyers in the development of the Administration's
interrogation policies. Testimony was received from: Hon. John
Ashcroft, former Attorney General, U.S. Department of Justice;
Benjamin Wittes, Fellow and Research Director in Public Law,
Brookings Institution; Walter Dellinger, Former Assistant
Attorney General, Office of Legal Counsel, U.S. Department of
Justice.
Attorney General Ashcroft defended the Administration's
interrogation program and asserted that it had been lawful and
had kept the nation safe. Mr. Ashcroft's testimony, however,
acknowledged that the Department's legal guidance on
interrogation came in early August 2002, and that he was not
aware of any legal approval being given for interrogation
activities that had been undertaken before that time, including
the extremely harsh interrogation of Abu Zubaydeh, who the CIA
has acknowledged waterboarding. Mr. Ashcroft also described his
decision not to accept John Yoo as head of the Office of Legal
Counsel and the concerns that underlay that decision.
Former Assistant Attorney General Dellinger testified that
``It is indisputable that something went badly wrong with the
Office of Legal Counsel'' during the early part of the Bush
Administration. Mr. Dellinger further explained the core
failure of the office as follows: ``[T]he drafters of the
`torture memos' deviated from their duty to offer neutral legal
advice, instead reaching a pre-determined and unsupportable
legal conclusion.'' Mr. Wittes offered forward-looking
testimony that asserted Congress had largely resolved the
problem of detainee abuse through the Detainee Treatment Act
and called for additional legislation to clarify standards for
CIA interrogations. In addition, Mr. Wittes called for
legislation authorizing the President to immunize interrogators
who violate the law on Presidential orders so that
accountability for such misconduct can be clearly focused on
the President him or herself.
Oversight Hearing on Habeas Corpus and Detentions at Guantanamo Bay
(June 26, 2007)
Summary.--This hearing focused on the Administration's
Guantanamo detention policies and an exploration of the need to
restore habeas corpus rights to Guantanamo detainees in light
of the inadequate substitutes in place for the detainees to
challenge their detention. Witnesses at this hearing were:
William Taft, IV, Of Counsel Resident at Fried, Frank; former
legal adviser at the State Department under President George W.
Bush; Lt. Commander Charles Swift, JAG Corps U.S. Navy;
Jonathan Hafetz, Litigation Director of the Liberty and
National Security Project at the Brennan Center for Justice;
Gregory Katsas, Principal Deputy Associate Attorney General of
the United States; and Brad Berenson, Partner, Sidley Austin,
LLP.
HEALTH CONSEQUENCES OF THE ATTACKS OF SEPTEMBER 11, 2001
Oversight Hearing on the U.S. Environmental Protection Agency's
Response to Air Quality Issues Arising from the Terrorist
Attacks of September 11, 2001: Were There Substantive Due
Process Violations? Serial 110-54
Summary.--The Subcommittee held a hearing on June 25, 2007,
to investigate whether the EPA's response to the attacks on the
World Trade Center on September 11, 2001 violated the rights of
first responders, workers, students, and residents in the area
by misrepresenting the health risks associated with the
destruction of the buildings.
The Honorable Christine Todd Whitman, Whitman Strategy
Group, and former EPA Administrator; John L. Henshaw, Henshaw &
Associates, Inc., and former Administrator of the Occupational
Safety and Health Administration; Samuel Thernstrom, American
Enterprise Institute, and former Associate Director of the
Council on Environmental Quality; Tina Kreisher, Communications
Director U.S. Department of the Interior, and former Associate
Administrator for Communications at EPA; David Newman, New York
Committee of Occupational Safety and Health; Eileen McGinnis,
Senior Vice President Whitman Strategy Group, and former Chief
of Staff to then-Administrator Whitman at EPA; Marianne L.
Horinko, Executive Vice President Global Environment &
Technology Foundation, and formerly with EPA; and Suzanne Y.
Mattei, Former New York City Executive of the Sierra Club.
Ms. Mattei and Mr. Newman discussed the health impact of
the destruction of the World Trade Center, and critiqued the
manner in which the government had represented the ensuing
health risks to first responders and the general public.
Ms. Whitman, Mr. Henshaw, Mr. Thernstrom, Ms. Kreisher, Ms.
McGinnis, and Ms. Horinko explained their perspectives on the
manner in which the government managed the crisis from an
environmental and health perspective.
Oversight Hearing on ``Paying with their Lives: The Status of
Compensation for 9/11 Health Effects''
Summary.--This hearing was held jointly with the
Subcommittee on Immigration, Citizenship, Refugees, Border
Security, and International Law on April 1, 2008. The hearing
examined the status of compensation for victims of the
terrorist attacks on the World Trade Center of September 11,
2001. Specifically the hearing focused on the Captive Insurance
Fund set up with a $1 billion appropriation to provide relief
for individuals who had developed health problems as a result
of exposure to toxins released as a result of the attacks.\221\
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\221\ Pub. L. No. 108-7, 117 Stat. 11, 517-518 (2nd Cir. 2003).
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Testifying at the hearing were: Kenneth R. Feinberg, Esq.,
Former Special Master Victim Compensation Fund; Michael
Cardozo, Corporation Counsel, City of New York; Anne-Marie
Lasowski, Acting Director, Education Workforce and Income
Security, Government Accountability Office; Michael A.
Valentin, Former NYPD Detective; Theodore H. Frank, Resident
Fellow, American Enterprise Institute for Public Policy,
Research Director, AEI Legal Center for the Public Interest;
James Melius, MD, Ph.D, Administrator, New York State Laborers'
Health and Safety Trust Fund.
Mr. Feinberg discussed ways to provide appropriate funding
and administration to ensure that uncompensated victims
received assistance. Ms. Lasowski provided background on the
track record of four earlier federal programs designed to
assist individuals who had experienced serious health effects
as a result of exposure to dangerous materials. While Mr. Frank
expressed support for the Victims Compensation Fund
administered by Mr. Feinberg in the wake of the attacks, he
expressed the concern that proposals to provide compensation
for individuals suffering serious health effects was overbroad
in its application, and too narrow in its protection of
contractors facing litigation. Dr. Melius discussed the health
effects being experienced by the affected individuals.
Detective Valentin gave a personal account of those health
effects and their impact on him and thousands of other first
responders.
LAW ENFORCEMENT PRACTICES AND ACCOUNTABILITY
Oversight Hearing on Law Enforcement Confidential Informant Practices
Summary.--On July 19, 2007, the Subcommittee on Crime,
Terrorism, and Homeland Security and the Subcommittee on the
Constitution, Civil Rights, and Civil Liberties held a joint
Oversight Hearing on Law Enforcement Confidential Informant
Practices. Witnesses at the hearing included: Wayne M. Murphy,
Assistant District, Director of Intelligence, FBI; Professor
Alexandra Natapoff, Loyola Law School; Commander Pat O'Burke,
Deputy Commander, Narcotics Service, Texas Department of Public
Safety; Dorothy Johnson Speight, Founder, Mothers In Charge;
Ronald E. Brook, President, National Narcotic Officers'
Association Coalition and Reverend Markel Hutchins, Minister
and Civil Rights Leader.
This oversight hearing was the first in a series that
explored law enforcement practices and their impact on civil
and constitutional rights. The witnesses testified about the
use of confidential informants, particularly in drug
enforcement, and why their use persisted despite controversy.
The witnesses also testified about how the use of confidential
informants has influenced the practice of plea bargaining,
increased the potential for abuse due to the inherent secrecy
of the practice, and has affected poor and minority
communities. Assistant District Murphy testified about existing
federal guidelines and suggested policies designed to curb the
potential for abuse.
Oversight Hearing on Jena 6 and the Role of Federal Intervention in
Hate Crimes and Race-Related Violence in Public Schools
Summary.--On Tuesday, October 16, 2007, the Committee on
the Judiciary convened an oversight hearing on Jena 6 and the
Role of Federal Intervention in Hate Crimes and Race-Related
Violence in Public Schools. The hearing witnesses were Mr.
Donald Washington, U.S. Attorney, Western District of
Louisiana; Mr. Richard Cohen, President and CEO, Southern
Poverty Law Center; Reverend Al Sharpton, President, National
Action Network; Professor Charles Ogletree, Director, Charles
Hamilton Houston Institute for Race and Justice, Harvard Law
School; Reverend Brian Moran, Pastor, Jena Antioch Baptist
Church, President, NAACP Jena Chapter; and Minority Witness:
Ms. Lisa Krigsten, Counsel to the Assistant Attorney General,
Civil Rights Division.
The purpose of the hearing was to examine the role of the
federal government as it pertains to hate crimes, race-related
school violence, and disparities within the juvenile criminal
justice system in the context of Jena. While the high profile,
controversial case of the Jena 6 warrants federal oversight,
the hearing was meant to shed light on other inequities on the
basis of race within the nation's school discipline and legal
systems. The Jena 6 matter was not an isolated incident, but
rather part of a nationwide issue, that could be used as a
vehicle for a larger discussion of concerns about the
inequitable application of rules and laws, particularly with
respect to African American males. This hearing also discussed
the federal remedies available for those students and juveniles
who have been subjected to discriminatory and biased treatment
by school administrators, prosecutors, judges, and law
enforcement, for example.
New York Forum on Law Enforcement Accountability
Summary.--On May 9, 2008, the Subcommittee on the
Constitution, Civil Rights & Civil Liberties sponsored a forum
on Law Enforcement Accountability in New York City in the wake
of the highly publicized shooting of an unarmed man on the
night before his wedding by officers of the New York Police
Department. Witnesses at the forum included: Rachel Harmon,
Professor, University of Virginia School of Law (former federal
prosecutor with the Justice Department's Civil Rights Division,
Criminal Section); Dr. Mary Frances Berry, former Chairwoman of
the United States Commission on Civil Rights and Endowed Chair
at the University of Pennsylvania; Chris Stone, Professor,
Kennedy School of Government, Harvard University; Deborah
Ramirez, Professor, Northeastern University; Hazel Dukes, New
York NAACP; Revered Al Sharpton, National Action Network; Kamau
Franklin, Racial Justice Fellow, Center for Constitutional
Rights and Michael Hardy, Esq., Counsel for the Sean Bell
family.
The forum was intended to inform the community of the
federal role in overseeing the operations of state and local
law enforcement agencies, similar to fora that the Judiciary
Committee held in Los Angeles and Miami following high profile
allegations of police misconduct. The forum also served as the
Committee's initial inquiry into law enforcement accountability
issues and potential legislative solutions as they pertained to
the shooting of Sean Bell. The academic expert witnesses
testified about existing federal authority to oversee the
activities of state and local law enforcement and suggested
possible amendment to existing authority that would improve law
enforcement reform practices. The local expert witness provided
context for the discussion regarding the ways in which police
and community relations can be enhanced in light of often
deteriorating community confidence in the police.
CIVIL RIGHTS ENFORCEMENT
Hearing on ``Changing Tides: Exploring the Current State of Civil
Rights Enforcement Within the Department of Justice,'' Serial
No. 110-44
Summary.--On Thursday, March 22, 2007, the Subcommittee on
the Constitution, Civil Rights, and Civil Liberties conducted
an oversight hearing to examine the enforcement record of the
Civil Rights Division of the Department of Justice and to
evaluate the Division's progress in accomplishing its mission
to end discrimination. The following witnesses testified before
the Subcommittee: Wan J. Kim, Assistant Attorney General, U.S.
Department of Justice, Civil Rights Division; William Taylor,
Chair, Citizens' Commission on Civil Rights; Joseph Rich,
Director of the Fair Housing Community Development Project,
Lawyers' Committee for Civil Rights Under Law; Roger Clegg,
President and General Counsel, Center for Equal Opportunity;
and Wade Henderson, President and CEO, Leadership Conference on
Civil Rights.
Mr. Kim testified that while much has been achieved under
the Civil Rights Act of 1964 and other civil rights laws, the
Civil Rights Division's daily work demonstrates that
discrimination still exists. He then highlighted several civil
rights cases filed by the Department. Mr. Taylor testified that
as the Civil Rights Division approached its 50th anniversary,
it is in deep trouble because the Bush Administration has used
it as a vessel for its own political objectives, often
disregarding the law and sullying the group's reputation for
professionalism and integrity. Mr. Rich testified that during
the Bush Administration, a dramatic change had taken place;
there appeared to be a conscious effort to remake the
Division's career staff. He said that political appointees
often assumed an attitude of hostility toward career staff,
exhibited a general distrust for recommendations made by them,
and were very reluctant to meet with them to discuss their
recommendations. Mr. Clegg testified that since Congress
appropriates money for the Civil Rights Division and wants it
to enforce the laws it has passed, it makes sense for the
members to keep an eye on what sort of job the Division is
doing--so long, of course, as the oversight process does not
become so onerous that it actually prevents the Division from
doing its job. Mr. Henderson testified that over the last six
years, politics have trumped substance and altered the
prosecution of our nation's civil rights laws in many parts of
the Civil Rights Division. He explained that while the Division
is charged with enforcing federal civil rights statutes aimed
at eliminating discrimination and ensuring equal treatment and
equal justice under law, recent decisions made within the
Division have reversed long-standing civil rights policies and
have impeded civil rights progress.
Oversight Hearing on Employment Litigation Section of the Civil Rights
Division of the U.S. Department of Justice, Serial No. 110-91
Summary.--On Tuesday, September 25, 2007, the Subcommittee
on the Constitution, Civil Rights, and Civil Liberties
conducted an oversight hearing to evaluate the effectiveness of
the Employment Litigation Section in enforcing federal statutes
designed to prevent employment discrimination. The following
witnesses testified before the Subcommittee: Asheesh Agarwal,
Deputy Assistant Attorney General, U.S. Department of Justice,
Civil Rights Division; Richard Ugelow, Practitioner In
Residence, American University Washington College of Law; Janet
Caldero, Beechhurst, NY; Eric S. Dreiband, Partner, Akin Gump
Strauss Hauer & Feld; and Jocelyn Frye, General Counsel,
Workplace Fairness Program, National Partnership for Women and
Families.
Asheesh Agarwal testified that the Civil Rights Division
remains diligent in combating employment discrimination and
highlighted a few of the Employment Litigation Section's cases.
Mr. Ugelow testified that eliminating discrimination against
African-Americans was at the heart of the creation of the Civil
Rights Division. He then explained that the Employment
Litigation mandate was conscientiously fulfilled in an even-
handed and judicious fashion by both Republican and Democratic
Administrations, until the George W. Bush administration. He
said the Bush Administration sought to significantly limit
enforcement in the area of discrimination targeted to African
Americans and Latinos. Ms. Caldero testified about one of
several cases where the Department changed positions, the U.S.
v. The New York City Board. She said that DOJ switched from
defending the civil rights of women and minority plaintiffs to
being their opponent. She said she trusted the Justice
Department, and then it betrayed and abandoned her and many
others. Mr. Dreiband testified that it is important to remember
that the folly and disgrace of unlawful discrimination
continues to plague our nation. He said that enforcement of the
civil rights laws vests the EEOC and the Civil Rights Division
with sacred responsibilities that speak to the very essence of
who we are as a people, and who we aspire to be. Ms. Frye
testified that the past six and one-half years under the Bush
Administration have prompted serious, troubling questions about
the strength and scope of the Employment Section's Title VII
enforcement efforts. Among the concerns, she pointed out: the
decline in the Employment Section's overall enforcement and
litigation numbers; perceptions of decreased emphasis on cases
that traditionally have been a high priority, such as race
discrimination cases involving African Americans; fewer pattern
or practice cases and disparate impact cases that could be used
to uncover systemic practices that affect large numbers of
employees; reversals of legal positions in key cases, resulting
in less protection for discrimination victims and making it
much harder for discrimination victims to vindicate their
rights; and allegations of improper political influence
affecting attorney hiring and case decisions.
Oversight Hearing on Voting Rights Section of the Civil Rights
Division, Serial No. 110-156
Summary.--On Tuesday, October 30, 2007, the Subcommittee on
the Constitution, Civil Rights, and Civil Liberties conducted
an oversight hearing to review the Voting Section's progress in
accomplishing its mission to end discrimination in voting and
to enhance voting opportunities. In addition the hearing
examined the allocation of Department of Justice resources
devoted toward eradicating obstacles to the franchise. The
following witnesses testified before the Subcommittee: John
Tanner, Chief, Voting Section, U.S. Department of Justice,
Civil Rights Division (CRT); Laughlin McDonald, Director--ACLU
Voting Rights Project; Toby Moore, former Geographer/Social
Science Analyst of the Voting Section, U.S. Department of
Justice, CRT; Bob Driscoll, Partner Alston & Bird, LLP; and
Julie Fernandes, Senior Policy Analyst and Special Counsel--
Leadership Conference for Civil Rights
Mr. Tanner testified that the Voting Section remains
committed to the continued enforcement of the Nation's voting
rights laws and highlighted several cases from the Voting
Section case docket. Mr. McDonald testified that the
revelations of partisan bias in the Civil Rights Division
Voting Section's decision making create a lack of confidence
and trust in the section. He explained that partisan bias
undermines the section's effectiveness and calls into question
the section's decisions about what to investigate and what kind
of cases to bring. He pointed out that the section's recent
actions are a clear signal that partisanship can trump racial
fairness, and thus increases the likelihood that minorities
will be manipulated to advance partisan goals. Mr. Moore
testified that broad generalizations, deliberate misuse of
statistics, and casual supposition, were preferred over the
analytical rigor, impartiality and scrupulous attention to
detail after Tanner became the chief of the Voting Section in
2005. Mr. Driscoll testified about the need for the Civil
Rights Division to balance voters' access to the polls with
ensuring ballot integrity. Ms. Fernandes testified that in
recent years the Voting Section has turned away from its
historic mandate. She explained that instead of promoting
access to the polls, the Voting Section has used its
enforcement authority to deny access and promote barriers to
block legitimate voters from participating in the political
process. As examples, she cited the decline in voting
discrimination cases filed on behalf of African Americans, the
decrease in the National Voter Registration Act enforcement
cases; a change in the Department's position on significant
legal questions such as the impact of photo identification
requirements; and the increased emphasis in voter fraud which
often has a chilling effect on the participation of minority
voters, particularly in jurisdictions where there is a history
of disfranchisement efforts targeting racial and ethnic
minorities.
Oversight Hearing on Voter Suppression, Serial No. 110-100
Summary.--On Tuesday, February 26, 2008, the Subcommittee
on the Constitution, Civil Rights, and Civil Liberties
conducted an oversight hearing on vote suppression to examine
whether the enforcement actions of the Department of Justice
were protecting voting rights or instead promoting barriers to
the franchise. The following witnesses testified before the
Subcommittee: Asheesh Agarwal, Deputy Assistant Attorney
General, U.S. Department of Justice, Civil Rights Division; J.
Gerald Hebert, Executive Director and Director of Litigation,
The Campaign Legal Center; Hilary O. Shelton, Director,
Washington Bureau of the NAACP; Rep. Tom Emmer, Deputy Minority
Leader, Minnesota State House of Representatives; and Lorriane
C. Minnite, PhD, Assistant Professor of Political Science,
Barnard College, Columbia University.
Mr. Agarwal testified that the Bush Administration is
committed to vigorously enforcing the Voting Rights Act,
recently reauthorized in 2006. He assured members that the
Department would vigorously defend the statute's
constitutionality in federal court. Mr. Hebert testified that
vote suppression and racially targeted vote caging schemes
threaten the integrity of our elections and undermine our
democracy. He outlined the steps that should be taken by the
U.S. Department of Justice now to prevent caging and other
efforts to use law enforcement machinery to advance partisan
goals. Mr. Shelton testified that the number of voter
suppression cases brought by the current Department of Justice
does not reflect the number of complaints of people across the
Nation who feel their rights have been violated. Shelton said
that the NAACP, as well as representatives from almost every
other civil and voting rights organization, all report an
increase in the number of Americans--primarily racial and
ethnic minority Americans--who say that they have been denied
their Constitutional right to register and vote. Mr. Emmer
explained that it is imperative to maintain the integrity of
the electoral process and thus the public confidence in that
process. Mr. Minnite testified that voter fraud is rare, and
the cure is worse than the disease. She questioned the purpose
of the Department of Justice's Ballot Access and Voting
Integrity Initiative, pointing out that the program has turned
up very little individual voter fraud.
Oversight Hearing on the Enforcement of the Fair Housing Act of 1968,
Serial No. 110-183
Summary.--On Thursday, June 12, 2008 the Subcommittee on
the Constitution, Civil Rights, and Civil Liberties held an
oversight hearing on the enforcement of the Fair Housing Act by
the Housing Section of the Civil Rights Division (CRT) of the
U.S. Department of Justice (DOJ) and the Office of Fair Housing
and Equal Opportunity (FHEO) of the Department of Housing and
Urban Development (HUD). This hearing coincided with the 40th
Anniversary of the Fair Housing Act. The following witnesses
testified before the Subcommittee: Jessie Liu, Deputy Assistant
Attorney General, DOJ, CRT; Kim Kendrick, Assistant Secretary,
HUD, Office of Fair Housing and Equal Opportunity, HUD; James
Carr, Chief Operating Officer, National Community Reinvestment
Coalition (NCR); Shanna L. Smith, President & CEO, National
Fair Housing Alliance; Suzanne Sangree, Chief Solicitor, City
of Baltimore Law Department; Stan Liebowitz, Ashbel Smith
Professor of Economics Director, Center for the Analysis of
Property Rights and Innovation School of Management, University
of Texas at Dallas; and Audrey Wiggins, Director, Fair Housing
Environmental Justice, Lawyers' Committee for Civil Rights
Under Law.
Mr. Liu testified that the Housing Section is strongly
committed to enforcing the Fair Housing Act, the Equal Credit
Opportunity Act, Title II of the Civil Rights Act of 1964, the
Religious Land Use and Institutionalized Persons Act, and the
Servicemembers Civil Relief Act. Ms. Kendrick testified that
housing discrimination persists. She explained that HUD studies
show that African Americans, Hispanics, Asian Americans, and
Native Americans receive consistently unfavorable treatment at
least 20 percent of the time when they seek to purchase or rent
a home. Mr. Carr testified that our federal fair housing
enforcement efforts are failing to protect the interests of
America's working families and minority homebuyers. Ms. Smith
testified that the lack of enforcement of federal fair housing
laws by the Department of Justice and the Department of Housing
and Urban Development is the main cause of the mismatch between
the high incidence of housing discrimination and the low
incidence of complaints of housing discrimination. She
explained that landlords, real estate agents, lenders,
insurance agents and others have limited fear of getting caught
in the act of discriminating simply because neither the
federal, state nor local governments have made fair housing
enforcement a priority. Even those who are prosecuted often pay
such a small penalty that discrimination becomes just another
cost of doing business. As a result, housing providers continue
to discriminate and our country remains highly segregated. Ms.
Sangree testified that Baltimore is a case study of the damage
that has befallen cities in the absence of aggressive federal
enforcement of this nation's civil rights laws, especially the
Fair Housing Act of 1968. She explained that lax enforcement of
the Fair Housing Act, combined with federal relaxation of
federal banking regulations and federal preemption of states'
ability to regulate lenders, created an environment in which
racially discriminatory predatory lending flourished. Mr.
Liebowitz testified that the disarray of the current mortgage
market is the result of claims that minorities were being
denied mortgages because of racial discrimination. Ms. Wiggins
testified about the failures of the U.S. Department of Justice
and the U.S. Department of Housing and Urban Development to
enforce the Fair Housing Act. She explained that Communities
have been obligated to act as principal prosecutors of the Fair
Housing Act, as a result of DOJ's de-emphasis, if not refusal,
on bringing disparate impact cases based on race, failures in
the complaint process of HUD's Office of Fair Housing and Equal
Opportunity, and a cut in funding to private and local
government fair housing agencies, have burdened communities to
act as principal enforcers of the Fair Housing Act.
Hearings of Lessons Learned From the 2004 Presidential Election, Serial
No. 110-199
Summary.--On Thursday, July 24, 2008, the Subcommittee on
the Constitution, Civil Rights and Civil Liberties held an
oversight hearing to examine the range of voting problems
encountered during the 2004 presidential election in order to
glean key lessons that can be applied to recurring voting
problems before the 2008 general election. The Committee also
examined the proactive measures that could be taken by the
Department of Justice, Election Assistance Commission, and
local and state election officials to effectively address
potential voting problems. The following witnesses testified
before the Subcommittee: J. Kenneth Blackwell, Ronald Reagan
Distinguished Fellow for Public Policy--Buckeye Institute; Dan
Tokaji, Associate Professor of Law, Associate Director,
Election Law--Ohio State University, Moritz College of Law;
Cleta Mitchell, Partner--Foley & Lardner LLP; Gilda Daniels,
Assistant Professor of Law--University of Baltimore School of
Law; Hans Von Spakovsky, Visiting Scholar The Heritage
Foundation; J. Gerald Hebert, Executive Director & Director of
Litigation--The Campaign Legal Center.
Witnesses testified about election administration problems
that arose in the course of Ohio's 2004 presidential election.
Witnesses also discussed broader lessons that could be learned
from Ohio's experience in 2004 as a means to guide preparatory
efforts for the 2008 general election.
Joint Hearing on Federal, State, and Local Efforts to Prepare for the
2008 Election--Subcommittee on the Constitution, Civil Rights,
and Civil Liberties, Committee on the Judiciary, Joint with
Subcommittee on Elections Committee on House Administration
Summary.--On Wednesday, September 24, 2008, the
Subcommittee on the Constitution, Civil Rights, and Civil
Liberties and the Subcommittee on Elections held a joint
oversight hearing to examine federal, state, and local efforts
to prepare for the 2008 election. The following witnesses
testified before the Subcommittees: David M. Farrell, Deputy
Assistant Secretary of State and Director of Elections--Office
of the Ohio Secretary of State; Pedro Cortes, Secretary of the
Commonwealth of Pennsylvania; Rokey W. Suleman, General
Registrar, Fairfax County Office of Elections; Doug Lewis,
Director, National Association of Election Officials; Grace
Chung Becker, Acting Assistant Attorney General, U.S.
Department of Justice, Civil Rights Division; Paul F. Hancock,
Partner, Kirkpatrick & Lockhart Preston Gates & Ellis, LLP;
Karen K. Narasaki, Executive Director, Asian American Justice
Center; Bryan P. O'Leary, Public Policy Consultant, Crowell
Moring; James Terry, Chief Public Advocate--Consumers Rights
League; Jocelyn Benson, Assistant Professor--Wayne State
University Law School; Kristen Clarke Avery, Co-Director,
Political Participation Group--NAACP Legal Defense Fund
Witnesses acknowledged the significant increase in the
number of voters--more than 3.5 million new voters, up 64% from
the same period 4 years ago. The witnesses discussed the
proactive and preemptive steps that will and should be taken by
federal, state, and local officials to address election
administration and voting rights issues likely to arise during
the 2008 Presidential election in order to ensure a fair
election.
SUBCOMMITTEE ON COURTS, THE INTERNET, AND INTELLECTUAL PROPERTY \1\
---------------------------------------------------------------------------
\1\ Subcommittee chairmanship and assignments approved January 26,
2007, and February 28, 2007.
---------------------------------------------------------------------------
HOWARD L. BERMAN, California,
Chairman
HOWARD COBLE, North Carolina JOHN CONYERS, Jr., Michigan
TOM FEENEY, Florida RICK BOUCHER, Virginia
LAMAR SMITH, Texas ROBERT WEXLER, Florida
F. JAMES SENSENBRENNER, Jr., WisconsinELVIN L. WATT, North Carolina
ELTON GALLEGLY, California SHEILA JACKSON LEE, Texas
BOB GOODLATTE, Virginia STEVE COHEN, Tennessee
STEVE CHABOT, Ohio HENRY C. ``HANK'' JOHNSON, Jr.,
CHRIS CANNON, Utah Georgia
RIC KELLER, Florida BRAD SHERMAN, California
DARRELL E. ISSA, California ANTHONY D. WEINER, New York
MIKE PENCE, Indiana ADAM B. SCHIFF, California
ZOE LOFGREN, California
BETTY SUTTON, Ohio
Tabulation of subcommittee legislation and activity
Public:
Legislation referred to the Subcommittee..................... 87
Legislation on which hearings were held...................... 4
Legislation reported favorably to the full Committee......... 4
Legislation reported adversely to the full Committee......... 0
Legislation reported without recommendation to the full
Committee.................................................. 0
Legislation reported as original measure to the full
Committee.................................................. 0
Legislation discharged from the Subcommittee................. 1
Legislation pending before the full Committee................ 2
Legislation reported to the House............................ 2
Legislation discharged from the Committee.................... 2
Legislation pending in the House............................. 0
Legislation passed by the House.............................. 3
Legislation pending in the Senate............................ 3
Legislation vetoed by the President (not overridden)......... 0
Legislation enacted into Public Law.......................... 0
Legislation enacted into Public Law as part of other
legislation................................................ 1
Days of legislative hearings................................. 4
Days of oversight hearings................................... 11
Jurisdiction of the Subcommittee
The Subcommittee on Courts, the Internet, and Intellectual
Property has jurisdiction over the following subject matters:
copyright, patent and trademark law, information technology,
administration of U.S. Courts, Federal Rules of Evidence and
Appellate Procedure, judicial ethics, other matters referred by
the Chairman, and relevant oversight.
Legislative Activities
COURTS
H.R. 1955, the ``Violent Radicalization and Homegrown Terrorism
Prevention Act of 2007''
Summary.--Introduced by Representative Jane Harman, H.R.
1955 amends the Homeland Security Act of 2002 to add a new
section concerning the prevention of violent radicalization and
homegrown terrorism. The bill 1) establishes within the
legislative branch the National Commission on the Prevention of
Violent Radicalization and Homegrown Terrorism, 2) directs the
Secretary of Homeland Security to establish or designate a
university-based Center of Excellence for the Study of Violent
Radicalization and Homegrown Terrorism that will assist
officials through training, and 3) prohibits Department of
Homeland Security from violating the civil rights of U.S.
citizens or lawful permanent residents in its efforts to
prevent homegrown terrorism.
Legislative History.--H.R. 1955 was introduced April 19,
2007 and was referred to the Committee on Homeland Security and
the Committee on the Judiciary. The bill was referred to the
Subcommittee on June 25, 2007. The bill was discharged from the
Committee on the Judiciary October 16, 2007 upon reporting of
the bill by the Committee on Homeland Security, as amended. On
October 23, 2007, under suspension of the rules the House
passed the bill, as amended, by a roll call of 404-6. The
following day H.R. 1955 was read twice and referred to the
Senate Committee on Homeland Security and Government Affairs.
H.R. 1979, the ``Interstate Recognition of Notarizations Act of 2007''
Summary.--Introduced by Representative Robert B. Aderholt,
H.R. 1979 requires each federal and state court to recognize
any lawful notarization occurring in or affecting interstate
commerce which is made by a notary public licensed or
commissioned under the laws of a state other than the state
where the court is located.
Legislative History.--H.R. 1979 was introduced on April 20,
2007 and was referred to the Committee on the Judiciary. The
bill was referred to the Subcommittee on May 4, 2007. On July
10, 2007, under suspension of the rules the House passed H.R.
1979 without amendment by voice vote. The following day H.R.
1979 was received in the Senate, read twice and referred to the
Senate Committee on the Judiciary.
H.R. 2128, the Sunshine in the Courtroom Act of 2007
Summary.--Introduced by Representative Steve Chabot, H.R.
2128 authorizes the presiding judge of a U.S. appellate or U.S.
district court to permit the photographing, electronic
recording, broadcasting, or televising to the public of court
proceedings over which that judge presides except when such
action would constitute a violation of the due process rights
of any party. At the request of any witness in a trial
proceeding other than a party, a judge may order the face and
voice of the witness to be disguised to render the witness
unrecognizable to the broadcast audience. The bill also
authorizes the Judicial Conference of the United States to
promulgate advisory guidelines regarding the management and
administration of photographing, recording, broadcasting, or
televising of court proceedings.
Legislative History.--H.R. 2128 was introduced on May 3,
2007 and was referred to the Committee on the Judiciary. The
bill was referred to the Subcommittee on June 4, 2007. The bill
was discharged from the Subcommittee on September 20, 2007. On
October 24, 2007 the Committee on the Judiciary met in open
session mark-up and ordered favorably reported H.R. 2128, as
amended, by a roll call of 17-11.
H.R. 3086, to amend title 28, United States Code, to provide, in the
case of certain widows and widowers whose judicial survivors'
annuities are terminated on account of remarriage, for the
restoration of benefits upon the dissolution of the remarriage
Summary.--Introduced by Representative Vic Snyder, H.R.
3086, amends the federal judicial code with respect to certain
widows and widowers whose judicial survivors' annuities are
terminated on account of remarriage before age 55. The bill
would require restoration of such benefits, at the same rate,
upon the dissolution of the remarriage by death, divorce, or
annulment, if specified requirements are met.
Legislative History.--H.R. 3086 was introduced on July 18,
2007 and was referred to the Committee on the Judiciary. The
bill was referred to the Subcommittee on August 10, 2007. While
no action was taken on H.R. 3086 directly, similar language
passed the House on September 27, 2008 as part of H.R. 7082, a
bill dealing with the disclosure of inmate tax returns. This
legislation became Pub. Law 110-428 on October 15, 2008.
H.R. 3174, the Equal Justice for Our Military Act of 2007
Summary.--Introduced by Representative Susan Davis, H.R.
3174 amends the federal judicial code to allow for review by
writ of certiorari of certain cases denied relief or review by
the U.S. Court of Appeals for the Armed Forces.
Legislative History.--H.R. 3174 was introduced on July 2,
2007 and was referred to the Committee on the Judiciary. The
bill was referred to the Subcommittee on September 10, 2007. On
September 27, 2008, under suspension of the rules the House
passed H.R. 3174 by voice vote. The bill was received by the
Senate on September 29, 2008. On October 2, 2008, H.R. 3174 was
read twice and referred to the Senate Committee on the
Judiciary.
H.R. 3753, the Federal Judicial Salary Restoration Act of 2007
Summary.--Introduced by Representative John Conyers, Jr.,
H.R. 3753 authorizes salaries of the following categories of
federal judicial officers to be increased: judges of the United
States district courts appointed under section 133(a) of title
28, United States Code, judges of the United States courts of
appeals appointed under section 44(a) of title 28, United
States Code, associate justices of the United States Supreme
Court provided for in section 1 of title 28, United States
Code, and the Chief Justice of the United States provided for
in section 1 of title 28, United States Code.
Legislative History.--H.R. 3753 was introduced on October
4, 2007 and was referred to the Committee on the Judiciary. On
December 12, 2007, the Committee on the Judiciary met in an
open session mark-up and ordered H.R. 3753 reported as amended
by a roll call of 28-5. No further action was taken on the
bill.
H.R. 3921, to provide nationwide subpoena authority for actions brought
under the September 11 Victim Compensation Fund of 2001
Summary.--Introduced by Representative Timothy Bishop, H.R.
3921 amends the September 11 Victims Compensation Fund of 2001
to allow a subpoena requiring the attendance of a witness at a
trial or hearing conducted under such Act to be served at any
place in the United States.
Legislative History.--H.R. 3921 was introduced on October
22, 2007 and was referred to the Committee on the Judiciary. On
October 24, 2007, the Committee ordered the bill reported
without amendment by voice vote. On October 29, 2007 the bill
was reported by the Committee on the Judiciary. (H. Rep. 110-
413). No further action was taken on this bill, however its
contents were included in S. 2106, a bill to provide nationwide
subpoena authority for actions brought under the September 11
Victim Compensation Fund of 2001, which was signed into law as
Pub. Law 110-113.
H.R. 4854, the False Claims Corrections Act of 2007
Summary.--Introduced by Representative Howard L. Berman,
H.R. 4854 amends the False Claims Act to revise requirements
and procedures governing civil actions for false claims (qui
tam actions) brought by private persons. The bill repeals the
requirement that a false or fraudulent claim for payment must
be presented directly to a federal employee or member of the
Armed Forces (thus tying liability for such claims directly to
federal money and property, regardless to whom the claim is
presented).
Legislative History.--H.R. 4854 was introduced on December
17, 2007 and was referred to the Committee on the Judiciary. On
February 25, 2008, H.R. 4854 was referred to both the
Subcommittee on Commercial and Administrative Law and the
Subcommittee on Courts, the Internet, and Intellectual
Property. On June 19, 2008, the Subcommittee on Courts, the
Internet, and Intellectual Property and the Subcommittee on
Commercial and Administrative Law held a joint legislative
hearing on H.R. 4854. Witnesses at the hearing included Albert
Campbell, a qui tam relator from Winter Springs, FL; Shelley
Slade, Partner, Vogel, Slade & Goldstein, LLP, Washington, DC;
Peter B. Hutt II, Partner, Akin Gump Strauss Hauer & Feld, LLP,
Washington, DC, representing the U.S. Chamber of Commerce; and
James B. Helmer, Jr., President, Helmer, Martins, Rice & Popham
Company, L.P.A., Cincinnati, OH. On July 16, 2008, the
Committee ordered the bill reported, as amended, by voice vote.
On the same day, the Subcommittee on Courts, the Internet, and
Intellectual Property and the Subcommittee on Commercial and
Administrative Law discharged the bill.
H.R. 6146, to amend title 28, United States Code, to prohibit
recognition and enforcement of foreign defamation judgments
Summary.--Introduced by Representative Steve Cohen, H.R.
6156 amends the federal judicial code to prohibit a domestic
court from recognizing or enforcing a foreign judgment for
defamation that is based upon a publication concerning a public
figure or a matter of public concern, unless the domestic court
determines that the judgment is consistent with the First
Amendment of the Constitution.
Legislative History.--H.R. 6146 was introduced on May 22,
2008 and was referred to the Committee on the Judiciary. On
September 27, 2008, under suspension of the rules the House
passed H.R. 6146 as amended by voice vote. On September 29,
2008, the Senate received H.R. 6146.
H.R. 6610, to amend the Federal Rules of Evidence to address the waiver
of the attorney-client privilege and the work product doctrine
Summary.--Introduced by Representative Sheila Jackson-Lee,
H.R. 6610 amends the Federal Rules of Evidence to specify under
what circumstances a disclosure of a communication or
information covered by the attorney-client privilege and work
product protection may be waived for purposes of other federal
and state proceedings.
Legislative History.--H.R. 6610 was introduced on July 24,
2008 and was referred to the Committee on the Judiciary. No
further action was taken on H.R. 6610, although similar
legislation, S. 2450, became Pub. Law 110-402. See S. 2450 for
further action.
H.R. 6855, to extend the authority for the United States Supreme Court
Police to protect court officials off the Supreme Court
grounds, and for other purposes
Summary.--Introduced by Representative Lamar Smith, H.R.
6855 extends through calendar year 2013 the authority of the
United States Supreme Court Police to protect court officials
off the Supreme Court grounds and changes the title of the
Administrative Assistant to the Chief Justice to Counselor to
the Chief Justice.
Legislative History.--H.R. 6855 was introduced on September
10, 2008 and was referred to the Committee on the Judiciary. On
September 17, 2008, under suspension of the rules, the House
passed H.R. 6855 by voice vote. On September 22, 2008 the bill
was received in the Senate. The text of H.R. 6855 was
incorporated in S. 3296, to extend the authority of the United
States Supreme Court Police to protect court officials off the
Supreme Court Grounds and change the title of the
Administrative Assistant to the Chief Justice, which became
Public Law 110-402. See S. 3296 for further action.
