Understanding the whistleblower law at the center of the House impeachment decision

As House Democrats begin their formal impeachment inquiry of President Donald Trump this week, it is important to explain the legal basis for the whistleblower complaint at the center of it all. According to news reports, the complaint, filed sometime around August 12 with the Intelligence Community’s Inspector General, alleges that President Trump pressured Ukrainian President Volodymyr Zelensky to reopen an investigation into former Vice President Joe Biden in an attempt to help the President’s 2020 reelection campaign.

The complaint was filed according to the formal process set forth under the Intelligence Community Whistleblower Protection Act (ICWPA) of 1998. That process is as follows:

  • A designee of the Inspector General who receives a complaint of an urgent concern from an employee within the intelligence community has 7 days from receipt to report the complaint to the intelligence element’s IG.
  • Within 14 calendar days from receipt, the responsible IG must report all complaints that the IG determines are credible to the head of the intelligence element, in this case the Director of National Intelligence (DNI), along with all supporting material.
  • Within 7 days of receipt, the DNI is required to report the complaint to the Congressional intelligence committees along with any comments the intelligence element considers appropriate.
  • In the event the IG does not report the complaint, does not find it credible, or reports it inaccurately, the complainant has the right to submit the complaint to either or both of the Congressional intelligence committees directly.
  • If the complainant chooses to report directly to Congress, he/she must first provide a statement to the head of the intelligence element via the element’s IG providing notice of his/her intent to contact the Congressional intelligence committees directly. Moreover, the complainant must follow the head of the intelligence element’s guidance on security and the protection of classified material.

In accordance with the ICWPA, ICIG Michael Atkinson conducted a preliminary review, determined that the complaint was credible and, on August 26, sent the complaint to Joseph Maguire, the acting DNI. Maguire did not forward the complaint to the Congressional committees of jurisdiction within 7 days of receipt, and it is now being reported that he is relying in part on DOJ analysis that the complaint was not an “urgent concern” and that therefore the ICWPA does not apply. The ensuing showdown between the House and Senate intelligence committees and the Trump administration is a novel one, as legal precedent regarding the ability of an acting DNI to refuse to submit a complaint to Congress is unsettled. If the administration remains steadfast, then the whistleblower may decide to go directly to Congress.

The Dentons Public Policy Group will continue to monitor the situation and will provide updates accordingly.

Facebook releases updated disclosure rules for political ads in advance of 2020 elections

In a preemptive effort designed to enhance transparency for the upcoming 2020 elections, Facebook has announced that it will strengthen its digital advertisement program rules for political ads to increase disclosure requirements for advertisers using the platform. The decision comes after months of scrutiny from Congress and growing public concern over the use of Facebook’s platform by foreign actors to spread political misinformation during the course of the 2016 election cycle. 

The 2016 presidential election saw a record amount of digital political advertising across the country, with the majority of spending going toward major technology players such as Facebook and Google. With multiple congressional investigations and the report of former Special Counsel Robert Mueller verifying that foreign actors took advantage of these platforms to spread misinformation via targeted political advertisements leading up to the 2016 election, technology companies are under mounting pressure to take action to combat the spread of misinformation.

With this goal in mind, Facebook’s new digital advertisement review program guidelines will implement more stringent transparency rules for advertisers seeking to purchase ad space on the social media platform. The newly adopted procedures will require advertisers to supply significantly more information about their organization during the purchasing process than what the company has previously required. Moving forward, when securing ad space, advertisers will be required to provide information such as a U.S. street address, phone number, business email and business website matching the listed email – all information that indicates the existence of a legitimate domestic enterprise.

Additionally, Facebook is implementing new disclaimer requirements in order to improve transparency surrounding ‘Paid for by’ disclaimers. Under the company’s new policy, advertisers will be required to provide organizational information that will be used to create an information field – or “i” icon that appears on a posting – and allow site users to confirm that the organizations are legitimate actors. As part of this change, Facebook has also announced new guidelines for advertisers who wish to be certified as a ‘Confirmed Organization’ on the social network. In order to be recognized as the most trusted ‘Confirmed Organization’, advertisers must provide a tax ID number, Federal Election Commission (FEC) ID number, or a government website domain that matches an email ending with a government (.gov) or military (.mil) email line.

While Facebook has taken this first step toward revamping its internal political advertising policies and disclosure requirements, it is difficult to predict the full impact this change will have during the 2020 federal election cycle. Just as digital political advertising and marketing have outpaced the regulatory efforts of federal and state lawmakers across the country, so has it (to a lesser degree) outpaced the transparency and disclosure actions of the private platforms themselves.  Once can likely expect the same in the current cycle, but Facebook’s new policy still represents an important first move by Silicon Valley to dissuade foreign and other bad actors from poisoning the well of political discourse heading into 2020. 

