[House Report 111-712]
[From the U.S. Government Publishing Office]
Union Calendar No. 435
111th Congress, 2d Session - - - - - - - - - - - - House Report 111-712
REPORT ON THE ACTIVITIES
of the
COMMITTEE ON THE JUDICIARY
of the
HOUSE OF REPRESENTATIVES
during the
ONE HUNDRED ELEVENTH CONGRESS
pursuant to
Clause 1(d) Rule XI of the Rules of the
House of Representatives
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
January 3, 2011.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
----------
U.S. GOVERNMENT PRINTING OFFICE
99-006 PDF WASHINGTON : 2010
For sale by the Superintendent of Documents, U.S. Government Printing
Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800;
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Washington, DC 20402-0001
COMMITTEE ON THE JUDICIARY
JOHN CONYERS, Jr., Michigan,
Chairman\1\
LAMAR SMITH, Texas\2\ HOWARD L. BERMAN, California
F. JAMES SENSENBRENNER, Jr., WisconsinICK BOUCHER, Virginia
HOWARD COBLE, North Carolina JERROLD NADLER, New York
ELTON GALLEGLY, California ROBERT C. ``BOBBY'' SCOTT,
BOB GOODLATTE, Virginia Virginia
DANIEL E. LUNGREN, California MELVIN L. WATT, North Carolina
DARRELL E. ISSA, California ZOE LOFGREN, California
J. RANDY FORBES, Virginia SHEILA JACKSON LEE, Texas
STEVE KING, Iowa MAXINE WATERS, California
TRENT FRANKS, Arizona WILLIAM D. DELAHUNT, Massachusetts
LOUIE GOHMERT, Texas STEVE COHEN, Tennessee
JIM JORDAN, Ohio HENRY C. ``HANK'' JOHNSON, Jr.,
TED POE, Texas Georgia
JASON CHAFFETZ, Utah PEDRO PIERLUISI, Puerto Rico
TOM ROONEY, Florida MIKE QUIGLEY, Illinois
GREGG HARPER, Mississippi JUDY CHU, California
THEODORE E. DEUTCH, Florida
LUIS V. GUTIERREZ, Illinois
TAMMY BALDWIN, Wisconsin
CHARLES A. GONZALEZ, Texas
ANTHONY D. WEINER, New York
ADAM B. SCHIFF, California
LINDA T. SANCHEZ, California
DANIEL MAFFEI, New York
JARED POLIS, Colorado
--------------------
\1\John Conyers, Jr., Michigan, elected to the Committee as Chairman
pursuant to House Resolution 8, approved by the House January 6, 2009.
\2\Lamar Smith, elected to the Committee as ranking minority Member
pursuant to House Resolution 12, approved by the House January 6, 2009.
Republican Members elected to the Committee pursuant to House
Resolution 38, approved by the House January 9, 2009.
Democratic Members elected to the Committee pursuant to House
Resolution 74, approved by the House January 21, 2009.
SUBCOMMITTEE ON COMMERCIAL AND ADMINISTRATIVE LAW
STEVE COHEN, Tennessee, Chairman
TRENT FRANKS, Arizona WILLIAM D. DELAHUNT, Massachusetts
JIM JORDAN, Ohio MELVIN L. WATT, North Carolina
DARRELL E. ISSA, California DANIEL MAFFEI, New York
J. RANDY FORBES, Virginia ZOE LOFGREN, California