H.R. 7321, the ``Auto Industry Financing and Restructuring Act''
Summary.--Introduced by Representative Barney Frank (D-MA),
H.R. 7321 provides for emergency bridge loans to automobile
manufacturers. Section 19 of the bill authorized a cost of
living adjustment for FY2009 for justices and judges of the
United States.
Legislative History.--H.R. 7321 was introduced on December
10, 2008 and was referred to several House committees including
the Committee on the Judiciary. On December 11, 2008, the House
passed H.R. 7321 without amendment by a recorded vote of 237-
170, and 1 present. The bill was received by the Senate on
December 12, 2008.
S. 2106, a bill to provide nationwide subpoena authority for actions
brought under the September 11 Victim Compensation Fund of 2001
Summary.--Introduced by Senator Joseph Biden, S. 2106
amends the September 11 Victims Compensation Fund of 2001 to
allow a subpoena requiring the attendance of a witness at a
trial or hearing conducted under such Act to be served at any
place in the United States.
Legislative History.--S. 2106 was introduced September 27,
2007 and was referred to the Senate Committee on the Judiciary.
On October 3, 2007, the Senate Committee on the Judiciary
discharged the bill by unanimous consent. On the same day, the
Senate passed S. 2106 by unanimous consent. On October 4, 2007,
the bill was received by the House and referred to the
Committee on the Judiciary. On October 30, 2007, under
suspension of the rules, the House passed S. 2106 without
amendment by voice vote. On November 8, 2007, S. 2106 was
signed by the President and became Public Law 110-113.
S. 2450, to amend the Federal Rules of Evidence to address the waiver
of the attorney-client privilege and the work product doctrine
Summary.--Introduced by Senator Patrick Leahy, S. 2450
amends the Federal Rules of Evidence to specify under what
circumstances a disclosure of a communication or information
covered by the attorney-client privilege and work product
protection may be waived for purposes of other federal and
state proceedings.
Legislative History.--S. 2450 was introduced December 11,
2007 and was referred to the Senate Committee on the Judiciary.
On January 31, 2008, the Senate Committee on the Judiciary
ordered the bill reported favorably, without amendment. The
Senate Committee on the Judiciary reported the bill on February
25, 2008. (S. Rpt. 110-264). On February 27, 2008, the Senate
passed S. 2450 without amendment by unanimous consent. The bill
was received by the House and referred to the Committee on the
Judiciary on February 28, 2008. On September 8, 2008, under
suspension of the rules, the House passed S. 2450 by voice
vote. On September 19, 2008, the bill was signed by the
President and became Public Law 110-322.
S. 3296, a bill to extend the authority of the United States Supreme
Court Police to protect court officials off the Supreme Court
Grounds and change the title of the Administrative Assistant to
the Chief Justice
Summary.--Introduced by Senator Patrick Leahy, S. 3296
extends through calendar year 2013 the authority of the United
States Supreme Court Police to protect court officials off the
Supreme Court grounds, changes the title of the Administrative
Assistant to the Chief Justice to Counselor to the Chief
Justice, and prohibits a judicial officer from accepting a gift
of an honorary club membership with a value of more than $50 in
any calendar year.
Legislative History.--S. 3296 was introduced on July 21,
2008 and was referred to the Senate Committee on the Judiciary.
On September 11, 2008, the Senate Committee on the Judiciary
ordered the bill reported favorably, without amendment and
without written report. On September 25, 2008, the Senate
passed S. 3296, with an amendment, by unanimous consent. The
bill was received by the House the same day. On September 29,
2008, under suspension of the rules, the House passed the bill
by voice vote. On October 13, 2008, S. 3296 was signed by the
President and became Public Law 110-402.
S. 3569, the Judicial Administration and Technical Amendments Act of
2008
Summary.--Introduced by Senator Charles Schumer, S. 3569
makes a number of changes related to federal court and jury
management.
Legislative History.--S. 3569 was introduced on September
24, 2008 and was referred to the Senate Judiciary Committee. On
September 27, 2008, the bill was discharged by the Senate
Judiciary Committee and was passed by the Senate without
amendment by unanimous consent. On the same day the House
received and passed the bill under suspension of the rules by
voice vote. On October 13, 2008, the bill was signed by the
President and became Public Law 110-406.
H. Res. 263, Recognizing National Foster Care Month as an opportunity
for Congress to improve the foster care system throughout the
United States
Summary.--Introduced by Representative Dennis Cardoza, H.
Res. 263 provided that, in recognition of National Foster Care
Month, and in order to improve the foster care system
throughout the United States, it is the sense of the House of
Representatives that Congress should ensure that improving the
foster care system remains a top priority for both Congress and
the Nation.
Legislative History.--H. Res. 263 was introduced March 23,
2007 and was referred to the Committee on the Judiciary. The
bill was referred to the Subcommittee on April 20, 2007. On May
15, 2007, under suspension of the rules the House passed H.
Res. 263 by voice vote.
COPYRIGHT
H.R. 2060, the ``Internet Radio Equality Act''
Summary.--Introduced by Representative Jay Inslee, H.R.
2060 nullifies the March 2, 2007, Determination of Rates and
Terms of the U.S. Copyright Royalty Board regarding rates and
terms for the digital performance of sound recordings and
ephemeral recordings, the April 17, 2007 modification of that
determination, and any subsequent modifications by the
Copyright Royalty Judges published in the Federal Register. The
bill goes on to revise the standards for determining reasonable
rates and terms of royalty payments for public performances of
sound recordings by means of eligible nonsubscription
transmission services and new subscription services. The bill
also requires the Federal Communications Commission to report,
upon commencement of proceedings of the Copyright Royalty
Judges to determine the aforementioned rates and terms, on the
effect of such proposals on localism, diversity, and
competition in the Internet radio marketplace.
Legislative History.--H.R. 2060 was introduced on April 26,
2007 and was referred to both the Committee on the Judiciary
and the Committee on Energy and Commerce. The bill was referred
to the Subcommittee on May 4, 2007. No further action was taken
on the bill. A related measure, H.R. 7084, the Webcaster
Settlement Act of 2008, which extends the period in which
copyright owners and webcasters can negotiate terms different
from those set by the Copyright Royalty Board, became Public
Law 110-435. See H.R. 7084 for further action.
H.R. 3015, to delay the applicability to webcasters of rates and terms
determined by the Copyright Royalty Judges for certain
statutory licenses under title 17, United States Code
Summary.--Introduced by Representative Steve Chabot, H.R.
3015 delays the effective date of the rates and terms
determined by the Copyright Royalty Judges for statutory
licenses for the transmission of sound recordings by 60 days
beginning on July 15, 2007.
Legislative History.--H.R. 3015 was introduced on July 12,
2007 and was referred to the Committee on the Judiciary. The
bill was referred to the Subcommittee on Courts, the Internet
and Intellectual Property, and to the Subcommittee on
Constitution, Civil Rights, and Civil Liberties on August 10,
2007. No further action was taken on the bill. A related
measure, H.R. 7084, the Webcaster Settlement Act of 2008, which
extends the period in which copyright owners and webcasters can
negotiate terms different from those set by the Copyright
Royalty Board, became Public Law 110-435. See H.R. 7084 for
further action.
H.R. 3155, the ``Intellectual Property Enhanced Criminal Enforcement
Act of 2007''
Summary.--Introduced by Representative Steve Chabot, H.R.
3155 strengthens civil and criminal intellectual property
enforcement laws and penalties, makes unauthorized importation
or exportation of copies or phonorecords an infringement of the
exclusive right to distribute, provides for forfeiture of any
property consisting of or derived from proceeds of civil
copyright infringement, and directs the Attorney General to
dedicate additional resources to intellectual property
enforcement, including the creation of an operational unit in
the Federal Bureau of Investigation to assist in the
investigation and coordination of intellectual property crimes.
Legislative History.--H.R. 3155 was introduced July 24,
2007 and was referred to the Committee on the Judiciary. The
bill was referred to the Subcommittee on Courts, the Internet
and Intellectual Property, and to the Subcommittee on Crime,
Terrorism and Homeland Security on August 10, 2007. No further
action was taken on the bill. A related measure, S. 3325, the
Prioritizing Resources and Organization for Intellectual
Property Act of 2008, became Public Law 110-403. See S. 3325
for further action.
H.R. 3578, the ``Intellectual Property Rights Enforcement Act''
Summary.--Introduced by Representative Brad Sherman, H.R.
3578 abolishes the National Intellectual Property Law
Enforcement Coordination Council and establishes the
Intellectual Property Enforcement Network (IPEN), consisting of
specified representatives of various government agencies, to
establish policies concerning international intellectual
property protection and law enforcement and to coordinate
implementation of such policies.
Legislative History.--H.R. 3578 was introduced on September
18, 2007 and was referred to the Committee on the Judiciary,
the Committee on Foreign Affairs, and the Committee on Ways and
Means. The bill was referred to the Subcommittee on October 12,
2007. No further action was taken on the bill. A related
measure, S. 3325, the Prioritizing Resources and Organization
for Intellectual Property Act of 2008, became Public Law 110-
403. See S. 3325 for further action.
H.R. 4279, the ``Prioritizing Resources and Organization for
Intellectual Property Act of 2007''
Summary.--Introduced by Representative John Conyers, Jr.,
H.R. 4279 enhances remedies for violations of intellectual
property laws, harmonizes forfeiture laws related to
intellectual property offenses, improves U.S. government
efforts to coordinate intellectual property enforcement
efforts, and provides additional resources dedicated to
intellectual property enforcement.
Legislative History.--H.R. 4279 was introduced on December
5, 2007 and was referred to the Committee on the Judiciary. The
bill was referred to the Subcommittee on December 7, 2007. On
December 13, 2007, the Subcommittee held a legislative hearing
on H.R. 4279. The following witnesses appeared and prepared a
statement for the record: Rick Cotton, Chairman of the
Coalition Against Counterfeiting and Piracy (CACP), Washington,
DC; Gigi Sohn, President and Co-Founder of Public Knowledge,
Washington, DC; James Hoffa, General President of the
International Brotherhood of Teamsters, Washington, DC; and
Sigal P. Mandelker, Deputy Assistant Attorney General, Criminal
Division, U.S. Department of Justice, Washington, DC. On March
6, 2008, the Subcommittee met in open session mark-up and
agreed to forward the bill as amended to full committee by
voice vote. On April 30, 2008 the Committee on the Judiciary
met in open session mark-up and ordered H.R. 4279 favorably
reported as amended by voice vote. On May 5, 2008 the Committee
on the Judiciary reported the bill. (H. Rpt. 110-617). On May
8, 2008, under suspension of the rules the House passed H.R.
4279 by a recorded vote of 410-11. On May 12, 2008 the bill was
received in the Senate, read twice and referred to the Senate
Committee on the Judiciary. No further action was taken on this
bill. A measure that incorporated much of H.R. 4279, S. 3325,
the Prioritizing Resources and Organization for Intellectual
Property Act of 2008, was subsequently signed by the President
and designated as Public Law 110-403. See S. 3325 for further
action.
H.R. 4789, the ``Performance Rights Act''
Summary.--Introduced by Representative Howard Berman, H.R.
4789 amends federal copyright law to grant owners of sound
recordings the right to compensation for the public performance
of their sound recordings on terrestrial radio broadcasts.
Legislative History.--H.R. 4789 was introduced on December
11, 2007 and was referred to the Committee on the Judiciary.
The bill was referred to the Subcommittee on January 14, 2008.
On June 11, 2008 the Subcommittee held a legislative hearing on
H.R. 4789. The following witnesses appeared and prepared a
statement for the record: Nancy Sinatra, Recording Artist;
Steven W. Newberry, President and Chief Executive Officer,
Commonwealth Broadcasting Corporation, Glasgow, KY; Charles
Warfield, President and Chief Operating Officer, ICBC Broadcast
Holdings, Incorporated, New York, NY ; and Thomas F. Lee,
President, American Federation of Musicians, New York, NY. On
June 26, 2008 the Subcommittee met in open session mark-up of
H.R. 4789, and forwarded the bill, with an amendment, to the
full committee by voice vote.
H.R. 5889, the ``Orphan Works Act of 2008''
Summary.--Introduced by Representative Howard Berman, H.R.
5889, establishes limitations on the remedies available in a
civil action for copyright infringement, provided the infringer
meets procedural requirements that are intended to safeguard
the legitimate interests of copyright owners. The bill also
provides that if the user does not meet the procedural
requirements set forth in the legislation, the owner of an
infringed work may seek all the remedies that would otherwise
be available to a copyright owner.
Legislative History.--H.R. 5889 was introduced on April 24,
2008 and was referred to the Committee on the Judiciary. The
bill was referred to the Subcommittee on April 28, 2008. On May
7, 2008 the Subcommittee met in open session mark-up of H.R.
4789, and forwarded the bill, with an amendment, to the full
committee by voice vote.
H.R. 5893, to reauthorize the sound recording and film preservation
programs of the Library of Congress, and for other purposes
Summary.--Introduced by Representative Robert Brady, H.R.
5893 authorizes appropriations for Library of Congress
activities related to the preservation of sound recordings,
including the Library's National Film Preservation Board and
the National Film Preservation Foundation, through FY 2016.
Legislative History.--H.R. 5893 was introduced on April 24,
2008 and was referred to the Committee on House Administration
and the Committee on the Judiciary. On May 7, 2008, the
Committee on House Administration reported the bill favorably
reported with an amendment by voice vote. (H. Rept. 110-683).
On June 4, 2008 the Committee on the Judiciary discharged the
bill. The same day, under suspension of the rules the House
passed H.R. 5893 as amended by voice vote. On June 5, 2008, the
bill was received by the Senate, read twice, and referred to
the Senate Committee on Rules and Administration. On September
16, 2008, the Senate passed H.R. 5893 without amendment by
unanimous consent. On October 2, 2008, H.R. 5893 was signed by
the President and became Public Law 110-336.
H.R. 6531, the ``Vessel Hull Design Protection Amendment of 2008''
Summary.--Introduced by Representative Howard Berman, H.R.
6531 clarifies the definitions of a hull and a deck in the
Vessel Hull Design Protection Act.
Legislation History.--H.R. 6531 was introduced on July 17,
2008 and was referred to the Committee on the Judiciary. On
July 22, 2008, under suspension of the rules, the House passed
H.R. 6531 without amendment by voice vote. The Senate received
H.R. 6531 the next day, and passed it without amendment by
unanimous consent on September 30, 2008. On October 16, 2008,
the bill was signed by the President and became Public Law 110-
434.
H.R. 6845, the ``Fair Copyright in Research Works Act''
Summary.--Introduced by Representative John Conyers, Jr.,
H.R. 6845 prohibits Federal agencies from requiring, as a part
of a funding agreement, that researchers assign or license back
to the agency their copyright in extrinsic works. The bill
defines extrinsic works as any work where a third party either
contributed funding for the research underlying the work or
provided meaningful added value to the work.
Legislative History.--H.R. 6845 was introduced September 9,
2008 and was referred to the Committee on the Judiciary. On
September 11, 2008, pursuant to notice, the Subcommittee held a
legislative hearing on H.R. 6845. The following witnesses
appeared and submitted statements for the record: Dr. Elias A.
Zerhouni, Director, National Institutes of Health, Bethesda,
MD; The Honorable Ralph Oman, Pavel Professorial Lecturer in
Intellectual Property Law Fellow, Creative and Innovative
Economy Center, The George Washington University Law School,
Washington, DC; Heather Dalterio Joseph, Executive Director,
Scholarly Publishing and Academic Resources Coalition,
Washington, DC; and Dr. Martin Frank, Executive Director,
American Physiological Society, Bethesda, MD.
H.R. 7084, the ``Webcaster Settlement Act of 2008''
Summary.--Introduced by Representative Jay Inslee, the bill
makes a technical amendment to the Small Webcasting Settlement
Act of 2002, which extends the period of time that webcasters
and copyright owners have to negotiate royalty rates and terms.
Legislative History.--H.R. 7084 was introduced on September
25, 2008 and was referred to the Committee on the Judiciary. On
September 27, 2008, under suspension of the rules, the House
passed H.R. 7084 with an amendment by voice vote. The Senate
received H.R. 7084 on September 29, 2008 and passed it without
amendment by unanimous consent the following day. On October
16, 2008, the bill was signed by the President and became
Public Law 110-435.
S. 3325, the ``Prioritizing Resources and Organization for Intellectual
Property Act of 2008''
Summary.--Introduced by Senator Patrick Leahy, S. 3325
enhances remedies for violations of intellectual property laws,
harmonizes forfeiture laws related to intellectual property
offenses, improves U.S. government efforts to coordinate
intellectual property enforcement efforts, and provides
additional resources dedicated to intellectual property
enforcement.
Legislative History.--S. 3325 was introduced on July 24,
2008 and was referred to the Senate Committee on the Judiciary.
On September 11, 2008, the Senate Committee on the Judiciary
ordered the bill, with amendments, reported favorably. On
September 15, 2008, the Senate Committee on the Judiciary
reported S. 3325 as amended without written report. On
September 26, 2008 the committee amendments were withdrawn by
unanimous consent and the Senate passed the bill with an
amendment by unanimous consent. On the same day, the House
received the bill. On September 28, 2008, under suspension of
the rules the House passed S. 3325 without amendment by a
recorded vote of 381-41. On October 13, 2008, S. 3324 was
signed by the President and became Public Law 110-403.
H. Res. 314, Supporting the goals of World Intellectual Property Day,
and for other purposes
Summary.--Introduced by Representative Robert Wexler, H.
Res. 314 supports the goals of World Intellectual Property Day.
Legislative History.--Introduced April 17, 2007, H. Res.
314 was referred to the Committee on the Judiciary the same
day. On April 25, 2007, the Committee on the Judiciary ordered
the bill reported by voice vote.
H. Res. 1251, Saluting the life and music of the late Otha Ellas ``Bo
Diddley'' Bates, guitar virtuoso and rock and roll pioneer,
whose music continues to influence generations of musicians
Summary.--Introduced by Representative John Conyers, Jr.,
H. Res. 1251 salutes the life and music of the late Otha Ellas
``Bo Diddley'' Bates.
Legislative History.--Introduced June 9, 2008, H. Res. 1251
was passed by the House under suspension of the rules by voice
vote the same day.
H. Res. 1425, Honoring the life and music of the late Isaac Hayes, a
passionate humanitarian, whose music laid the foundation for
many musical styles, including R&B, disco, and rap
Summary.--Introduced by Marsha Blackburn, H. Res. 1425
honors the life and music of the late Isaac Hayes.
Legislative History.--Introduced September 11, 2008, H.
Res. 1425 was referred to the Committee on the Judiciary the
same day. On September 17, 2008, the House passed H. Res. 1425
under suspension of the rules by voice vote.
PATENTS AND TRADEMARKS
H.R. 34, to establish a pilot program in certain United States district
courts to encourage enhancement of expertise in patent cases
among district judges
Summary.--Introduced by Representative Darrell Issa, H.R.
34 establishes a pilot program in certain United States
district courts to encourage enhancement of expertise in patent
and plant variety protection cases among district court judges.
Legislative History.--H.R. 34 was introduced on January 4,
2007 and was referred to the Committee on the Judiciary. The
bill was referred to the Subcommittee on February 2, 2007. On
February 12, 2007, under suspension of the rules, the House
passed H.R. 34, without amendment, by voice vote. On February
13, 2007, the bill was received by the Senate, read twice, and
referred to the Senate Committee on the Judiciary.
H.R. 1908, the ``Patent Reform Act of 2007''
Summary.--Introduced by Representative Howard Berman, H.R.
1908 updates the patent system by providing guidance on how to
calculate damages, creates a new administrative procedure to
challenge patents after they have been granted, improves venue
rules to prevent forum shopping in patent infringement cases,
establishes a first-inventor-to-file system in the United
States, and gives the Patent Office authority to make rules
intended to improve patent application requirements, among
other changes.
Legislative History.--H.R. 1908 was introduced on April 18,
2007 and was referred to the Committee on the Judiciary. H.R.
1908 was referred to the Subcommittee on April 20, 2007. The
Subcommittee held a legislative hearing on H.R. 1908 on April
26, 2007. The following witnesses appeared and submitted a
written statement for the record: Kevin Sharer, Chairman of the
Board and Chief Executive Officer, Amgen Incorporated, Thousand
Oaks, CA; Gary L. Griswold, President and Chief Counsel of
Intellectual Property, 3M Innovative Properties, St. Paul, MN;
John R. Thomas, Professor of Law, Georgetown University Law
Center, Washington, DC; William T. Tucker, Executive Director,
Research and Administration and Technology Transfer, University
of California, Oakland, CA; and Anthony Peterman, Director,
Patent Counsel, Dell Incorporated, Round Rock, TX. On May 16,
2007, the Subcommittee met in open session mark-up of H.R. 1908
and forwarded the bill to the full committee by voice vote. On
July 18, 2007, the Committee on the Judiciary met in a open
session and ordered the bill reported, with an amendment, by
voice vote. On September 6, 2007, the Committee on the
Judiciary reported H.R. 1908. (H. Rept. 110-314). The same day
the Rules Committee Resolution H. Res. 636 was reported to the
House and provided that the amendment in the nature of a
substitute recommended by the Committee on the Judiciary be
considered as an original bill. On September 7, 2007, the House
passed H.R. 1908 by a recorded vote of 220-175. (Roll No. 863).
The bill was received by the Senate on September 10, 2007.
H.R. 6344, the ``Responsive Government Act of 2008''
Summary.--Introduced by Representative William Delahunt,
H.R. 6344 amends the federal judicial code to authorize the
chief judge of a district court or court of appeals to delay,
toll, or otherwise grant relief from time deadlines applicable
to pending civil and criminal cases in the event of a natural
disaster or other emergency situation requiring the closure of
courts or rendering it impracticable to comply with such
deadlines. The bill also grants the Director of the United
States Patent and Trademark Office authority to waive various
statutory deadlines related to patent and trademark application
filings in cases of unintentional delay. The bill also
prescribes filing fees for patent extensions, including $65
million for an anticoagulant drug intended for use in humans.
Legislative History.--H.R. 6344 was introduced on June 23,
2008 and was referred to the Committee on the Judiciary. On the
same day, under suspension of the rules, the House passed H.R.
6344 by voice vote. On June 24, 2008, the bill was received in
the Senate, read twice and referred to the Senate Committee on
the Judiciary.
H.R. 6362, to amend title 35, United States Code, and the Trademark Act
of 1946 to provide that the Secretary of Commerce, in
consultation with the Director of the United States Patent and
Trademark Office, shall appoint administrative patent judges
and administrative trademark judges, and for other purposes
Summary.--Introduced by Representative Howard Berman, H.R.
6362 corrects a potential constitutional defect in the
appointment of administrative patent and trademark judges at
the United States Patent and Trademark Office and addresses how
previous decisions made by potentially unconstitutionally
appointed patent and trademark administrative judges are to be
treated.
Legislative History.--H.R. 6362 was introduced on June 25,
2008 and was referred to the Committee on the Judiciary. No
further action was taken on H.R. 6362, although its contents
were included in S. 3295, a bill to amend title 35, United
States Code, and the Trademark Act of 1946 to provide that the
Secretary of Commerce, in consultation with the Director of the
United States Patent and Trademark Office, shall appoint
administrative patent judges and administrative trademark
judges, and for other purposes, which became Public Law 110-
313. See S. 3295 for further action.
S. 3295, A bill to amend title 35, United States Code, and the
Trademark Act of 1946 to provide that the Secretary of
Commerce, in consultation with the Director of the United
States Patent and Trademark Office, shall appoint
administrative patent judges and administrative trademark
judges, and for other purposes
Summary.--Introduced by Senator Patrick Leahy, S. 3295
corrects a potential constitutional defect in the appointment
of administrative patent and trademark judges at the United
States Patent and Trademark Office and addresses how previous
decisions made by potentially unconstitutionally appointed
patent and trademark administrative judges are to be treated.
Legislative History.--S. 3295 was introduced on July 21,
2008 and was referred to the Senate Committee on the Judiciary.
The following day the Senate Judiciary Committee discharged the
bill and the Senate passed S. 3295 without amendment by
unanimous consent. The bill was received by the House and
referred to the Committee on the Judiciary July 23, 2008. On
July 29, 2008, under suspension of the rules, the House passed
S. 3295 without amendment by voice vote. On August 12, 2008,
the bill was signed by the President and became Public Law 110-
313.
Oversight Activities
The Federal Judicial System
The Subcommittee has responsibility for oversight of the
Judicial Conference of the United States; the Administrative
Office of the U.S. Courts; the Federal Rules Enabling Act and
the Advisory Committees on Civil Rules, Appellate Rules and
Rules of Evidence, as well as judicial ethics and discipline.
In the 110th Congress, the Subcommittee also examined how
the salaries of federal judges have impacted the ability to
maintain a qualified and experienced federal bench. On April
19, 2007, the Subcommittee held an oversight hearing on Federal
judicial compensation. The witnesses were Supreme Court
Presiding Justices Stephen Breyer and Samuel Alito. Both
witnesses testified to the threatened impact and outcomes of
the decline in real pay of Federal judges. In response to this
hearing, Chairman Conyers introduced H.R. 3753, the Federal
Judicial Salary Restoration Act of 2007, on October 4, 2007.
The U.S. Copyright System
The Subcommittee devoted substantial time to addressing
issues related to copyright (and trademark) enforcement. Early
in the Congress, the Subcommittee held an oversight hearing on
copyright piracy occurring on college campuses through peer-to-
peer and other online networks. Later, the Subcommittee held an
oversight hearing on efforts to combat international
intellectual property piracy, with a special focus on China and
Russia. During this hearing, particular attention was given to
a series of Government Accountability Office reports that
called for more permanency in federal intellectual property
enforcement coordination efforts.
Following these hearings, H.R. 4279 was introduced which
provided for stronger intellectual property laws, dedicated
additional resources to combat domestic and international
intellectual property theft, and a mechanism to better
coordinate government enforcement efforts. Ultimately S. 3325,
which substantially incorporated the provisions of H.R. 4279,
was signed into law. Additionally, the Subcommittee worked
closely with the Committee on Education and Labor to place
additional burdens on universities receiving federal funding to
address copyright piracy on their computer networks.
The Subcommittee also dedicated substantial time to
investigate whether further modernization of the copyright law
is necessary for the digital environment. Through oversight
hearings, the Subcommittee focused its attention on the Section
115 statutory license and on parity across analog and digital
music platforms. The latter led to H.R. 4789, which sought to
establish public performance rights for sound recordings that
are broadcast on terrestrial radio, similar to those already
provided sound recording owners whose works are digitally
broadcast (i.e., webcasts). Related to this, there was
substantial controversy concerning a June 2007 Copyright Office
Royalty Board decision setting the rates for Section 114
statutory licenses. Ultimately, H.R. 7084 was passed which
provided additional time for sound recording owners and
webcasters to negotiation rates different from those provided
by the Copyright Office Royalty Board's decision.
Another major focus of the Subcommittee has been developing
appropriate legislation to address the problem of Orphan Works.
Following a 2006 report by the Copyright Office on orphan
works, Congress has worked on developing legislation to
facilitate public use of orphan works in a manner that
safeguards the interests of copyright owners.
Lastly, the Chairman has engaged in an exchange of letters
with the Register of Copyrights, inquiring specifically about
the Copyright Office's efforts to transition operations into a
digital environment, and a growing backlog of copyright
registrations.
The U.S. Patent and Trademark Systems
The Subcommittee devoted considerable time to reform of the
United States patent system. Patents provide an incentive to
individuals and companies to innovate, by granting inventors
exclusive rights to their inventions. In turn, inventors are
required to provide society with the knowledge behind their
inventions. This social bargain is enshrined in the
Constitution, which directs Congress to ``promote the progress
of . . . science and the useful arts . . . by securing for
limited times to . . . inventors the exclusive right to their .
. . discoveries.'' However, over the course of the last several
years, commentators, businesses and users of the patent system
have voiced serious concerns about whether the system is doing
an adequate job in fulfilling its role in encouraging
innovation. Many have argued that inefficiencies in the
examination of patent applications, as well as inappropriate
rules in patent litigation, have led to substantial uncertainty
in the value of patents.
Many organizations have chosen to carry out extensive
reviews of the current system and have developed useful and
thoughtful recommendations. Some of the more important efforts
include the Federal Trade Commission's study To Promote
Innovation: the Proper Balance of Competition and Patent Law
and Policy, the National Academy of Science report A Patent
System for the 21st Century, the U.S. Patent and Trademark
Office's 21st Century Strategic Plan, and Adam Jaffe's and Josh
Lerner's book, Innovation and its Discontents. Relying on the
record of both an oversight and legislative hearing, related
hearing records from previous Congresses, and informal meetings
with a number of patent constituents, the Subcommittee was able
to develop a compromise package in the form of H.R. 1908 that
would effectively address many of the identified problems in
the U.S. patent system.
The Subcommittee also directed attention to the question of
whether the protection mechanisms afforded industrial designs
are appropriate. Specific attention was placed on industrial
design rights as they pertain to fashion designs, exterior
automobile parts, and vessel hull designs. The Subcommittee's
inquiries in this area led to H.R. 6531, the Vessel Hull Design
Protection Amendment of 2008, which provided a technical
amendment to address a loophole in protection provided to
vessel hull designs.
In addition, the Subcommittee directed its attention,
through an oversight hearing, to investigating some of the
criticisms against gene patenting. Through this hearing, it was
identified that in some cases gene patents may impede use and
development of gene-based diagnostic testing. Following the
hearing, the Chairman of the Subcommittee engaged in an
exchange of letters with the National Institutes of Health
which explored the impact of gene patents on gene-based
diagnostic testing. Particular attention was placed on
exploring the use of the Bayh-Dole Act's march-in provisions as
a means to address the problems identified. In further support
of this investigation, the Chairman of the Subcommittee
requested that the Government Accountability Office investigate
federal agency policies pertaining to march-in rights. A report
on their findings is expected sometime in the first half of
2009.
The Chairman of the Subcommittee also engaged in an
exchange of letters with the United States Patent and Trademark
Office and the Federal Drug Administration to clarify how they
determine patent term extension in light of a recent decision
by the Federal Circuit in Cardiac Pacemakers v. St. Jude.
Finally, in exercising its oversight responsibility over
the United States Patent and Trademark Office, the Subcommittee
held an oversight hearing on the agency's operations. Some
attention was placed on merits of recent internal
reorganizations within the agency, however much of the focus
was on the agency's efforts to address a growing patent
application backlog problem. Showcased at the hearing was a
Government Accountability Office report, Hiring Efforts Are Not
Sufficient to Reduce the Patent Application Backlog. Following
the hearing, the Subcommittee continued to engage with the
agency concerning its efforts to address the backlog, as well
as other issues related to agency operations.
List of oversight hearings
American Innovation at Risk: The Case for Patent Reform,
February 15, 2007 (Serial No. 110-8)
An Update--Piracy on University Networks, March 8, 2007
(Serial No. 110-29)
Reforming Section 115 of the Copyright Act for the Digital
Age, March 22, 2007 (Serial No. 110-33)
Federal Judicial Compensation, April 19, 2007 (Serial No.
110-48)
Patent Reform Act of 2007, H.R. 1908, April 26, 2007
(Serial No. 110-65)
Ensuring Artist Fair Compensation: Updating the Performance
Right and Platform Parity for the 21st Century, July 31, 2007
(Serial No. 110-49)
International Piracy: The Challenges of Protecting
Intellectual Property in the 21st Century, October 18, 2007
(Serial No. 110-67)
Stifling or Stimulating--The Role of Gene Patents in
Research and Genetic Testing, October 30, 2007 (Serial No. 110-
60)
Prioritizing Resources and Organization for Intellectual
Property Act of 2007, H.R. 4279, December 13, 2007 (Serial No.
110-76)
Design Law--Are Special Provisions Needed to Protect Unique
Industries?, February 14, 2008 (Serial No. 110-107)
U.S. Patent and Trademark Office, (USPTO), February 27,
2008 (Serial No. 110-115)
Promoting the use of Orphan Works: ``Balancing the
Interests of Copyright Owners and Users'' on March 13, 2008
(Serial No. 110-131)
Performance Rights Act, H.R. 4789, June 11, 2008 (Serial
No. 110-141)
False Claims Act Correction Act of 2007, H.R. 4854, June
19, 2008 (Serial No. 110-137)
Fair Copyright in Research Works Act, H.R. 6845, September
11, 2008 (Serial No. 110-204)
American Innovation at Risk: The Case for Patent Reform, Serial No.
110-8
This hearing was held to examine whether comprehensive
patent reform was required to address perceived inadequacies in
the current patent system which hamper innovation and hurt the
American economy. The New York Times has noted that
``[something] has gone very wrong with the United States patent
system, and the Financial Times has opined that ``[i]t is time
to restore the balance of power in U.S. patent law. A number of
studies released in recent years, include one by the National
Academies of Science and another by the Federal Trade
Commission, have highlighted several problems with the patent
system such as decreased patent quality, prevalence of
subjective elements in patent practice, patent abuse, and the
lack of meaningful alternatives to the patent litigation
process. The Constitution mandates that Congress ``promote the
progress of . . . science and the useful arts . . . by securing
for limited times to . . . inventors the exclusive right to
their . . . discoveries.'' Flaws in the patent system must be
addressed in order to fulfill this Constitutional mandate.
The following witnesses appeared and submitted a written
statement for the record: Adam B. Jaffe, Professor of Economics
and Dean of Arts and Sciences, Brandeis University, Whaltham,
MA; Suzanne Michel, Chief Intellectual Property Counsel and
Deputy Assistant Director for Policy Coordination, Federal
Trade Commission, Washington, DC; Mark Myers, Co-Chair of the
National Academy of Sciences Report Patent System for 21st
Century, Unionville, PA; and Daniel B. Ravicher, Executive
Director, Public Patent Foundation, New York, NY.
An Update--Piracy on University Networks, Serial No. 110-29
The hearing was held to follow-up the October 2004
Subcommittee hearing that focused on implementation of policies
and programs to educate college students about online piracy of
digital works and development of programs to thwart the
practice. The Internet has changed the way that the public
enjoys entertainment products, including music, movies, and
software. One of the advantages of digital formats such as CDs
and DVDs is that they offer extremely high audio and video
reproduction quality. Digital formats, however, make works very
susceptible to piracy since every digital copy offers a perfect
reproduction, and people can easily copy and distribute them on
a global basis over the Internet. In this hearing, the
Subcommittee explored and evaluated efforts made by colleges to
stop illegal downloading and file-sharing, and determine
whether their efforts have gone far enough.
The following witnesses appeared and submitted a written
statement for the record: Cary H. Sherman, President, Recording
Industry Association of America, Washington, DC; John C.
Vaughn, Executive Vice President, Association of American
Universities, Washington, DC; Gregory J. Marchwinski, President
and Chief Executive Officer, Red Lambda, Longwood, FL; and Jim
Davis, Associate Vice Chancellor for Information Technology,
University of California, Los Angeles, CA.
Reforming Section 115 of the Copyright Act for the Digital Age, Serial
No. 110-33
The purpose of this hearing was to explore whether the
Section 115 compulsory license still has relevance in the age
of digital music downloading. Section 115 of the Copyright Act
creates a compulsory license for making and distributing non-
dramatic musical works (e.g., songs that a copyright holder
would otherwise have the exclusive right to control. While
compulsory licenses allow others to make phonorecords without
the consent of the copyright holder, the compulsory license
system does not allow others to make actual copies of released
``sound recordings;'' thus, while a person can sell a ``cover''
version of a song released by another artist as long as he or
she pays a royalty, that person can not sell exact copies of
another's record without permission.
The following witness appeared and submitted a written
statement for the record: Marybeth Peters, Register of
Copyrights, U.S. Copyright Office, Washington, DC.
Federal Judicial Compensation, Serial No. 110-48
This hearing explored the issue of judicial compensation
and whether the decline in real wages of federal judges is
impacting the continuity, quality, and experience on the
federal bench. Article III, section 1, of the Constitution
guarantees that federal judges shall ``receive for their
services, a compensation, which shall not be diminished during
their continuance in office.'' While the dollar figure on wages
has not been decreased, the real wages of federal judges have
decreased. As Chief Justice Roberts noted in his 2006 Year-End
Report on the Federal Judiciary, Federal judges now earn less
per year than many large law firms' first-year associates who
are fresh out of law school and may still be awaiting bar exam
results. Since 1987, district judges' salaries have been
adjusted at the same rate as those of Members of Congress. In
2007 they earned $165,200. Since 1969, average U.S. worker's
wages, once adjusted for inflation, have risen 17.8 percent in
buying power. Real pay for judges has declined 23.9 percent
during the same time, creating a 41.7% gap. The witnesses at
this hearing reiterated Chief Justice Roberts' assertion that
the departures of 38 judges who have left the federal bench in
the past six years, including 17 in the last two years, are
largely the result of that pay gap and that departing judges
often cite financial pressures as their reason for leaving. The
Chief Justice argued in his year-end report from 2006 that
``[t]he dramatic erosion of judicial compensation will
inevitably result in a decline in the quality of persons
willing to accept a lifetime appointment as a federal judge.''
Following this oversight hearing, Chairman Conyers and
Subcommittee Chairman Berman introduced H.R. 3753, bipartisan
legislation sponsored by both the Majority and Minority Leaders
to provide a 29% across the board increase in base salary for
federal judges. The bill was ordered reported by the Committee
by voice vote with an amendment offered by Reps. Berman and
Smith. This amendment provided a 29% pay raise for federal
judges and made changes to the judicial pension system. Article
III judges are eligible to receive a 100% annuity upon
retirement if they meet certain age and service requirements.
The substitute adopted by the Committee lengthened service
requirements for federal judges who wish to receive the full
benefit of the pay raise as an annuity upon retirement. The
substitute also increased the workload of senior judges and
reduced the annuity for those judges who retire and earn
salaries in excess of the amount of their annuity. The text of
H.R. 3753 as ordered reported was adopted as an amendment in
the nature of a substitute by the Senate Judiciary committee
and further amended before being ordered reported. No further
action was taken on the legislation in either body.
The following witnesses appeared and submitted a written
statement for the record: The Honorable Stephen G. Breyer,
Presiding Justice, U.S. Supreme Court, Washington, DC and the
Honorable Samuel A. Alito, Presiding Justice, U.S. Supreme
Court, Washington, DC.
Ensuring Artist Fair Compensation: Updating the Performance Right and
Platform Parity for the 21st Century, Serial No. 110-49
The purpose of this hearing was to explore the benefits and
drawbacks of repealing the broadcaster exemption from paying
public performance royalties to owners of sound recordings.
Currently, owners of ``musical works'' receive royalties for
public performances of their works on terrestrial radio
broadcasts, whereas copyright owners of sound recordings do
not. In the digital environment, however, owners of musical
works and owners of sound recordings both have the right to
receive public performance royalties. This has created an
imbalance in the marketplace between traditional radio
broadcasters and webcasters.
The following witnesses appeared and submitted a written
statement for the record: The Honorable Paul W. Hodes, Member
of Congress, 2nd District of New Hampshire; Marybeth Peters,
U.S. Register of Copyrights, U.S. Copyright Office, Washington,
DC; Judy Collins, Recording Artist; Charles A. Warfield, Jr.,
President & Chief Operating Officer, ICBC Broadcast Holding,
Incorporated, New York, NY; and Sam Moore, Recording Artist.