As election season heats up next year, Dentons expects to see more changes to social media and technology companies’ digital advertisement policies and will endeavor to keep our readership posted.

Partisan Gerrymandering Upheld by U.S. Supreme Court

On June 27, 2019, the Supreme Court decided Rucho v. Common Cause, a highly-anticipated case stemming from legal challenges to the purported partisan gerrymandering of congressional districts in Maryland and North Carolina. 

In a 5-4 ruling, the Court held that partisan gerrymandering claims present political questions beyond the reach of the federal courts. Consequently, gerrymandering can only be addressed or resolved through action from Congress or individual states, and the drawing of highly partisan legislative districts, which have increasingly raised political ire in recent years, can no longer be challenged in the courts solely on political grounds.

Gerrymandering is the practice of drawing electoral district boundaries in a way that gives one party a distinct advantage over its rivals. Gerrymandering is by no means a new phenomenon – its roots trace back to the first US congressional elections.  In recent years, however, both political parties have taken advantage of control over various state legislatures to craft electoral maps strengthening their opportunity for political success in future years.  In the Rucho case, the districts at issue were the most recently-drawn congressional boundaries in the states of North Carolina and Maryland.  In North Carolina, litigants challenged the legitimacy of Republican-drawn districts that disadvantaged Democrat prospects in federal elections.  Similarly, in Maryland, litigants objected to the imbalance of congressional lines drawn by state Democrats to the disadvantage of Republicans.

Despite the balanced posture of the case, the Court’s majority leaned on precedent and the inherently political question before it when crafting its opinion. According to the majority, there is longstanding precedent recognizing the power of state legislatures to draw electoral districts – an inherently political task.  As such, in his majority opinion, Chief Justice Roberts argued that partisanship is allowed to play a role in the drawing of congressional districts – indeed this was the Founders’ intent.  In turn, the Court asserted that any attempt by courts to interject themselves into the process of weighing levels of partisanship in gerrymandering cases would inherently mean judges would be arbitrarily deciding how much partisanship is too much rather than resolving such disputes based upon clear, manageable and politically-neutral standards and limited and precise rationales. 

The rulings of the lower courts in North Carolina and Maryland, grounded in rubrics that the Court viewed as non-justiciable, were thus vacated.  It is noteworthy that the majority distinguished partisan gerrymandering from gerrymandering that involves population inequality or racial discrimination – both of which the Court has previously ruled as unconstitutional.  Ultimately, any partisan gerrymandering disputes can only be resolved politically through state legislation, state constitutional amendments, or Congress.

While the Court’s opinion expressed frustration over the excessive partisanship driving redistricting in the current political environment, the majority found that the judiciary is simply not the proper governmental branch to find solutions to the political issue of partisan gerrymandering.  Moving forward, Rucho puts the ball firmly in the courts of the people’s elected legislators to address the question of partisan gerrymandering.  Some states — Florida, Michigan, and Colorado, e.g. –  have passed amendments to their state constitutions limiting the practice. Others like Delaware and Iowa have passed laws through their state legislatures prohibiting favoritism in redistricting. Congress also now has the opportunity to address the issue through legislative means. 

Dentons will continue to monitor these efforts moving forward and provide insight on how such efforts will impact future elections at the federal, state and local levels around the country.  

The Next 100 Days: A look back and a look ahead in Washington

The mantra and the agenda of the current Congress certainly continues to be primarily “investigations and nominations,” with each body pursuing a different track. The Senate and the President are expected to focus on filling vacancies across key cabinet and judicial posts, while the House of Representatives will continue its investigations into the administration and other politically charged topics. 

In considering what comes next, it is important to note that the demographic composition of the Democratic Caucus that now controls the House is somewhat different from the Democratic Caucus that was in the minority in the last Congress. Many, if not most, of the Democratic “pickups” that allowed Democrats to gain control of the House came from moderate swing districts and Democratic success in those districts appears to have been fueled by suburban female voters, as well as minority voters, many of whom were and continue to be repulsed by both the agenda and the rhetoric of President Trump.

Whatever their motives for supporting Democrats, what is abundantly clear is that this House Democratic Caucus is younger, more female, more minority, less respectful of hierarchy and seniority, and overall far less willing to “wait their turn” than any of their predecessors. This can make leading such a diverse and opinionated group a very challenging task, as the ongoing back-and-forth between Speaker Pelosi and some of the members of the Freshman Democratic “Twitter Caucus” certainly reveals.