HOWARD COBLE, North Carolina HENRY C. ``HANK'' JOHNSON, Jr.,
STEVE KING, Iowa Georgia
ROBERT C. ``BOBBY'' SCOTT,
Virginia
JOHN CONYERS, Jr., Michigan
JUDY CHU, California
----------
SUBCOMMITTEE ON THE CONSTITUTION, CIVIL RIGHTS, AND CIVIL LIBERTIES
JERROLD NADLER, New York, Chairman
F. JAMES SENSENBRENNER, Jr., WisconsinELVIN L. WATT, North Carolinia
TOM ROONEY, Florida ROBERT C. ``BOBBY'' SCOTT,
STEVE KING, Iowa Virginia
TRENT FRANKS, Arizona WILLIAM D. DELAHUNT, Massachusetts
LOUIE GOHMERT, Texas HENRY C. ``HANK'' JOHNSON, Jr.,
JIM JORDAN, Ohio Georgia
TAMMY BALDWIN, Wisconsin
JOHN CONYERS, Jr., Michigan
STEVE COHEN, Tennessee
SHEILA JACKSON LEE, Texas
JUDY CHU, California
----------
SUBCOMMITTEE ON COURTS AND COMPETITION POLICY
HENRY C. ``HANK'' JOHNSON, Jr.,
Georgia, Chairman
HOWARD COBLE, North Carolina JOHN CONYERS, Jr., Michigan
JASON CHAFFETZ, Utah RICK BOUCHER, Virginia
F. JAMES SENSENBRENNER, Jr., Wisconsin HARLES A. GONZALEZ, Texas
BOB GOODLATTE, Virginia SHEILA JACKSON LEE, Texas
DARRELL E. ISSA, California MELVIN L. WATT, North Carolina
GREGG HARPER, Mississippi MIKE QUIGLEY, Illinois
DANIEL MAFFEI, New York
JARED POLIS, Colorado
SUBCOMMITTEE ON CRIME, TERRORISM, AND HOMELAND SECURITY
ROBERT C. ``BOBBY'' SCOTT, Virginia, Chairman
PEDRO PIERLUISI, Puerto Rico LOUIE GOHMERT, Texas
JERROLD NADLER, New York TED POE, Texas
ZOE LOFGREN, California BOB GOODLATTE, Virginia
SHEILA JACKSON LEE, Texas DANIEL E. LUNGREN, California
MAXINE WATERS, California J. RANDY FORBES, Virginia
STEVE COHEN, Tennessee TOM ROONEY, Florida
ANTHONY D. WEINER, New York
MIKE QUIGLEY, Illinois
THEODORE E. DEUTCH, Florida
----------
SUBCOMMITTEE ON IMMIGRATION, CITIZENSHIP, REFUGEES, BORDER SECURITY,
AND INTERNATIONAL LAW
ZOE LOFGREN, California, Chairman
HOWARD L. BERMAN, California STEVE KING, Iowa
SHEILA JACKSON LEE, Texas GREGG HARPER, Mississippi
MAXINE WATERS, California ELTON GALLEGLY, California
PEDRO PIERLUISI, Puerto Rico DANIEL E. LUNGREN, California
LUIS V. GUTIERREZ, Illinois TED POE, Texas
LINDA T. SANCHEZ, California JASON CHAFFETZ, Utah
ANTHONY D. WEINER, New York
CHARLES A. GONZALEZ, Texas
JUDY CHU, California
----------
TASK FORCE ON JUDICIAL IMPEACHMENT
ADAM B. SCHIFF, California, Chairman
SHEILA JACKSON LEE, Texas BOB GOODLATTE, Virginia
WILLIAM D. DELAHUNT, Massachusetts F. JAMES SENSENBRENNER, Jr.,
STEVE COHEN, Tennessee Wisconsin
HENRY C. ``HANK'' JOHNSON, Jr., DANIEL E. LUNGREN, California
Georgia J. RANDY FORBES, Virginia
PEDRO PIERLUISI, Puerto Rico LOUIE GOHMERT, Texas
CHARLES A. GONZALEZ, Texas
LETTER OF TRANSMITTAL
----------
House of Representatives,
Committee on the Judiciary,
Washington, DC, January 3, 2011.