International Piracy: The Challenges of Protecting Intellectual
Property in the 21st Century, Serial No. 110-67
The purpose of this hearing on international piracy was to
discuss the challenges that face intellectual property owners
who seek to protect their works under international law and the
functioning of various legal regimes and enforcement mechanisms
available in other countries. The emphasis will be on the
evolution of intellectual property laws, the willingness and
ability of governments and law enforcement entities to
adequately enforce intellectual property laws, and the
political and social dynamics that impact intellectual property
enforcement in other nations. Special attention was placed on
Russian efforts to fulfill its commitments under its 2006
bilateral agreement with the United States and the recent World
Trade Organization (WTO) enforcement actions the United States
has brought against China that relate to enforcement of
intellectual property rights.
The following witnesses appeared and submitted a written
statement for the record: Victoria A. Espinel, Assistant U.S.
Representative for Intellectual Property & Innovation, Office
of the U.S. Trade Representative, Washington, DC; Eric H.
Smith, President, International Intellectual Property Alliance,
Washington, DC; Loren Yager, Director of International Affairs
and Trade, U.S. General Accountability Office, Washington, DC;
and Mark MacCarthy, Senior Vice President for Global Public
Policy, Visa Incorporated, Washington, DC.
Stifling or Stimulating--The Role of Gene Patents in Research and
Genetic Testing, Serial No. 110-60
The purpose of this hearing was to explore the role of gene
patents on further genetic research and gene-based diagnostic
testing. Recent developments in human genome research has paved
the way for further research and development efforts that offer
promising new ways of diagnosing and treating disease. While
the possibilities of advancing medical knowledge abound, some
are concerned that the ability to patent genes will hinder the
development and rollout of gene-based technologies to combat
and diagnose illness. Others are fearful that without patent
protection, there will be little incentive for companies to
make the investments needed to bring new gene-based
technologies to market. This hearing looked into these and
other issues related to gene patents, including the legal basis
for genes as patentable subject matter, how these patents are
being used and licensed by commercial and academic
institutions, whether there is a distinction in the quality of
gene patents compared to patents in other technologies, and in
what ways can perceived negative effects of gene patents be
mitigated.
The following witnesses appeared and submitted a written
statement for the record: Lawrence M. Sung, J.D., Ph. D., Law
School Professor and Intellectual Property Law Program
Director, University of Maryland, School of Law, Baltimore, MD;
E. Jonathan Soderstrom, J.D., Ph.D., Managing Director, Office
of Cooperative Research, Yale University, New Haven, CT; Dr.
Marc M. Grodman, Chair of the Board and Chief Executive
Officer, Bio-Reference Laboratories, Elmwood Park, NJ; and
Jeffrey P. Kushan, Partner, Sidley Austin, LLP, on behalf of
Biotechnology Industry Organization, Washington, DC.
Design Law--Are Special Provisions Needed to Protect Unique
Industries?, Serial No. 110-107
The purpose of this hearing was to explore the scope of
industrial design protection. The objective of industrial
design protection is similar to other intellectual property
protections: it promotes the creation of new, unique and
appealing designs for products by granting exclusive economic
rights for a limited time. Many countries have established
industrial design laws directed specifically at protecting
these types of work. The United States, however, provides
protection for industrial designs through design patents, trade
dress, copyright and vessel hull design protection. The purpose
of this oversight hearing was to explore whether these current
means of protecting designs are adequate for industries that
make significant use of new designs to attract customers and
whether the scope of vessel hull design protection should be
expanded to include other subject matter like auto parts and
apparel.
The following witnesses appeared and submitted a written
statement for the record: The Honorable William D. Delahunt,
Member of Congress, 10th District of Massachusetts; William T.
Fryer, III, Professor of Law, University of Baltimore, School
of Law, Baltimore, MD; Narciso Rodriguez, Designer, on behalf
of the Council of Fashion Designers of America, New York, NY.;
Steve Maiman, Proprietor, Stony Apparel, Los Angeles, CA; Carl
L. Olsen, President, Ark Design, on behalf of the Alliance of
Automobile Manufacturers, Washington, DC; and Jack Gillis,
Director of Public Affairs, Consumer Federation of America,
Washington, DC.
U.S. Patent and Trademark Office, Serial No. 110-115
The purpose of this hearing was to review the United States
Patent and Trademark Office (USPTO) operations. The USPTO's
work primarily consists of receiving and examining patent and
trademark applications. The quality and timeliness of the
USPTO's work has a direct impact on the willingness of United
States companies to use these systems. Over the last several
years, patent pendency--the time it takes to process patent
applications--has steadily risen, prompting concern in the
patent community. Several reasons have been cited for the rise
in the pendency for patent applications, including increased
demand for patent applications, a chronic lack of human and
financial resources, poor technology planning, and various
applicant practices that slow down or delay the application
process. The growing patent pendency and associated backlog of
patent applications awaiting review could put the United States
innovation system in jeopardy, as companies move away from
using the patent system and towards secrecy as a means to
protect their inventions. This could have serious repercussions
on the way research is conducted and is likely to harm American
technological innovation.
The following witnesses appeared and submitted a written
statement for the record: The Honorable Jon W. Dudas,
Undersecretary of Commerce for Intellectual Property, Director
of U.S. Patent and Trademark Office, U.S. Department of
Commerce, Washington, DC; Robin M. Nazzaro, Director of
National Resources and Environment, U.S. General Accountability
Office, Washington, DC; Robert D. Budens, President, Patent
Office Professional Association, (POPA), Alexandria, VA; and
Alan J. Kasper, First Vice President, American Intellectual
Property Law Association, Sughrue, Mion, PLLC, Washington, DC.
Promoting the use of Orphan Works: Balancing the Interests of Copyright
Owners and Users, Serial No. 110-131
The purpose of this hearing was to review possible
solutions that would address the frustrations and problems
associated with orphan works under U.S. Copyright Law. Issues
surrounding orphan works were discussed in the Report on Orphan
Works published by the Register of Copyrights on January 31,
2006, the ensuing congressional hearing on the Report on Orphan
Works. The term ``orphan works'' refers to copyrighted works
whose owners cannot be located. Efforts to use orphan works are
stymied because the owner cannot be found to grant permission.
Given the possibility of large damage awards for use of
copyrighted works without permission, a large number of
copyrighted works are effectively off limits to reuse until
they enter the public domain, and thus run the risk of being
lost forever from the public consciousness.
The following witnesses appeared and prepared a statement
for the record: Marybeth Peters, Register of Copyrights, U.S.
Copyright Office, Washington, DC; Allan Robert Adler, Vice
President of Legal and Governmental Affairs, Association of
American Publishers, Incorporated, Washington, DC; Corinne P.
Kevorkian, President and General Manager, Schumacher, A
Division of F. Schumacher & Company, New York, NY; Karen C.
Coe, Associate Legal Counsel, United States Holocaust Memorial
Museum, Washington, DC; Victor S. Perlman, General Counsel and
Managing Director, American Society of Media Photographers,
Incorporated, Philadelphia, PA; and Maya Gura, Director of
Marketing and Sales, PicScout, San Francisco, CA.
SUBCOMMITTEE ON CRIME, TERRORISM, AND HOMELAND SECURITY \1\
---------------------------------------------------------------------------
\1\ Subcommittee chairmanship and assignments approved January 27,
2007, and February 28, 2007.
---------------------------------------------------------------------------
ROBERT C. ``BOBBY'' SCOTT,
Virginia, Chairman
LOUIE GOHMERT, Texas MAXINE WATERS, California
J. RANDY FORBES, Virginia WILLIAM D. DELAHUNT, Massachusetts
F. JAMES SENSENBRENNER, Wisconsin JERROLD NADLER, New York
HOWARD COBLE, North Carolina HENRY C. ``HANK'' JOHNSON, Jr.
STEVE CHABOT, Ohio Georgia
DANIEL E. LUNGREN, California ANTHONY D. WEINER, New York
SHEILA JACKSON LEE, Texas
ARTUR DAVIS, Alabama
TAMMY BALDWIN, Wisconsin
BETTY STUTTON, Ohio
Tabulation of subcommittee legislation and activity
Legislation referred to the Subcommittee......................... 380
Legislation on which hearings were held.......................... 41
Legislation reported favorably to the full Committee............. 30
Legislation reported adversely to the full Committee............. 0
Legislation reported without recommendation to the full Committee 0
Legislation reported as original measure to the full Committee... 0
Legislation discharged from the Subcommittee..................... 2
Legislation pending before the full Committee.................... 0
Legislation reported to the House................................ 32
Legislation discharged from the Committee........................ 1
Legislation pending in the House................................. 2
Legislation passed by the House.................................. 30
Legislation pending in the Senate................................ 22
Legislation vetoed by the President (not overridden)............. 0
Legislation enacted into Public Law.............................. 8
Legislation enacted into Public Law as part of other legislation. --
Days of legislative hearings..................................... 24
Days of oversight hearings....................................... 28
Jurisdiction of the Subcommittee
The Subcommittee on Crime, Terrorism, and Homeland Security
has jurisdiction over the Federal Criminal Code, drug
enforcement, sentencing, parole and pardons, internal and
homeland security, Federal Rules of Criminal Procedure,
prisons, criminal law enforcement, and other appropriate
matters as referred by the Chairman, and relevant oversight.
Legislative Activities
H.R. 79, the ``Powder-Crack Cocaine Penalty Equalization Act of 2007''
Summary.--H.R. 79 addresses the unfair disparity between
crack and powder cocaine sentencing laws. It amends the
Controlled Substances Act and the Controlled Substances Import
and Export Act by substantially increasing penalties for powder
cocaine and eliminating a separate penalty for crack cocaine.
The bill also expands the current mandatory minimum sentence of
five years for possession of crack cocaine to possession of any
mixture of cocaine.
Legislative History.--H.R. 79 was introduced on January 4,
2007 and referred to the Judiciary Committee and the Energy and
Commerce Committee. On February 26, 2008, the Judiciary
Committee's Subcommittee on Crime, Terrorism, and Homeland
Security held one day of hearings on four bills relating to
crack cocaine laws, including H.R. 79. Testimony was received
from Rep. Charles B. Rangel (D-NY), sponsor of H.R. 460, Rep.
Sheila Jackson-Lee (D-TX), sponsor of H.R. 4545, Judge Reggie
Walton, U.S. District Court Judge for the District of Columbia;
Judge Ricardo H. Hinojosa, Chairman of the United States
Sentencing Commission and U.S. District Court Judge for the
Southern District of Texas; Gretchen Shappert, U.S. Attorney
for the Western District of North Carolina; Joe Cassilly,
State's Attorney for Harford County, Maryland; Michael Short,
convicted of federal drug offense and commuted by President
Bush; and Michael Nachmanoff, Federal Public Defender for the
Eastern District of Virginia.
H.R. 137, the ``Animal Fighting Prohibition Enforcement Act of 2007''
Summary.--H.R. 137 increases existing criminal penalties
for animal fighting violations from misdemeanor to felony
status with a maximum sentence of three years. The bill also
makes it unlawful to knowingly sell, buy, transport or deliver
a knife, gaff, or other sharp instrument designed to be
attached to the leg of a bird for use in animal fighting.
Legislative History.--H.R. 137 was introduced by Rep. Elton
Gallegly on January 4, 2007, and referred to the Judiciary
Committee and Agriculture Committee. On February 6, 2007, the
Judiciary Committee's Subcommittee on Crime, Terrorism, and
Homeland Security held one day of hearings on the bill, and
testimony was received by Wayne Pacelle, President & CEO, The
Humane Society of the United States and from Jerry Leber,
President, United Gamefowl Breeders Association. The
Subcommittee met in open session on February 6, 2007, and
ordered the bill favorably reported by a voice vote. The Full
Committee met in open session on February 7, 2008 and ordered
the bill favorably reported, with amendment, by voice vote. On
March 1, 2007, the Agriculture Committee was discharged. On
March 26, 2007, the House suspended the rules and passed the
bill, as amended, by vote, 389 to 39. On April 10, 2007, the
Senate passed the bill by Unanimous Consent. On May 3, 2007,
the bill became law, Public Law No. 110-22.
H.R. 261, the Federal Prison Bureau Nonviolent Offender Relief Act of
2007''
Summary.--H.R. 261, the ``Federal Prison Bureau Nonviolent
Offender Relief Act of 2007'' would amend the federal criminal
code to create a good time policy, which would release a
prisoner who has served one half or more of his or her term of
imprisonment if that prisoner: (1) has attained age 45; (2) has
never been convicted of a crime of violence; and (3) has not
engaged in any violation involving violent conduct, including
institutional disciplinary regulations.
Legislative History.--Representative Sheila Jackson-Lee (D-
TX) introduced H.R. 261 on January 5, 2007. The Subcommittee
held one day of hearings on H.R. 261 simultaneously with
hearings on H.R. 4283, the ``Literacy Education and
Rehabilitation Act of 2007''; H.R. 4300, the ``Juvenile Justice
Accountability and Improvement Act of 2007''; and H.R. 4063,
the Restitution for the Exonerated Act of 2007''. On December
6, 2007, testimony was received by Professor Jennifer Woolard,
Assistant Professor, Department of Psychology, Georgetown
University. Ms. Deborah LaBelle, Director of the Juvenile Life
Without Parole Initiative, Ann Arbor, MI; Professor Jonathan
Turley, the J.B. and Maurice C. Shapiro Professor of Public
Interest Law at George Washington Law School; Pastor Fred
Mosley, Cleveland, Ohio; Mr. Ray Krone, exonerated from death
row in Arizona after his innocence was conclusively
established; The Honorable Drew Wrigley, United States Attorney
for the District of North Dakota; and Mr. Lance Ogiste, Counsel
to the Brooklyn District Attorney and member of National
District Attorney's Association. There was no further action on
H.R. 261.
H.R. 400, ``The War Profiteering Prevention Act of 2007''
Summary.--H.R. 400 strengthens the tools available to
Federal law enforcement to combat contracting fraud during
times of war, military action, or relief or reconstruction
activities. The bill creates a new criminal fraud offense in
title 18 of the United States Code to prohibit fraudulent acts
involving the provision of goods or services in connection with
a mission of the United States Government overseas. It also
makes this new offense a predicate crime for criminal
forfeiture, as well as for Federal money laundering and
racketeering offenses.
Legislative History.--Rep. Neil Abercrombie introduced on
January 11, 2007, H.R. 400 was referred to the Subcommittee on
February 2, 2007. The Subcommittee held 1 day of hearings on
H.R. 400 on June 19, 2007. Testimony was received from the
Honorable Stuart W. Bowen, Jr., Special Inspector General for
Iraq Reconstruction; Thomas F. Gimble, Principal Deputy
Inspector General, United States Department of Defense; Barry
M. Sabin, Deputy Assistant Attorney General, United States
Department of Justice; and Alan Grayson, Grayson & Kubli, P.C.
On July 24, 2007, the Subcommittee ordered the bill, H.R. 400,
favorably reported, by voice vote. On August 1, 2007, the Full
Committee ordered the bill, favorably reported with an
amendment, by voice vote. On October 9, 2007, the bill passed
the House, under suspension of the rules, by a recorded vote of
375-3.
H.R. 423, the ``Kristen's Act Reauthorization of 2007''
Summary.--H.R. 423 reauthorizes Kristen's Act (P.L. 106-
468), and authorizes grants to States, public agencies and
nonprofit organizations for the purpose of finding missing
adults. Grants are to be used to maintain a national resource
center and information clearinghouse; maintain a national
database for the purpose of tracking missing adults; coordinate
public and private programs that locate missing adults and
reunite them with their families; provide assistance and
training to law enforcement agencies, State and local
governments, nonprofit organizations and other individuals
involved in the criminal justice system in matters related to
missing adults; provide assistance to families in locating
missing adults; and assist in public notification of missing
adults and victim advocacy.
Legislative History.--H.R. 423 was introduced by Rep. Sue
Wilkins Myrick on January 11, 2007 and referred to the
Judiciary Committee. On July 15, 2008, the Subcommittee on
Crime, Terrorism, and Homeland Security held one day of
hearings on H.R. 423, and related bills H.R. 6064, the
``National Silver Alert Act,'' and H.R. 5898, the ``Silver
Alert Grant Program Act of 2008.'' Testimony was received from
Rep. Lloyd Doggett (D-TX), sponsor of H.R. 6064; Rep. Gus
Bilirakis (R-FL), sponsor of H.R. 5898; and Rep. Sue Wilkins
Myrick (R-NC), sponsor of H.R. 423. On July 30, 2008, the Full
Committee met in open session on related bill H.R. 6064, and
ordered the bill favorably reported with an amendment that
incorporated most of H.R. 423. On September 17, 2008, the House
voted to suspend the rules and passed H.R. 6064, as amended, by
voice vote.
H.R. 460, the ``Crack-Cocaine Equitable Sentencing Act of 2007''
Summary.--H.R. 460, the ``Crack-Cocaine Equitable
Sentencing Act of 2007,'' addresses the unfair disparity
between crack and powder cocaine sentencing laws. It amends the
Controlled Substances Act and the Controlled Substances Import
and Export Act by eliminating separate penalties for crack
cocaine. It also eliminates the mandatory minimum penalties for
simple possession of crack cocaine.
Legislative History.--H.R. 460 was introduced on January
12, 2007 and referred to the Judiciary Committee and the Energy
and Commerce Committee. On February 26, 2008, the Subcommittee
held one day of hearings on this bill and three others relating
to crack cocaine laws. Testimony was received from Rep. Charles
B. Rangel (D-NY), sponsor of H.R. 460, Rep. Sheila Jackson-Lee
(D-TX), sponsor of H.R. 4545, Judge Reggie Walton, U.S.
District Court Judge for the District of Columbia; Judge
Ricardo H. Hinojosa, Chairman of the United States Sentencing
Commission and U.S. District Court Judge for the Southern
District of Texas; Gretchen Shappert, U.S. Attorney for the
Western District of North Carolina; Joe Cassilly, State's
Attorney for Harford County, Maryland; Michael Short, convicted
of federal drug offense, whose sentence was commuted by
President Bush; and Michael Nachmanoff, Federal Public Defender
for the Eastern District of Virginia.
H.R. 545, the ``Native American Methamphetamine Enforcement and
Treatment Act of 2007''
Summary.--H.R. 545 amends the Omnibus Crime Control and
Safe Streets Act of 1968 to include or reaffirm territories and
Indian tribes as eligible grant recipients under programs to:
(1) curtail the manufacture, sale, and use of methamphetamine;
(2) aid children in homes in which methamphetamine or other
drugs are unlawfully manufactured, distributed, dispensed, or
used; and (3) reduce methamphetamine use by pregnant and
parenting women.
Legislative History.--Rep. Tom Udall introduced on January
17, 2007, H.R. 545 was referred to the Subcommittee on February
2, 2007. The subcommittee held 1 day of hearings on H.R. 545 on
February 6, 2007. Testimony was received from two witnesses:
Congressman Tom Udall of New Mexico, and Ben Shelly, Vice
President of the Navajo Nation. On February 6, 2007, the
Subcommittee ordered the bill to be favorably reported without
amendment, by voice vote. On February 7, 2007, the Committee
met in open session and ordered H.R. 545 to be favorably
reported without amendment, by a voice vote, a quorum being
present. On March 22, 2007, the bill passed the House, under
suspension of the rules, by a recorded vote of 423-0.
H.R. 660, the ``Court Security Improvement Act of 2007''
Summary.--H.R. 660 was introduced by Chairman John Conyers,
Jr. on January 24, 2007. This legislation requires the Director
of the U.S. Marshals Service to consult with the Judicial
Conference regarding security requirements for the U.S.
judicial branch and to redact certain personal information of
judges from financial disclosure reports. In addition, the bill
makes it a federal offense to file (or attempt or conspire to
file) in any public record any false lien or encumbrance
against the real or personal property of any U.S. officer or
employee based on performance of their official duties. Public
disclosure of restricted personal information about a federal
officer or employee, witness, or juror (or immediate family
members) with the intent to threaten or cause harm to such
individuals is prohibited under the bill. The legislation also
prohibits the possession of dangerous weapons in federal court
facilities.
Legislative History.--The subcommittee on Crime, Terrorism
and Homeland Security held a hearing on H.R. 660 on May 3,
2007. Testimony was received from Robert M. Bell, Chief Judge,
Maryland Court of Appeals; John F. Clark, United States Marshal
for the Eastern District of Virginia, United States Department
of Justice; and David Bryan Sentelle, Judge, United States
District Court for the Western District of North Carolina, and
Chair, Judicial Conference's Committee on Judicial Security. On
June 7, 2007, the subcommittee met and ordered the bill to be
favorably reported without an amendment by voice vote. On June
13, 2007, the Committee met and ordered the bill to be
favorably reported with an amendment, by voice vote.
H.R. 740, the ``Preventing Harassment through Outbound Number
Enforcement (PHONE) Act of 2007''
Summary.--The purpose of H.R. 740 is to prevent and
mitigate identity theft and to ensure privacy by establishing
criminal penalties for caller ID ``spoofing.'' The bill targets
spoofing by prohibiting the use of caller ID information to
commit fraud or other abusive acts. The bill provides for
felony penalties of up to five years in prison for violations
committed for commercial gain. Abusive use of another person's
caller ID information without commercial motives is classified
as a misdemeanor under the bill.
Legislative History.--Rep. Bobby Scott introduced on
January 31, 2007, H.R. 740 was referred to the Subcommittee on
February 2, 2007. The Subcommittee held one day of hearings on
H.R. 740 on February 6, 2007. Testimony was received from two
witnesses: Congressman Tim Murphy of Pennsylvania, and Barry M.
Sabin, Deputy Assistant Attorney General, Criminal Division,
United States Department of Justice. On February 6, 2007, the
Subcommittee ordered the bill to be favorably reported by a
voice vote, without an amendment. On February 7, 2007, the Full
Committee met in open session and ordered the bill to be
favorably reported without an amendment, by a voice vote. On
March 21, 2007, the bill passed the House, under suspension of
the rules, by a recorded vote of 413-1.
H.R. 916, The ``John R. Justice Prosecutors and Defenders Incentive Act
of 2007''
Summary.--H.R. 916 amends the Omnibus Crime Control and
Safe Streets Act of 1968 to add a program for student loan
repayment for prosecutors and public defenders. Representative
David Scott (D-GA) introduced the bill on February 8, 2007. On
Tuesday, April 24, 2007, the Subcommittee held a legislative
hearing on H.R. 916,; H.R. 1700, the ``COPS Improvement Act of
2007''; and H.R. 933, the ``Witness Security and Protection Act
of 2007.''
Legislative History.--Committee heard testimony from six
witnesses: Ms. Laurie Robinson, Director, Master of Science
Program, Department of Criminology University of Pennsylvania;
The Honorable Douglas H. Palmer, Mayor of Trenton, New Jersey
and President of the United States Conference of Mayors; Mr.
Edmund H. Mosca, Chief of Police, Old Saybrook Department of
Police Services, Old Saybrook, CT; The Honorable Kamala D.
Harris, District Attorney, City of San Francisco, CA; Mr. Mark
Epley, Senior Counsel, Office of the Deputy Attorney General
United States Department of Justice, Washington, DC; and Mr.
John Monaghan, Consultant, New York City Law Department, NY.
On April 26, 2007, the Subcommittee ordered the bill to be
favorably reported without amendment by voice vote and on May
2, 2007, the full Committee ordered the bill to be reported
favorably as amended by voice vote. On May 15, 2007, on motion
to suspend the rules and pass H.R. 916 the House of
Representatives agreed to the bill by yeas and nays 341-73. On
May 16, 2007 H.R. 916 was received in the Senate and referred
to the Committee on the Judiciary. There was no further action
on the bill.
H.R. 923, the ``Emmet Till Unsolved Civil Rights Crime Act''
Summary.--H.R. 923, the ``Emmett Till Unsolved Civil Rights
Crime Act'' establishes an Unsolved Crimes Section in the Civil
Rights Division of the Department of Justice (DOJ) and an
Unsolved Civil Rights Crime Investigative Office in the Civil
Rights Unit of the Federal Bureau of Investigation (FBI). The
legislation makes the Chief of the Section and the Chief
Investigator of the Office responsible for investigating
violations of criminal civil rights statutes in which the
alleged violation occurred before January 1, 1970 and resulted
in death.
Legislative History.--Representative John Lewis (D-GA)
introduced H.R. 923 on February 8, 2007. The Committee's
Subcommittee on Civil Rights and the Subcommittee on Crime,
Terrorism and Homeland Security jointly held one day of
hearings on H.R. 923. Testimony was received from Ms. Myrlie
Evers-Williams, activist, community leader and widow of slain
civil rights activist Medgar Evers; Richard Cohen, Esq.,
President and CEO, Southern Poverty Law Center; G. Douglas
Jones, Esq., former United States Attorney (N.D. Ala); Rita
Schwerner-Bender, attorney, activist and widow of slain civil
rights activist Michael Schwerner; Alvin Sykes, President of
the Emmett Till Justice Campaign, Inc.; and Grace Chung-Becker,
Deputy Assistant Attorney General of the Criminal Section of
the Department of Justice.
On June 12, 2007, the Subcommittee on Civil Rights and the
Subcommittee on Crime, Terrorism and Homeland Security met
jointly and ordered the bill H.R. 923 favorably reported, as
amended, by voice vote. On June 13, 2007, the full Committee
favorably reported H.R. 923, as amended, by a voice vote. On
June 20, 2007, on motion to suspend the rules and pass the
bill, H.R. 923 was agreed to by the House of Representatives by
a recorded vote of 422-2. On June 21, 2007 H.R. 923 was
received in the Senate and referred to the Committee on the
Judiciary. On September 24, 2008, the Senate Judiciary
Committee discharged H.R. 923 by unanimous consent and passed
the Senate by unanimous consent without amendment on the same
date. On November 7, 2008, H.R. 923 was signed by President
Bush and became Public Law 110-344.
H.R. 933, the ``Witness Security and Protection Act of 2007''
Summary.--H.R. 933 would amend the federal judicial code to
establish in the U.S. Marshals Service, a Short Term State
Witness Protection Section to provide protection for witnesses
in state and local trials involving homicide or a serious
violent felony or serious drug offense, pursuant to cooperative
agreements with state and local district attorneys and the U.S.
attorney for the District of Columbia.
Legislative History.--Representative Elijah Cummings (D-MD)
introduced H.R. 933 on February 8, 2007. On April 24, 2007, the
Subcommittee held a legislative hearing on H.R. 933; ``H.R.
1700, the COPS Improvement Act of 2007''; and ``H.R. 916, the
John R. Justice Prosecutors and Defenders Incentive Act of
2007.'' The subcommittee heard testimony from six witnesses:
Ms. Laurie Robinson, Director, Master of Science Program,
Department of Criminology University of Pennsylvania; The
Honorable Douglas H. Palmer, Mayor of Trenton, New Jersey and
President of the United States Conference of Mayors; Mr. Edmund
H. Mosca, Chief of Police, Old Saybrook Department of Police
Services, Old Saybrook, CT; The Honorable Kamala D. Harris,
District Attorney, City of San Francisco, CA; Mr. Mark Epley,
Senior Counsel, Office of the Deputy Attorney General United
States Department of Justice, Washington, DC; and Mr. John
Monaghan, Consultant, New York City Law Department, NY. There
was no further action on the bill.
H.R. 1199, the ``Drug Endangered Children Act of 2007''
Summary.--H.R. 1199, the ``Drug Endangered Children Act of
2007,'' extends the Drug Endangered Children grant program for
an additional 2 years. Congress first authorized this grant
program in section 755 of the USA PATRIOT Improvement and
Reauthorization Act of 2005, which authorized $20 million for
each of the fiscal years 2006 and 2007. H.R. 1199 extends the
program, at its current authorization level, for fiscal years
2008 and 2009.
Legislative History.--Representative Dennis Cardoza
introduced H.R. 1199 on February 27, 2007. H.R. 1199 was
referred to the Subcommittee on April 20, 2007. The
Subcommittee held 1 day of hearings on H.R. 1199 on May 22,
2007. The Subcommittee received testimony from Representative
Dennis Cardoza, the sponsor of the legislation. On July 24,
2007, the Subcommittee ordered the bill H.R. 1199 favorably
reported, by voice vote. On July 25, 2007, the Full Committee
ordered the bill H.R. 1199 favorably reported, without
amendment, by voice vote. On September 24, 2007, the bill
passed the House, under suspension of the rules, by a recorded
vote of 389-4. On September 24, 2008, the Senate passed the
bill by Unanimous Consent. On October 7, 2008, the bill was
signed by the President and became Public Law No. 110-345.
H.R. 1525, the ``Internet Spyware (I-SPY) Prevention Act of 2007''
Summary.--H.R. 1525 clarifies and enhances existing fraud
and computer crime law, targeting abuses perpetrated on
Internet users by persons who maliciously employ various covert
software applications, programs, applets, or computer code
commonly known as spyware. H.R. 1525 also provides resources
and guidance to the Department of Justice for the prosecution
of these offenses as well as fraudulent online identity theft.
Legislative History.--Representative Zoe Lofgren (D-CA)
introduced on March 14, 2007, H.R. 1525 which was referred to
the Subcommittee on March 30, 2007. The Subcommittee on Crime,
Terrorism, and Homeland Security held one day of hearings on
H.R. 1525 on May 1, 2007. Testimony was received from
Representative Zoe Lofgren (D-CA) and Representative Bob
Goodlatte (R-VA). On May 1, 2007, the Subcommittee ordered the
bill to be to favorably report to H.R. 1525 without amendment,
by voice vote. On May 2, 2007, the full Committee met in open
session and ordered the bill, H.R. 1525, favorably reported
with an amendment, by voice vote, a quorum being present. On
May 22, 2007, the legislation passed the House, under
suspension of the rules, by voice vote.
H.R. 1592--the ``Local Law Enforcement Hate Crimes Prevention Act of
2007''
Summary.--H.R. 1592 provides assistance to state and local
law enforcement in the investigation and prosecution of hate
crimes, and would amend chapter 13 of title 18, United States
Code, to make violent crimes against a person motivated by bias
against characteristics for which there is a history of such
bias-motivated violence a felony. It would also amend the Hate
Crime Statistics Act to require the collection of data on
violent crimes motivated by bias against the victim's perceived
gender or gender identity, as well as data on crimes committed
by and directed against juveniles.
Legislative History.--H.R. 1592, the ``Local Law
Enforcement Hate Crimes Prevention Act of 2007,'' was
introduced by House Judiciary Committee Chairman John Conyers,
Jr., on March 20, 2007. The Subcommittee on Crime, Terrorism,
and Homeland Security held hearings on H.R. 1592 on April 17,
2007. Testimony was received from Mark L. Shurtleff, Attorney
General of the State of Utah; Timothy Lynch, Director, Project
on Criminal Justice, Cato Institute; Frederick M. Lawrence,
Dean, the George Washington University Law School; David
Ritcheson, Harris County, Texas; Brad W. Dacus, President,
Pacific Justice Institute and Jack McDevitt, Associate Dean,
Northeastern University. On April 24, 2007, the Subcommittee on
Crime, Terrorism, and Homeland Security met in open session and
ordered the bill H.R. 1592 favorably reported by voice vote, a
quorum being present. On April 25, 2007, the Committee met in
open session and ordered the bill H.R. 1592 favorably reported,
with amendments, by a roll call vote of 20 to 14, a quorum
being present. (H. Rept. No. 110-113.) On June 3, 2007, H.R.
1592 was passed by the House by a recorded vote of 237 to 180.
H.R. 1593--the ``Second Chance Act of 2007''
Summary.--H.R. 1593 is designed to reduce recidivism,
increase public safety, and help State and local governments
better address the growing population of ex-offenders returning
to their communities by increasing federal support of offender-
based programming. The bill focuses on four areas: development
and support of programs that provide alternatives to
incarceration, expansion of the availability of substance abuse
treatment, strengthening families of ex-offenders, and the
expansion of comprehensive re-entry services.
Legislative History.--H.R. 1593, the ``Second Chance Act
2007,'' was introduced by Representative Danny K. Davis on
March 20, 2007. The Committee's Subcommittee on Crime,
Terrorism, and Homeland Security held hearings on H.R. 1593 on
March 20, 2007. Testimony was received from five witnesses:
Stefan LoBuglio, Chief, Pre-Release and Re-entry Services,
Montgomery County, MD, Department of Correction and
Rehabilitation; Steve Lufburrow, President and CEO, Goodwill
Industries of Houston, TX; George McDonald, President, Doe
Fund, Inc.; Dr. Roger H. Peters, Ph.D, Chairman and Professor,
Department of Mental Health Law and Policy, University of South
Florida; and Jack G. Cowley, National Director, Alpha USA--
Prisons & Re-Entry. On March 27, 2007, the Subcommittee on
Crime, Terrorism, and Homeland Security met in open session and
ordered the bill H.R. 1593 favorably reported, by voice vote, a
quorum being present. On March 28, 2007, the Full Committee met
in open session and ordered the bill favorably reported without
amendment, by voice vote, a quorum being present. (H. Rept. No.
110-140). On November 13, 2007, H.R. 1593 was passed by the
House by a recorded vote of 347 to 62. On March 11, 2008, H.R.
1593 was passed by the Senate, without amendment, by unanimous
consent. The President signed H.R. 1593 on April 9, 2008, which
became Public Law No. 110-199.
H.R. 1615, the ``Securing Aircraft Cockpits Against Lasers Act of
2007''
Summary.--H.R. 1615 addresses the growing problem of
individuals intentionally aiming lasers at the cockpits of
aircraft, particularly at the critical stages of take-off and
landing. This practice constitutes a threat to aviation
security and passenger safety. H.R. 1615 adds a section
following 18 USC Sec. 38 to impose criminal penalties upon any
individual who knowingly aims a laser pointer at an aircraft
within the special aircraft jurisdiction of the United States.
The criminal penalties include fines of up to $250,000 and
imprisonment of up to five years.
Legislative History.--Rep. Rick Keller introduced on March
21, 2007. H.R. 1615 was referred to the Subcommittee on March
30, 2007. The Committee's Subcommittee on Crime, Terrorism, and
Homeland Security held 1 day of hearings on H.R. 1615 on May 1,
2007. Testimony was received from Representative Ric Keller (R-
FL), the bill's principal sponsor. On May 1, 2007, the
Subcommittee ordered the bill to be favorably reported H.R.
1615 without amendment, by voice vote. On May 2, 2007, the Full
Committee met in open session and ordered H.R. 1615 favorably
reported with an amendment, by voice vote, a quorum being
present. On May 22, 2007, the legislation passed the House,
under suspension of the rules, by voice vote.
H.R. 1700, the ``COPS Improvement Act of 2007''
Summary.--H.R. 1700 amends the Omnibus Crime Control and
Safe Streets Act of 1968 to expand the authority of the
Attorney General to make grants for public safety and community
policing programs (COPS ON THE BEAT grant program).
Legislative History.--Representative Anthony Weiner (D-NY)
introduced H.R. 1700 on March 26, 2007. On Tuesday, April 24,
2007, the Subcommittee held a legislative hearing on H.R. 1700;
H.R. 916, the ``John R. Justice Prosecutors and Defenders
Incentive Act of 2007''; and H.R. 933, the ``Witness Security
and Protection Act of 2007.''
The Subcommittee heard testimony from six witnesses: Ms.
Laurie Robinson, Director, Master of Science Program,
Department of Criminology, University of Pennsylvania; The
Honorable Douglas H. Palmer, Mayor of Trenton, New Jersey and
President of the United States Conference of Mayors; Mr. Edmund
H. Mosca, Chief of Police, Old Saybrook Department of Police
Services, Old Saybrook, CT; The Honorable Kamala D. Harris,
District Attorney, City of San Francisco, CA; Mr. Mark Epley,
Senior Counsel, Office of the Deputy Attorney General, United
States Department of Justice, Washington, DC; and Mr. John
Monaghan, Consultant, New York City Law Department, NY.
On April 26, 2007, the Subcommittee ordered reported the
bill favorably reported without amendment by voice vote and on
May 2, 2007, the full Committee ordered the bill to be reported
favorably with amendment by voice vote. On May 15, 2007, on
motion to suspend the rules and pass H.R. 1700 the House of
Representatives agreed to the bill by yeas and nays 381-34. On
May 16, 2007, H.R. 1700 was received in the Senate and referred
to the Committee on the Judiciary. There was no further action
on the bill.
H.R. 1759, the ``Match Act of 2007''
Summary.--The Managing Arson Through Criminal History
(MATCH) Act of 2007 would require jurisdictions to establish
and maintain jurisdiction-wide arsonist registries and make
such registries available on the Internet to other law
enforcement agencies. The act requires criminal arsonists to
register in each jurisdiction in which such arsonists reside,
are employed, or are students. The act would require the
Attorney General to maintain a national database, incorporating
the various jurisdiction databases, at the Bureau of Alcohol,
Tobacco, Firearms, and Explosives to be known as the National
Arsonist Registry.
Legislative History.--H.R. 1759 was introduced by
Representative Mary Bono-Mack (R-CA) on March 29, 2007. The
Subcommittee held one day of hearings on November 6, 2007,
receiving testimony from Representative Bono-Mack;
Representative Adam Schiff (D-CA); Fire Chief Tracy Pansini, of
the Burbank, California Fire Department; and Fire Chief William
Soqui of the Cathedral City Fire Department, Cathedral City,
California.
On November 6, 2007, the Subcommittee met and ordered the
bill H.R. 1759 favorably reported by voice vote without
amendment. On November 7, 2007, the full Committee ordered the
bill favorably reported with an amendment by voice vote. On
December 5, 2007, on motion to suspend the rules and pass the
bill, H.R. 1759 was passed by the House of Representatives by
voice vote. On December 6, 2007, H.R. 1759 was received by the
Senate and referred to the Committee on the Judiciary. There
was no further action on the bill.
H.R. 1783, the ``Elder Justice Act''
Summary.--H.R. 1783 addresses the growing national problem
of elder abuse. The bill amends Title XX of the Social Security
Act and sets forth a comprehensive plan for preventing and
combating elder abuse, neglect and exploitation, including the
development of the Elder Justice Coordinating Council within
the Office of the Secretary of Health and Human Services. It
authorizes funding for numerous programs to promote elder
justice, including State and local adult protective services,
and requires the Department of Justice to develop policies and
plans that support federal prosecution of elder abuse. It
requires the Attorney General to research and report on State
laws and practices relating to elder abuse and to develop a
long-term plan and objectives. It requires the Comptroller
General to make recommendations regarding Federal law. It
authorizes the Attorney General to award grants for training
and assistance to local and State prosecutors, courts, police
and other first responders in elder justice matters, and to
facilitate and coordinate programs for victims of elder abuse.
Legislative History.--H.R. 1783 was introduced by Rep. Rahm
Emanuel on March 29, 2007 and referred to the Ways and Means
Committee, Judiciary Committee, Energy and Commerce Committee,
and Education and Labor Committee. The subcommittee held one
day of hearings on April 17, 2008. Testimony was received from
Representative Rahm Emanuel (D-IL), sponsor of H.R. 1783; Rep.
Joe Sestak (D-PA), sponsor of H.R. 5352; Rep. Ron Klein (D-FL),
sponsor of H.R. 5464; Robert Blancato, Elder Justice Coalition;
Sherry Friedlander, A Child is Missing Alert and Recovery
Center; and Vernon Keenan, Georgia Bureau of Investigation. On
May 13, 2008, the Subcommittee met in open session and ordered
the bill favorably reported, without amendment, by voice vote.
On June 11, 2008, the Committee met in open session and ordered
the bill favorably reported with an amendment, by voice vote.