As the House pursues its investigative agenda with respect to the President, presumably hearing from such key witnesses as Special Counsel Robert Mueller, former White House Counsel Don McGahn and many others, Speaker Pelosi will have to manage the increasingly sharp divisions within her diverse Caucus of moderate Democrats who believe that pursuing an impeachment of President Trump is both politically unwise and at best premature and their more liberal counterparts who believe that impeachment proceedings are essential, constitutionally mandated and should proceed forthwith. While the Speaker has skilfully managed these challenges to date, there is every reason to think that this task will become more not less difficult with the passage of time and as witnesses testify. 

Don’t expect the Administration to play nice with the House Democrats’ investigation focus. President Trump has said he will resist every subpoena from congressional Democrats investigating his administration, promising an all-out legal war. To this end, President Trump has ordered officials not to comply with legal requests from Democrats in the House who are conducting multiple investigations of his administration, on topics including Trump’s tax returns, the White House’s overturning of security clearance denials, and Russian election interference. This has sparked complaints of unprecedented obstruction of congressional oversight from Democrats who believe that the President is simply trying to run out the clock by raising frivolous legal arguments against their subpoenas and requests for testimony and documents in order to push a resolution of these issues beyond the 2020 election.

Might we have a constitutional crisis on our hands that would effectively shut the legislative process down until the 2020 election? That may just be a cynic’s thinking, but this possibility certainly cannot be ruled out at this time.

On April 25, House Majority Leader Steny Hoyer (D-MD) issued a Dear Colleague announcing that, this week, the House will consider HR 9, the Climate Action Now Act, a bill affirming the principles of the Paris Climate Agreement, and consider a disaster relief supplemental appropriations bill during the week of May 6. During the May Work Period, Hoyer also expects to bring H.R. 5, the Equality Act, and H.R. 1994, the SECURE Act, to the House Floor, along with an extension of the national flood insurance program whose current short-term authorization is set to expire at the end of May. He said that the House will take up legislation to strengthen the Affordable Care Act and address rising prescription drug costs, and will possibly consider HR 1500, the Consumers First Act. Pending committee action, in May the House may also consider H.R. 6, the Dream and Promise Act, and/or a bill to increase the minimum wage.

Beyond investigations and nominations, Congress does still have to address the specter of sequestration and a potential debt limit breach. The prospect of enormous statutorily mandated cuts to both defense and non-defense spending if an agreement cannot be reached certainly creates a powerful incentive for most in the Congressional leadership to reach such an agreement. 

While it’s far too early to predict another government shutdown, with so many freshman members who must face the voters in 2020 for their first re-election campaign, one should assume that this lift will be even harder than the end of 2018’s spending package debacle.  

See the highlights from the first 100 days.

It’s a new day at the Financial Services Committee. But what does it mean for policy?

With the change in control of the House of Representatives, there has been a massive change in the agenda of the Financial Services Committee.  There also is an improved relationship between the new Chair and new Ranking Member of the Committee from that in the last Congress which has already resulted in House passage of about ten noncontroversial Financial Services Committee bills and which could improve the chances for passage of some bipartisan legislation including long-term reauthorizations of some expiring programs .  However, there appears to be quite limited overlap between the Financial Services Committee’s agenda and the agenda of Senate Banking Committee Chairman Mike Crapo (R-ID). 

Thus, apart from those noncontroversial bills that are passed under suspension of the rules, many, if not most, of the bills that the Financial Services Committee reports and the House eventually passes in this Congress will be “messaging” bills that are destined to die in the Senate, such as HR 1500, the Consumers First Act , a bill designed to protect the Consumer Financial Protection Bureau (CFPB) from what Democrats see as  the Trump White House’s anti-consumer agenda and a Republican assault on the CFPB’s mission, and HR 1856, the Ending Homelessness Act.  Most of these bills will not even be taken up by the Banking Committee. 

Financial Services Committee Chairwoman Maxine Waters (D-CA) says that her  focus is on protecting consumers from harmful financial practices, ensuring that there are strong safeguards in place to prevent a financial crisis, expanding and supporting affordable housing and tackling the homelessness crisis, encouraging responsible innovation in financial technology while protecting against abusive payday lending practices, promoting diversity and inclusion in the financial services sector including through the creation of a Diversity and Inclusion Subcommittee , comprehensively reforming or, if necessary replacing, the credit reporting system and making sure that Americans and small businesses have fair access to the financial system. 