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 111th 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................................................. 4
Committee Prints................................................. 9
House Documents.................................................. 9
Legislation Enacted into Law..................................... 10
Public Laws...................................................... 10
Private Laws..................................................... 13
Conference Appointments.......................................... 13
Summary of Activities of the Committee on the Judiciary.......... 13
Intellectual Property Activities............................. 13
Oversight Hearings on Executive Branch Agencies and their
Activities................................................. 15
Continuation of Investigations on U.S. Attorney Removals, the
Politicization of the Department of Justice, and OLC
Approval of Waterboarding and Other Interrogation
Techniques................................................. 17
Oversight Concerning the Gulf Oil Spill...................... 18
Oversight on Antitrust Activities............................ 19
Oversight on Bankruptcy and Foreclosure Activities........... 20
Other Oversight Activities................................... 21
Legislative Activities....................................... 23
SUBCOMMITTEE ON COMMERCIAL AND ADMINISTRATIVE LAW................ 33
Legislative Activities....................................... 33
Oversight Activities......................................... 47
SUBCOMMITTEE ON THE CONSTITUTION, CIVIL RIGHTS, AND CIVIL
LIBERTIES...................................................... 61
Legislative Activities....................................... 61
Oversight Activities......................................... 77
SUBCOMMITTEE ON COURTS AND COMPETITION POLICY.................... 99
Legislative Activities....................................... 99
Oversight Hearings........................................... 104
SUBCOMMITTEE ON CRIME, TERRORISM, AND HOMELAND SECURITY.......... 121
Legislative Activities....................................... 121
Oversight Activities......................................... 134
SUBCOMMITTEE ON IMMIGRATION, CITIZENSHIP, REFUGEES, BORDER
SECURITY, AND INTERNATIONAL LAW................................ 149
Legislative Activity......................................... 150
Oversight Activities......................................... 160
Oversight Letters............................................ 163
TASK FORCE ON JUDICIAL IMPEACHMENT............................... 169
Union Calendar No. 435
111th Congress } { Report
2d Session } HOUSE OF REPRESENTATIVES { 111-712
======================================================================
REPORT ON THE ACTIVITIES OF THE COMMITTEE ON THE JUDICIARY
_______
January 3, 2011.--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............................................... 818
House joint resolutions................................... 59
House concurrent resolutions.............................. 29
House resolutions......................................... 126
--------------------------------------------------------------
____________________________________________________
1,032
==============================================================
____________________________________________________
Senate bills.............................................. 21
Senate joint resolutions.................................. 3
Senate concurrent resolutions............................. 2
--------------------------------------------------------------
____________________________________________________
26
==============================================================
____________________________________________________
Subtotal.............................................. 1,058
==============================================================
____________________________________________________
Private Legislation:
House bills (claims)...................................... 0
House bills (copyrights).................................. 1
House bills (immigration)................................. 62
House resolutions (claims)................................ 2
--------------------------------------------------------------
____________________________________________________
65
==============================================================
____________________________________________________
Senate bills (claims)..................................... 0
Senate bills (immigration)................................ 1
--------------------------------------------------------------
____________________________________________________
1
==============================================================
____________________________________________________
Subtotal.............................................. 66
==============================================================
____________________________________________________
Total............................................. 1,124
ACTION ON LEGISLATION NOT REFERRED TO COMMITTEE
Held at desk for House action:
Senate bills.............................................. 12
--------------------------------------------------------------
____________________________________________________
12
Conference appointments:
House bills............................................... 1
Senate bills.............................................. 0
--------------------------------------------------------------
____________________________________________________
1
==============================================================
____________________________________________________
Total............................................. 13
FINAL ACTION
House concurrent resolutions approved (public)................ 8
House resolutions approved (public)........................... 58
Public legislation vetoed by the President.................... 1
Public Laws................................................... 54
Private Laws.................................................. 2
Printed Hearings
Serial No. and Title
__________
1. District of Columbia House Voting Rights Act of 2009.
Subcommittee on the Constitution, Civil Rights, and Civil Liberties.
January 27, 2009. (H.R. 157).
2. Midnight Rulemaking: Shedding Some Light. Subcommittee on
Commercial and Administrative Law. February 4, 2009.
3. Copyright Licensing in a Digital Age: Competition, Compensation
and the Need to Update the Cable and Satellite TV Licenses. Committee
on the Judiciary. February 25, 2009.
4. Libel Tourism. Subcommittee on Commercial and Administrative
Law. February 12, 2009.
5. Lost Educational Opportunities in Alternative Settings.
Subcommittee on Crime, Terrorism, and Homeland Security jointly with
the Subcommittee on Healthy Families and Communities of the Committee
on Education and Labor. March 12, 2009.
6. Circuit City Unplugged: Why Did Chapter 11 Fail to Save 34,000
Jobs? Subcommittee on Commercial and Administrative Law. March 11,
2009.
7. Carmelo Rodriguez Military Medical Accountability Act of 2009.
Subcommittee on Commercial and Administrative Law. March 24, 2009.
(H.R. 1478).
8. Performance Rights Act. Committee on the Judiciary. March 10,
2010. (H.R. 848).
9. Consumer Debt: Are Credit Cards Bankrupting Amercians?
Subcommittee on Commercial and Administrative Law. April 2, 2009.
10. Helping Families Save Their Homes in Bankruptcy Act of 2009 and
the Emergency Homeownership and Equity Protection Act. Committee on the
Judiciary. January 22, 2009. (H.R. 200, H.R. 225).