H.R. 1889, the ``Private Prison Information Act of 2007''
Summary.--H.R. 1889 requires prisons and other correctional
facilities holding federal prisoners under a contract with the
federal government to make the same information available to
the public that federal prisons and correctional facilities are
required to release under the Freedom of Information Act
(FOIA).
Legislative History.--Rep. Tim Holden (D-PA) introduced
H.R. 1889, the Private Prison Information Act of 2007 on April
17, 2007. The Subcommittee on Crime, Terrorism and Homeland
Security held a hearing on the bill in conjunction with a
hearing on the Prison Litigation Reform Act (PLRA) on November
8, 2007. During the November 2007 hearing the Honorable Tim
Holden, was the only witness to testify in reference to H.R.
1889. The Subcommittee held a second hearing addressing the
legislation on June 26, 2008. Testimony was received and heard
from Alex Friedmann, Vice President, the Private Corrections
Institute, Inc; Tom Jawetz, Immigration Detention Staff
Attorney for the American Civil Liberties Union's National
Prison Project; and Mike Flynn, Director of Government
Relations for the Reason Foundation.
H.R. 1943, the ``Stop AIDS in Prison Act of 2007''
Summary.--H.R. 1943, would direct the Bureau of Prisons to
develop a comprehensive policy to provide HIV testing,
treatment, and prevention for inmates in federal prisons and
upon reentry into the community. The bill would require initial
testing and counseling of inmates upon entry into the prison
system and then ongoing testing available up to once a year
upon the request of the inmate, or sooner if an inmate is
exposed to the HIV/AIDS virus or becomes pregnant.
Legislative History.--H.R. 1943 was introduced by
Representative Maxine Waters (D-CA) on April 19, 2007; the
Subcommittee held one day of hearings on May 22, 2007.
Witnesses were: Mr. Devon Brown, Director of the Department of
Corrections for the District of Columbia; Mr. Vincent Jones,
Executive Director of the Center for Health Justice in West
Hollywood, California; Mr. Philip Fornaci, Director of the D.C.
Prisoner's Project for the Washington Lawyer's Committee for
Civil Rights and Urban Affairs; RADM Newton E. Kendig, M.D.,
the Assistant Director of the Health Services Division for the
Federal Bureau of Prisons; and Mr. Willie Mitchell, Chairman of
the Board for San Antonio Fighting Back.
On July 24, 2007, the Subcommittee on Crime, Terrorism and
Homeland Security ordered the bill H.R. 1943 favorably
reported, by voice vote. On July 25, 2007, the full Committee
ordered the bill favorably reported without amendment, by voice
vote. On September 25, 2007, H.R. 1943 was agreed to by voice
vote in the House of Representatives on motion to suspend the
rules and pass the bill and on September 26, 2007, was received
by the Senate and referred to the Senate Judiciary Committee.
On September 25, 2008 H.R. 1943 was favorably reported by the
Senate Judiciary Committee without amendment and placed on
Senate Legislative Calendar under General orders (Calendar
1085) and no further action taken on the bill.
H.R. 2286 the ``Bail Bond Fairness Act of 2007''
Summary.--H.R. 2286 would amend the Federal criminal code
to prohibit a judicial officer from declaring forfeited a bail
bond for violation of specified collateral release conditions,
other than failing to appear in court, by amending Rule 46(f)
of the Federal Rules of Criminal Procedure. Historically, the
sole purpose of affording bail to a defendant has been to
ensure a defendant's appearance in court. Currently however,
Federal judicial officers have merged the purposes of bail and
other conditions of release, ordering bonds forfeited in cases
in which the defendant appears as ordered but he fails to
comply with some collateral condition of release. Consequently,
the risks to the bondsmen being too great, no bonds are written
in the Federal system.
Legislative History.--H.R. 2286 was introduced by
Representative Robert Wexler (D-FL) on May 10, 2007, and the
Subcommittee held one day of hearings on H.R. 2286 on June 7,
2007. Testimony was received and heard from Rep. Wexler; the
Honorable Ric Keller (R-FL); Ms. Linda Braswell, President,
Professional Bail Agents of the United States; and the
Honorable Tommy E. Miller, United States Magistrate-Judge,
United States District Court, Eastern District of Virginia; Mr.
Edward Gallagher, General Counsel for The Surety and Fidelity
Association of America; and Richard A. Hertling, Principal
Deputy Assistant Attorney General, United States Department of
Justice.
On June 7, 2007, the Subcommittee on Crime, Terrorism and
Homeland Security ordered the bill H.R. 2286 favorably
reported, by voice vote. On June 12, 2007, the Committee met in
open session and ordered the bill H.R. 2286 favorably reported
without amendment, by voice vote. On June 25, 2007, on motion
to suspend the rules and agree to the bill by voice vote, H.R.
2286 was agreed to by the House of Representatives and referred
to the Senate on June 26, 2007. There was no further action on
H.R. 2286.
H.R. 2352, the ``School Safety Enhancements Act of 2007''
Summary.--H.R. 2352 amends the Omnibus Crime Control and
Safe Streets Act of 1968 by re-authorizing and modifying the
school security grant program and creating an interagency Task
Force to develop and promulgate a set of advisory school safety
guidelines. It amends the Higher Education Act of 1965 by
requiring participating institutions to conduct annual campus
safety assessments and develop and implement a campus emergency
response plan.
Legislative History.--H.R. 2352 was introduced on May 16,
2007 and referred to the Judiciary Committee. The Subcommittee
on Crime, Terrorism, and Homeland Security held one day of
hearings on April 17, 2008. Testimony was received from Rep.
Steven R. Rothman (D-NJ), the sponsor of the bill. On May 13,
2008, the Subcommittee met in open session and ordered the bill
favorably reported, with an amendment, by voice vote. On May
14, 2008, the Committee met in open session and ordered the
bill favorably reported with an amendment, by voice vote. The
bill also was referred to the Committee on Education and Labor,
which discharged its referral on September 12, 2008. On
September 27, 2008, the House suspended the rules and passed
the bill, as amended, by voice vote.
H.R. 2489, the ``Genocide Accountability Act of 2007''
Summary.--On May 24, 2007, Representative Howard Berman
introduced H.R. 2489, the ``Genocide Accountability Act of
2007.'' H.R. 2489 strengthens the ability of the United States
to prosecute perpetrators of genocide by amending title 18 of
the United States Code to establish Federal criminal
jurisdiction over the crime of genocide, wherever the crime is
committed. The Act would close a procedural loophole in current
law that does not permit the United States Department of
Justice to prosecute non-Americans in United States courts for
genocide committed abroad.
Legislative History.--Introduced on May 24, 2007, H.R. 2489
was referred to the Subcommittee on June 25, 2007. The
Subcommittee held a hearing on H.R. 2489 on October 23, 2007.
Testimony was received from Eli Rosenbaum, Director, Office of
Special Investigations, Criminal Division, United States
Department of Justice; Diane F. Orentlicher, Professor,
Washington College of Law, American University; Jerry Fowler,
Director, Committee on Conscience, United States Holocaust
Memorial Museum; and Gayle Smith, Senior Fellow, Center for
American Progress. On November 1, 2007, the Subcommittee
ordered the bill, H.R. 2489, favorably reported by voice vote.
On November 7, 2007, the Committee ordered the bill, H.R. 2489,
favorably reported by voice vote. For further action, see S.
888, which became Public Law 110-151 on December 21, 2007.
H.R. 2740, the ``MEJA Expansion and Enforcement Act of 2007''
Summary.--Introduced by Representative David Price, H.R.
2740 would make contractors and contract personnel under
Federal contracts criminally liable for crimes committed
overseas. It would amend the Military Extraterritorial
Jurisdiction Act (`MEJA'), which criminalizes offenses
committed outside the United States by members of the Armed
Forces and certain Defense Department contractors, but does not
cover all contractors providing services in an overseas
military operation. In addition to closing this gap in current
law, H.R. 2740 would designate the Justice Department to be the
lead agency responsible for investigating allegations of
contractor criminal misconduct.
Legislative History.--Introduced on June 15, 2007, H.R.
2740 was referred to the Subcommittee on July 16, 2007. The
Subcommittee held 1 day of hearings on H.R. 2740, on June 19,
2007. Testimony was received from Erica Razook, Legal Advisor
to the Business and Human Rights Program, Amnesty
International; and Scott Horton, Adjunct Professor of Law,
Columbia University School of Law. On July 24, 2007, the
Subcommittee ordered the bill favorably reported, by voice
vote. On August 2, 2007, the Committee ordered the bill
favorably reported with an amendment, by voice vote. On October
4, 2007, the bill passed the House, considered under a rule, by
a recorded vote of 389-30.
H.R. 2878, the ``Enhanced Financial Recovery and Equitable Retirement
Treatment Act of 2007''
Summary.--H.R. 2878 would increase the retirement benefits
of Assistant U.S. Attorneys to the level of federal law
enforcement officers, which is intended to strengthen the
Department of Justice's ability to win critical cases by
ensuring the retention of skilled, experienced federal
prosecutors. The bill brings the retirement benefits of AUSAs
into line with the retirement benefits of federal law
enforcement officers.
Legislative History.--The bill was introduced by
Representative Artur Davis (AL 7) on June 27, 2007. The
Subcommittee held one day of hearings on H.R. 2878 on November
1, 2007. Testimony was received from: The Honorable Brian A.
Benczkowski, Principal, Deputy Assistant Attorney General
Office of Legislative Affairs United States Department of
Justice; Ms. Amy Baron-Evans, Sentencing Resource Counsel,
Federal Public and Community Defenders, Federal Defender
Office; Steve Cook, Esq., Vice-President National Association
of Assistant United States Attorneys; and Larry D. Thompson,
Esq., Senior Vice President Government Affairs Pepsico, Inc.
There was no further action on H.R. 2878.
H.R. 3013, ``Attorney-Client Privilege Protection Act of 2007''
Summary.--H.R. 3013 was introduced on July 12, 2007 by Rep.
Robert ``Bobby'' C. Scott and would restore judicial oversight
to the important protections of attorney-client privilege and
attorney work product doctrine, while preserving prosecutorial
discretion necessary to fight corporate crime. Under the bill,
an agent or attorney of the United States may base cooperation
credit on the facts that are disclosed, but is prohibited from
basing cooperation credit upon whether an organization
disclosed materials that are protected by attorney-client
privilege or attorney work product. This legislation would
prohibit a U.S. agent or attorney from conditioning a charging
decision or a cooperation agreement on any of the following (1)
any valid assertion of the attorney-client privilege or
privilege for attorney work product; (2) the provision of
counsel to, or contribution to the legal defense fees or
expenses of, an employee of the organization; (3) entry into a
joint-defense, information-sharing, or common-interest
agreement with an employee of the organization if there is a
common interest in defending against an investigation or
enforcement matter; (4) the sharing of relevant information
with an employee; or (5) a failure to terminate an employee's
employment, or otherwise sanction an employee, because of the
employee's exercised his or her constitutional rights or other
legal protections. H.R. 3013 would not affect any other federal
statute that may authorize, in the course of an examination or
inspection, a U.S. agent or attorney to require or compel the
production of attorney-client privileged material or attorney
work product. The bill also clarifies that the prohibition
against conditioning a charging decision does not apply to
charging an organization (or affiliated person) for certain
conduct under a federal law which makes that conduct in itself
an offense.
Legislative History.--The Subcommittee on Crime, Terrorism,
and Homeland Security held a hearing on the issue of Attorney
Client Privilege in the context of corporate investigations on
March 8, 2007. Testimony was received and heard from Barry M.
Sabin, Deputy Attorney General, U.S. Department of Justice;
Andrew Weissman, Partner, Jenner and Block; Richard White,
Senior Vice President, Secretary, and General Counsel, The Auto
Club Group; William Sullivan, Jr., Partner, Winston & Strawn;
and Karen J. Mathis, President, American Bar Association. On
July 24, 2007, the Subcommittee on Crime, Terrorism, and
Homeland Security met and ordered the bill H.R. 3013 favorably
reported by voice vote. On August 1, 2007, the Committee met
and ordered the bill favorably reported without amendment by
voice vote. On November 13, 2007 the House passed H.R. 3013 by
voice vote on a motion to suspend the rules.
H.R. 3480, the ``Let Our Veterans Rest in Peace Act of 2007''
Summary.--H.R. 3480 directs the U.S. Sentencing Commission
to review and, if appropriate, amend its sentencing guidelines
and policy statements to provide adequate sentencing
enhancements for any offense involving the desecration, theft,
or trafficking in a grave marker, headstone, monument, or other
object intended to permanently mark a veteran's grave. Requires
the Commission to ensure that the sentences, guidelines, and
policy statements for these crimes are appropriately severe and
reasonably consistent with other relevant directives,
sentencing guidelines, and policies.
Legislative History.--Representative Christopher Carney (D-
PA) introduced H.R. 3480 on September 6, 2007. There were no
hearings on this legislation. On May 13, 2008, the Subcommittee
ordered the bill, H.R. 3480, favorably reported by voice vote
without amendment and on May 14, 2008, the full Committee
ordered the bill, H.R. 3480, favorably reported with an
amendment by voice vote. On May 21, 2008, on motion to suspend
the rules and pass H.R. 3480, the House of Representatives
passed the bill by voice vote and referred the bill to the
Senate. On October 2, 2008 the Senate passed H.R. 3480 without
amendment by Unanimous Consent. On October 10, 2008, President
Bush signed H.R. 3480, which became Public Law 110-384.
H.R. 3546/S. 231, to Reauthorize the Edward Byrne Memorial Justice
Assistant Grant Program at Fiscal Year 2006 Levels through 2012
Summary.--H.R. 3546 and S. 231 each amend the Omnibus Crime
Control and Safe Streets Act of 1968 to authorize
appropriations for the Edward Byrne Memorial Justice Assistance
Grant Program in the amount of $1,095,000,000 per fiscal year
through FY 2012. Presently, appropriation authority for the
program expires at the end of FY 2009. The Edward Byrne
Memorial Justice Assistance Grant Program (Byrne-JAG) allows
states and local governments to support a broad range of
activities to prevent and control crime and to improve the
criminal justice system, which states and local governments
have come to rely on to ensure public safety.
Legislative History.--Representative Hank Johnson (GA-4)
introduced H.R. 3546 on September 17, 2007. The Subcommittee
held one day of hearings on H.R. 3546, on May 20, 2008.
Testimony was received from the Honorable Domingo Herraiz,
Director, Bureau of Justice Assistance, United States
Department of Justice, Washington, DC; the Honorable Dustin
McDaniel, National Association of Attorneys General,
Washington, DC; Mr. James Fox, President, National District
Attorneys' Association, Alexandria, VA; Sheriff Craig Webre,
President, National Sheriff's Organization, Alexandria, VA;
Director Ronald C. Rueker, President, International Association
of Chiefs of Police Alexandria, VA; and Mr. Ronald Brooks,
President, National Narcotic Officers' Association Coalition,
San Francisco, CA. On June 10, 2008, the Subcommittee ordered
the bill favorably reported, without amendment, by voice vote
and on June 18, 2008, the full Committee ordered the bill
favorably reported without amendment, by voice vote. On June
25, 2008 on motion to suspend the rules, and pass H.R. 3546,
the bill passed the House of Representatives by yeas and nays
406-11 and referred the bill to the Senate. On July 14, 2008,
on motion to suspend the rules, and pass S. 231, the House
passed the bill by voice vote. On July 30, 2008, President Bush
signed S. 231, which became Public Law 110-294.
H.R. 3971, the ``Deaths in Custody Reporting Act of 2008'' (was H.R.
2908 at the hearing, later amended to H.R. 3971)
Summary.--H.R. 3971, the ``Deaths in Custody Reporting Act
of 2007,'' promotes greater safety for prison and jail inmates
by lowering prisoner morality rates. To this end, the bill
requires States that receive certain criminal justice
assistance grants to report on a quarterly basis to the
Attorney General certain information regarding the death of any
person who is under arrest, in the process of being arrested,
en route to incarceration after arrest, or incarcerated in
State or local facilities. H.R. 3971 also requires the Attorney
General to study and report to Congress on deaths of persons in
custody. The report must identify best practices for optimizing
prisoner safety and lowering prisoner mortality rates.
Legislative History.--Representative Bobby Scott (D-VA)
introduced H.R. 2908 on June 28, 2007. The Subcommittee on
Crime, Terrorism, and Homeland Security held one day of
hearings on July 24, 2007. Testimony was received from Charles
Sullivan, Director of National CURE; Jeffrey Sedgwick, Director
of the U.S. Department of Justice Bureau of Justice Statistics;
Jenni Gainsborough, Director of the Washington Office of Penal
Reform International; and Mary Scott, surviving mother of
Jonathan Magbie, who died while in the custody of the District
of Columbia Jail on September 20, 2004.
On November 1, 2007, the Subcommittee on Crime, Terrorism,
and Homeland Security met in open session and ordered the bill
H.R. 3971 (an amended H.R. 2908) favorably reported. On
November 7, 2007, the full Committee ordered H.R. 3971
favorably reported with an amendment by voice vote. On January
23, 2008, on motion to suspend the rules and pass the bill,
H.R. 3971 was agreed to by the House of Representatives. On
January 24, 2008 H.R. 3971 was received in the Senate and
referred to the Committee on the Judiciary. On September 25,
2008, the Senate Judiciary Committee ordered the bill reported
favorably with an amendment in the nature of a substitute and
placed on the Senate Legislative Calendar under General Orders.
There was no further action on H.R. 3971.
H.R. 3992, the ``Mentally Ill Offender Treatment and Crime Reduction
Reauthorization and Improvement Act of 2008''
Summary.--Introduced by Representative Robert C. ``Bobby''
Scott, H.R. 3992, is a reauthorization of the ``Mentally Ill
Offender Treatment and Crime Reduction Act of 2004'' (Public
Law 108-414). The law increases public safety by enabling
coordination between the criminal justice and mental health
care systems to increase treatment among this segment of the
population.
Legislative History.--Introduced on October 30, 2007, H.R.
3992 was referred to the Subcommittee on November 1, 2007. On
November 1, 2007, the Subcommittee ordered to favorably report
H.R. 3992 by voice vote. On November 7, 2007, the full
Committee met in open session and ordered the bill, H.R. 3992,
favorably reported by voice vote, a quorum being present. On
January 23, 2008, the legislation passed the House, under
suspension of the rules, by voice vote. For further action, see
S. 2304, which became Public Law 110-416 on October 14, 2008.
H.R. 4056/S. 2565, the ``Federal Law Enforcement Congressional Badge of
Bravery Act of 2007''
Summary.--H.R. 4056, authorizes the Attorney General to
award a Congressional Badge of Bravery to federal law
enforcement officers and state and local officers who sustain a
physical injury in the line of duty. Sets forth requirements
for agencies in nominating a law enforcement officer for a
badge. This measure establishes a formal process by which
Congress will be able to recognize acts of bravery by all of
our Nation's law enforcement officers who become injured in the
course of their duties.
Legislative History.--H.R. 4056 was introduced by
Representative Brad Ellsworth (IN 8) on November 1, 2007. On
April 15, 2008, on motion to suspend the rules and pass H.R.
4056, the House of Representatives passed the bill and referred
it to the Senate, where it was referred to the Judiciary
Committee. On June 26, 2008, the Senate passed S. 2565
encompassing the elements of H.R. 4056 with amendments and
referred it to the House. On July 22, 2008, on motion to
suspend the rules and pass S. 2565, the House passed the bill
by voice vote. On July 31, 2008, President Bush signed S. 2565,
which became Public Law 110-298.
H.R. 4063, the ``Restitution for the Exonerated Act of 2007''
Summary.--H.R. 4063, the ``Restitution for the Exonerated
Act of 2007,'' would authorize a grant program to fund programs
to assist people who were wrongfully convicted and spent at
least six months in federal or state prison.
Legislative History.--H.R. 4063 was introduced by
Representative Donald Payne (D-NJ) on November 1, 2007. The
Subcommittee held one day of hearings on H.R. 4063
simultaneously with hearings on H.R. 261, the ``Federal Prison
Bureau Nonviolent Offender Relief Act of 2007''; H.R. 4283, the
``Literacy Education and Rehabilitation Act of 2007''; and H.R.
4300, the ``Juvenile Justice Improvement and Accountability
Act.''
On December 6, 2007, testimony was received by Professor
Jennifer Woolard, Assistant Professor, Department of
Psychology, Georgetown University. Ms. Deborah LaBelle,
Director of the Juvenile Life Without Parole Initiative, Ann
Arbor, Michigan; Professor Jonathan Turley, the J.B. and
Maurice C. Shapiro Professor of Public Interest Law at George
Washington Law School; Pastor Fred Mosley, Cleveland, Ohio; Mr.
Ray Krone, exonerated from death row in Arizona after his
innocence was conclusively established; The Honorable Drew
Wrigley, United States Attorney for the District of North
Dakota; and Mr. Lance Ogiste, Counsel to the Brooklyn District
Attorney and member of National District Attorney's
Association. There was no further action on H.R. 4063.
H.R. 4081, the ``Prevent All Cigarette Trafficking Act of 2007''
Summary.--Introduced by Representative Weiner, H.R. 4081
aims to prevent tobacco smuggling and to ensure the collection
of tobacco taxes. This legislation will combat unlawful
cigarette trafficking by updating existing anti-trafficking
laws and introducing new tools to combat illegal remote sales,
such as those conducted over the Internet.
Legislative History.--Introduced on November 5, 2007, H.R.
4081 was referred to the Subcommittee on December 3, 2007. The
Subcommittee held 1 day of hearings on H.R. 4081 on May 1,
2008. Testimony was received from Representative Anthony Weiner
(D-NY); Representative Dale E. Kildee (D-MI); Arian Melendez,
Chairman, Reno-Sparks Indian Colony; Matthew L. Myers,
President, Campaign for Tobacco-Free Kids; Steve Rosenthal, New
York State Association of Wholesale Marketers; John Colledge,
Independent Consultant; and David Lapp, Chief Counsel, Tobacco
Enforcement Unit, Office of the Attorney General of Maryland.
On July 16, 2008, the Committee ordered the bill, H.R. 4081,
favorably reported with an amendment, by voice vote. On
September 10, 2008, the bill passed the House, under suspension
of the rules, by a recorded vote of 379-12.
H.R. 4109, the ``Prison Remedies Abuse Act of 2007 (PLRA)''
Summary.--Congress passed the PLRA in 1996 as part of an
emergency appropriations bill. Although the PLRA made major
changes in the law, it was the subject of only one
congressional hearing and extremely limited debate. Provisions
of the PLRA have been the subject of six Supreme Court
decisions interpreting competing interpretations by Federal
Courts of Appeals. At the time the bill passed, Congress stated
two main reasons for the Act: (1) to reduce frivolous lawsuits
by prisoners and to decrease the amount of intrusive consent
decrees governing prison conditions. The purpose of H.R. 4109
was introduced to correct some of the unintended problems that
have resulted from passage of the 1996 ``Prison Litigation
Reform Act'' (PLRA). The PLRA Act has successfully blocked
prisoner access to the federal courts in ``frivolous''
lawsuits, it has also prevented many legitimate cases from
being filed. H.R. 4109 modifies 42 U.S.C. 1997e by eliminating
the physical injury claim required to sue under the PLRA. This
legislation would preserve the PLRA's goal of promoting
administrative resolution of disputes, while preventing the
dismissal of meritorious claims purely for failure to exhaust.
Section 3 of the bill provides that before filing suit, a
prisoner must present it his or her claim to prison officials.
If a prisoner files a claim without first presenting to prison
officials (and the court does not dismiss the claim as
frivolous or malicious), the court must stay the case for up to
90 days and direct prison officials to consider the claim
through administrative processes. Cases that are not resolved
administratively during the 90-day period will then proceed in
court, unless the court is notified by the parties that the
case is resolved.
In addition, H.R. 4109 would exempt people under the age of
18 from the PLRA. Current federal law permits prisoners to file
suit in forma pauperis, or without prepayment of filing fees,
provided that the prisoner pays those fees over time. Also, the
PLRA permanently bans prisoners who file three suits that were
dismissed as ``frivolous, malicious, or fail[ed] to state a
claim upon which relief may be granted.'' This bill would
modify the life-time ban so that a prisoner would be prohibited
from bringing a suit if he or she has had three dismissals
within the preceding 5 years. In addition, the bill would allow
indigent prisoners to file claims in forma pauperis, unless the
action is dismissed at the initial screening, in which case,
the prisoner would have to pay the filing fee over time.
H.R. 4109 would amend language in 18 U.S.C. 3626 that
restricts the power of federal courts to fashion and implement
injunctive orders remedying prison conditions that violate the
law. Finally, this legislation would also eliminate the
provision in the PLRA that prohibits granting attorneys' fees
in prison cases as well as make a technical amendment to who
the PLRA applies to.
Legislative History.--Chairman Robert C. ``Bobby'' Scott
introduced H.R. 4109, ``The Prison Remedies Act of 2007'' on
November 7, 2007. The Subcommittee on Crime Terrorism and
Homeland Security held a hearing on November 8, 2007, titled
``Review of the Prison Litigation Reform Act: A Decade of
Reform or an Increase in Prison and Abuses?'' That hearing
examined the many unintended consequences of the PLRA that have
surfaced since its enactment. The Subcommittee heard and
received testimony from: Margo Schlanger, Professor of Law,
Washington University on behalf of the American Bar
Association; David A. Keene, Chairman, American Conservative
Union; Pat Nolan, Vice President, Prison Fellowship Ministries;
Garrett Cunningham, former prisoner in the Texas Department of
Criminal Justice Luther Unit; and Ryan Bounds, Deputy Assistant
Attorney General and Chief of Staff, Office of Legal Policy;
United States Department of Justice.
On April 22, 2008, the Subcommittee held a second hearing
(Part II) on the legislation H.R. 4109. The Subcommittee heard
and received testimony from Stephen B. Bright, Southern Center
for Human Rights; John J. Gibbons, Newark, NJ; Ernest D.
Preate, Jr., JD; Sarah V. Hart, Assistant District Attorney,
Philadelphia District Attorney's Office; and Jeanne S.
Woodford, former Warden of San Quentin State Prison, 1997, and
the Chief Adult Probation Officer, City and County of San
Francisco, CA.
H.R. 4175, the ``Privacy and Cybercrime Enforcement Act of 2007''
Summary.--Chairman John Conyers, Jr. introduced H.R. 4175,
the ``Privacy and Cybercrime Enforcement Act of 2007.'' The
legislation provides new tools to federal prosecutors to combat
identity theft and other computer crimes. The bill also
provides victims of identity theft with the ability to seek
restitution in federal court for the loss of time and money
spent restoring their credit and remedying the harms of
identity theft. In addition, the bill strengthens consumer
privacy by requiring companies to give rapid notice of breaches
to law enforcement.
Legislative History.--Introduced on November 14, 2007, H.R.
4175 was referred to the Subcommittee on December 14, 2007. The
Subcommittee held a hearing on H.R. 4175 on December 18, 2007.
Testimony was received from Andrew Lourie, Acting Principal
Deputy Assistant Attorney General and Chief of Staff to the
Criminal Division, U.S. Department of Justice, Craig Magaw,
Special Agent, Criminal Investigative Division, U.S. Secret
Service, U.S. Department of Homeland Security; Joel Winston,
Associate Director, Division of Privacy and Identity
Protection, Bureau of Consumer Protection, Federal Trade
Commission; Jaimee Napp, Executive Director, Identity Theft
Action Council of Nebraska; Robert W. Holleyman, II, President
and CEO, Business Software Alliance, and Lillie Coney,
Associate Director, Electronic Privacy Information Center. No
further action was taken on the bill.
H.R. 4283 the ``Literacy, Education and Rehabilitation Act of 2007''
Summary.--The ``Literacy, Education, and Rehabilitation Act
of 2007'' or LERA, would award credit toward the service of a
sentence to prisoners who participate in designated
educational, vocational, treatment, assigned work, or other
developmental programs. Legislative History--The Subcommittee
held one day of hearings on the bill (prior to its
introduction) simultaneously with hearings on H.R. 261, the
``Federal Prison Bureau Nonviolent Offender Relief Act of
2007''; H.R. 4300, the ``Juvenile Justice Accountability and
Improvement Act of 2007''; and H.R. 4063, the Restitution for
the Exonerated Act of 2007.''
Legislative History.--On December 6, 2007, testimony was
received by Professor Jennifer Woolard, Assistant Professor,
Department of Psychology, Georgetown University. Deborah
LaBelle, Director of the Juvenile Life Without Parole
Initiative, Ann Arbor, MI; Professor Jonathan Turley, the J.B.
and Maurice C. Shapiro Professor of Public Interest Law at
George Washington Law School; Pastor Fred Mosley, Cleveland,
Ohio; Mr. Ray Krone, exonerated from death row in Arizona after
his innocence was conclusively established; The Honorable Drew
Wrigley, United States Attorney for the District of North
Dakota; and Mr. Lance Ogiste, Counsel to the Brooklyn District
Attorney and member of National District Attorney's
Association. LERA was introduced by Representative Bobby Scott
(D-VA) on December 15, 2007. There was no further action on
H.R. 4283.
H.R. 4300, the ``Juvenile Justice Accountability and Improvement Act of
2007''
Summary.--H.R. 4300 would afford every youthful offender
sentenced to life imprisonment a meaningful opportunity to have
their case reviewed every 15 years. The United States is the
only nation that sentences juveniles to life in prison with no
hope of parole. Under H.R. 4300, States would be mandated to
offer parole opportunities or risk losing 10% of certain
funding that they would otherwise receive through the Safe
Streets Act of 1968 and a parallel requirement would exist in
the federal system. Further, grants would be awarded to the
states for improving the quality of legal representation of
child defendants, which would include expenses for lawyers,
investigation, expert witnesses and expenses for appeals up to
and including before the United States Supreme Court.
Legislative History.--H.R. 4300 was introduced by
Representative Bobby Scott (D-VA) and Representative John
Conyers, Jr. (D-MI) on December 6, 2007. The Subcommittee held
one day of hearings on H.R. 4300 simultaneously with hearings
on H.R. 261, the Federal Prison Bureau Nonviolent Offender
Relief Act of 2007''; H.R. 4283, the ``Literacy Education and
Rehabilitation Act of 2007''; and H.R. 4063, the Restitution
for the Exonerated Act of 2007'' on December 6, 2007. The
subcommittee held an additional hearing on September 11, 2008,
and testimony was received by Bryan Stevenson, Executive
Director of the Equal Justice Initiative in Montgomery; Richard
G. Dudley, Jr., M.D.; Raphael Johnson, Reformed Juvenile
Offender; and Elizabeth Calvin, Children Rights Advocate, Human
Rights Watch.
Testimony was received by Professor Jennifer Woolard,
Assistant Professor, Department of Psychology, Georgetown
University. Ms. Deborah LaBelle, Director of the Juvenile Life
Without Parole Initiative, Ann Arbor, MI; Professor Jonathan
Turley, the J.B. and Maurice C. Shapiro Professor of Public
Interest Law at George Washington Law School; Pastor Fred
Mosley, Cleveland, Ohio; Mr. Ray Krone, exonerated from death
row in Arizona after his innocence was conclusively
established; The Honorable Drew Wrigley, United States Attorney
for the District of North Dakota; and Mr. Lance Ogiste, Counsel
to the Brooklyn District Attorney and member of National
District Attorney's Association. There was no further action on
H.R. 4300.
H.R. 4545, the ``Drug Sentencing Reform and Cocaine Kingpin Trafficking
Act of 2007''
Summary.--H.R. 4545, the ``Drug Sentencing Reform and
Cocaine Kingpin Trafficking Act of 2007'' addresses the problem
of disparity between crack cocaine and powder cocaine
sentencing laws. It amends the Controlled Substances Act and
the Controlled Substances Import and Export Act by increasing
the amounts of crack cocaine that would trigger the imposition
of various mandatory minimum prison terms and by increasing
potential fines. The bill eliminates the five-year mandatory
minimum prison term for first time possession of crack cocaine.
The bill directs the U.S. Sentencing Commission to review and
amend, if appropriate, penalties for drug trafficking offenses.
The bill authorizes the Attorney General to make grants to
States, units of local government, territories and Indian
tribes to improve drug treatment programs for offenders in
prisons, jails and juvenile facilities and to strengthen
rehabilitation efforts through support services. The bill
authorizes the Attorney General to make grants to eligible
partnerships to reduce the use of alcohol and other drugs by
defendants during incarceration, parole and court supervision.
Legislative History.--H.R. 4545 was introduced by Ms.
Sheila Jackson-Lee (D-TX) on December 13, 2007 and referred to
the Judiciary Committee and the Energy and Commerce Committee.
On February 26, 2008, the Judiciary Committee's Subcommittee on
Crime, Terrorism, and Homeland Security held one day of
hearings on this bill and three others relating to crack
cocaine laws. Testimony was received from Rep. Sheila Jackson-
Lee (D-TX), sponsor of H.R. 4545, Rep. Charles B. Rangel (D-
NY), sponsor of H.R. 460, Judge Reggie Walton, U.S. District
Court Judge for the District of Columbia; Judge Ricardo H.
Hinojosa, Chairman of the United States Sentencing Commission
and U.S. District Court Judge for the Southern District of
Texas; Gretchen Shappert, U.S. Attorney for the Western
District of North Carolina; Joe Cassilly, State's Attorney for
Harford County, Maryland; Michael Short, convicted of federal
drug offense and commuted by President Bush; and Michael
Nachmanoff, Federal Public Defender for the Eastern District of
Virginia.
H.R. 5035, the ``Fairness in Cocaine Sentencing Act of 2008''
Summary.--H.R. 5035, the ``Fairness in Cocaine Sentencing
Act of 2008,'' addresses the unfair disparity between crack and
powder cocaine sentencing laws. It amends the Controlled
Substances Act and the Controlled Substances Import and Export
Act by eliminating separate penalties for crack cocaine. It
eliminates the mandatory minimum penalties for simple
possession of crack cocaine, thereby allowing judges to impose
a just punishment based on the circumstances of each case. It
eliminates previous law that prohibited courts from granting
probation or vacating a sentence involving the manufacture,
distribution, dispensing or possession to manufacture,
distribute or dispense cocaine. Finally, the bill acknowledges
the strong rehabilitative value of substance abuse treatment
and authorizes money to establish State and federal pretrial
diversion and post-conviction drug court programs.
Legislative History.--H.R. 5035 was introduced by Rep.
Robert C. ``Bobby'' Scott on January 17, 2008 and referred to
the Judiciary Committee and the Energy and Commerce Committee.
On February 26, 2008, the Judiciary Committee's Subcommittee on
Crime, Terrorism, and Homeland Security held one day of
hearings on this bill and three others relating to crack
cocaine laws. Testimony was received from Rep. Charles B.
Rangel (D-NY), sponsor of H.R. 460, Rep. Sheila Jackson-Lee (D-
TX), sponsor of H.R. 4545, Judge Reggie Walton, U.S. District
Court Judge for the District of Columbia; Judge Ricardo H.
Hinojosa, Chairman of the United States Sentencing Commission
and U.S. District Court Judge for the Southern District of
Texas; Gretchen Shappert, U.S. Attorney for the Western
District of North Carolina; Joe Cassilly, State's Attorney for
Harford County, Maryland; Michael Short, convicted of federal
drug offense and commuted by President Bush; and Michael
Nachmanoff, Federal Public Defender for the Eastern District of
Virginia.
H.R. 5057, the ``Debbie Smith Reauthorization Act of 2008''
(reauthorizing Title II of PL 108-405)
Summary.--H.R. 5057 reauthorizes the Debbie Smith DNA
Backlog Grant Program to help reduce the backlog of untested
DNA samples in the Nation's crime labs. The Debbie Smith DNA
Backlog Grant Program, which began in 2000, expires at the end
of FY 2009. H.R. 5057, the ``Debbie Smith Reauthorization
Act,'' would renew the law and authorize $151 million for each
fiscal year 2009-2014.
Legislative History.--Rep. Carolyn Maloney (D-NY)
introduced H.R. 5057 on January 17, 2008. The Subcommittee held
one day of hearings on H.R. 5057, on April 10, 2008. Testimony
was received from Representative Maloney; Dr. David W. Hagy,
Director, National Institute of Justice, Office of Justice
Programs, U.S. Department of Justice; Peter Marone, Director,
State of Virginia Crime Labs; Peter Neufeld, Esq., Co-founder
and Co-Director of the Innocence Project; and Allen Newton, who
was exonerated through post-conviction DNA testing, with
additional material submitted by Human Rights Watch and the
American Civil Liberties Union.
On May 13, 2008, the Subcommittee ordered the bill H.R.
5057 favorably reported, without amendment, by voice vote and
on June 11, 2008, the full Committee met and ordered the bill
favorably reported with an amendment, by voice vote. On July
14, 2008, on motion to suspend the rules and pass H.R. 5057,
the House of Representatives passed the bill by voice vote and
referred the bill to the Senate. On September 25, 2008, the
Senate passed H.R. 5057 as an amendment in the nature of a
substitute by Unanimous Consent and referred the bill back to
the House. On September 27, 2008, on motion to suspend the
rules and pass H.R. 5057, the House passed the bill and on
October 8, 2008, President Bush signed H.R. 5057, which became
Public Law 110-360.
H.R. 5352, the ``Elder Abuse Victims Act of 2008''
Summary.--H.R. 5352 addresses the growing problem of elders
victimized by criminal conduct. It requires the Attorney
General to research and report on State laws and practices
relating to elder abuse and to develop a long-term plan and
objectives. It requires the Comptroller General to make
recommendations regarding Federal law. It authorizes the
Attorney General to award grants for training and assistance to
local and State prosecutors, courts, police and other first
responders in elder justice matters, and to facilitate and
coordinate programs for victims of elder abuse.
Legislative History.--H.R. 5352 was introduced on February
12, 2008 and referred to the Judiciary Committee. The
Subcommittee on Crime, Terrorism, and Homeland Security held
one day of hearings on April 17, 2008. Testimony was received
from Representative Rahm Emanuel (IL-5), sponsor of H.R. 1783;
Rep. Joe Sestak (PA-7), sponsor of H.R. 5352; Rep. Ron Klein
(FL-22), sponsor of H.R. 5464; Robert Blancato, Elder Justice
Coalition; Sherry Friedlander, A Child is Missing Alert and
Recovery Center; and Vernon Keenan, Georgia Bureau of
Investigation. On May 13, 2008, the Subcommittee met in open
session and ordered the bill favorably reported, without
amendment, by voice vote. On June 11, 2008, the Committee met
in open session and ordered the bill favorably reported with an
amendment, by voice vote.
The bill also was referred to the House Ways and Means
Committee. That referral was discharged on September 22, 2008.
On September 23, 2008, the House suspended the rules and passed
H.R. 5352, as amended, by voice vote: 387-28.
H.R. 5464, the ``A Child Is Missing Alert and Recovery Center Act''
Summary.--H.R. 5464 addresses the need for a quick response
by law enforcement when a child ``goes missing.'' The bill
authorizes annual grants to the A Child Is Missing Alert and
Recovery Center, a national non-profit organization, to operate
and expand the program and technologies necessary to assist law
enforcement agencies in the rapid recovery of missing
individuals.
Legislative History.--H.R. 5464 was introduced on February
14, 2008 and referred to the Judiciary Committee. The
Subcommittee on Crime, Terrorism, and Homeland Security held
one day of hearings on April 17, 2008. Testimony was received
from Rep. Ron Klein, the sponsor of the bill; Sherry
Friedlander-Olsen, founder and CEO of A Child is Missing Alert
and Recovery Center; and Vernon Keenan, Director of Georgia
Bureau of Investigation. On May 13, 2008, the Subcommittee met
in open session and ordered the bill favorably reported without
amendment, by voice vote. On May 14, 2008, the Committee met in
open session and ordered the bill favorably reported without
amendment, by a voice vote. On July 14, 2008, the House
suspended the rules and passed the bill by voice vote.