Chairwoman Waters also has laid out a set of core principles that she says should be part of legislative efforts to address the future of housing finance reform, with a particular emphasis on maintaining access to the 30-year fixed rate mortgage and to affordable mortgage credit, ensuring sufficient private capital is in place to protect taxpayers, and ensuring that underserved borrowers and communities are not overlooked

In contrast, Banking Committee Chairman Crapo’s agenda is somewhat more narrow.  He has declared pursuit of housing finance reform legislation to be his highest priority and says that the Banking Committee will determine how it can fix the housing finance system, establish appropriate levels of taxpayer protection, preserve the 30-year fixed rate mortgage,  increase competition among mortgage guarantors  and promote access to affordable housing..  He wants to ensure that the agencies effectively implement the Economic Growth, Regulatory Relief and Consumer Protection Act (EGRRCPA),the regulatory relief law enacted last year and also wants to pursue additional legislative proposals to promote capital formation and economic growth  and better corporate governance while reducing regulatory burden.

Chairman Crapo is also not a big fan of the CFPB and wants to explore whether the CFPB should funded through the regular appropriations process and whether a commission, rather than a single Director, would allow the Bureau to pursue its mission more effectively.  Noting that the most recent NFIP reauthorization expires on May 31, he says that  any comprehensive reforms to the NFIP must achieve the appropriate balance of protecting taxpayers and assisting consumers.  He also, along with Ranking Member Sherrod Brown, has posed a series of questions and invited public comment about what types of potential data privacy legislation would give consumers more control over and enhance the protection of consumer financial data that is collected about them and ensure that consumers are notified of breaches in a timely and consistent manner. 

While both Chairwoman Waters and Chairman Crapo have expressed interest in housing  finance reform and in February the White House has published its principles for such reform, it will be a very heavy lift, especially with the 2020 presidential election on the horizon, to pass GSE reform legislation in this Congress.  With the recent confirmation of Mark Calabria, a long-time critic of Fannie Mae and Freddie Mac, as Director of the Federal Housing Finance Agency (FHFA), the open question is how much GSE reform can be accomplished through administrative action and degree to which legislation will be required. 

Assuming that enactment of GSE reform legislation remains a pipe dream, except for possible reauthorizations of the National Flood Insurance Program (NFIP), the Terrorism Risk Insurance Act (TRIA),  and the Export-Import Bank, and potential passage of HR 1595, the SAFE Banking Act of 2019, a cannabis banking bill with 165 House sponsors and 22 Senate sponsors, if Leader McConnell will allow the bill to be considered by the Senate, the prospects for the enactment of significant financial services legislation in this Congress currently appear limited. 

FEC increases contribution limits for 2019-2020

The Federal Election Commission (FEC) updated the federal contribution limits for the 2019-2020 election. The new per election limits were effective January 1, 2019. Below is a chart that explains the new limits on each donor.

The chart above illustrates the new increased contribution limits to the respective donors. Individuals can now contribute $2,800 per election to a candidate, an increase of $100 from the 2018 cycle. This means that individuals may now give up to $5,600 per candidate per cycle (combined to include both the primary and general election limits). Due to changes in inflation, these limits are increased every odd-numbered year to balance out differences.

The contribution limit to national party committees can now contribute $35,500 per year, an increase of $1,600 from last year. The annual max contributions to the national party committee accounts have been increased to $106,500, an increase of $4,800.

Note that traditional PAC contributions are not indexed for inflation. This means that PAC contributions remain the same from 2018.

Every committee assignment for the 116th Congress

House Democratic and Republican leadership have nearly finalized the grueling task of doling out committee assignments, capping weeks of acute jockeying by freshman lawmakers hoping to earn influential postings.

An opaque process tightly controlled by party leaders, the committee sweepstakes represents one of the earliest and most significant influences on a new legislator’s career trajectory, as panel membership often drives member legislative priorities and opens important avenues of fundraising opportunities.

House rules generally limit members to serving on no more than two standing committees and four subcommittees, with the four-most prized including Ways and Means, which writes tax laws; Energy and Commerce, which claims the broadest non-tax-oriented jurisdiction of any committee and has principal responsibility for telecommunications, consumer protection, food and drug safety, public health, the supply and delivery of energy, and interstate and foreign commerce; Financial Services (also known as the Banking Committee), which oversees the totality of the financial services sector; and Appropriations, which is responsible for passing spending blueprints for the federal government.

While the final composition of every committee is still being negotiated, Dentons’ bipartisan public policy team has assembled here the most up-to-date index of assignments available.

We’ll update this space as new assignments are announced.