H.R. 5689, the ``Smuggled Tobacco Prevention Act of 2008''
Summary.--Introduced by Representative Lloyd Doggett, H.R.
5689 amends the Internal Revenue Code to require all packages
of tobacco products for export to be clearly labeled for export
to prevent illegal reentry into the U.S. The bill also
prohibits retaliation against whistleblowers, raises the $1,000
civil penalty for tobacco product violations to $10,000, and
allows a State tobacco tax authority to bring a civil action in
U.S. district court for collection of State cigarette taxes.
Legislative History.--Introduced on April 3, 2008, H.R.
5689 was referred to the Subcommittee on April 14, 2008. The
Subcommittee held 1 day of hearings on H.R. 5689 on May 1,
2008. Testimony was received from Representative Anthony Weiner
(D-NY); Representative Dale E. Kildee (D-MI); Arian Melendez,
Chairman, Reno-Sparks Indian Colony; Matthew L. Myers,
President, Campaign for Tobacco-Free Kids; Steve Rosenthal, New
York State Association of Wholesale Marketers; John Colledge,
Independent Consultant; and David Lapp, Chief Counsel, Tobacco
Enforcement Unit, Office of the Attorney General of Maryland.
No further action was taken on the bill.
H.R. 5898, the ``Silver Alert Grant Program Act of 2008''
Summary.--H.R. 5898 addresses the growing problem of
elderly persons who ``go missing'' as a result of dementia or
other illness. It authorizes a grant program for State-
administered notification systems to help locate missing
persons suffering from Alzheimer's disease and other dementia
related illnesses. The grants are to be used to establish and
implement State Silver Alert systems or to make improvements to
existing State Silver Alert programs.
Legislative History.--H.R. 5898 was introduced on April 24,
2008 and referred to the Judiciary Committee. On July 15, 2008,
the Subcommittee on Crime, Terrorism, and Homeland Security
held one day of hearings on H.R. 5898, and related bills H.R.
6064, the ``National Silver Alert Act,'' and H.R. 423,
``Kristen's Act Reauthorization of 2007.'' Testimony was
received from Rep. Lloyd Doggett (TX-25), sponsor of H.R. 6064;
Rep. Gus Bilirakis (FL-9), sponsor of H.R. 5898; and Rep. Sue
Wilkins Myrick (NC-09), sponsor of H.R. 423. On July 30, 2008,
the Committee met in open session on related bill H.R. 6064,
and ordered that bill favorably reported with an amendment that
incorporated much of H.R. 5898. On September 17, 2008, the
House voted to suspend the rules and passed H.R. 6064, as
amended, by voice vote.
H.R. 5938, the ``Former Vice President Protection Act of 2008''
Summary.--H.R. 5938, authorizes the United States Secret
Service to protect the former Vice Presidents of the United
States, their spouses, and their children under the age of 16,
for not more than six months after the Vice President leaves
office. The bill would also allow protection to continue should
circumstances warrant the extension.
Legislative History.--Representative John Conyers (D-MI)
introduced H.R. 5938 on May 1, 2008. The Committee on the
Judiciary held no hearings on H.R. 5938. On May 13, 2008, the
Subcommittee ordered the bill H.R. 5938 favorably reported,
without amendment, by voice vote, and on May 14, 2008, the full
Committee ordered the bill favorably reported without
amendment. On June 9, 2008, on motion to suspend the rules and
pass H.R. 5938, the House of Representatives passed the bill
and referred it to the Senate. On July 30, 2008, H.R. 5938
passed the Senate with amendments by Unanimous Consent and was
referred back to the House. On September 15, 2008 on motion to
suspend the rules and pass H.R. 5938, the House passed the
bill. On September 26, 2008, President Bush signed the bill,
which became Public Law 110-326.
H.R. 6083, To authorize funding to conduct a national training program
for State and local prosecutors.
Summary.--H.R. 6083 will authorize the United States
Attorney General to grant funding for providing State and local
prosecutors with specialized training to prosecute difficult
crimes such as child/elder abuse, identity theft, gang-related
activities, and in complex evidentiary issues such as the use
of DNA.
Legislative History.--H.R. 6083 was introduced by
Representative John Spratt (SC 5) on May 19, 2008. The
Committee on the Judiciary held no hearings on H.R. 6083. On
July 16, 2008 the full Committee ordered H.R. 6083 favorably
reported with an amendment, by voice vote. On July 31, 2008, on
motion to suspend the rules and pass H.R. 6083, the House of
Representatives passed the bill by voice vote and referred the
bill to the Senate. On September 30, 2008, the Senate passed
the bill by unanimous consent without amendment and on October
15, 2008, President Bush signed the bill, which became Public
Law 110-424.
H.R. 6295/S. 3598, Drug Trafficking Vessel Interdiction Act of 2008
Summary.--H.R. 6295 makes the operation of a self-
propelled, stateless, semi-submersible or fully submersible
vessel on an international voyage, a felony offense under title
18 United States Code. Illicit self-propelled submersibles or
SPSSes are a growing national security threat identified by the
United States Coast Guard and require Congressional action.
Legislative History.--Representative Dan Lungren (CA-3)
introduced H.R. 6295 on June 18, 2008. The Committee held no
hearings on this legislation and had no mark up. On July 27,
2008, upon motion to suspend the rules and pass H.R. 6295, the
House of Representatives agreed to the bill by voice vote. On
September 25, 2008, Senator Inouye (HI) introduced S. 3598, an
amended form of H.R. 6295, which on the same date passed by
Unanimous Consent without amendment and was referred to the
House of Representatives. On September 29, 2008, on motion to
suspend the rules and pass the bill, the House passed S. 3598
without amendment by voice vote. On October 3, 2008, President
Bush signed the bill, which became Public Law 110-407.
H.R. 6064, the ``National Silver Alert Act''
Summary.--H.R. 6064, Title I, the ``National Silver Alert
Act,'' addresses the growing problem of older adults who ``go
missing'' each year as a result of dementia, diminished
capacity, foul play or other unusual circumstances. It
establishes a national Silver Alert program, based on the
successful Amber Alert program for children. The Act authorizes
the Attorney General to provide grants to States for local
Silver Alert plans and communications networks. The Act also
authorizes the Attorney General to award grants under the Sammy
Kirk Electronic Monitoring Program to States and local
governments for programs providing voluntary electronic
monitoring services to elderly individuals. Title II of H.R.
6064, ``Kristen's Act Reauthorization of 2008,'' reauthorizes
an existing grant program, and directs the Attorney General to
make competitive grants to public agencies and nonprofit
private organizations for maintenance of a national resource
center and information clearinghouse, a national database for
tracking missing adults, training, and other related
activities.
Legislative History.--H.R. 6064 was introduced on May 15,
2008 and referred to the Judiciary Committee. On July 15, 2008,
the Subcommittee on Crime, Terrorism, and Homeland Security
held one day of hearings on H.R. 6064, and related bills H.R.
5898, the ``Silver Alert Grant Program Act of 2008,'' and H.R.
423, ``Kristen's Act Reauthorization of 2007.'' Testimony was
received from Rep. Lloyd Doggett (TX-25), sponsor of H.R. 6064;
Rep. Gus Bilirakis (FL-9), sponsor of H.R. 5898; and Rep. Sue
Wilkins Myrick (NC-9), sponsor of H.R. 423. On July 30, 2008,
the Committee met in open session and ordered the bill
favorably reported, with an amendment, by voice vote. The
amendments merged two other bills, H.R. 5898, the ``Silver
Alert Grant Program Act'' and H.R. 423, the ``Kristen's Act
Reauthorization of 2007,'' with the main bill, H.R. 6064. On
September 17, 2008, the House voted to suspend the rules and
passed H.R. 6064, as amended, by voice vote.
H.R. 6491, the ``Organized Retail Crime Act of 2008''
Summary.--H.R. 6491 addresses the serious problem of
organized retail crime and its use of the internet to
perpetuate crime. H.R. 6491 adds to existing federal laws that
prohibit the transportation, sale or receipt of stolen goods by
adding language indicating that such conduct is prohibited when
committed through organized retail crime. The bill also adds
the new crime of facilitation of organized retail crime. It
makes it unlawful for online marketplace operators to
facilitate organized retail crime by failing to conduct
internal investigations and ``take-down'' suspected sites; by
failing to maintain certain records; by failing to require high
volume sellers to publicly disclose certain identifying
information on the Internet; and by failing to provide certain
contact information to businesses who have a reasonable
suspicion that online products offered for sale were obtained
by ORC. The bill provides for civil forfeiture and a civil
cause of action for injunctive relief or damages against online
marketplace operators. Finally, H.R. 6491 directs the United
States Sentencing Commission to review and, if appropriate,
amend the sentencing guidelines for organized retail crime.
Legislative History.--H.R. 6491 was introduced on July 15,
2008, and referred to the Judiciary Committee. On September 11,
2008, the Subcommittee on Crime, Terrorism, and Homeland
Security held one day of hearings on H.R. 6491 and related
bills, and testimony was received by Rep. Brad Ellsworth (D-
IN), sponsor of H.R. 6491; Frank Muscato, Organized Retail
Crime Field Investigator, Walgreens; Sheriff Grady Judd, Polk
County Sheriff's Office; Steve DelBianco, Executive Director,
Net Choice; Edward Torpoco, Senior Regulatory Counsel, eBay
Inc.; and Joseph J. LaRocca, Vice President, Loss Prevention,
National Retail Federation. The Subcommittee on Crime,
Terrorism, and Homeland Security previously had held one day of
hearings on the general problem of organized retail crime on
October 25, 2007, and testimony was received by Brad Brekke,
Vice-President of Assets Protection, Target Corporation; David
Hill, Detective, Montgomery County Police Department; Karl F.
Langhorst, Director of Loss Prevention, Randalls/Tom Thumb Food
and Pharmacy; and Robert Chestnut, Senior Vice-President of
Rules, Trust and Safety, eBay Inc.
H.R. 6503, the ``Missing Alzheimer's Disease Patient Alert Program
Reauthorization of 2008''
Summary.--The Missing Alzheimer's Disease Patient Alert
Program, administered by the Department of Justice, is the only
federal program that currently provides grant funding to locate
vulnerable elderly individuals who go missing. H.R. 6503
reauthorizes and modifies this program. The bill authorizes the
Attorney General to award competitive grants to nonprofit
organizations for planning, designing, establishing, and
operating locally based, proactive programs to protect and
locate missing patients with Alzheimer's disease and related
dementias, and other missing elderly individuals.
Legislative History.--H.R. 6503 was introduced on July 15,
2008 and was referred to the Judiciary Committee. The
Subcommittee on Crime, Terrorism, and Homeland Security did not
have a hearing specifically on this bill, but held one day of
hearings, on July 15, 2008, on the problem of elders who go
missing as a result of dementia and diminished capacity.
Testimony was received from Rep. Lloyd Doggett (TX-25), sponsor
of H.R. 6064; Rep. Gus Bilirakis (FL-9), sponsor of H.R. 5898;
and Rep. Sue Wilkins Myrick (NC-9), sponsor of H.R. 423. On
July 30, 2008, the Committee met in open session and ordered
H.R. 6503 favorably reported without amendment, by voice vote.
H.R. 6597, the ``Animal Cruelty Statistics Act of 2008''
Summary.--H.R. 6597 recognizes the importance of data
regarding animal cruelty crimes and directs the Attorney
General to make appropriate changes to existing crime databases
so that data on animal cruelty crimes will be collected and
made available to the public.
Legislative History.--H.R. 6597 was introduced by Mr. John
Conyers, Jr. on September 24, 2008, and referred to the
Judiciary Committee. The Subcommittee on Crime, Terrorism, and
Homeland Security held one day of hearings on July 31, 2008.
Testimony was received from Liz Ross, Federal Policy Advisor,
Animal Welfare Institute; the Honorable Charles W. Stenholm,
Former Member of Congress and Senior Policy Advisor at Olsson
Frank Weeda Terman Bode Matz PC; Dr. John Boyd, Jr., President,
National Black Farmers Association; Dr. Douglas G. Corey, DVM
and Past President of the American Association of Equine
Practitioners; Dr. Nicholas Dodman, DVM and Professor, Section
Head and Program Director, Animal Behavior Department of
Clinical Sciences, Tufts' Cummings School of Veterinary
Medicine and founding member of Veterinarians for Equine
Welfare; and Wayne Pacelle, President and Chief Executive
Officer of the Humane Society of the United States.
H.R. 6598, the ``Prevention of Equine Cruelty Act of 2008''
Summary.--H.R. 6598 seeks to stop the slaughter of horses
for human consumption that currently occurs across our borders
in Mexico and Canada. The bill makes it illegal to possess,
ship, transport, purchase, sell, deliver or receive any horse
with the intent that it is to be slaughtered for human
consumption. The bill also makes it illegal to engage in the
above conduct with respect to horse flesh or carcass with the
intent that it be used for human consumption. The crime is
punishable as either a misdemeanor or felony depending on the
circumstances of the offense.
Legislative History.--H.R. 6598 was introduced by Mr. John
Conyers, Jr. (MI-14) on September 24, 2008, and referred to the
Judiciary Committee. The Subcommittee on Crime, Terrorism, and
Homeland Security held one day of hearings on July 31, 2008.
Testimony was received from Liz Ross, Federal Policy Advisor,
Animal Welfare Institute; the Honorable Charles W. Stenholm,
Former Member of Congress and Senior Policy Advisor at Olsson
Frank Weeda Terman Bode Matz PC; Dr. John Boyd, Jr., President,
National Black Farmers Association; Dr. Douglas G. Corey, DVM
and Past President of the American Association of Equine
Practitioners; Dr. Nicholas Dodman, DVM and Professor, Section
Head and Program Director, Animal Behavior Department of
Clinical Sciences, Tufts' Cummings School of Veterinary
Medicine and founding member of Veterinarians for Equine
Welfare; and Wayne Pacelle, President and Chief Executive
Officer of the Humane Society of the United States. The
Committee met in open session to consider H.R. 6598 on
September 10, 2008, September 17, 2008 and September 23, 2008.
On September 23, 2008, the Committee ordered the bill favorably
reported with an amendment, by a voice vote.
H.R. 6713, the ``E-fencing Enforcement Act of 2008''
Summary.--H.R. 6713 addresses the serious problem of
organized retail crime and its use of the internet to
perpetuate crime by imposing duties on online marketplace
providers with respect to high volume online sellers. These
duties include a duty to retain contact information about high
volume sellers and to disclose that information to certain
persons with standing when a report has been made by or to law
enforcement regarding theft by that seller. It also imposes a
duty to initiate an internal investigation, based on available
or easily obtained information, and to take-down a site when
there is good reason to believe the goods or items offered for
sale were unlawfully acquired. It expressly acknowledges that
existing law already criminalizes knowing participation by
online marketplace providers in passing stolen property. The
bill creates a civil cause of action for persons aggrieved by a
provider's failure to comply with these duties.
Legislative History.--H.R. 6713 was introduced by Rep.
Bobby C. Scott (VA-03) on July 31, 2008, and referred to the
Judiciary Committee. On September 11, 2008, the Subcommittee on
Crime, Terrorism, and Homeland Security held one day of
hearings on H.R. 6713 and related bills, and testimony was
received by Rep. Brad Ellsworth (IN-08), sponsor of H.R. 6491;
Frank Muscato, Organized Retail Crime Field Investigator,
Walgreens; Sheriff Grady Judd, Polk County Sheriff's Office;
Steve DelBianco, Executive Director, Net Choice; Edward
Torpoco, Senior Regulatory Counsel, eBay Inc.; and Joseph J.
LaRocca, Vice President, Loss Prevention, National Retail
Federation.
The Subcommittee on Crime, Terrorism, and Homeland Security
previously had held one day of hearings on the general problem
of organized retail crime on October 25, 2007, and testimony
was received by Brad Brekke, Vice-President of Assets
Protection, Target Corporation; David Hill, Detective,
Montgomery County Police Department; Karl F. Langhorst,
Director of Loss Prevention, Randalls/Tom Thumb Food and
Pharmacy; and Robert Chestnut, Senior Vice-President of Rules,
Trust and Safety, eBay Inc.
H.R. 6838, the ``Campus Safety Act of 2008''
Summary.--H.R. 6838 will help institutions of higher
learning understand how to respond and even help prevent
tragedies such as campus shootings. The bill creates a National
Center of Campus Public Safety, which will be administered
through Department of Justice. The Center will train campus
public safety agencies, promote research into strengthening
campus safety, and be a clearinghouse for disseminating safety
information. The Director of the Center will have authority to
award grants to institutions of higher learning to help them
meet their enhanced public safety goals.
Legislative History.--Representative Bobby Scott (VA-3)
introduced H.R. 6838 on September 8, 2008. The Subcommittee
held no hearings on the bill. On September 27, 2008, on motion
to suspend the rules and pass H.R. 6838, the House of
Representatives passed the bill and referred it to the Senate.
There was no further action on H.R. 6838.
S. 973, the ``Restitution for Victims of Crime Act of 2007,'' H.R.
4110, the ``Restitution for Victims of Crime Act of 2007,'' and
H.R. 845, the ``Criminal Restitution Improvement Act''
Summary.--S. 973, H.R. 4110, and H.R. 845 each propose
reforms to federal restitution laws to address the roughly 87%
of uncollected restitution and fines. Each of the proposals
also authorizes the government to seek a court order to freeze
a defendant's assets in anticipation that the defendant will
have to pay restitution to a crime victim.
Legislative History.--Senator Byron Dorgan of North Dakota
introduced S. 973 on March 22, 2007, Representative Carol Shea-
Porter (NH-1) introduced H.R. 4110 on November 7, 2007, and
Representative Steve Chabot (OH-1) introduced H.R. 845 on
February 6, 2007. On April 3, 2008 the Subcommittee held
simultaneous hearings on S. 973, H.R. 4110, and H.R. 845. The
subcommittee heard testimony from Senator Dorgan; Jonathan
Turley, Professor of Law, George Washington University Law
School; David B. Smith, Esq., English & Smith; Andrew Weissman,
Esq., Jenner & Block, LLP; and, Judge Paul G. Cassell,
Professor, University of Utah, S.J. Quinney College of Law.
There was no further action on these legislative proposals.
S. 2135, the ``Child Soldiers Accountability Act of 2008''
Summary.--On October 3, 2007, Senator Richard Durbin
introduced S. 2135, the ``Child Soldiers Accountability Act of
2008.'' S. 2135 makes it a federal crime to recruit or use
child soldiers under the age of 15 and allows for the
prosecution of individuals, regardless of whether or not the
crime was committed in the U.S. The bill imposes penalties of
up to 20 years to life in prison, and also allows the U.S.
government to deport or deny entry to individuals who have
recruited children as soldiers.
Legislative History.--Introduced on October 3, 2007, S.
2135 was referred to the Subcommittee on February 4, 2008. The
Subcommittee held 1 day of hearings on S. 2135 on April 8,
2008. Testimony was received from Grace Akallo, a former child
soldier; Tom Malinowski, Washington Advocacy Director, Human
Rights Watch. On May 6, 2008, the Subcommittee ordered the
bill, S. 2135, favorably reported, by voice vote. On September
8, 2008, the bill passed the House, as amended, under
suspension of the rules, by a recorded vote of 371-0. On
September 16, 2008, the Senate agreed to House amendment by
Unanimous Consent. On October 3, 2008, the bill was signed by
the President and became Public Law No. 110-340.
S. 3434, the ``Combating Organized Retail Crime Act of 2008''
Summary.--S. 3434 addresses the serious problem of
organized retail crime and its use of the internet to
perpetuate crime by expanding existing criminal code and
imposing duties on online retail providers. It expands the
reach of existing federal crimes on stolen goods by decreasing
the value of goods that would trigger federal jurisdiction. It
directs the United States Sentencing Commission to review and,
if appropriate, amend the federal sentencing guidelines as they
apply to organized retail crime. The bill imposes duties on
both online retail marketplace operators and operators of
physical marketplaces to report suspicious activities to the
Attorney General and in certain circumstances to terminate a
vendor or user's sales activities. Online marketplace operators
must maintain certain records for three years and must require
sellers to display their contact information along with product
information. The bill imposes civil penalties and grants a
State Attorney General the authority to bring a civil action on
behalf of citizens of its State for injunctive relief, damages,
or civil penalties.
Legislative History.--S. 3434 was introduced on August 1,
2008. On September 11, 2008, the Subcommittee on Crime,
Terrorism, and Homeland Security held one day of hearings on S.
3434 and two related House bills, and testimony was received by
Rep. Brad Ellsworth (IN-08), sponsor of H.R. 6491; Frank
Muscato, Organized Retail Crime Field Investigator, Walgreens;
Sheriff Grady Judd, Polk County Sheriff's Office; Steve
DelBianco, Executive Director, Net Choice; Edward Torpoco,
Senior Regulatory Counsel, eBay Inc.; and Joseph J. LaRocca,
Vice President, Loss Prevention, National Retail Federation.
The Subcommittee on Crime, Terrorism, and Homeland Security
previously had held one day of hearings on the general problem
of organized retail crime on October 25, 2007, and testimony
was received by Brad Brekke, Vice-President of Assets
Protection, Target Corporation; David Hill, Detective,
Montgomery County Police Department; Karl F. Langhorst,
Director of Loss Prevention, Randalls/Tom Thumb Food and
Pharmacy; and Robert Chestnut, Senior Vice-President of Rules,
Trust and Safety, eBay Inc.
S. 3641, A bill to authorize funding for the National Crime Victim Law
Institute to provide support for victims of crime under Crime
Victims Legal Assistance Programs as a part of the Victims of
Crime Act of 1984
Summary.--S. 3641 reauthorizes funding for the National
Crime Victim Law Institute in support of crime victims legal
assistance programs.
Legislative History.--Senator Kyl (AZ) introduced S. 3641
on September 27, 2008, and on the same date passed it by
Unanimous Consent without amendment and referred it to the
House of Representatives Committee on the Judiciary. On October
2, 2008, on motion to suspend the rules and pass the bill, S.
3641 passed the House by recorded vote 295-115. On October 15,
2008, President Bush signed the bill, which became Public Law
110-431.
Oversight Activities
Hearing on: ``Making Communities Safer: Youth Violence and Gang
Interventions that Work''
Summary.--This hearing on February 15, 2007 examined
several successful evidence based approaches that reduce youth
violence and have kept young people out of gangs. Collaborative
and comprehensive approaches to community violence that create
working partnerships between law enforcement and prevention/
intervention groups are proven to work. Prevention and
intervention programs keep children from getting into trouble
and pull children out of trouble. These programs also save
lives, and significantly reduce taxpayer costs. For every child
diverted from a lifetime of crime, we save between $1.3 and
$1.5 million--a conservative estimate, since potential benefits
such as better salaries and reduced public service costs
outside the justice system are difficult to measure. Testimony
was received and heard from Professor Delbert (Del) Elliott,
Director of the Center for the Study and Prevention of
Violence, University of Colorado; Dr. Jeffrey Butts, Senior
Researcher, Chapin Hall Center for Children, University of
Chicago; Dr. David Kennedy, Director, Center for Crime
Prevention and Control, John Jay College of Criminal Justice;
Mr. Teny Gross, Executive Director, Institute for the Study and
Practice of Nonviolence, Providence, RI; Ms. Mai Fernandez,
Legal and Strategy Director, Latin American Youth Center,
Washington, DC; Chief James Corwin, Chief of Police, Kansas
City, MO; Professor Lawrence W. Sherman, Director, Jerry Lee
Center of Criminology, University of Pennsylvania; and Mr. Paul
Logli, Chairman of the Board, National District Attorneys
Association.
Hearing on Criminal Justice Responses to Offenders with Mental Illness
Summary.--On March 27, 2007, the Subcommittee held a
hearing on Criminal Justice Responses to Offenders with Mental
Illness. People with mental illness are overrepresented in all
parts of the criminal justice system; in their contact with law
enforcement, in the courts, in jails and prisons, and in parole
and probation caseloads across the country. Current statistics
reflect this disturbing trend. As a recent Department of
Justice (DOJ) report on the problem revealed, more than half of
all prison and jail inmates, including 56 percent of state
prisoners, 45 percent of federal prisoners and 64 percent of
local jail inmates, were found to have a mental health problem.
The incidence of mental illness in America's prisons and jails
is well above that of the general population; the mental
illness incidence in the general population is approximately 5%
compared to an average 16% (high of 28%) in jails and prisons.
Moreover, individuals with mental illnesses are more likely to
be incarcerated for non-violent crimes, are more likely to
recidivate, and are more likely to serve a longer portion or
the maximum amount of their sentence than the general prison
population.
This hearing explored causes and potential solutions to
this problem and the Subcommittee heard testimony from: The
Honorable Steven Leifman, Judge, Criminal Division of Miami-
Dade County Court, Florida's 11th Judicial Circuit, Miami,
Florida; Lieutenant Richard Wall, Los Angeles Police Department
(LAPD), Los Angeles, CA; Sheriff David G. Gutierrez, Lubbock,
TX; Mr. Phillip Perry, Bonneville Mental Health Court, Idaho
Supreme Court, Boise, Idaho; and Mr. Leon Evans, Executive
Director, Jail Diversion Program, San Antonio, TX.
Hearing on the Katrina Impact on Crime and the Criminal Justice System
in New Orleans
Summary.--After Hurricane Katrina, many reported that New
Orleans was experiencing an extraordinary wave of crime,
particularly violent crime. The Judiciary Committee's
Subcommittee on Crime, Terrorism, and Homeland Security decided
to hold a hearing in New Orleans to gather information about
the effects of Hurricane Katrina on crime and criminal justice
in New Orleans, assess the continuing and unique challenges
facing New Orleans and determine whether the federal government
might further assist New Orleans.
Legislative History.--The Subcommittee on Crime, Terrorism,
and Homeland Security held a field hearing on April 10, 2007 at
Dillard University in New Orleans, Louisiana. Testimony was
received in four separate panels of witnesses by Mayor C. Ray
Nagin, Mayor of New Orleans; Oliver Thomas, Jr., President of
the New Orleans City Council; Rep. William J. Jefferson (LA-
02); Dr. Marvalene Hughes, President of Dillard University;
Eddie Jordan, Orleans Parish District Attorney; Warren Riley,
Chief of Police, New Orleans Police Department; Marlin N.
Gusman, Orleans Parish Criminal Sheriff; Jim Letten, United
States Attorney for the Eastern District of Louisiana; James
Bernazzani, FBI Special Agent In Charge, New Orleans; David
Harper, ATF Special Agent In Charge, New Orleans; William James
Renton, Jr., DEA Special Agent in Charge, New Orleans; Jacques
Thibodeaux, Acting Chief Deputy U.S. Marshal, Eastern District
of Louisiana; Judge Ernestine Gray, Orleans Parish Juvenile
Court; Dr. Howard Osofsky, Chair, Louisiana State University
Health Sciences Center, Department of Psychiatry; Reverend John
Raphael, New Hope Baptist Church, New Orleans; Peter Scharf,
Research Professor of Criminal Justice and Executive Director,
Center for Society, Law and Justice at Texas State University.
Hearing on Employer Access to Criminal Background Checks and the
Accuracy and Reliability of Such Checks
Summary.--The Subcommittee held a hearing on April 26, 2007
on employer access to criminal background checks and the
accuracy and reliability of such checks. There is private
sector interest in obtaining access to criminal history record
information for the purpose of screening an individual's
suitability for employment, licensing, or placement in
positions of trust. Currently, FBI rap sheets are only shared
with federal agencies, state law enforcement agencies, and for
certain private employers while many more employers also want
access to that information. On the other hand, individuals who
do have a criminal record want reasonable assurances that the
information is accurate and complete, that they have a
meaningful opportunity to see the information and correct
inaccuracies, and that the information is used fairly in the
screening process and does not unfairly exclude them from
employment opportunities.
The hearing explored the balance between the growing desire
of private industry to directly access criminal history
background checks and the need to ensure reliability of
background checks thereby reducing unfair barriers to
employment of people with criminal records. The Subcommittee
heard testimony from: Floyd Clarke, Vice President, Corporate
Compliance, Mac Andrews & Forbes Holdings; Barry LaCroix,
Executive Office of Public Safety, Massachusetts Criminal
History Record Systems Board; Maurice Emsellem, National
Employment Law Project; Mr. Frank Campbell, Deputy Assistant
Attorney General, Office of Legal Policy, United States
Department of Justice; Mr. Ronald P. Hawley, Executive
Director, SEARCH, The National Consortium for Justice
Information and Statistics; Mr. Robert Davis, International
Vice President and National Legislative Director,
Transportation Communications International Union; and Sharon
Dietrich, Managing Attorney, Employment and Public Benefits,
Community Legal Services.
Hearing on Mandatory Minimum Sentencing Laws--The Issues
Summary.--The Subcommittee on Crime, Terrorism, and
Homeland Security held a hearing on June 26, 2007 that explored
mandatory minimum sentencing and the potential to reform
federal law in this area. Witnesses discussed several high
profile cases where mandatory minimum statutes have resulted in
particularly unfair sentences. Testimony was received and heard
from the Honorable Paul G. Cassell, Judge of the United States
District Court for the District of Utah, representing the U.S.
Judicial Conference; Mr. Richard B. Roper, III, United States
Attorney, Northern District of Texas; The Honorable Ricardo H.
Hinojosa, Chair of the United States Sentencing Commission;
Marc Mauer, Executive Director, The Sentencing Project; Mr.
T.J. Bonner, the National President of the National Border
Patrol Council of the American Federation of Government
Employees of the AFL-CIO; and Serena Nunn, recent graduate of
University of Michigan School of Law and former federal
offender who served more than a decade in prison for conspiracy
to distribute cocaine as a result of her boyfriend's drug
dealing.
One of the cases examined during the hearing was the
convictions of Border Patrol Agents Ignacio Ramos and Jose
Compean. On March 8, 2006, a jury found U.S. Border Patrol
Agents Ramos and Compean guilty of: (1) assault with a
dangerous weapon (2) assault resulting in serious bodily
injury, and aiding and abetting an assault resulting in serious
bodily injury; (3) discharge of a firearm in relation to a
crime of violence (4) tampering with an official proceeding and
(5) deprivation of rights under color of law. The discharge of
a firearm in relation to a crime of violence, required a
mandatory 10-year sentence.
United States District Court Judge Kathleen Cardone
sentenced the two agents to 11 years and 1 day, and 12 years
respectively. She stated that she considered the conduct of the
victim and the risks to the agents in prison in sentencing them
to lenient sentences, but she could not reduce the 10-year
mandatory, consecutive sentence required under section 924.
The Drug Enforcement Administration's Regulation of Medicine
Summary.--The subcommittee held a hearing on July 12, 2007.
The purpose of the hearing was to explore numerous DEA programs
and policies, including the DEA's ``Oxycontin Action Plan,''
which targets for prosecution medical doctors who prescribe
large amounts of pain medication to their patients and
``Operation Meth Merchant,'' which targets suppliers and
convenience store owners/clerks who sell ephedrine. The hearing
also touched upon the DEA's policy of prosecuting medical
marijuana users and their use of questionable tactics to arrest
these users. The following witnesses appeared and submitted
written statements for the record: Joseph T. Rannazzisi, Deputy
Assistant Administrator, Office of Diversion Control, United
States Drug Enforcement Administration, United States
Department of Justice; David Murray, Director of Counter Drug
Technology, ONDCP; Dr. Edward J. Heiden, Ph.D., Heiden
Associates Inc.,; Valerie Corral, Founder of WAMM, Wo/Men's
Alliance for Medical Marijuana; Siobhan Reynolds, President,
Pain Relief Network; and John Flannery, Attorney, Campbell,
Miller, Zimmerman, PC.
Hearing to Reauthorize the Juvenile Justice and Delinquency Act
Summary.--The Subcommittee on Crime, Terrorism, and
Homeland Security held a joint hearing with the Education and
Labor Subcommittee on Healthy Families and Communities on the
``Reauthorization of the Juvenile Justice and Delinquency
Prevention Act of 1974'' on July 12, 2007. During the hearing
the committees jointly reviewed the implementation of the
Juvenile Justice and Delinquency Prevention Act of 1974 by the
Department of Justice Office of Juvenile Justice and
Delinquency Prevention during the past five years, and
considered reauthorization of the Act.
The following witnesses testified before the committees on
this issue: Mr. Derrick Johnson, Vice-Chair, Arizona Juvenile
Justice Commission, Phoenix, Arizona; Mr. David Freed,
Cumberland County District Attorney, Carlisle, Pennsylvania;
Mr. Paul Lawrence, Goffstown District Court, New Hampshire
State Juvenile Justice Advisory Group, Goffstown, New
Hampshire; Mr. Robert Shepherd, Jr., Emeritius Professor of
Law, University of Richmond School of Law, Richmond, Virginia;
Mr. Shannon Jones, former participant in the Community
Intensive Supervision Program, Pittsburgh, Pennsylvania; and
Ms. Jennifer Woolard, Ph.D., Assistant Professor of Psychology,
Georgetown University, Washington, D.C.
Confidential Informants
Summary.--The Subcommittee on Crime, Terrorism, and
Homeland Security and the Subcommittee on the Constitution,
Civil Rights, and Civil Liberties held a joint Oversight
Hearing on Law Enforcement Confidential Informant Practices on
July 19, 2007. This oversight hearing explored law enforcement
practices and their impact on civil and constitutional rights.
Certain practices relating to the use of confidential
informants, particularly in drug enforcement, have been
criticized. Despite its impact on the criminal justice system,
the practice has been subject to scant federal oversight. This
hearing explored the impact of the use of confidential
informants on plea bargaining, its affect on poor and minority
communities. The hearing also explored policies designed to
curb the potential for abuse of the use of confidential
informants. The following witnesses testifed: Wayne M. Murphy,
Assistant District Director of Intelligence, FBI; Professor
Alexandra Natapoff, Loyola Law School; Commander Pat O'Burke,
Deputy Commander, Narcotics Service, Texas Department of Public
Safety; Dorothy Johnson Speight, Founder, Mothers In Charge;
Ronald E. Brook, President, National Narcotic Officers'
Association Coalition; and Reverend Markel Hutchins, Minister
and Civil Rights Leader.
Hearing on the Implementation of the ``Law Enforcement Officers Safety
Act of 2004'' (Pub. L. No. 108-277) and additional legislative
efforts aimed at expanding the authority to carry concealed
firearms, including H.R. 2726, the ``Law Enforcement Officers
Safety Act of 2007''
Summary.--The Subcommittee held a hearing on September 6,
2007 on the implementation of the ``Law Enforcement Officers
Safety Act of 2004'' (Pub. L. No. 108-277) and additional
legislative efforts aimed at expanding the authority to carry
concealed firearms, including H.R. 2726, the ``Law Enforcement
Officers Safety Act of 2007.''
During the course of the hearing, the Subcommittee examined
three major issues. First, how the ``Law Enforcement Officers
Safety Act of 2004'' (Pub. L. No. 108-277) is being
implemented. Second, the Subcommittee examined arguments in
favor and against expanding the scope of H.R. 218. Finally, the
Subcommittee considered legislative proposals that would allow
Federal judges, prosecutors and other DOJ employees whose
``duties include representing the U.S. government in a court of
law'' to carry concealed weapons in Federal courthouses and
other public and private places. Witnesses for the hearing
were: Chief Scott Knight, the International Association of
Chiefs of Police; Sheriff Craig Webre, President, National
Sheriff's Association, Alexandria, VA; and a representative of
the Fraternal Order of Police.
Gang Crime Hearing
Summary.--The Subcommittee held a hearing on October 2,
2008 on ``Gang Crime Prevention and the Need to Foster
Innovative Solutions at the Federal Level.'' This hearing
focused on determining an appropriate response to gang crime in
the United States. Witnesses discussed several pending
Congressional legislative proposals, alternative approaches to
stemming violence, and the appropriateness of federal law
enforcement in criminal activity traditionally addressed by the
states. The legislative proposals examined were S. 456,
sponsored by Senator Dianne Feinstein (D-CA), H.R. 3547,
sponsored by Representative Adam Schiff (CA 29th), which is
similar to S. 456 and H.R. 3846, the Youth Prison Reduction
through Opportunities, Mentoring, Intervention, Support and
Education Act, sponsored by Rep. Robert C. ``Bobby'' Scott.
There were two panels of witnesses. Panel I consisted of
Members of Congress including: the Honorable Adam B. Schiff,
(D-CA); Honorable Joe Baca, (D-CA); the Honorable Elijah E.
Cummings, (D-MD); the Honorable Jerry McNerney, (D-CA); and the
Honorable Nick Lampson, (D-TX). Panel II consisted of juvenile
justice experts including: the Honorable Jerrauld C. Jones,
Judge, Norfolk Juvenile and Domestic Relations District Court;
Dr. Peter Scharf, Executive Director, Center for Society, Law
and Justice, Austin, Texas; and Brian W. Walsh, Senior Legal
Research Fellow, Center for Legal and Judicial Studies, the
Heritage Foundation, Washington, D.C.
Hearing on ``Allegations of Selective Prosecution: The Erosion of
Public Confidence in our Federal Justice System''
Summary.--The Subcommittee on Crime, Terrorism and Homeland
Security and the Subcommittee on Commercial and Administrative
Law held a joint hearing titled ``Allegations of Selective
Prosecution: The Erosion of Public Confidence in our Federal
Justice System'' on October 11, 2007. Witnesses at the hearing
were Professor Donald C. Shields, former Attorney General
Richard Thornburgh, and former Alabama U.S. Attorney Doug
Jones.
The Judiciary Committee's ongoing investigation into the
firing of U.S. Attorneys revealed accusations of politicization
within the Department of Justice and this hearing was an
extension of that investigation. Questions whether political
considerations have improperly influenced prosecutorial
judgment have been raised in numerous cases around the country.
The witnesses for this hearing testified about the proper role
of the Department and its rightful independence from political
influence in administering justice.
Hearing on Organized Retail Theft Prevention: Fostering a Comprehensive
Public-Private Response
Summary.--On October 25, 2007, the Subcommittee held a
hearing on Organized Retail Theft Prevention: Fostering a
Comprehensive Public-Private Response. The significant growth
in retail theft and the need to foster comprehensive,
innovative solutions to prevent such acts from occurring has
been recently highlighted in several media publications. In
fact, a recent CNNMoney.com article suggested that as many as
79% of major retailers have been victims of organized retail
theft within the past year. This hearing explored this issue
and considered public as well private sector solutions that can
be implemented to address this growing problem.
The Subcommittee heard testimony from four witnesses: Mr.
Brad Brekke, Vice-President of Assets Protection, Target
Corporation; Mr. David Hill, Detective, Montgomery County
Police Department; Mr. Karl F. Langhorst, Director of Loss
Prevention, Randalls/Tom Thumb Food and Pharmacy; and Mr.
Robert Chestnut, Senior Vice-President of Rules, Trust and
Safety, eBay Inc.
Oversight Hearing on State-Run Juvenile Boot Camps
Summary.--The Subcommittee held a hearing on December 13,
2007 on State-run alternative juvenile correctional facilities,
commonly referred to as ``boot camps.'' This hearing focused on
the alleged abuses at state juvenile correctional facilities,
commonly known as ``boot camps.''
Boot camps are modeled after military training camps, and
can be either public or private. In October 2007, the Committee
on Education and Labor held a hearing on privately run boot
camps in which the Government Accounting Office provided
testimony detailing widespread allegations of abuse. In fact,
the GAO report cites 1619 staff members being involved in
allegations of abuse in 33 states in 2005 alone. The study
found that ineffective management led to hiring untrained
staff, lack of proper nourishment for participants, and
reckless and abusive operating practices. The study concluded
that these factors played significant roles in three deaths.
Witnesses testified about the ineffectiveness of the `boot
camp' concept, and poor oversight, which has led to serious
abuses including deaths and included Adora Obi Nweze, President
of the Florida NAACP; Professor Doris MacKenzie, University of
Maryland; and Audrey Gibson, State Representative of Florida's
15th State District (Jacksonville).
Hearing on Enforcement of Federal Criminal Law to Protect Americans
Working for U.S. Contractors in Iraq
Summary.--On December 18, 2007, the Subcommittee held a
hearing on ``Enforcement of Federal Criminal Law to Protect
Americans Working for U.S. Contractors in Iraq'' to probe
charges concerning a lack of federal law enforcement protection
for Americans who work as contract employees in Iraq, and
concerning allegations of illegal conduct by some corporate
contractors there. As a key example, the hearing will focus on
charges that one of those Americans was raped and falsely
imprisoned in violation of federal law but that no enforcement
action has been taken.
The subcommittee heard testimony from Jamie Leigh Jones, a
former employee of Kellogg Brown and Root (KBR) in Iraq;
Representative Ted Poe (D-TX); and Professor Scott Horton of
Columbia University, an expert on the laws governing
contractors.
Enforcement of Federal Espionage Laws
Summary.--On January 29, 2008, the subcommittee held a
hearing to examine federal efforts to enforce current espionage
laws and successful prosecutions under these laws. The hearing
also examined the coordination between law enforcement agencies
in investigating and prosecuting espionage cases and whether
additional resources or laws are needed to continue effectively
combating espionage.
The following witnesses appeared and submitted a written
statement for the record: The Honorable J. Patrick Rowan,
Principal Deputy Assistant Attorney General, National Security
Division, United States Department of Justice; David G. Major,
President, The Centre for Counterintelligence and Security
Studies, Alexandria, VA; Larry M. Wortzel, Ph.D., Chairman,
United States-China Economic and Security Review Commission.
DHS Oversight
Summary.--The subcommittee held a hearing of the Department
of Homeland Security (DHS) Law Enforcement Operations on March
11, 2008. The purpose of the hearing was to examine witnesses
from the DHS law enforcement agencies who presented testimony
and answered questions about their law enforcement activities,
interagency responsibilities and activities, their mission
accomplishments, how they balance meeting the mission
challenges while respecting the liberty interest of Americans,
and their expected needs to meet arising challenges.
Witnesses for this hearing were: Dana A. Brown, Director,
Federal Air Marshal Service and Assistant Director for Law
Enforcement for Transportation Security Administration; Jeffrey
Self, Southwest Border Chief, Office of Border Patrol, U.S.
Customs and Border Protection; Ray Parmer, Deputy Director for
Investigations, U.S. Immigration and Customs Enforcement;
Michael Stenger, Assistant Director for Investigations, U.S.
Secret Service; and Rear Admiral Wayne Justice, Assistant
Commandant for Capability and Director of Response Policy, U.S.
Coast Guard.
The application history for grants authorized by the ``Innocence
Protection Act'' (Title IV of PL 108-405)
Summary.--The subcommittee held a hearing on April 10, 2008
on H.R. 5057, the ``Debbie Smith Reauthorization Act of 2008''
(reauthorizing Title II of PL 108-405) and on the application
history for grants authorized by the ``Innocence Protection
Act'' (Title IV of PL 108-405). The Innocence Protection Act
authorizes the Attorney General to grant funding to states for
post-conviction DNA testing of individuals to help ascertain
whether individuals have been wrongly convicted. At the time of
the hearing (and at the time of this writing) there had been
215 post-conviction exonerations through DNA testing in the
United States since 1989.\222\ The exonerations have been
throughout the United States, spanning 32 states. Sixteen of
the 215 exonorees were on death row, and the true suspects and/
or perpetrators have been identified in 82 of the DNA
exoneration cases.\223\
---------------------------------------------------------------------------
\222\ http://www.innocenceproject.org/Content/351.php
\223\ Id.
---------------------------------------------------------------------------
The success of post-conviction DNA is evident by the
exonerations it has yielded and it has the potential to
exonerate hundreds more of the wrongfully convicted.
Unfortunately, post-conviction DNA testing has not been
utilized because although Congress funded a total of $7 million
for Innocence Project Grants for fiscal years 2005 through
2007, none of the funds were ever granted. According to the
Department of Justice Office of Justice Programs (OJP), the
standards for authorizing the grants were set too high for any
state to meet. There have been three grant applications
(Virginia, Connecticut, and Arizona) and none have been able to
meet the current requirements.
In February 2008, OJP issued its solicitation for grants
via the Innocence Protection Act using the updated language.
The deadline for submissions was March 24, 2008 and there were
five applications for grants (each of which was approved and
the funding awarded during FY 2008). During this hearing
members inquired as to how the new appropriations language
affected the grant process, and how to further improve the
program. Witnesses were: Honorable Carolyn B. Maloney (NY-14),
sponsor of H.R. 5057; Debbie Smith, the namesake of H.R. 5057;
David Hagy, Director, National Institute of Justice, Department
of Justice Office of Justice Programs; Peter Marone, Director,
State of Virginia Crime Labs; Peter Neufeld, Esq., Co-founder
and Co-Director of the Innocence Project; and Allen Newton, who
was exonerated through post-conviction DNA testing.
Hearing on Federal Prison Industries--Examining the Effects of Section
827 of the National Defense Authorization Act of 2008
Summary.--The subcommittee held a hearing on Federal Prison
Industries (FPI) and the effects of sections 807 of the
National Defense Authorization Act of 2008 on May 6, 2008. FPI
is a government corporation that employs offenders incarcerated
in federal prisons and provides job training opportunities to
prisoners by producing goods and services for federal agencies.
Senator Carl Levin sponsored an amendment which eliminated the
mandatory source requirement that mandated the federal
government to purchase a product from FPI, if FPI produced the
product and lowered FPI's maximum market share to 5%. This will
require FPI to diversify its programs drastically and may make
it impractical for FPI to continue as a profitable industry.
The Bureau of Prisons and other organizations believe that this
amendment will drastically reduce the number of jobs available
for prisoners who work for FPI. The purpose of this hearing was
to hear expert opinions on the likely effect of this change,
and as to the value of keeping the program solvent and vibrant.
Besides the loss of inmate jobs, the Levin Amendment could
make it more difficult for officials to manage prison
facilities. While earlier House Judiciary Committee-passed
bills have made reductions in FPI operations, they were always
tempered with vocational training and other work or work-
related alternatives, as well as emergency authorities for the
Attorney General or other officials to assure that job losses
resulting in drastic impacts could be avoided. None of these
needed management tools are provided for in Section 827.
In 2007, Senator Carl Levin (D-MI) introduced section 827,
an amendment to H.R. 1585, the ``National Defense Authorization
Act of 2007.'' This amendment passed without going through the
Judiciary Committee on either the House or Senate side. The
bill passed on December 28, 2007, but President Bush vetoed it.
It eventually became law on January 28, 2008 as part of H.R.
4986, the ``National Defense Authorization Act of 2008.''
The Crime Subcommittee held a hearing on May 6, 2008 to
explore how the Section 827 amendment had affected FPI
operations. Testimony was received and heard from Harley G.
Lappin, Director, Federal Bureau of Prisons, U.S. Department of
Justice; with Paul Laird, Chief Operating Officer for Federal
Prison Industries; John Gage, National President, American
Federation of Government Employees; and Marc Morial, Director,
National Urban League, New York, NY.
Oversight Hearing on FBI Whistleblowers
On May 21, 2008, the Subcommittee held a hearing to provide
an opportunity for the Members to hear testimony from two FBI
whistleblowers, including allegations of retaliation by the
Bureau, as well as Senator Grassley's testimony about the
myriad instances of retaliation by the FBI which have been
conveyed to him as a senior member of the Senate Judiciary
Committee. This hearing also provided a record for future
debate on extending federal whistleblower protections to FBI
agents and personnel.
The following witnesses appeared and submitted written
statements for the record: Hon. Charles ``Chuck'' Grassley,
Member of the United States Senate (R-Iowa); Bassem Youssef,
Supervisory Special Agent and Unit Chief, Federal Bureau of
Investigation; Michael German, Policy Counsel, American Civil
Liberties Union, Former Special Agent, Federal Bureau of
Investigation.
Hearing: Addressing Gangs: What's Effective? What's Not?
Summary.--This June 10, 2008, hearing focused on
determining appropriate responses to gang crime in the United
States. Witnesses discussed alternative approaches to stemming
violence, the effectiveness of various approaches and the
appropriateness of federal law enforcement in criminal activity
traditionally addressed by the states. During the hearing,
there was an extensive discussion of the Charles Hamilton
Houston Institute for Race and Justice (Harvard Law School)
report, No More Children Left Behind Bars. This report assesses
the most comprehensive and up to date studies on the issue of
evidenced-based crime reduction strategies and applies the
information to the major legislative efforts that were pending
in the Congress to address the issue. Witnesses will also
address law enforcement approaches to addressing crime, and the
effectiveness of those approaches.
Testimony was received and heard by Professor Charles
Ogletree, Jr., Professor and Director of the Charles Hamilton
Houston Institute for Race and Justice at Harvard Law School;
Ely Flores, a former gang member turned community activist; Dr.
Robert D. Macy, Ph.D., founded the Boston Children's
Foundation; Dr. Frank Straub, Ph.D., Commissioner of Public
Safety for the City of White Plains, NY; and Major John
Buckovich, Richmond Police Department.
Online Pharmacies and the Problem of Internet Drug Abuse
Summary.--The purpose of this hearing on June 24, 2008, was
to explore the increasing use of prescription controlled
substances by teenagers and others for non-medical purposes,
which has been exacerbated by their easy availability over the
Internet. Over recent years, there has been a growing epidemic
of controlled prescription drug abuse over the Internet,
involving opioids, such as OxyContin and Vicodin, depressants
such as Valium and Xanax, and stimulants such as Ritalin and
Adderall. Tens of thousands of ``prescriptions'' are written
each year for controlled and non-controlled prescription drugs
through these Internet pharmacies, which do not require medical
records, examinations, lab tests or follow-ups.
The following witnesses appeared and submitted a written
statement for the record: Joseph T. Rannazzisi, Deputy
Assistant Administrator, Office of Diversion Control, Drug
Enforcement Administration (DEA); Christine Jones, General
Counsel, GoDaddy.com; William T. Winsley, Executive Director,
Ohio State Board of Pharmacy; and Patrick J. Egan, Attorney at
Law, Fox Rothschild LLP.
Hearing: Reauthorization of the U.S. Parole Commission
Summary.--The United States Parole Commission's (Parole
Commission) authority was due to expire October 31, 2008. On
July 16, 2008, the Subcommittee on Crime, Terrorism and
Homeland Security held a hearing to examine the current and
anticipated future role and operations of the U.S. Parole
Commission in light of the elimination of federal parole.
Testimony was received and heard from The Honorable Eleanor
Holmes Norton, U.S. House of Representatives Delegate--District
of Columbia; Kenneth Linn, Director, Federal CURE; The
Honorable Edward F. Reilly, Jr., Chairman, United States Parole
Commission; David B. Muhlhausen, Ph.D., Senior Policy Analyst,
Center for Data Analysis, the Heritage Foundation; and Horace
Crenshaw, District of Columbia Parolee.
H.R. 6509, United States Parole Commission Extension Act of
2008 was introduced on July 16, 2008 by Chairman John Conyers,
Jr. Senator Patrick Leahy introduced S.3294, the Senate version
of the United States Parole Commission Extension Act. The
Senate passed S. 3294 by Unanimous Consent on July 21, 2008.
The House passed S. 3294 by a voice vote on a motion to suspend
the rules and the measure was signed into law on August 12,
2008.
OJP Oversight
Summary.--The Subcommittee held an oversight hearing of the
Department of Justice Office of Justice Programs (OJP) on
September 18, 2008. The mission of OJP is to increase public
safety and improve the fair administration of justice across
America through innovative leadership and programs. OJP serves
a crucial role in supporting the Nation's criminal justice
systems and as such its programs affect the quality of life for
all Americans and to be sure, OJP's successes are many.
However, OJP has also endured a number of controversies, which
the subcommittee explored by examining testimony about its
component organizations. Witnesses for this hearing were:
(Panel One) Jeffrey Sedgwick, Acting Assistant Attorney General
for OJP, (Panel Two) Bill Piper, Director of National Affairs
for Drug Policy Alliance Network (DPA), a representative from
the Consortium of Forensic Science Organizations, Shay C.
Bilchik, Research Professor at the Georgetown Public Policy
Institute, Charles Sullivan from Citizens United for the
Rehabilitation of Errants (CURE) and two witnesses selected by
the minority.
SUBCOMMITTEE ON IMMIGRATION, CITIZENSHIP, REFUGEES, BORDER SECURITY,
AND INTERNATIONAL LAW \1\ \2\
---------------------------------------------------------------------------
\1\ Subcommittee chairmanship and assignments approved January 26,
2007, and February 28, 2007.
\2\ Subcommittee name change from ``Immigration, Border Security,
and Claims'' to ``Immigration, Citizenship, Refugees, Border Security,
and International Law'' approved January 26, 2007.
---------------------------------------------------------------------------
ZOE LOFGREN, California, Chairman
STEVE KING, Iowa LUIS V. GUTIERREZ, Illinois
ELTON GALLEGLY, California HOWARD L. BERMAN, California
BOB GOODLATTE, Virginia SHEILA JACKSON-LEE, Texas
DANIEL E. LUNGREN, California MAXINE WATERS, California
J. RANDY FORBES, Virginia WILLIAM D. DELAHUNT, Massachusetts
LOUIE GOHMERT, Texas LINDA T. SANCHEZ, California
ARTUR DAVIS, Alabama
KEITH ELLISON, Minnesota
ANTHONY D. WEINER, New York
Tabulation of subcommittee legislation and activity
Public:
Legislation referred to the Subcommittee..................... 253
Legislation on which hearings were held...................... 2
Legislation reported favorably to the full Committee......... 12
Legislation reported adversely to the full Committee......... 0
Legislation reported without recommendation to the full
Committee.................................................. 0
Legislation reported as original measure to the full
Committee.................................................. 0
Legislation discharged from the Subcommittee................. 3
Legislation pending before the full Committee................ 2
Legislation reported to the House............................ 13
Legislation discharged from the Committee.................... 3
Legislation pending in the House............................. 5
Legislation passed by the House.............................. 13
Legislation pending in the Senate............................ 4
Legislation vetoed by the President (not overridden)......... 0
Legislation enacted into Public Law.......................... 6
Legislation enacted into Public Law as part of other
legislation................................................ 4
Days of legislative hearings................................. 2
Days of oversight hearings................................... 33
Private:
Claims:
Legislation referred to the Subcommittee..................... 15
Legislation on which hearings were held...................... 0
Legislation reported favorably to the full Committee......... 0
Legislation pending before the full Committee................ 0
Legislation reported to the House............................ 0
Legislation discharged from the Committee.................... 0
Legislation pending in the House............................. 0
Legislation passed by the House.............................. 0
Legislation pending in the Senate............................ 0
Legislation enacted into Private Law......................... 0
Immigration:
Legislation referred to the Subcommittee..................... 59
Legislation on which hearings were held...................... 0
Legislation reported favorably to the full Committee......... 5
Legislation pending before the full Committee................ 0
Legislation reported to the House............................ 5
Legislation discharged from the Committee.................... 5
Legislation pending in the House............................. 1
Legislation passed by the House.............................. 4
Legislation pending in the Senate............................ 4
Legislation enacted into Private Law......................... 0
Legislative Activities
S. 1104/H.R. 1790, To increase the number of Iraqi and Afghani
translators and interpreters who may be admitted to the United
States as special immigrants, and for other purposes
Summary.--In the National Defense Authorization Act for
Fiscal Year 2006, Congress authorized 50 special immigrant
visas (SIVs) annually for Iraqi and Afghani translators who
were employed for at least a year by the U.S. Armed Forces. The
SIVs were meant to protect Iraqi and Afghani translators whose
lives were at risk because of their service to the United
States. But the need for these visas far outweighed the supply,
and soon there were large backlogs of approved petitioners
awaiting available SIVs. S. 1104 expands the SIV program by
increasing from 50 to 500 the number of SIVs available annually
for the following two fiscal years. The bill also expands
eligibility for the SIVs by including both translators and
interpreters working for the Chief of Mission or the United
States Armed Forces in Iraq or Afghanistan.
Legislative History.--S. 1104 was introduced by Senator
Richard Lugar (R-IN) on April 12, 2007. A similar bill, H.R.
1790, was introduced in the House by Representative Jeff
Fortenberry (R-NE) on March 29, 2007. On April 12, 2007, S.
1104 was passed by unanimous consent in the Senate and sent to
the House. On May 17, 2007, the full Committee ordered the bill
favorably reported with an amendment by voice vote. On May 22,
2007, the bill was passed by the House as amended under
suspension of the rules by a recorded vote of 412 to 8. The
Senate agreed to the House amendment by unanimous consent on
May 24, 2007. S. 1104 became Public Law 110-36 on June 15,
2007.
Carry forward of unused special immigrant visas for Iraqi and Afghani
translators (No Stand-Alone Bill)
Summary.--The special immigrant visas (SIVs) made available
in the National Defense Authorization Act for Fiscal Year 2006
for Iraqi and Afghani translators would expire at the end of
each fiscal year if such visas went unused in that fiscal year.
A provision allowing for unused visas to be rolled over and
reclaimed during the following fiscal year was added to the
Department of State, Foreign Operations, and Related Programs
Appropriations Act, 2008 (Division J of the Consolidated
Appropriations Act, 2008).
Legislative History.--The provision allowing for the ``roll
over'' of unused SIVs was added by the Senate in section 699J
of the Department of State, Foreign Operations, and Related
Programs Appropriations Act, 2008, which became Division J of
H.R. 2764, the Consolidated Appropriations Act, 2008. H.R. 2764
became Public Law 110-161 on December 26, 2007.
Extension of refugee benefits to special immigrant visa beneficiaries
(No Stand-Alone Bill)
Summary.--Unlike persons admitted to the United States as
refugees, persons admitted under special immigrant visas (SIVs)
are not eligible to receive resettlement assistance, benefits
from entitlement programs, or other benefits available to
refugees. A provision extending refugee benefits to SIV
beneficiaries for up to 6 months was added to the Departments
of Labor, Health and Human Services, and Education, and Related
Agencies Appropriations Act, 2008 (Division G of the
Consolidated Appropriations Act, 2008).
Legislative History.--The provision extending refugee
benefits to SIV beneficiaries was added by the Senate in
section 525 of the Departments of Labor, Health and Human
Services, and Education, and Related Agencies Appropriations
Act, 2008, which became Division G of H.R. 2764, the
Consolidated Appropriations Act, 2008. H.R. 2764 became Public
Law 110-161 on December 26, 2007.
H.R. 1, the ``Implementing Recommendations of the 9/11 Commission Act
of 2007''
Summary.--Section 711 allows the Secretary of Homeland
Security, in consultation with the Secretary of State, the
discretion to allow countries to join the Visa Waiver Program
(VWP) even if they do not meet the existing three percent visa
refusal rate in the Immigration and Nationality Act (INA). Sec.
711 allows the Secretary to waive the three percent requirement
if the country can meet all of the following requirements:
1. The Secretary of Homeland Security determines that
the totality of the country's security risk mitigation
measures provide assurance that the country's
participation in the program would not compromise the
law enforcement, security interests, or enforcement of
the immigration laws of the United States;
2. There has been a sustained reduction in the rate
of refusals for nonimmigrant visas for nationals of the
country and conditions exist to continue such
reduction;
3. The country cooperated with the Government of the
United States on counterterrorism initiatives,
information sharing, and preventing terrorist travel
before the date of its designation as a program
country, and the Secretary of Homeland Security and the
Secretary of State determine that such cooperation will
continue through agreements with the country; and
4. The rate of refusals for nonimmigrant visitor
visas for nationals of the country during the previous
full fiscal year was not more than ten percent or the
visa overstay rate for the country for the previous
full fiscal year does not exceed the maximum visa
overstay rate, once such rate is established as
required by this Act.
Prior to adding new countries to the VWP, Section 711
requires that the Department of Homeland Security can verify
that an air exit system is in place that can verify the
departure of not less than 97 percent of foreign nationals who
exit through airports of the United States. In addition,
Section 711 requires that an electronic travel authorization
system is implemented, under which a traveler in the VWP
electronically provides information ahead of travel and
receives permission to travel to the U.S. under the VWP.
Section 721 requires the the Secretary of Homeland Security
to nominate an official to serve as the Director of the Human
Smuggling and Trafficking Center (HSTC). This section also
requires that the Secretary ensure that the HSTC is staffed by
no fewer than 40 full-time equivalent positions, including
detailees from various intelligence, immigration, border
security, and travel offices of the U.S. Government with
expertise in these areas. To attract the best and brightest
detailees to the HSTC, this section requires the Secretary and
the heads of other relevant agencies to promulgate regulations
providing incentives, including financial incentives, bonuses,
and protection of promotion capability in parent agencies.
Finally, this section requires the Secretary to fund the HSTC
in addition to a report within 180 days by the President on the
HSTC.
Section 722 requires the Secretary of Homeland Security, in
consultation with the Director of the National Counterterrorism
Center, to designate an official in the Department of Homeland
Security, to establish a program to oversee the implementation
of the Secretary's responsibilities with respect to terrorist
travel. This official shall assist the Secretary of Homeland
Security in improving the Department's ability to prevent
terrorists from entering the United States or remaining in the
United States undetected. This section also requires a report
to Congress 180 days after enactment of H.R. 1.
Section 723 allows the Secretary of Homeland Security to
enter into a memorandum of agreement to initiate a pilot
program with not less than one State to determine if an
enhanced driver's license, which is machine-readable and tamper
proof, may permit the individual to use the driver's license to
meet the documentation requirements to enter the United States
from Canada or Mexico at land and sea ports of entry. This
section requires a report to Congress on this pilot program
within 180 days after the initiation of the pilot program.
This section requires the Secretary of Homeland Security to
complete a cost-benefit analysis of the Western Hemisphere
Travel Initiative and develop proposals for reducing the
execution fee charged for the passport card.
Section 725 requires the Secretary of Homeland Security to
establish a model ports-of-entry program (initially for 20
ports) for the purpose of providing a more efficient and
welcoming international arrival process in order to facilitate
and promote business and tourist travel to the United States
while also improving security.
Section 731 requires a report to Congress by the Secretary
of Homeland Security not later than 180 days after the date of
the enactment regarding ongoing initiatives of the Department
of Homeland Security to improve security along the northern
border of the United States. This section also requires the
Government Accountability Office, not later than 270 days after
the date of the submission of the report by the Secretary, to
issue a report reviewing the report of the Secretary, including
a list of recommendations regarding any additional actions
necessary to protect the northern border of the United States.
Legislative History.--In the House, Representative Bennie
Thompson introduced H.R. 1 on January 5, 2007 that included a
similar provision to section 721. The House passed H.R. 1 on
January 9, 2007. On July 9, 2007, the Senate considered H.R. 1
on the Senate floor and insisted on an amendment that included
similar provisions as sections 711, 722, 723, 724, and 731. A
conference committee was agreed to in the House on July 17,
2007. On July 25, 2007, a conference report was filed that
included all sections described above with some modification in
language. On July 26, 2007, the Senate agreed to the conference
report and on the following day, July 27, 2007, the House also
agreed to the conference report. The conference report became
Public Law 110-153 on August 3, 2007.
H.R. 2940, To amend section 212 of the Immigration and Nationality Act
with respect to discretionary determinations waiving an alien's
inadmissibility based on certain activities, and for other
purposes
Summary.--After the attacks on 9/11, Congress sought to
exclude and remove terrorists from the United States by
strengthening the application of the terrorism bars in the
nation's immigration laws. These bars, and their increased
application, affected groups and individuals that were not, in
fact, terrorist organizations, including allies, members of
humanitarian organizations, and even victims of terrorism. H.R.
2940 provides discretionary authority to the Secretaries of
State and Homeland Security to waive certain national security
grounds of inadmissibility for groups and individuals. A
provision providing similar, but somewhat more limited,
discretionary authority was added to the Department of State,
Foreign Operations, and Related Programs Appropriations Act,
2008 (Division J of the Consolidated Appropriations Act, 2008).
Legislative History.--H.R. 2940 was introduced by
Representative Edward Perlmutter (D-CO) on June 28, 2007.
Similar language to that in H.R. 2940 was added by the Senate
in section 691 of the Department of State, Foreign Operations,
and Related Programs Appropriations Act, 2008, which became
Division J of H.R. 2764, the Consolidated Appropriations Act,
2008. H.R. 2764 became Public Law 110-161 on December 26, 2007.
S. 1651, the ``Refugee Crisis in Iraq Act''
Summary.--S. 1651, the ``Refugee Crisis in Iraq Act,''
establishes a comprehensive framework for assisting Iraqi
refugees and other nationals whose lives are in danger because
of their association with the U.S. Government's mission in
Iraq. Language similar to that in S. 1651 was added to Subtitle
C of Title XII of the National Defense Authorization Act for
Fiscal Year 2008:
Section 1242 requires the Department of State to establish
or use existing refugee processing mechanisms in Iraq and
surrounding countries for Iraqis threatened because of their
association with the United States Government.
Section 1243 establishes refugee program processing
priorities in and around Iraq. The bill includes among refugees
of special humanitarian concern: Iraqis who worked with the
U.S. government in Iraq; Iraqis who were employed in Iraq by a
U.S.-based media or nongovernmental organization; Iraqis who
were employed in Iraq by an organization closely associated
with the U.S. mission in Iraq that has received official U.S.
funding; Iraqis who have immediate family members in the United
States; and Iraqis who are members of a religious or minority
community and have close family members in the United States.
Section 1244 establishes a new special immigrant visa
program for certain Iraqis whose lives are in danger because of
their association with the U.S. Government in Iraq. The section
specifically provides 5,000 special immigrant visas each year
for five years for Iraqis who worked for the U.S. Government in
Iraq for at least one year, have been seriously threatened as a
result of such employment; have a positive recommendation or
evaluation from a senior supervisor; and have been approved by
the U.S. Ambassador in Iraq or his designee.
Section 1245 requires the Secretary of State to designate a
Senior Coordinator for Iraqi Refugees and Internally Displaced
Persons. This Senior Coordinator shall be responsible for
overseeing the U.S. resettlement of refugees of special
humanitarian concern, the new SIV program in Iraq, and the
development and implementation of other appropriate policies
and programs concerning Iraqi refugees and internally displaced
persons.
Section 1247 allows Iraqi nationals who were denied asylum
or withholding of removal on or after March 1, 2003 on the
basis of changed country conditions to reopen their asylum
proceedings if the Iraqi national has remained in the United
States since the date of such denial.
Legislative History.--S. 1651 was introduced by Senator
Edward Kennedy (D-MA) on June 19, 2007. Similar language to
that in S. 1651 was added by the Senate in Subtitle C of Title
XII of the National Defense Authorization Act for Fiscal Year
2008, H.R. 4986. H.R. 4986 became Public Law 110-181 on January
28, 2008.
H.R. 1119, the ``Purple Heart Family Equity Act of 2007''
Summary.--Under the existing federal charter of the
Military Order of the Purple Heart (MOPH) prior to Public Law
110-207, members of the MOPH were only allowed to invite
parents and lineal descendants to join the MOPH as associate
members. H.R. 1119 amended the Military Order of the Purple
Heart's federal charter to allow members to invite their
spouses to join as associate members both for male and female
recipients of the Purple Heart medal.
Legislative History.--H.R. 1119, the ``Purple Heart Family
Equity Act of 2007'' was introduced by Representative Susan
Davis (D-CA) on February 16, 2007. On March 1, 2007, a similar
bill was introduced and passed by unanimous consent in the
Senate, S. 743. On July 27, 2007, the Immigration Subcommittee
forwarded the bill favorably to the full committee by voice
vote. On August 2, 2007, the full committee ordered the bill to
be reported by voice vote. On November 6, 2007, the bill was
passed by the House under suspension of the rules by voice
vote. On April 14, 2008, the Senate passed H.R. 1119 by
unanimous consent in the Senate. H.R. 1119 became Public Law
110-207 on April 30, 2008.
H.R. 3079, To amend the joint resolution that approved the covenant
establishing the Commonwealth of the Northern Mariana Islands,
and for other purposes
Summary.--Since the time that the Commonwealth of the
Northern Mariana Islands (CNMI) became a U.S. territory under a
``Covenant'' agreement in 1976, it has set and controlled its
own immigration laws and procedures. Over the following three
decades, the CNMI allowed for the large-scale importation of
foreign guest workers to staff imported garment factories. But
the lack of regulations and resources to protect these guest
workers led to widespread abuse and large increases in human
trafficking and sex slavery. Such abuses have gone largely
unaddressed for the last 30 years. To rectify this situation,
Representative Donna Christensen introduced H.R. 3079, which
would move CNMI immigration to U.S. Government control.
Specifically, H.R. 3079 would amend the Covenant with the CNMI
to extend U.S. immigration laws over the Commonwealth, with
certain provisions designed to meet the needs of the CNMI
economy. Language similar to that in S. 3079 was added to
Subtitle A of Title VII of the National Defense Authorization
Act for Fiscal Year 2008:
Section 701 provides a statement of congressional intent.
The statement provides that it is the intention of Congress to
ensure the security of the U.S. and the CNMI and to minimize
potential adverse economic and fiscal effects to the CNMI.
Section 702 amends the Joint Resolution establishing a
Covenant between the U.S. and the CNMI by extending the
Immigration and Nationality Act (INA) to the CNMI, subject to a
transition period through December 31, 2014. The section sets
forth special provisions to take effect during the transition
period, including provisions waiving the numerical limitations
for certain nonimmigrant ``H'' workers on the CNMI, provisions
allowing for the admission of CNMI nonimmigrant investors, and
provisions allowing for additional guest workers to meet
legitimate business demands. The section temporarily prohibits
the removal of persons lawfully admitted under the
Commonwealth's immigration laws, provides employment
authorization for such persons, and requires the Secretary of
the Interior, in consultation with the Secretary of Homeland
Security and the Governor of Guam, to file a report to Congress
with recommendations related to the provision of long-term
status for such persons.
Section 702 also amends the INA by replacing the Guam-only
Visa Waiver Program (VWP) with a new Guam-CNMI VWP. Stays are
extended from 15 days to up to 45 days in Guam or the CNMI. The
section directs the Secretary of Homeland Security to monitor
such admissions and suspend the entry of nationals from a
country whose nationals have created an unacceptable number of
program violations or pose security or law enforcement risks.
The section provides that persons seeking U.S. entry from the
CNMI shall be processed under existing immigration authority
regarding entry from Guam, Puerto Rico, and the U.S. Virgin
Islands. The section also authorizes additional countries to be
added to the Guam-CNMI VWP, as well as the creation of
additional Guam or CNMI-only nonimmigrant visas.
Legislative History.--H.R. 3079 was introduced by
Representative Donna Christensen (D-VI) on July 18, 2007. A
similar bill, S. 1634, was introduced in the Senate by Senator
Daniel Akaka (D-HI) on June 15, 2007. On December 11, 2007,
H.R. 3079 was passed by the House as amended under suspension
of the rules by voice vote. Language similar to that in H.R.
3079 was subsequently added by the Senate to Subtitle A of
Title VII of S. 2739, the Consolidated Natural Resources Act of
2008. S. 2739 became Public Law 110-229 on May 8, 2008.
S. 2829, A bill to make technical corrections to section 1244 of the
National Defense Authorization Act for Fiscal Year 2008, which
provides special immigrant status for certain Iraqis, and for
other purposes
Summary.--Section 1244 of the National Defense
Authorization Act for FY 08, enacted on January 28, 2008,
created a new Special Immigrant Visa (SIV) program for Iraqis
whose lives are at risk because of their valuable service to
the U.S. Government. These special immigrant visas (SIVs) were
intended to be available beginning in fiscal year 2008. But a
drafting error rendered the SIVs unavailable until the
following fiscal year (fiscal year 2009). S. 2829 corrects this
error and creates a transition period for Iraqi and Afghani
translators and interpreters who had applied for SIVs under a
related program but could not access the SIVs because the visas
had been exhausted.
Legislative History.--S. 2829 was introduced by Senator
Edward Kennedy (D-MA) on April 8, 2008. A companion bill, H.R.
5837, was introduced in the House by Representative Zoe Lofgren
(CA-D) on April 17, 2008. On April 28, 2008, S. 2829 was passed
by unanimous consent in the Senate and sent to the House. On
May 21, 2008, the bill was passed by the House without
amendment under suspension of the rules by voice vote. S. 2829
became Public Law 110-242 on June 3, 2008.
S. 2516, the ``Kendell Frederick Citizenship Assistance Act''
Summary.--S. 2516 directs the Department of Homeland
Security (DHS) to use fingerprints taken at the time of
enlistment in the United States Armed Forces or filing of
applications for adjustment of status to lawful permanent
residence to satisfy any naturalization background or security
requirements if certain conditions are met. It requires DHS, in
consultation with the Department of Defense (DOD) and the
Federal Bureau of Investigations (FBI), to: (1) determine the
format for fingerprints and other biometric information; (2)
implement procedures for electronic transmission of such
information that will safeguard privacy and civil liberties;
and (3) provide for centralization of naturalization
applications of active-duty personnel serving abroad and such
applications' expedited processing.
S. 2516 also directs DHS to update appropriate Web sites to
reflect changes in military naturalization laws within 30 days
of any changes, and expresses the sense of Congress that DHS
should make necessary updates to its application forms on
military naturalization within 180 days of any changes. It
requires DHS to report to the appropriate Congressional
committees with respect to the adjudication of military
naturalization applications and directs the GAO to report to
the appropriate Congressional committees with respect to
implementation of this Act.
Legislative History.--On June 27, 2007, Representative
Elijah Cummings (D-MD) introduced H.R. 2884, the Kendall
Frederick Citizenship Act. On November 6, 2007, the House
passed H.R. 2884 under suspension of the rules by voice vote.
On December 28, 2007, Senator Barbara Mikulski (D-MD)
introduced S. 2516, the ``Kendall Frederick Citizenship
Assistance Act.'' On March 11, 2008, the Senate passed S. 2516
with an amendment by unanimous consent. On June 9, 2008, the
House passed S. 2516 under suspension of the rules by a voice
vote. On June 26, 2008, the President signed into law S. 2516
(Public Law No. 110-251).
H.R. 2852/S. 1692, A bill to grant a Federal charter to Korean War
Veterans Association, Incorporated.
Summary.--S. 1692 grants a federal charter to the Korean
War Veterans Association, Incorporated (a nonprofit corporation
incorporated under the laws of New York).
Legislative History.--On July 25, 2007, Majority Leader
Steny Hoyer (D-MD) introduced H.R. 2852 to grant a federal
charter to the Korean War Veterans Association which was
referred to the Committee on the Judiciary on the same day. On
July 16, 2007, H.R. 2852 was referred to the Immigration
Subcommittee. No further action was taken on H.R. 2852. Also on
July 25, 2007, Sen. Ben Cardin (D-MD) introduced a companion
measure, S. 1692, which was referred to the Senate Committee on
the Judiciary on the same day. On September 6, 2007, the Senate
Judiciary Committee discharged S. 1692 favorably and without
amendment. On September 12, 2007, S. 1692 passed the Senate
without amendment by unanimous consent and bill was held at the
desk in the House on September 14, 2007. On June 17, 2008, the
House passed S. 1692 under suspension of the rules by voice
vote. The bill became Public Law on June 20, 2008.
H.R. 5690, To remove the African National Congress from treatment as a
terrorist organization for certain acts or events, provide
relief for certain members of the African National Congress
regarding admissibility, and for other purposes
Summary.--After the attacks on 9/11, Congress sought to
exclude and remove terrorists from the United States by
strengthening the application of the terrorism bars in the
nation's immigration laws. These bars, and their increased
application, affected groups and individuals that were not, in
fact, terrorist organizations, including allies, members of
humanitarian organizations, and even victims of terrorism.
Among these groups was the African National Congress (ANC),
which rose to power in South Africa after the defeat of the
apartheid regime. H.R. 5690 corrects this result by removing
the ANC from consideration as a terrorist organization and by
giving discretionary authority to the Secretaries of State and
Homeland Security to admit individuals regardless of activities
undertaken in opposition to apartheid rule in South Africa.
Legislative History.--H.R. 5690 was introduced by
Representative Howard Berman (D-CA) on April 3, 2008. A similar
bill, S. 2979, was introduced in the Senate by Senator John
Kerry (D-MA) on May 6, 2008. On April 30, 2008, the full
Committee ordered H.R. 5690 favorably reported, with an
amendment, by voice vote. On May 6, 2008, the bill, as amended,
was passed by the House under suspension of the rules by voice
vote. The bill was amended in the Senate, and the Senate passed
the bill as amended by unanimous consent on June 26, 2008. On
the same day, the House agreed to the Senate amendment by
unanimous consent. H.R. 5690 became Public Law 110-257 on July
1, 2008.
Removal of HIV/AIDS as a ground of inadmissibility in the Immigration
and Nationality Act (No Stand-Alone Bill)
Summary.--The Immigration and Nationality Act contained a
provision which held HIV infection as a ground for denying
admission of noncitizens, including both nonimmigrants and
immigrants, to the United States. A provision removing this
ground of inadmissibility was added by the Senate to H.R. 5501,
the Tom Lantos and Henry J. Hyde United States Global
Leadership Against HIV/AIDS, Tuberculosis, and Malaria
Reauthorization Act of 2008.
Legislative History.--The provision removing HIV/AIDS as a
ground of inadmissibility in the Immigration and Nationality
Act was added by the Senate as section 305 of H.R. 5501, the
``Tom Lantos and Henry J. Hyde United States Global Leadership
Against HIV/AIDS, Tuberculosis, and Malaria Reauthorization Act
of 2008.'' H.R. 5501 became Public Law 110-293 on July 30,
2008.
H.R. 6633, the ``Employee Verification Amendment Act of 2008''
Summary.--H.R. 6633 would have extended the Basic Pilot
(also known as E-Verify) electronic employment eligibility
confirmation program until November 2013. It also would have
directed the Social Security Administration (SSA) and the
Department of Homeland Security (DHS) to enter into an
agreement which would: (1) provide funds to SSA for Basic
Pilot/E-Verify program's full costs in quarterly advances; and
(2) require an annual accounting and reconciliation of costs
incurred and funds provided. H.R. 6633 also would have provided
for funding continuation in the absence of an agreement. It
also would have required that the Government Accountability
Office (GAO) conduct studies regarding: (1) erroneous tentative
nonconfirmations under the Basic Pilot/E-Verify program; and
(2) such program's effects on small entities.
Legislative History.--On July 29, 2008, Representative
Gabrielle Giffords introduced H.R. 6633, the Employee
Verification Amendment Act of 2008. On July 31, 2008, the House
passed H.R. 6633 under suspension of the rules by a recorded
vote of 407 to 2 with 4 present. The Senate took no action on
H.R. 6633.
On June 8, 2007, Representative David Price (D-NC)
introduced H.R. 2638, the ``Department of Homeland Security
Appropriations Act, 2008.'' On June 15, 2007, the House passed
H.R. 2638 by a recorded vote of 268-150. On July 26, 2007, the
Senate passed H.R. 2638 with an amendment by a recorded vote of
89 to 4. On September 24, 2008, the House passed a motion to
concur with Senate amendment of H.R. 2638 with an amendment.
Section 143, Division A of H.R. 2838 extended the Basic Pilot
electronic employment verification program until March 6, 2009.
On September 27, 2008, the Senate agreed to the House amendment
to the Senate amendment to H.R. 2638 by a recorded vote of 78
to 12. On September 30, 2008, the President signed into law
H.R. 2638, Consolidated Security, Disaster Assistance, and
Continuing Appropriations Act, 2009 (Public Law 110-329).
H.R. 5569, to extend for 5 years the EB-5 regional center pilot
program, and for other purposes
Summary.--Congress created the fifth employment-based
preference (EB-5) immigrant visa category in 1990 for
immigrants seeking to enter the United States to invest in a
commercial enterprise that will benefit the U.S. economy and
create at least 10 full-time jobs. The basic amount required to
invest is $1 million, although that amount can be reduced to
$500,000 if the investment is made in a rural or high
unemployment area. Approximately 10,000 numbers are available
in this green card category each year. To encourage immigration
through the EB-5 category, Congress created a temporary pilot
program in 1993. The Immigrant Investor Pilot Program allocates
3,000 visas each year for EB-5 investors who invest in
``designated regional centers.'' The pilot program has been
renewed several times. H.R. 5569 would have extended the
program for five years, but Public Law 110-329 extended the EB-
5 regional center pilot program only until March 6, 2009.
Legislative History.--On March 10, 2008, H.R. 5569 was
introduced in the House by Representative Zoe Lofgren (D-CA)
and referred to the House Committee on the Judiciary. On March
11, 2008, the bill was referred to the Immigration
Subcommittee. On March 12, 2008, the Subcommittee forwarded the
bill to the full committee by voice vote. On April 2, 2008, the
full committee ordered the bill favorably reported. On June 9,
2008, the bill was considered and passed by voice vote by the
House through suspension of the rules. The bill was
subsequently sent to the Senate, but no further action was
taken. On September 24, 2008, the House passed a motion to
concur with Senate amendment of H.R. 2638, the Consolidated
Security, Disaster Assistance, and Continuing Appropriations
Act, 2009, with an amendment. Section 144 of Division A
extended the EB-5 regional pilot center to March 6, 2009. On
September 27, 2008, the Senate agreed to the House amendment to
the Senate amendment to H.R. 2638 by a recorded vote of 78 to
12. On September 30, 2008, the President signed into law H.R.
2638, Consolidated Security, Disaster Assistance, and
Continuing Appropriations Act, 2009 (Public Law 110-329).
S. 2135, the ``Child Soldiers Accountability Act''
Summary.--S. 2135 makes it easier to prosecute and remove
persons who have recruited or used children in armed conflicts
anywhere in the world. The bill criminalizes the recruitment
and use of child soldiers, and it expands jurisdiction to cover
persons in the U.S. regardless of where a crime may have taken
place. The bill also creates new grounds of removal and
inadmissibility for the recruitment or use of child soldiers.
Legislative History.--S. 2135 was introduced by Senator
Richard Durbin (IL-D) on October 3, 2007. The bill was related
to a similar bill previously filed by Senator Durbin, S. 1175,
as well as two House bills--H.R. 2620 introduced by
Representative Jim Marshall (GA-D) and H.R. 3028 introduced by
Representative Jeff Fortenberry (NE-R). On December 19, 2007,
S. 2135 was passed by unanimous consent in the Senate and sent
to the House. On September 8, 2008, the House amended the bill
and passed it, as amended, under suspension of the rules by a
recorded vote of 371 to 0. The Senate agreed to the House
amendment by unanimous consent on September 15, 2008. S. 2135
became Public Law 110-340 on October 3, 2008.
H.R. 5571, to extend for 5 years the program relating to waiver of the
foreign country residence requirement with respect to
international medical graduates
Summary.--The Immigration and Nationality Act allows for
foreign doctors to train in the United States under the ``J-1''
visa program, otherwise known as nonimmigrants in the Exchange
Visitor Program. This Exchange Visitor Program seeks to promote
peaceful relations and mutual understanding with other
countries through educational and cultural exchange programs.
Accordingly, many exchange visitors, including doctors in
training, are subject to a requirement that they must return to
their home country to share with their countrymen the
knowledge, experience, and impressions gained during their stay
in the United States. Unless U.S. Citizenship and Immigration
Services (USCIS) approves a waiver of this requirement in those
cases, the exchange visitors must depart from the United States
and live in their home country for two years before they are
allowed to apply to return to the U.S. A waiver of the two year
foreign residency requirement (commonly referred to as the
``Conrad 30 J Waiver Program'') is available for doctors who
have trained in the United States under the J-1 visa if a state
or an interested government agency sponsors the physician
exchange visitor to work in a health manpower shortage area for
three years as a nonimmigrant in H-1B status (temporary worker
in a specialty occupation). The Secretary of Health and Human
Services determines which areas have a health manpower
shortage. The authorization for the Conrad 30 J Waiver Program
sunsetted on June 1, 2008. H.R. 5571, as enacted, extended this
waiver through March 6, 2009, although H.R. 5571 would have
extended the waiver program for five years.
Legislative History.--On March 10, 2008, Rep. Zoe Lofgren
(D-CA) introduced H.R. 5571 to extend the Conrad 30 J Waiver
Program for five years. The bill was referred to the House
Committee on the Judiciary on the same day. On March 11, 2008,
the bill was referred to the Immigration Subcommittee. On March
12, 2008, the Subcommittee forwarded the bill to the full
committee by voice vote. On April 2, 2008, the full committee
ordered the bill favorably reported. On May 19, 2009, the bill
was considered by the House under suspension of the rules. On
May 21, 2008, the bill was passed by the House by voice vote.
On June 2, 2008, the bill was received in the Senate and
referred to the Senate Committee on the Judiciary. On September
26, 2008, the Senate Judiciary Committee discharged the bill by
unanimous consent and the bill was passed by the Senate with an
amendment to shorten the reauthorization period through March
6, 2009. On September 27, 2008, the bill as amended by the
Senate passed the House under suspension of the rules by voice
vote. The bill became Public Law on November 8, 2008.
S. 2840, the ``Military Personnel Citizenship Processing Act''
Summary.--S. 2840 creates an Office of the FBI Liaison
within the Department of Homeland Security to monitor the
functions of the FBI in the naturalization process. The Office
will assist in the expeditious completion of all such functions
pertaining to naturalization applications filed by, or on
behalf of, current or former members of the Armed Forces,
current spouses and children of service members, and deceased
individuals eligible for posthumous citizenship under 8 U.S.C.
Sec. 1440-41.
S. 2840 also requires USCIS to process and adjudicate
applications filed by current or former members of the Armed
Forces and their spouses and children no later than six months
after receiving such applications. If an application is still
pending after six months, S. 2840 requires that USCIS provide
the applicant with an explanation for its inability to meet the
deadline and an estimate of the date by which the application
will be adjudicated. It also requires that the USCIS Director
submit an annual report to relevant Congressional committees
that identifies applications still pending after one year due
to delays in conducting required background checks.
Finally, S. 2840 calls for a Government Accountability
Office report outlining the average length of time taken by
USCIS to process and adjudicate applications for naturalization
filed by members of the Armed Forces, deceased members of the
Armed Forces, and their spouses and children. S. 2840 and the
amendments made by this Act will expire five years from the
date of enactment.
Legislative History.--On April 10, 2008, Senator Charles
Schumer introduced S. 2840, the Military Personnel Citizenship
Processing Act. On September 24, 2008, the Senate passed S.
2840 with an amendment by unanimous consent. On September 28,
2008, the House passed S. 2840 under suspension of the rules by
a recorded vote of 416 to 0. On October 9, 2008, the President
signed into law S. 2840 (Public Law No. 110-382).
H.R. 5570/S. 3606, the ``Special Immigrant Nonminister Religious Worker
Program Act''
Summary.--H.R. 5570, the Religious Worker Visa Extension
Act of 2008, reauthorized the Special Immigrant Non-minister
Religious Worker Program that would have sunset on September
30, 2008. The Special Immigrant Non-minister Religious Worker
Program allows non-minister religious workers to obtain special
immigrant status in the U.S. so that they may do the work
required of their faith. The original bill, H.R. 5570, extended
the program for five years, if the Department of Homeland
Security issued regulations to eliminate or reduce fraud in the
Religious Worker Program by December 31, 2008; but if not, the
reauthorization would expire after 15 months. In addition, H.R.
5570 requires that the Inspector General of the Department of
Homeland Security to issue a report on the effectiveness of the
regulations by September 30, 2010.
Legislative History.--On March 10, 2008, Representative Zoe
Lofgren (D-CA) introduced H.R. 5570. The bill was referred to
the House Committee on the Judiciary on the same day. On March
11, 2008, the bill was referred to the Immigration
Subcommittee. On March 12, 2008, the Subcommittee forwarded the
bill to the full committee by voice vote. On April 2, 2008, the
full committee ordered the bill favorably reported. On April
15, 2009, the bill was considered by the House under suspension
of the rules and passed by voice vote. On April 16, 2008, the
bill was received in the Senate and referred to the Senate
Committee on the Judiciary on August 1, 2008. No further action
was taken on H.R. 5570. On September 26, 2008, S. 3606 was
introduced in the Senate. Also on that same day, the bill, with
an amendment to shorten the period of reauthorization to March
6, 2009, was considered and passed by unanimous consent in the
Senate. S. 3606, which extended the religious worker program
until March 6, 2009 in addition to requiring fraud regulations
and a report as in H.R. 5571, was introduced in the Senate by
Sen. Orrin Hatch (UT-R) and passed without amendment by
unanimous consent. On September 27, 2008, the House passed S.
3606 by voice vote under suspension of the rules.
H.R. 7311, the ``William Wilberforce Trafficking Victims Protection
Reauthorization Act of 2008''
Summary.--H.R. 7311 amends the Trafficking Victims
Protection Act of 2000, the Immigration and Nationality Act,
and several other laws to further combat human trafficking,
both domestically and around the world:
Section 201 amends section 101(a)(15)(T) of the Immigration
and Nationality Act (INA) to provide additional flexibility
with the use of T visas for trafficking victims and their
family members. Specifically, the section further expands T-
visa eligibility to cover persons brought into the country for
investigations or as witnesses and persons unable to assist law
enforcement because of physical or psychological trauma. The
section further allows parents and siblings who are in danger
of retaliation to join the trafficking victims in the United
States. Finally, the section authorizes the Secretary of
Homeland Security to extend the period of T-visa status and
waive the disqualification for lack of good moral character for
T-visa holders applying for adjustment to permanent resident
status if the disqualification was incident to the trafficking.
Section 202 requires the Secretary of Homeland Security to
create an information pamphlet for work-based non-immigrant
visa applications. The pamphlet will detail the illegality of
human trafficking and reiterate worker rights and information
for related services.
Section 203 sets forth new protections for trafficked
domestic household workers and preventative measures to be
followed by the State Department. The section requires the
issuance of information pamphlets for A-3 and G-5 visa
applicants and describes the required information to be
included in the pamphlets. The section provides protections and
remedies for A-3 and G-5 visa holders working in the United
States, and it ensures protection from removal for visa holders
wanting to file a complaint regarding a violation of contract
or some Federal, State, or local law to allow time sufficient
to participate fully in all legal proceedings.
Section 204 allows the Secretary of Homeland Security to
stay the removal of an individual who has made a prima case for
approval of a T or U visa under the INA.
Section 205 expands the authority of the Secretary of
Homeland Security to permit continued presence of trafficking
victims, including for aliens who have filed civil actions
against their traffickers. It also allows for parole into the
United States of certain relatives of trafficking victims with
several limitations.
Section 211 clarifies that T-visa applicants have access to
certain public benefits.
Section 212 provides that the Secretary of Health and Human
Services (HHS) may provide interim assistance to a child upon
receiving credible information that a child is a victim of
trafficking. The section requires government officials to
notify HHS within 48 hours of coming into contact with such a
child, and it provides education on the identification of
trafficking victims. The section also clarifies that long term
assistance determinations are to be made by the Secretary of
HHS, in consultation with the Attorney General, the Secretary
of the Department of Homeland Security, and nongovernmental
organizations with expertise on victims of severe form of
trafficking.
Section 213 amends the Trafficking Victims Protection Act
of 2000 to specifically authorize an assistance program for
victims of severe forms of trafficking of persons and to
establish a system for referring such victims to existing
programs at HHS and the Department of Justice.
Section 222 amends the criminal code and the INA to further
combat human trafficking, peonage, and involuntary servitude in
the United States. The section creates a new crime for
knowingly using force, threats of force, abuse or threatened
abuse of law or legal process, and other threatening measures
to obtain another person's labor or services. The section also
creates a new crime for fraud in foreign labor contracting and
it tightens immigration restrictions for human traffickers.
Section 235 requires enhanced procedures for preventing
child trafficking at the U.S. border and U.S. ports of entry,
and it sets forth comprehensive protections for child victims
of trafficking and other unaccompanied alien children.
Subsection (a) codifies and improves procedures for the
repatriation of unaccompanied children from contiguous
countries. It also provides that the Secretary of State shall
develop a system for the safe repatriation of unaccompanied
children and shall develop a pilot program for that purpose.
Subsection (b) provides, with specified exceptions, that the
care and custody of unaccompanied alien children in the United
States shall be the responsibility of the Secretary of HHS. It
requires notification of HHS by government authorities within
48 hours of encountering an unaccompanied alien child and it
provides for the transfer of such children to HHS within 72
hours. Subsection (c) improves procedures for the placement of
unaccompanied children in safe and secure settings. It requires
that HHS take steps to assist children in complying with
immigration orders, to assist children in accessing pro bono
representation and to assign child advocates for particularly
vulnerable children. Subsection (d) revises procedures for
obtaining special immigrant juvenile status and provides
refugee assistance for children in such status. It also
provides for adjudication of asylum applications by asylum
officers. Subsection (e) provides specialized training,
including training related to trafficking, to federal officials
who come into contact with unaccompanied alien children.
Legislative History.--H.R. 7311 was introduced by
Representative Howard Berman (CA-D) on December 9, 2008. A
similar bill, H.R. 3887, had been previously introduced by
Representative Tom Lantos on October 18, 2007, and a companion
bill had been filed in the Senate by Senator Joseph Biden on
May 22, 2008. On December 10, 2008, H.R. 7311 was passed by the
House by unanimous consent. Later that same day, the Senate
passed the bill without amendment by unanimous consent. H.R.
7311 became Public Law 110-457 on December 23, 2008.
H.R. 2399, the ``Alien Smuggling and Terrorism Prevention Act of 2007''
Summary.--H.R. 2399 would provide strong new enforcement
tools at the border, including increased criminal penalties
for: alien smuggling, human trafficking and slavery; drug
trafficking; and terrorism or espionage. The bill would also
subject smugglers and traffickers to even higher penalties for
transporting persons under inhumane conditions, such as in an
engine or storage compartment, or for causing serious bodily
injury, or for endangering them by running the vessel
transporting them to ground in order to escape apprehension.
H.R. 2399 would also direct the Department of Homeland Security
to check against all available terrorist watch lists alien
smugglers and smuggled individuals who are interdicted at U.S.
land, air, and sea borders. It would tighten proof requirements
for distinguishing covert transportation of family members or
others for humanitarian reasons, for which the penalties are
appropriately less severe when truly justified.
Legislative History.--On May 22, 2007, Rep. Baron Hill (D-
IN) introduced H.R. 2399. On May 22, 2007, the House passed
H.R. 2399 by a recorded vote of 412-0. The bill was received in
the Senate and referred to the Senate Committee on the
Judiciary on May 23, 2007 and no further action was taken. H.R.
2399 was added to H.R. 2830, the Coast Guard Authorization Act
of 2007, which passed the House on May 24, 2008. H.R. 2830 was
received in the Senate on May 28, 2008 and no further action
was taken.
H.R. 3123, To extend the designation of Liberia under section 244 of
the Immigration and Nationality Act so that Liberians can
continue to be eligible for temporary protected status under
that section
Summary.--Temporary Protected Status (TPS) is a temporary
immigration status that may be granted by the Secretary of
Homeland Security to nationals of certain countries beset by
ongoing armed conflict, environmental disaster, or other
extraordinary and temporary conditions. Liberia had long been
one of these designated countries due to ongoing armed
conflict. But the TPS designation was set to expire on October
1, 2007. Because conditions in Liberia had not improved to the
point where repatriation of Liberian nationals would be
prudent, H.R. 3123 was introduced to extend the TPS designation
for Liberia until October 1, 2008.
Legislative History.--H.R. 3123 was introduced by
Representative Patrick Kennedy (RI-D) on July 23, 2007. On July
30, 2007, the bill was passed by the House under suspension of
the rules by voice vote. A similar bill, S. 1903, was
introduced in the Senate by Senator Jack Reed on July 31, 2007.
But on September 12, 2007, the President rendered both bills
unnecessary when he issued a memorandum directing the Secretary
of Homeland Security to defer the enforced departure of those
Liberians granted TPS until March 31, 2009. Neither H.R. 3123
nor S. 1903 was passed in the Senate.
H.R. 1312, the ``Arts Require Timely Service (ARTS) Act''
Summary.--H.R. 1312 would address visa processing delays
facing nonprofit arts organizations by amending Section 214(c)
of the Immigration and Nationality Act to require the U.S.
Citizenship and Immigration Services (USCIS) to shift to
premium processing without additional fees any O or P visa
application that is not processed within 30 days of filing a
complete petition if the petitioner is or is filing on behalf
of a qualified nonprofit organization.
Legislative History.--On March 5, 2007, Rep. Howard Berman
(CA-D) introduced H.R. 1312 and the bill was referred to the
House Committee on the Judiciary. On March 30, 2007, the bill
was referred to the Immigration Subcommittee. On September 25,
2007, the bill was favorably forwarded to the full committee by
a roll call vote of 7-5. On November 7, 2008, the full
committee ordered the bill reported by voice vote. On April 1,
2008, the bill was considered in the House under suspension of
the rules and the bill was passed by voice vote. The next day,
the bill was received in the Senate and referred to the Senate
Committee on the Judiciary. No further action was taken on this
bill.
H.R. 1485, a Private Bill for the relief of Esther Karinge
Summary.--H.R. 1485 provides lawful permanent residency to
beneficiary Esther Karinge.
Legislative History.--H.R. 1485 was introduced by
Representative Edward Markey (MA-D) on March 12, 2007. On May
8, 2008, the Immigration Subcommittee ordered the bill
favorably reported without amendment by voice vote. On May 14,
2008, the full Committee ordered the bill favorably reported
without amendment by voice vote. The bill was placed on the
Private Calendar on July 8, 2008, and it was called up for
consideration on September 16, 2008, when it was passed by the
House by voice vote. The bill was not passed in the Senate.
H.R. 1512, to amend the Immigration and Nationality Act to provide for
compensation to States incarcerating undocumented aliens
charged with a felony or two or more misdemeanors
Summary.--The State Criminal Alien Assistance Program
(SCAAP) was originally passed to help reimburse states and
localities for the costs associated with incarcerating criminal
aliens. Currently states and localities are only reimbursed for
a portion of what they spend incarcerating convicted criminal
aliens. This bill would change the Immigration and Nationality
Act to reflect the original intent of Congress, so that states
and localities can be reimbursed for the cost of incarcerating
aliens who are either ``charged with or convicted'' of a felony
or two misdemeanors.
Legislative History.--On March 13, 2007, Rep. Linda Sanchez
(CA-D) introduced H.R. 1512 and the bill was referred to the
House Committee on the Judiciary. On April 20, 2007, the bill
was referred to the Immigration Subcommittee. On September 25,
2007, H.R. 1512 was forwarded to the full committee by voice
vote. The full committee ordered the bill reported on October
24, 2007 by voice vote. On May 8, 2008, the bill was passed by
voice vote in the House and received in the Senate on May 12,
2008. No further action was taken on this bill.
H.R. 2575, a Private Bill for the relief of Mikael Adrian Christopher
Figueroa Alvarez
Summary.--H.R. 2575 provides lawful permanent residency to
beneficiary Mikael Adrian Christopher Figueroa Alvarez.
Legislative History.--H.R. 2575 was introduced by
Representative Zoe Lofgren (D-CA) on June 5, 2007. On July 10,
2008, the Immigration Subcommittee ordered the bill favorably
reported without amendment by a roll call vote of 6 to 3. On
July 30, 2008, the full Committee ordered the bill favorably
reported without amendment by a roll call vote of 19 to 9. The
bill was placed on the Private Calendar on September 8, 2008,
and it was called up for consideration on September 16, 2008.
At the request of Mr. King (R-IA), the House passed over the
measure without prejudice. The bill remained on the Private
Calendar at the end of the 110th Congress.
H.R. 2760, a Private Bill for the relief of Shigeru Yamada
Summary.--H.R. 2760 provides lawful permanent residency to
beneficiary Shigeru Yamada.
Legislative History.--H.R. 2760 was introduced by
Representative Bob Filner (D-CA) on June 15, 2007. On February
26, 2008, the Immigration Subcommittee ordered the bill
favorably reported without amendment by voice vote. On April 2,
2008, the full Committee ordered the bill favorably reported
without amendment by voice vote. The bill was placed on the
Private Calendar on July 8, 2008, and it was called up for
consideration on September 16, 2008, when it was passed by the
House by voice vote. The bill was not passed in the Senate.
H.R. 5030, a Private Bill for the relief of Corina de Chalup Turcinovic
Summary.--H.R. 5030 provides lawful permanent residency to
beneficiary Corina de Chalup Turcinovic.
Legislative History.--H.R. 5030 was introduced by
Representative Daniel Lipinski (D-IL) on January 16, 2008. On
February 13, 2008, the Immigration Subcommittee ordered the
bill favorably reported without amendment by voice vote. On May
14, 2008, the full Committee ordered the bill favorably
reported without amendment by voice vote. The bill was placed
on the Private Calendar on July 8, 2008, and it was called up
for consideration on September 16, 2008, when it was passed by
the House by voice vote. The bill was not passed in the Senate.
H.R. 5243, a Private Bill for the relief of Kumi Iizuka-Barcena
Summary.--H.R. 5243 provides lawful permanent residency to
beneficiary Kumi Iizuka-Barcena.
Legislative History.--H.R. 5243 was introduced by
Representative Silvestre Reyes (D-TX) on February 6, 2008. On
July 10, 2008, the Immigration Subcommittee ordered the bill
favorably reported without amendment by voice vote. On July 30,
2008, the full Committee ordered the bill favorably reported
without amendment by voice vote. The bill was placed on the
Private Calendar on July 8, 2008, and it was called up for
consideration on September 16, 2008, when it was passed by the
House by voice vote. The bill was not passed in the Senate.
H. Res. 954--Honoring the life of senior Border Patrol agent Luis A.
Aguilar, who lost his life in the line of duty near Yuma,
Arizona, on January 19, 2008
Summary.--On January 19, 2008, senior Border Patrol Agent
Luis A. Aguilar was killed in the line of duty while defending
the southern border of the United States. H. Res. 954 honored
his life and recognized the dedication and sacrifice made by
all the men and women who have lost their lives while serving
as United States Border Patrol agents.
Legislative History.--H. Res. 954 was introduced by
Representative Zoe Lofgren (D-CA) on January 29, 2008. On
February 12, 2008, the resolution was passed by the House under
suspension of the rules by a recorded vote of 357 to 0.
H. Res. 1438, Commemorating the 50th anniversary of the Azorean Refugee
Act of 1958 and celebrating the extensive contributions of
Portuguese-American communities to the United States
Summary.--In 1957 and 1958, the Azores Islands suffered
several volcanic eruptions and earthquakes, killing many of its
inhabitants and displacing many more. The United States, true
to its history as a nation of immigrants and protector of
vulnerable peoples, enacted the Azorean Refugee Act of 1958,
which allocated 1,500 visas to permanently resettle displaced
Azoreans. H. Res. 1438 commemorates the 50th anniversary of the
Azorean Refugee Act of 1958 and celebrates the extensive
contributions of Portuguese-American communities to the United
States.
Legislative History.--H. Res. 1438 was introduced by
Representative Devin Nunes (CA-R) on September 15, 2008. A
related bill, H. Res. 1401, had previously been introduced by
Rep. Jim Costa (CA-D) on July 31, 2008. On September 22, 2008,
H. Res. 1438 was passed by the House under suspension of the
rules by voice vote.
H.R. 1071, the ``September 11 Family Humanitarian Relief and Patriotism
Act''
Summary.--H.R. 1071 would allow eligible surviving
dependents of non-immigrant and unlawfully present aliens who
died as a result of the terrorist attacks of September 11,
2001, who received compensation from the September 11 Victims
Compensation Fund, and who meet certain other requirements, to
become lawful permanent residents of the United States.
Legislative History.--On February 15, 2007, Rep. Carolyn
Maloney (NY-D) introduced H.R. 1071 and the bill was referred
to the House Committee on the Judiciary. On March 19, 2007, the
bill was referred to the Immigration Subcommittee. On July 27,
2009, the Subcommittee forwarded the bill to the full committee
by voice vote. The full committee ordered the bill reported by
a roll call vote of 21-10 on August 2, 2007. On October 3,
2008, the bill was placed on the Union Calendar and no further
action was taken.
H.R. 2405, the ``Proud to Be an American Citizen Act''
Summary.--H.R. 2405 would direct the Department of Homeland
Security (DHS) to make funds available annually to the United
States Citizenship and Immigration Services (USCIS) or to
approved public or private nonprofit entities to support
naturalization ceremonies. Such ceremonies would be held on or
near Independence Day and would include appropriate outreach,
ceremonial, and celebratory activities. H.R. 2405 would limit
the funds available per ceremony to $5,000 and for specified
purposes such as personnel and site costs.
Legislative History.--On May 21, 2007, Representative Sam
Farr introduced H.R. 2405, Proud to Be an American Citizen Act.
On September 25, 2007, the Subcommittee on Immigration,
Citizenship, Refugees, Border Security, and International Law
considered H.R. 2405 and forwarded the bill to the Full
Committee by voice vote. On October 24, 2007, the Committee on
the Judiciary considered H.R. 2405 and ordered to be reported
by voice vote.
H.R. 4080, to amend the Immigration and Nationality Act to establish a
separate nonimmigrant classification for fashion models
Summary.--H.R. 4080 would have reclassified fashion models
of distinguished merit and ability, moving them from the H-1B
visa category and establishing a new visa category for fashion
models within the P visa category. The creation of a new
category for fashion models within the P visa category corrects
an earlier inadvertent mis-classification of fashion models as
H-1B workers.
Legislative History.--On November 5, 2007, Rep. Anthony
Weiner (D-NY) introduced H.R. 4080 and the bill was referred to
the House Committee on the Judiciary. On December 3, 2007, the
bill was referred to the Immigration Subcommittee. On May 13,
2008, the Subcommittee discharged the bill. The full committee
ordered the bill reported by a roll call vote of 20-3 on May
14, 2008. The bill was placed on the union Calendar on June 5,
2008 and no further action was taken.
H.R. 5060, to amend the Immigration and Nationality Act to allow
athletes admitted as nonimmigrants described in section
101(a)(15)(P) of such Act to renew their period of authorized
admission in 5-year increments
Summary.--H.R. 5060 would have amended the Immigration and
Nationality Act to allow athletes admitted as non-immigrants
described in section 101(a)(15)(P) of such Act to continuously
renew their period of authorized admission in 5-year
increments.
Legislative History.--On January 1, 2008, Rep. Linda
Sanchez (D-CA) introduced H.R. 5060 and the bill was referred
to the House Committee on the Judiciary. On February 4, 2008,
the bill was referred to the Immigration Subcommittee. On March
12, 2008, the Subcommittee forwarded the bill to the full
committee by voice vote. The full committee ordered the bill
reported on April 2, 2008 by voice vote. The bill was placed on
the union Calendar on June 5, 2008 and no further action was
taken.
H.R. 5882, to recapture employment-based immigrant visas lost to
bureaucratic delays and to prevent losses of family- and
employment-based immigrant visas in the future
Summary.--H.R. 5882 was designed to ``recapture'' family-
sponsored and employment-based immigrant visas lost largely to
bureaucratic delays from FY 1992 to FY 2007. It would also stop
the loss of family-sponsored and employment-based immigrant
visas that go unused in the future by allowing them to ``roll
over'' to the next fiscal year. H.R. 5882 would be effective on
the first day of the first fiscal year that begins after the
date of the enactment of the bill.
Legislative History.--On April 23, 2008, Representative Zoe
Lofgren introduced H.R. 5882. On July 31, 2008, the
Subcommittee on Immigration, Citizenship, Refugees, Border
Security, and International Law considered H.R. 5882 and
forwarded the amended bill to Full Committee by a roll call
vote of 8 to 1.
H.R. 5924, the ``Emergency Nursing Supply Relief Act''
Summary.--Section 2 of H.R. 5924 would have amend the
American Competitiveness in the Twenty-first Century Act of
2000 to permit the issuance of 20,000 immigrant visas to
Schedule A nurses and physical therapists annually for three
years. The Department of Homeland Security (DHS) would have
been required to process such petitions within 30 days of
receipt. An employer petitioning for a visa for an immigrant
professional nurse would be assessed a fee of $1,500 for each
immigrant nurse. However, no visa fee would have been assessed
if the employer demonstrates that it is a health care facility
located in a county receiving Major Disaster Declaration
assistance, or the employer has been designated as a Health
Professional Shortage Area facility.
During the time that a lawfully admitted immigrant is
working as a physician or other health care worker, the
immigrant and their spouse or child would have been able to
provide care in a developing country. The time the immigrant
would have spent providing care in the developing country would
meet the physically present and residing requirements, and the
continuous residency requirements needed for naturalization.
H.R. 5924 would have required the Secretary of State to publish
a list of countries that qualify as a developing country under
this section of the bill and would have updated the list of
developing countries at least once a year.
Legislative History.--On April 29, 2008, Representative
Robert Wexler (D-FL) introduced H.R. 5924, the ``Emergency
Nursing Supply Relief Act.'' On July 31, 2008, the Subcommittee
on Immigration, Citizenship, Refugees, Border Security, and
International Law considered H.R. 5924 and forwarded the bill
to Full Committee by a roll call vote of 7 to 2.
H.R. 6020, the Lance Corporal Jose Gutierrez Act of 2008
Summary.--Section 1 sets forth the short title of the bill
as the ``Lance Corporal Jose Gutierrez Act of 2008.''
Section 2 of H.R. 6020 amends the Immigration and
Nationality Act (INA) to allow soldiers who have served
honorably in dangerous operations not covered by a Presidential
Executive Order to naturalize under the wartime naturalization
provision of the INA. Section 2 also amends the INA to give
soldiers one year (rather than six months under current law)
after their honorable discharge to apply for citizenship under
the peacetime naturalization provision.
Section 3 amends the INA to allow conditional permanent
resident soldiers to wait until they are honorably discharged
before having to remove the condition on their permanent
residence. For U.S. citizen soldiers who are married to
conditional permanent residents, section 3 also amends INA to
exempt these soldiers from having to appear at an in-person
interview for their spouses' removal of condition.
Section 4 codifies a United States Immigration and Customs
Enforcement memorandum on procedures for placing soldiers or
veterans in removal proceedings. If they are placed in removal
proceedings, they must be given the opportunity to appear
before an Immigration Judge before being ordered deported.
Section 5 amends the INA to permit soldiers, honorably
discharged veterans, and certain family members to apply for a
discretionary waiver of certain grounds of inadmissibility or
deportability. They would have to demonstrate their eligibility
for such relief based on a multi-factor test.
Section 6 facilitates the reunification of lawful permanent
resident soldiers with their spouses and/or minor children by
making immigrant visas immediately available for these family
members.
Section 7 allows an unlawfully-present parent, spouse,
child, or minor sibling of U.S. citizen or lawful permanent
resident soldiers and certain veterans to apply for permanent
residence.
Legislative History.--On May 8, 2008, Representative Zoe
Lofgren introduced H.R. 6020. On July 31, 2008, the
Subcommittee on Immigration, Citizenship, Refugees, Border
Security, and International Law considered H.R. 6020 and
forwarded the amended bill to Full Committee by a roll call
vote of 6 to 3. On September 17, 2008, the Committee on the
Judiciary considered H.R. 6020 and ordered amended bill to be
reported by voice vote.
H.R. 6034, to amend the Immigration and Nationality Act to provide for
relief to surviving spouses and children
Summary.--H.R. 6034 would allow alien widows of U.S.
citizens who were married for less than two years at the time
of the citizen spouses' death to remain ``immediate relatives''
for immigration purposes as long as they can prove by a
preponderance of the evidence that the marriage was entered
into in good faith and not for the purpose of obtaining an
immigration benefit. H.R. 6034 would apply such provision to
all applications and petitions pending on or after the date of
enactment of this Act. It would also extend the petition filing
deadline for two years after the date of enactment of this Act
for an alien spouse if: (1) the U.S. citizen spouse died before
the date of enactment of this Act; (2) the alien and the
citizen spouse were married for less than two years at the time
of the citizen spouse's death; and (3) the alien has not
remarried.
Legislative History.--On May 13, 2008, Representative James
P. McGovern (D-MA) introduced H.R. 6034. On July 10, 2008, the
Subcommittee on Immigration, Citizenship, Refugees, Border
Security, and International Law considered H.R. 6034 and
forwarded the bill to Full Committee by voice vote. On July 16,
2008, the Committee on the Judiciary considered H.R. 6034 and
ordered the amended bill to be reported by voice vote.
Oversight Activities
Oversight Hearing on the Executive Office for Immigration Review
Summary.--On September 23, 2008, the Subcommittee met to
receive testimony on the Executive Office for Immigration
Review. This oversight hearing was conducted to (1) examine how
EOIR has been affected by the hiring process of immigration
judges and Board of Immigration Appeals (BIA) members, the 2002
regulatory changes to the BIA, and the ongoing lack of
resources and manpower, and (2) explore ways to improve EOIR
and the administrative removal process.
The witnesses included: Lee Lofthus, Assistant Attorney
General for Administration, U.S. Department of Justice; Kevin
Ohlson, Director, Executive Office for Immigration Review
(EOIR), U.S. Department of Justice; Susan B. Long, Co-Director,
Transactional Records Access Clearinghouse (TRAC); Stephen H.
Legomsky, The John S. Lehmann University Professor, Washington
University School of Law.
Oversight Hearing on Immigration Raids: Postville and Beyond
Summary.--The Subcommittee convened a hearing on July 24,
2008 on the immigration worksite enforcement actions at
Postville, Iowa. ICE conducted the enforcement action at a meat
processing plant operated by Agriprocessors, Inc., in Postville
on May 12, 2008. Rather than placing the unlawfully-present
immigrant workers into administrative removal proceedings as
has been customary, criminal charges were brought against 302
of the 389 unlawfully-present immigrants arrested. In makeshift
courtrooms at a fairground, hearings were held where ten
defendants at a time entered pleas and were sentenced. Of
these, 297 individuals were convicted and sentenced in a four
day time period. Some criminal and immigration law experts have
expressed grave concerns about the speed and the manner of
these proceedings, which concerns were contested by the
Department of Homeland Security. This hearing examined the
events of the enforcement action, and explored whether the
arrested workers in that case and other recent enforcement
actions were accorded due process in accordance with the
Constitution and criminal and immigration laws. The hearing
also examined the impact on U.S. citizens of identity theft by
unlawfully-present immigrants.
The witnesses were: Representatives Bruce L. Braley (D-IA);
Sheila Jackson-Lee (D-TX); Lynn C. Woolsey (D-CA); and David
Davis (D-TN); Deborah Rhodes, Senior Associate Deputy Attorney
General, U.S. Department of Justice; Marcy Forman, Director of
Investigations, U.S. Immigration and Customs Enforcement; Erik
Camayd-Freixas, Ph.D., Professor of Modern Languages, Florida
International University; David Leopold, Esq., David Wolfe
Leopold & Associates, on behalf of American Immigration Lawyers
Association; Robert R. Rigg, Esq., Associate Professor of Law
and Director of the Criminal Defense Program, Drake University
School of Law; Mrs. Lora Costner, identity theft victim.
Oversight Hearing on the Need for Green Cards for Highly Skilled
Workers
Summary.--This June 12, 2008 hearing explored the need for
green cards for highly-educated employees in the fields of
science, technology, engineering and mathematics (STEM), as
well as nursing, and the impact of such immigrants on the job
opportunities for American workers. The witnesses were: Edward
Sweeney, Senior Vice President, Worldwide Human Resources,
National Semiconductor Corporation; Lee Colby, Electrical
Engineer, Lee Colby & Associates and Past Chair of the
Institute of Electrical and Electronics Engineers Santa Clara
Valley Section; John Pearson, Director of the Bechtel
International Center, Stanford University Association of
International Educators; Yongjie Yang, Ph.D., Legal Immigrant
Association; Mark Krikorian, Executive Director, Center for
Immigration Studies; Jana Stonestreet Ph.D., RN, Chief Nursing
Executive, Baptist Health System; Cheryl A. Peterson, MSN, RN,
Senior Policy Fellow, American Nurses Association; Steven
Francy, Executive Director, RNs Working Together, AFL-CIO.
Oversight Hearing on Electronic Employment Verification Systems: Needed
Safeguards to Protect Privacy and Prevent Misuse
Summary.--The Subcommittee met on June 10, 2008 to convene
this hearing that focused on proposals to mandate a nationwide
electronic employment eligibility verification system (EEVS),
how U.S. workers may be impacted by a mandatory EEVS, and
explored ways to protect U.S. workers from unintended
consequences of EEVS errors and/or misuse. In the hearing, the
Subcommittee heard from Members of Congress who introduced EEVS
bills on how their bills would protect U.S. workers from errors
and/or misuse. The following Members and individuals testified
before the Subcommittee: Hon. Ken Calvert (R-CA); Hon. Heath
Shuler (D-NC); Hon. Sam Johnson (R-TX); Hon. Gabrielle Giffords
(D-AZ); Jonathan R. Scharfen, Deputy Director, United States
Citizenship and Immigration Services, Department of Homeland
Security; Carolyn Shettle, Senior Study Director, Westat; Tim
Sparapani, Senior Legislative Counsel, American Civil Liberties
Union; Chris Williams, Executive Director, Working Hands Legal
Clinic; Glenda Wooten-Ingram, HR Director, Embassy Suites.
Oversight Hearing on Problems with Immigration Detainee Medical Care
Summary.--This June 4, 2008, hearing explored recent
reports about inadequate medical care for immigrant detainees
and deaths while in custody. The hearing examined the quality
of medical and mental health care provided in detention
facilities under ICE's jurisdiction, including medical and
mental health care standards and procedures and the growing
number of immigration detainees that have died during or as a
result of ICE custody. The witnesses were: Julie Myers,
Assistant Secretary, Immigration and Customs Enforcement, U.S.
Department of Homeland Security; Philip Farabaugh, Acting
Director, Division of Immigration Health Services, Immigration
and Customs Enforcement, U.S. Department of Homeland Security;
Richard M. Stana, Government Accountability Office; Gloria
Armendariz, wife of Isaias Vasquez, former detainee; Vena T.
Asfaw, former detainee; Ann Schofield Baker, Partner at McKool
Smith and attorney for Amina Bookey Mudey, former detainee;
Rev. E. Roy Riley, Bishop of the New Jersey Synod, Evangelical
Lutheran Church in America; Homer Venters, MD, Attending
Physician & Public Health Fellow, Bellevue/NYU Program for
Survivors of Torture; Mary Meg McCarthy, Director, National
Immigrant Justice Center; Edward Harrison, President, National
Commission on Correctional Health Care; and Isaac Reyes,
Washington Representative; U.S./Mexico Border Counties
Coalition.
Oversight Hearing on Immigration Needs of America's Fighting Men and
Women
Summary.--On May 20, 2008 the Subcommittee met in open
session to examine the ways in which our current immigration
system impacts the needs of our soldiers, veterans, and their
families. It also examined the unique situation of America's
fighting men and women, as well as the service that they render
to our country. The hearing witnesses included: Margaret Stock,
Attorney and Lieutenant Colonel, Military Police Corps, United
States Army Reserve; Karla Arambula de Rivera, E2 Officer,
United States Navy; Christine Navarro, KC-135 Aircraft
Commander, United States Air Force; Lt. General Edward D. Baca
(retired), President and CEO, Baca Group; and Mark Seavey,
Assistant Director of National Legislative Commission, American
Legion.
Oversight Hearing on Wasted Visas, Growing Backlogs
Summary.--The Subcommittee, on April 30, 2008, met to
examine the failure by the Department of Homeland Security and
the Department of State to issue numbers of family- and
employment-based immigrant visas each year. The hearing also
explored possible administrative and legislative solutions. The
witnesses were: Michael Aytes, Associate Director for Domestic
Operations, U.S. Citizenship and Immigration Services, U.S.
Department of Homeland Security; Donald Neufeld, Acting
Associate Director, Domestic Operations, U.S. Citizenship and
Immigration Services, U.S. Department of Homeland Security;
Stephen A. Edson, Deputy Assistant Secretary of State for Visa
Service, U.S. Department of State; and Charles Oppenheim,
Chief, Visa Control and Reporting Division, U.S. Department of
State.
Oversight Hearing on the H-2B Program
Summary.--On April 16, 2008 the Subcommittee convened this
hearing to explore several issues related to the H-2B program,
including concerns that the program fails to meet the needs of
U.S. employers and lacks effective labor protections. The
hearing specifically analyzed the need to reauthorize the
``returning worker exemption,'' which expired at the end of
fiscal year 2007 and has decreased the number of H-2B workers
available to U.S. businesses. The hearing also investigated
alleged abuses of H-2B workers and the issue of adding labor
protections to existing H-2B legislation.
Witnesses at this hearing were: Hon. George Miller (D-CA);
Hon. Bart Stupak (D-MI); Hon. Tim Bishop (D-NY); Hon. Wayne
Gilchrest (R-MD); R. D. Musser, III, President, Grand Hotel;
William Zammer, President, Cape Cod Restaurants, Inc.; Ross
Eisenbrey, Vice President, Economic Policy Institute; Mary
Bauer, Director, Immigrant Justice Project, Southern Poverty
Law Center; and Steven Camarota, Director of Research, Center
for Immigration Studies.
Oversight Joint Hearing on Paying With Their Lives: The Status of
Compensation for 9/11 Health Effects
Summary.--When the World Trade Center collapsed on 9/11,
thousands of first responders, local residents, workers,
students, and others inhaled a poisonous mixture of asbestos,
lead, PCBs, and other contaminants. More than six years later,
many of these people have become sick from the toxic dust and
there is currently no comprehensive federal program to provide
them with health care or compensation. On April 1, 2008, the
Subcommittee met jointly with the Subcommittee on the
Constitution, Civil Rights, and Civil Liberties. This hearing
addressed past successes, as well as the current and future
challenges of compensating people for illnesses and injuries
that resulted from the September 11, 2001 attacks on the World
Trade Center.
The witnesses at this hearing were: Kenneth R. Feinberg,
Esq., Former Special Master, Victim Compensation Fund; Michael
Cardozo, Corporation Counsel, City of New York; Anne-Marie
Lasowski, Acting Director, Education Workforce and Income
Security, Government Accountability Office; Michael A.
Valentin, Former NYPD Detective; Theodore H. Frank, Resident
Fellow, American Enterprise (AEI), Director of AEI Legal Center
for the Public Interest; and James Melius, MD, Ph.D.,
Administrator, New York State Laborers' Health and Safety Trust
Fund.
Hearing on Problems with ICE Interrogation, Detention, and Removal
Procedures
Summary.--As Immigration and Customs Enforcement (ICE) has
grown in size and activity, some have suggested that the agency
has not been able to keep up with the necessary training and
oversight of its agents. Accounts of ICE agents who may have
acted in an inappropriate and possibly illegal manner during
various enforcement actions have recently increased. On
February 13, 2008, the Subcommittee held a hearing to review
ICE's procedures for interrogations, detention, and removal, as
well as some cases in which allegations have been made that
U.S. citizens were questioned, searched, arrested, detained, or
deported by ICE. The hearing also examined procedures that ICE
uses to ensure that U.S. citizens are not detained and
deported. Witnesses at this hearing were: Gary Mead, Assistant
Director for Detention & Removal, U.S. Immigration and Customs
Enforcement; James J. Brosnahan, Senior Partner, Morrison &
Foerster, LLP; Marie Justeen Mancha, Student, Tattnal County
High School; Michael Graves, Member UFCW Local 1149; Kara
Hartzler, Attorney, Florrence Immigrant & Refugee Rights
Project; Rachel E. Rosenbloom, Human Rights Fellow, Center for
Human Rights and International Justice at Boston College; and
Dan Stein, President, Federation for American Immigration
Reform.
Oversight Hearing on Naturalization Delays: Causes, Consequences and
Solutions
Summary.--When U.S. Citizenship and Immigration Services
(USCIS) published its proposed fee increase rule on February 1,
2007, its average processing time for naturalization
applications was 5.57 months, just under its stated processing
time goal of six months. In proposing the rule, the USCIS
stated its goal of a 20% reduction in processing times. By
January 16, 2008 the agency went from an average processing
time of under six months to one of up to (or exceeding) a year
and a half. This January 17, 2008 hearing examined the causes,
consequences and solutions for naturalization delays, including
an examination of persistent delays caused by the FBI name
check. The hearing witnesses included: Emilio T. Gonzalez
Ph.D., Director, U.S. Citizenship and Immigration Services
Department of Homeland Security; Arturo Vargas, Executive
Director, NALEO Educational Fund; Fred Tsao, Policy Director,
Illinois Coalition for Immigrant and Refugee Rights; and
Rosemary Jenks, Director of Government Relations, Numbers USA.
Hearing on H.R. 750, the ``Save America Comprehensive Immigration Act
of 2007''
Summary.--This November 8, 2007 hearing highlighted the
continuing need for comprehensive immigration reform through an
examination of H.R. 750, the ``Save America Comprehensive
Immigration Act of 2007.'' The witnesses were: the Honorable
Carolyn Cheeks Kilpatrick (D-MI); the Honorable Barbara Lee (D-
CA); the Honorable Silvestre Reyes (D-TX); the Honorable Nancy
E. Boyda (D-KS); William Spriggs, Ph.D., Chairman, Department
of Economics, Howard University; Gregory Siskind, Partner,
Siskind, Susser, Bland; Charles H. Kuck, President-Elect,
American Immigration Lawyers Association, Adjunct Professor of
Law, University of Georgia; Christopher Nugent, Senior Counsel,
Community Services Team, Holland and Knight, LLP; Kim Gandy,
President, National Organization for Women (NOW); T. J. Bonner,
President, National Border Patrol Council of the American
Federation of Government Employees, AFL-CIO; and Julie
Kirchner, Director of Government Relations, Federation for
American Immigration Reform.
Oversight Hearing on Detention and Removal: Immigration Detainee
Medical Care
Summary.--This hearing held on October 4, 2007, explored
recent reports about the quality of medical care for immigrant
detainees in U.S. Immigration and Customs Enforcement (ICE)
custody. The witnesses were: Gary Mead, Assistant Director for
Detention & Removal, U.S. Immigration and Customs Enforcement;
Francisco Castaneda, Former Detainee; Edwidge Danticat, Author
and Niece of Reverend Joseph Dantica, deceased detainee; June
Everett, Sister of Sandra Kenley, deceased detainee; Tom
Jawetz, Immigration Detention Staff Attorney, ACLU National
Prison Project; Allen S. Keller, MD, Associate Professor of
Medicine, New York University School of Medicine; and Cheryl
Little, Executive Director, Florida Immigrant Advocacy Center.
Oversight Hearing on USCIS Fee Increase Rule
Summary.--On September 20, 2007, the Subcommittee convened
a hearing on the USCIS fee increase rule. This hearing explored
U.S. Citizenship and Immigration Services' (USCIS) decision to
raise its fees and the methodology the agency used to calculate
its fee increases. The hearing also allowed the Subcommittee to
follow up with USCIS about issues raised in the Subcommittee's
February 14, 2007 hearing on the agency's then-proposed fee
rule. The hearing also considered H.J. Res. 47, which would
have, if passed, rendered USCIS' fee rule null and void and
would have forced the agency to issue a new rule providing
additional justifications for its fee increases.
Testimony was heard from: Jonathan R. Scharfen, Deputy
Director, U.S. Citizenship and Immigration Services, U.S.
Department of Homeland Security; Rendell Jones, Chief Financial
Officer, U.S. Citizenship and Immigration Services, U.S.
Department of Homeland Security; Michael Aytes, Associate
Director for Domestic Operations, U.S. Citizenship and
Immigration Services, U.S. Department of Homeland Security;
Arturo Vargas, Executive Director, NALEO Educational Fund;
William R. (Bill) Yates, Executive Consultant, Border
Management Strategies (BMS); and Rhadmes Rivera Vice President
of 1199, SEIU United Health Care Workers East.
H.R. 1645, the ``Security Through Regularized Immigration and a Vibrant
Economy Act of 2007 (STRIVE Act)''
Summary.--This September 6, 2007 hearing examined H.R.
1645, the ``Security Through Regularized Immigration and a
Vibrant Economy Act of 2007 (STRIVE Act).'' The following
witnesses testified before the Subcommittee: the Honorable Jeff
Flake (R-AZ); the Honorable Joe Baca (D-CA); the Honorable Ray
LaHood (R-IL); the Honorable Brian Bilbray (D-CA); Tony
Wasilewski, Small Business Owner, Schiller Park, Illinois;
Eduardo Gonzalez, U.S. Navy Petty Officer Second Class,
Jacksonville, Florida; Reverend Luis Cortes, Jr., President,
Esperanza USA; Joshua Hoyt, Executive Director, Illinois
Coalition for Immigrant & Refugee Rights; Cassandra Q. Butts,
Senior Vice President for Domestic Policy, Center for American
Progress; Michael L. Barrera, President and CEO, United States
Hispanic Chamber of Commerce; Julie Kirchner, Director of
Government Relations, Federation for American Immigration
Reform; and The Honorable Corey Stewart, Chairman At-Large,
Prince William County Board of Supervisors.
Oversight Hearing on Comprehensive Immigration Reform: Government
Perspectives on Immigration Statistics
Summary.--This June 6, 2007 hearing examined relevant
official government statistics relating to the reform of the
country's immigration laws. Testimony was heard from: the
Honorable Joseph Crowley (D-NY); the Honorable Dana Rohrabacher
(R-CA); Ruth Ellen Wasem Ph.D., Specialist in Immigration
Policy Congressional Research Service; Ron Bird Ph.D., Chief
Economist and Director of the Office of Economic Policy and
Analysis, U.S. Department of Labor; Michael Hoefer, Director of
the Office of Immigration Statistics (OIS), U.S. Department of
Homeland Security; and Charles Oppenheim, Chief, Visa Control
and Reporting Division, U.S. Department of State.
Oversight Hearing on Comprehensive Immigration Reform: Government
Perspectives on Immigration Statistics (Continued)
Summary.--This June 19, 2007 hearing was a continuation of
the June 6, 2007 hearing, as requested by the minority. The
witnesses included: Shannon Benton, Executive Director, TREA
Senior Citizens League; Steven Camarota, Director of Research,
Center for Immigration Studies; and Robert Rector, Senior
Research Fellow, The Heritage Foundation.
Oversight Hearing on Comprehensive Immigration Reform: Business
Community Perspectives
Summary.--This June 6, 2007 hearing explored the positions
and viewpoints of the business community with respect to reform
of the Nation's immigration laws; specifically, the high tech
industry, the service industry and the agriculture industry.
Witnesses: Laszlo Bock, Vice President, People Operations,
Google Inc.; John Gay, Senior Vice President for Government
Affairs & Public Policy, National Restaurant Association;
William Hawkins, Senior Fellow, U.S. Business and Industry
Council; Jerry Mixon, Partner Mixon Family Farms.
Oversight Hearing on Comprehensive Immigration Reform: Labor Movement
Perspectives
Summary.--This hearing explored the positions and
viewpoints of various segments of the labor movement with
respect to reforming the Nation's immigration laws. The
witnesses at this May 24, 2007 hearing were: Jonathan Hiatt,
General Counsel, American Federation of Labor and Congress of
Industrial Organizations (AFL-CIO); Fred Feinstein, Senior
Fellow and Visiting Professor, University of Maryland,
Representing SEIU and UNITE HERE; Michael J. Wilson,
International Vice President and Director, Legislative and
Political Action Department, United Food and Commercial Workers
International Union (UFCW); Marcos Camacho, General Counsel,
United Farm Workers of America; Vernon Briggs, Ph.D., Professor
of Industrial and Labor Relations, Cornell University; and Greg
Serbon, State Director, Indiana Federation for Immigration
Reform and Enforcement.
Oversight Hearing on Comprehensive Immigration Reform: Becoming
Americans--U.S. Immigrant Integration
Summary.--This May 23, 2007 hearing was a continuation of
the hearing on 5-16-2007, as requested by the minority.
Witnesses: Roger Clegg, President and General Counsel, Center
for Equal Opportunity; Stanley Renshon, City University of New
York Graduate Center; Tim Schultz, Director, Government
Relations U.S. English; and Mark Seavey, Director of the
National Legislative Commission, The American Legion.
Oversight Hearing on Comprehensive Immigration Reform: Perspectives
from Faith-Based and Immigrant Communities
Summary.--This May 22, 2007, hearing explored the positions
and viewpoints of faith-based and immigrant organizations with
respect to reforming the country's immigration laws. Witnesses:
Reverend Charles G. Adams, Senior Pastor Hartford Memorial
Baptist Church; Gideon Aronoff, President and CEO Hebrew
Immigrant Aid Society (HIAS); Reverend Luis Cortes, Jr.,
President, Esperanza USA; Reverend Derrick Harkins, Pastor
Nineteenth Street Baptist Church; Dan Kosten, Director, World
Relief Refugee and Immigration Programs, National Association
of Evangelicals; Most Reverend Thomas G. Wenski, U.S.
Conference of Catholic Bishops, Diocese of Orlando; Jim
Edwards, Jr. Ph.D., Adjunct Fellow, Hudson Institute; Stephen
Steinlight, Center for Immigration Studies, Former National
Affairs Director at the American Jewish Committee (AJC);
Marleine Bastien, Executive Director, Fanm Ayisyen Nan Miyami,
Inc., Haitian Women of Miami; Deepa Iyer, Executive Director,
South Asian American Leaders of Tomorrow; Janet Murguia,
President and CEO National Council of La Raza; Karen K.
Narasaki, President and Executive Director, Asian American
Justice Center (AAJC); Niall O'Dowd, Chairman, Irish Lobby of
Immigration Reform; Noel J. Saleh, President, ACCESS Board of
Directors; Rosanna Pulido, Illinois Spokesperson ``You Don't
Speak for Me''; and Jan Ting, Professor of Law, Temple
University, Beasley School of Law.
Oversight Hearing on Comprehensive Immigration Reform: The Future of
Undocumented Immigrant Students
Summary.--The Subcommittee convened this May 18, 2007
hearing to examine the circumstances of unlawfully-present
immigrant children who grow up in the United States, and the
effect that they can have on the U.S. if they were to be given
legal immigration status and were allowed to become full,
participating members of our society. The following witnesses
testified at the hearing: Marie Nazareth Gonzalez, Westminster
College, Class of 2009; Martine Mwanj Kalaw, Hamilton College,
Class of 2003, The Maxwell School of Citizenship and Public
Affairs Syracuse University, Class 2004; Tam Tran, University
of California, Los Angeles Class of 2006; Diana Furchtgott-
Roth, Senior Fellow & Director, Center for Employment Policy
Hudson Institute; Allan Cameron Ph.D., Retired High School
Computer Science Teacher, Carl Hayden High School, Phoenix, AZ;
Jamie P. Merisotis, President, Institute for Higher Education
Policy; and Kris W. Kobach Ph.D., Professor of Law, University
of Missouri-Kansas City School of Law.
Oversight Hearing on Comprehensive Immigration Reform: Impact of
Immigration on States and Localities
Summary.--Most scholars tend to agree that illegal
immigration imposes some costs on states and localities. This
May 17, 2008 hearing focused on those costs. The witnesses
were: The Honorable Sharon Tomiko Santos, Washington State
House of Representatives, National Conference of State
Legislatures; The Honorable Dennis Zine, Councilman, City of
Los Angeles, National League of Cities; Stephen Appold Ph.D.,
Kenan Institute of Private Enterprise, The University of North
Carolina at Chapel Hill; The Honorable John Andrews, Former
President of the Colorado State Senate; Audrey Singer Ph.D.,
Immigration Fellow, Metropolitan Policy Program, The Brookings
Institution; Anne Morrison Piehl Ph.D., Department of Economics
& Program in Criminal Justice Rutgers, The State University of
New Jersey; Deborah A. Santiago, Ph.D., Vice President for
Policy and Research, Excelencia in Education; Robert Rector,
Senior Research Fellow, The Heritage Foundation.
Oversight Hearing on Comprehensive Immigration Reform: Becoming
Americans--U.S. Immigrant Integration
Summary.--On May 16, 2007 the Subcommittee convened a
hearing to explore whether and to what extent immigrants are
integrating into the United States and discuss policies to
promote greater immigrant integration. Testimony was heard
from: John Fonte, Ph.D., Senior Fellow at the Hudson Institute;
Gary Gerstle, Ph.D., Professor of History, Vanderbilt
University; Donald Kerwin, Executive Director, Catholic Legal
Immigration Network, Inc.; and Ruben G. Rumbaut, Ph.D.,
Professor of Sociology, University of California, Irvine.
Oversight Hearing on the U.S. Economy, U.S. Workers, and Immigration
Reform
Summary.--This May 9, 2007 hearing was a continuation of
the hearing held on May 3, 2007 as requested by the minority.
The witnesses were: T. Willard Fair, President, Miami Urban
League; Roy Beck, Director, Numbers USA; and Steve Camarota,
Director of Research, Center for Immigration Studies.
Oversight Hearing on the Role of Family-Based Immigration in the U.S.
Immigration System
Summary.--The Subcommittee convened this hearing on May 8,
2007 to examine the role of family-based immigration in the
U.S. immigration system. Testimony was heard from: Stuart
Anderson, Executive Director, National Foundation for American
Policy; Harriet Duleep, Ph.D., Research Professor of Public
Policy, Thomas Jefferson Program in Public Policy, The College
of William and Mary; The Honorable Phil Gingrey, U.S. House of
Representatives (R-GA); and Bill Ong Hing, Professor of Law and
Asian American Studies, University of California, Davis.
Oversight Hearing on the U.S. Economy, U.S. Workers, and Immigration
Reform
Summary.--This May 3, 2007, hearing was held to examine the
effects of immigrants on the Nation's economy, with particular
attention to the native-born workforce. The witnesses were: the
Honorable Steve King, (R-IA); Leon R. Sequeira, Assistant
Secretary for Policy, U.S. Department of Labor; Patricia
Buckley, Ph.D., Senior Economic Advisor to the Secretary, U.S.
Department of Commerce; Peter R. Orszag, Ph.D., Director,
Congressional Budget Office; Gerald Jaynes, Professor of
Economics and African-American Studies, Yale University; Rachel
Friedberg, Ph.D., Senior Lecturer in Economics, Brown
University; Wade Henderson, Esq., President and CEO, Leadership
Conference on Civil Rights; and Vernon Briggs, Professor of
Industrial and Labor Relations, Cornell University.
Oversight Hearing on An Examination of Point Systems as a Method for
Selecting Immigrants
Summary.--The Subcommittee met on May 1, 2007, to receive
testimony examining the role of ``point systems'' for admitting
immigrants from foreign law experts who described how point
systems are used in Canada, Australia and the United Kingdom,
practitioners experienced with point systems in other
countries, and Senator Jeff Sessions who supports a point
system. The witnesses were: The Honorable Jeff Sessions, United
States Senate (R-AL); Clare Feikert, Foreign Law Specialist,
Law Library of Congress; Stephen F. Clarke, Senior Foreign Law
Specialist, Law Library of Congress; Lisa White, Foreign Law
Specialist, Law Library of Congress; Demetrios Papademetriou,
Ph.D., President and Board Member, Migration Policy Institute;
Howard D. Greenberg, Partner, Greenberg Turner, A Human
Resources Law Firm; Lance Kaplan, Partner, Fragomen, Del Rey,
Bernsen & Loewy, LLP; Robert Rector, Senior Research Fellow,
The Heritage Foundation.
Oversight Hearing on Proposals for Improving the Electronic Employment
Verification and Worksite Enforcement System
Summary.--In its previous hearing, the Subcommittee
examined issues in the current paper and electronic employment
eligibility verification systems. This hearing on April 6, 2007
examined various proposals for modifying the employment
eligibility verification and worksite enforcement system.
Testimony was heard from: the Honorable Ken Calvert (R-CA); the
Honorable Elton Gallegly (R-CA); the Honorable David Dreier (R-
CA); the Honorable Silvestre Reyes (D-TX); Luis V. Gutierrez
(D-IL); the Honorable Jeff Flake (R-AZ); Randel Johnson, Vice
President, Labor, Immigration & Employee Benefits, U.S. Chamber
of Commerce; Robert Gibbs, Partner, Gibbs Houston Pauw, On
behalf of the Service Employees International Union; Jim
Harper, Director of Information Policy Studies, The Cato
Institute; Jessica Vaughan, Senior Policy Analyst, Center for
Immigration Studies.
Oversight Hearing on Problems in the Current Employment Verification
and Worksite Enforcement System
Summary.--On April 24, 2007, the Subcommittee convened a
hearing to examine issues in the current paper and electronic
employment eligibility verification systems. The witnesses
included: Jonathan R. Scharfen, Deputy Director, U.S.
Citizenship and Immigration Services, U.S. Department of
Homeland Security; John Shandley, Senior V.P., Human Resources,
Swift & Company; Stephen W. Yale-Loehr, Miller Mayer, LLP,
Adjunct Professor, Cornell Law School; and Marc Rosenblum,
Ph.D., Department of Political Science, University of New
Orleans.
Oversight Hearing on Shortfalls of 1996 Immigration Reform Legislation
Summary.--On April 20, 2007, the Subcommittee held a
hearing to examine the effects that 1996 immigration reform
legislation had on historical patterns of circular migration,
rule of law, and due process. The following witnesses testified
before the Subcommittee: Douglas Massey, Ph.D., Professor of
Sociology and Public Affairs, Princeton University; Hiroshi
Motomura, Kenan Distinguished Professor of Law, University of
North Carolina School of Law; Paul Virtue, Former INS General
Counsel and Executive Associate Commissioner, Partner, Hogan &
Hartson; and Mark Krikorian, Executive Director, Center for
Immigration Studies.
Oversight Hearing on Shortfalls of the 1986 Immigration Reform
Legislation
Summary.--The Subcommittee held a hearing on April 19,
2007, to examine the Immigration Reform and Control Act of 1986
(IRCA) and its effects, both intended and unintended. Testimony
was received from: Muzaffar Chishti, Director, Migration Policy
Institute, New York University School of Law; Rosemary Jenks,
Director of Government Relations, Numbers USA; Stephen
Legomsky, John S. Lehmann University Professor, Washington
University in St. Louis; and Stephen Pitti, Ph.D., Professor of
History & American Studies, Director of the Program in
Ethnicity, Race and Migration, Yale University.
Oversight Hearing on Past, Present, and Future: A Historic and Personal
Reflection on American Immigration
Summary.--The Subcommittee convened this hearing on March
30, 2007 to examine how America has dealt with immigration in
the past, the impact that immigration is having in the present,
and the role that immigration will play in our country's
future, with help from experts in history, economics, and
demography, as well as government officials in charge of
immigration policy and border security. The hearing witnesses
included: David V. Aguilar, Chief, Office of Border Patrol,
Department of Homeland Security; Igor V. Timofeyev, Director of
Immigration Policy and Special Advisor for Refugee and Asylum
Affairs, Policy Directorate, U.S. Department of Homeland
Security; Dowell Myers, Professor of Urban Planning and
Demography and Director of the Population Dynamics Research
Group, University of Southern California; Dan Siciliano,
Professor of Urban Planning and Demography and Director of the
Population Dynamics Research Group, University of Southern
California; Daniel J. Tichenor, Associate Professor, Department
of Political Science Rutgers, The State University of New
Jersey; Michael W. Cutler, Former Senior Special Agent of the
INS, Fellow at the Center for Immigration Studies; and Jack
Martin, Special Projects Director, Federation for American
Immigration Reform.
Oversight Hearing on ``The Proposed Immigration Fee Increase''
Summary.--On February 14, 2007, the Subcommittee convened a
hearing to explore the proposal by U.S. Citizenship and
Immigration Services (USCIS) to increase its fees, with
particular attention to whether the USCIS fee increase proposal
adequately and fairly calculated an appropriate share of the
agency's true costs of adjudicating naturalization and
immigration applications and petitions. Dr. Emilio T. Gonzalez,
Director, U.S. Citizenship and Immigration Services, U.S.
Department of Homeland Security was the only witness at this
hearing.
LETTERS
Visa Waiver Program for Guam and the Commonwealth of the Northern
Mariana Islands (CNMI)
On October 1, 2008, Chairman John Conyers, Jr. and
Immigration Subcommittee Chairwoman Zoe Lofgren, with Committee
on Natural Resources Chairman Nick Rahall, Insular Affairs
Subcommittee Chairwoman Donna Christensen, Rep. Madeleine
Bordallo, and Rep. Luis Fortuno, wrote to Secretary of Homeland
Security Michael Chertoff urging him to adopt the visa waiver
expansion proposals submitted by the Governors of Guam and the
CNMI.
Protecting Women From Female Genital Mutilation
On January 28, 2008, Chairman John Conyers, Jr. and
Immigration Subcommittee Chairwoman Zoe Lofgren wrote to
Attorney General Michael Mukasey questioning the Board of
Immigration Appeals' (BIA) decision in Matter of A-T and urging
him to certify the case for review. The BIA's decision denied
asylum and withholding of removal to a woman who had
experienced female genital mutilation as a child and feared
further abuse of forced marriage.
On September 23, 2008, Chairman John Conyers, Jr. and
Immigration Subcommittee Chairwoman wrote to Attorney General
Michael Mukasey commending him for his decision to vacate and
remand Matter of A-T.
Optional Practical Training Extension
On February 27, 2008, Immigration Subcommittee Chairwoman
Zoe Lofgren, with Representatives Adam Schiff, Dennis Moore,
Sheila Jackson Lee, and Jerrold Nadler, wrote to Secretary of
Homeland Security Michael Chertoff urging him to extend the
Optional Practical Training (OPT) period permitted for foreign
students from 12 to 29 months.
On July 15, 2008, Immigration Subcommittee Chairwoman Zoe
Lofgren and Rep. Chris Cannon wrote to Secretary of Homeland
Security Michael Chertoff applauding efforts to extend the
period of OPT for the best and the brightest students to remain
in the U.S., urging Secretary Chertoff to include accounting
and auditing in the list of degrees that would qualify for the
OPT extension, and expressing reservation about attaching
policy to the OPT extension which compels employers to enroll
in the Basic Pilot program if their employees' OPT is extended.
Inadequate Medical Care for Immigration Detainees
On May 15, 2008, Chairman John Conyers and Immigration
Subcommittee Chairwoman Zoe Lofgren wrote to Secretary of
Homeland Security Michael Chertoff regarding a Washington Post
series concerning the quality of medical care provided at
detention centers holding immigration detainees. The letter
requested complete and unredacted copies of all documents
submitted to the Washington Post relating to the provision of
medical and mental health care to immigration detainees.
On August 18, 2008, Chairman John Conyers and Immigration
Subcommittee Chairwoman Zoe Lofgren wrote to Secretary of
Homeland Security Michael Chertoff regarding the in-custody
death of Hiu Lui Ng, an immigrant who was very close to
naturalization through his U.S. citizen spouse. The letter
requested an investigation for Mr. Ng's death based upon
disturbing allegations by the New York Times of serious medical
neglect in immigration detention. The letter also re-requested
the documents requested in the May 15, 2008 letter regarding
the quality of medical care for immigration detainees.
Security-related Bars to the Admission of Deserving Refugees, Asylees,
Special Immigrants, and Other Non-citizens
On April 1, 2008, Chairman John Conyers and Immigration
Subcommittee Chairwoman Zoe Lofgren wrote Secretary of Homeland
Security Michael Chertoff concering the failure of the
Department of Homeland Security to make use of its statutory
authority to exempt deserving individuals from security-related
bars to admission.
H-2A Non-immigrant Regulations
On March 6, 2008, Chairman John Conyers, Immigration
Subcommittee Chairwoman Zoe Lofgren, with Committee on
Education and Labor Chairman George Miller, Foreign Affairs
Chairman Howard Berman, and Subcommittee on Workforce
Protections Chairwoman Lynn Woolsey, wrote to Secretary of
Labor Elaine Chao urging her to withdraw the proposed H-2A
regulations that would, among other things, eliminate
protections for U.S. farm workers and lower wage rates for both
U.S. and foreign guest workers.
Adjustment of Status Regulations for ``T'' and ``U'' Non-immigrants
On July 9, 2008, Chairman John Conyers and Immigration
Subcommittee Chairwoman Zoe Lofgren wrote to Secretary of
Homeland Security Michael Chertoff urging him to issue
regulations, which had been delayed for eight years, regarding
adjustment of status for ``T'' and ``U'' non-immigrants.
Exploitation of H-2B Non-immigrants
On June 3, 2008, Chairman John Conyers and Immigration
Subcommittee Chairwoman Zoe Lofgren, with Committee on
Education and Labor Chairman George Miller, wrote to the Acting
Assistant Attorney General for Civil Rights and the Assistant
Secretary for Immigration and Customs Enforcement encouraging
them to investigate disturbing allegations of worker
exploitation in a shipyard owned by Signal International where
H-2B non-immigrants were employed.
Refugee Consultation Follow-up
On December 13, 2007, Chairman John Conyers and Immigration
Subcommittee Chairwoman Zoe Lofgren wrote to Secretary of State
Condoleezza Rice to thank her for the Fall refugee consultation
and her commitment to a more timely and meaningful consultation
process under section 207(a) of the Immigration and Nationality
Act. The letter also reiterated views expressed during the
consultation about various refugee concerns, including
shortfalls in meeting admissions goals and pipeline management,
Iraqi refugees, ``material support'' bars preventing deserving
refugees from admission, the refugee situation in Darfur and
Chad, the situation of Haitian refugees, the protection of
vulnerable women and children refugees, and shortfalls in
refugee funding.
Self-petitions Under the Violence Against Women Act (VAWA)
On November 28, 2007, Subcommittee Chairwoman Zoe Lofgren
wrote to U.S. Citizenship and Immigration Services Director
Emilio Gonzalez asking him to confirm whether a memorandum
would be issued narrowly limiting approved self-petitioners
under the Violence Against Women Act (VAWA) contrary to the
plain language of the Immigration and Nationality Act as
amended by VAWA. If the Director was in fact considering
issuing such a memorandum, the letter urges him to reconsider.
Immigration Detention Standards
On September 7, 2007, Immigration Subcommittee Chairwoman
Zoe Lofgren wrote to U.S. Immigration and Customs Enforcement
(ICE) Assistant Secretary Julie Myers to request a copy of
proposed detention standards, request that ICE brief
Subcommittee staff on the detention standards, and to express
concern regarding reports that ICE had not worked with non-
governmental organizations to establish the standards.
Visa Bulletin Irregularities
On July 2, 2007, Immigration Subcommittee Chairwoman Zoe
Lofgren wrote to Secretary of State Condoleezza Rice and
Homeland Security Secretary Michael Chertoff expressing concern
about the potential unprecedented action of, and the effects
of, revising the July 2007 visa bulletin mid-month to reflect
retrogression in various employment-based visa categories. The
letter requests a response to the concerns raised in the letter
and a meeting to discuss the matter before the revision is
made.
On July 9, 2007, Immigration Subcommittee Chairwoman Zoe
Lofgren wrote to Secretary of Homeland Security Michael
Chertoff to follow up on the July 2, 2007 letter that received
no response as requested. The letter requests various written
information regarding the July 3, 2007 revision of the July
2007 visa bulletin.
Interrogation, Detention, and Removal of U.S. Citizens
On June 26, 2007, Immigration Subcommittee Chairwoman Zoe
Lofgren wrote to Secretary of Homeland Security Michael
Chertoff to express concern over reports of the deportation of
a U.S. citizen, to request information regarding this case, and
to request manuals, materials, and written policy used to make
decisions regarding the removal of the mentally impaired.
U Visa Regulations
On April 5, 2007, Immigration Subcommittee Chairwoman Zoe
Lofgren wrote to U.S. Citizenship and Immigration Services
Director Emilio Gonzalez inquiring into the status of U visa
regulations required under the Victims of Trafficking and
Violence Protection Act of 2000, P.L. 106-386.
Operation Return to Sender
On March 1, 2007, Immigration Subcommittee Chairwoman Zoe
Lofgren wrote to U.S. Immigration and Customs Enforcement
Assistant Secretary Julie Meyers seeking clarification and
understanding of ICE's policy and methods of removal of
unlawfully-present immigrants pursuant to ``Operation Return to
Sender.''
Budgeting for U.S. Citizenship and Immigration Services
On February 13, 2007, Immigration Subcommittee Chairwoman
Zoe Lofgren wrote to Secretary of Homeland Security Michael
Chertoff seeking clarification of a statement made to Congress
in which Secretary Chertoff claimed that seeking an
appropriation for U.S. Citizenship and Immigration Services
(USCIS) ``would be a problem . . . . [because] Congress has
always mandated this fee [to cover the full costs of USCIS].''
The letter explained that Congress has simply authorized fees
to cover the full costs of USCIS, not mandated it. The letter
also asked Secretary Chertoff to clarify his statement to
Congress suggesting that USCIS fees could be used for
enforcement purposes, which the authors asserted contravened
section 286(m) of the Immigration and Nationality Act.
Western Hemisphere Travel Initiative
On February 9, 2007, Chairman John Conyers and Immigration
Subcommittee Chairwoman Zoe Lofgren, along with Committee on
Homeland Security Chairman Bennie Thompson and Subcommittee
Border, Maritime, and Global Counterterrorism Chairwoman
Loretta Sanchez, wrote to Secretary of State Condoleezza Rice
seeking information on the authority and methods used to
determine passport and passport card fees and the circumstances
and standards used to waive the fees.
Security Checks Resulting in U.S. Citizenship and Immigration Services
Application Backlogs
On February 16, 2007, Immigration Subcommittee Chairwoman
Zoe Lofgren wrote to U.S. Citizenship and Immigration Services
(USCIS) Director Emilio Gonzales seeking answers to several
questions regarding the name check process that caused backlogs
in immigration application processing at USCIS.
Protection of Montagnard Refugees In and Outside Vietnam
On March 26, 2007, Chairman John Conyers and Immigration
Subcommittee Chairwoman Zoe Lofgren, along with Foreign Affairs
Committee Chairman Tom Lantos, Foreign Affairs Committee
Ranking Member Ileana Ros-Lehtinen, Subcommittee on Africa and
Global Health Ranking Member Christopher Smith, and
Subcommittee on International Organizations, Human Rights, and
Oversight Ranking Member Dana Rohrbacher, wrote to Assistant
Secretary of Population, Refugees, and Migration Ellen
Sauerbrey expressing concern over reports that the Department
of State might soon refuse to process intending Montagnard
refugees in Cambodia without referrals from the U.N. High
Commissioner for Refugees.
Return of Vietnamese to the Socialist Republic of Vietnam
On October 23, 2007, Immigration Subcommittee Chairwoman
Zoe Lofgren, along with Subcommittee on Border, Maritime,
Global Counterterrorism Chairwoman Loretta Sanchez, and
Subcommittee on Africa and Global Health Ranking Member
Christopher Smith, wrote to President George W. Bush expressing
concern over the potential forced return to the Socialist
Republic of Vietnam of a family of Vietnamese refugees who
survived ``re-education'' camps and had a court order stating
that a return to Vietnam could not occur for fear of
persecution. One of the family members was a witness in an
Immigration Subcommittee hearing on May 18, 2007. The letter
sought clarification on whether U.S. policy had changed
regarding the return of Vietnamese refugees to Vietnam.
On January 23, 2008, Immigration Subcommittee Chairwoman,
along with Representatives Ileana Ros-Lehtinen, Michael Honda,
Lincoln Diaz-Balart, Loretta Sanchez, and Mario Diaz-Balart,
wrote to Secretary of Homeland Security Michael Chertoff
expressing extreme concern over a Memorandum of Understanding
(MOU) reached with the Government of the Socialist Republic of
Vietnam, that would result in the forcible return of thousands
of Vietnamese nationals who had been ordered deported to the
Socialist Republic of Vietnam, a country with an extensive and
continuing record of human rights violations. The letter
requested a briefing on the MOU regarding the process by which
the agreement was reached prior to the implementation of the
agreement.
On March 6, 2008, Immigration Subcommittee Chairwoman,
along with Representatives Loretta Sanchez, Michael Honda, Neil
Abercrombie, and Al Green, wrote to Secretary of Homeland
Security Michael Chertoff following up on the response received
to the January 23, 2008 letter and to request answers to
questions raised at a staff briefing on this issue on February
11, 2008, including whether human rights reports were ignored
in the development of the MOU, differences between similar MOUs
with other nations, whether specific provisions in the MOU
address human rights concerns in Vietnam, whether the MOU would
allow for consideration of humanitarian concerns prior to
deportation, and whether the Department would consent to
reopening of removal proceedings as completion of the MOU could
be considered a ``changed condition.''
GAO REQUESTS
Criminal Aliens
On July 21, 2008, Immigration Subcommittee Chairwoman Zoe
Lofgren and Ranking Member Steve King requested a follow up
report to an April 7, 2005 report regarding statistics relating
to criminal aliens in the United States.
Review of U.S. Citizenship and Immigration Services Cost Accounting
Method
On September 12, 2007, Immigration Subcommittee Chairwoman
Zoe Lofgren and Appropriations Subcommittee on Homeland
Security Chairman David Price requested a review of the U.S.
Citizenship and Immigration Services' (USCIS) cost accounting
methods, including those used for developing its most current
fee schedule, the assumptions underlying the allocation of
costs covered by these fees, and the financial controls USCIS
has put in place to ensure the appropriate collection and use
of the fees.