11. To Consider the Possible Impeachment of United States District
Judge Samuel B. Kent. Task Force on Judicial Impeachment. June 3, 2009.
12. James Zadroga 9/11 Health and Compensation Act of 2009.
Subcommittee on Immigration, Citizenship, Refugees, Border Security,
and International Law jointly with the Subcommittee on the
Constitution, Civil Rights, and Civil Liberties. March 31, 2009. (H.R.
847).
13. Treatment of Latin Amercians of Japanese Descent, European
Amercians, and Jewish Refugees During World War II. Subcommittee on
Immigration, Citizenship, Refugees, Border Security, and International
Law. March 19, 2009.
14. State Secret Protection Act of 2009. Subcommittee on the
Constitution, Civil Rights, and Civil Liberties. June 4, 2009. (H.R.
984).
15. Youth Violence: Trends, Myths, and Solutions. Subcommittee on
Crime, Terrorism, and Homeland Security. February 11, 2009.
16. Lessons Learned from the 2008 Election. Subcommittee on the
Constitution, Civil Rights, and Civil Liberties. March 19, 2009.
17. Continuity of Congress in the Wake of a Catastrophic Attack.
Subcommittee on the Constitution, Civil Rights, and Civil Liberties.
July 23, 2009.
18. Legal Issues Surrounding the Military Commissions System.
Subcommittee on the Constitution, Civil Rights, and Civil Liberties.
July 8, 2009.
19. Public Safety and Civil Rights Implications of State and Local
Enforcement of Federal Immigration Laws. Subcommittee on Immigration,
Citizenship, Refugees, Border Security, and International Law jointly
with the Subcommittee on the Constitution, Civil Rights, and Civil
Liberties. April 2, 2009.
20. Representation of Indigent Defendants in Criminal Cases: A
Constitutional Crisis in Michigan and Other States? Subcommittee on
Crime, Terrorism, and Homeland Security. March 26, 2009.
21. Sex Offender Registration and Notification Act (SORNA):
Barriers to Timely Compliance by States. Subcommittee on Crime,
Terrorism, and Homeland Security. March 10, 2009.
22. Ramifications of Auto Industry Bankruptcies (Part 1). Committee
on the Judiciary. May 21, 2009.
23. VoIP: Who Has Jurisdiction to Tax It? Subcommittee on
Commercial and Administrative Law. March 31, 2009.
24. Trends Affecting Minority Broadcast Ownership. Committee on the
Judiciary. July 9, 2009. 25. Escalating Violence in Mexico and the
Southwest Border as a Result of the Illicit Drug Trade. Subcommittee on
Crime, Terrorism, and Homeland Security. May 6, 2009.
26. Proposals for Reform of the Military Commissions System.
Subcommittee on the Constitution, Civil Rights, and Civil Liberties.
July 30, 2009.
27. Unfairness in Federal Cocaine Sentencing: Is it Time to Crack
the 100 to 1 Disparity? Subcommittee on Crime, Terrorism, and Homeland
Security. May 21, 2009. (H.R. 1459, H.R. 1466, H.R. 265, H.R. 2178,
H.R. 18).
28. National Research Council's Publication ``Strengthening
Forensic Science in the United States: A Path Forward''. Subcommittee
on Crime, Terrorism, and Homeland Security. May 13, 2009.
29. Indigent Representation: A Growing National Crisis.
Subcommittee on Crime, Terrorism, and Homeland Security. June 4, 2009.
30. Federal Bureau of Investigation. Committee on the Judiciary.
May 20, 2009.
31. Competition and Commerce in Digital Books. Committee on the
Judiciary. September 10, 2009.
32. Civil Rights Under Fire: Recent Supreme Court Decisions.
Subcommittee on the Constitution, Civil Rights, and Civil Liberties.
October 8, 2009.
33. Too Big to Fail?: The Role of Antitrust Law in Government-
Funded Consolidation in the Banking Industry. Subcommittee on Courts
and Competition Policy. March 17, 2009.
34. A Constitutional Amendment Concerning Senate Vacancies.
Subcommittee on the Constitution, Civil Rights, and Civil Liberties,
jointly with the Subcommittee on the Constitution of the Senate
Judiciary Committee. March 11, 2009. (S.J.Res 7, H.J.Res. 21).
35. USA PATRIOT Act. Subcommittee on the Constitution, Civil
Rights, and Civil Liberties. September 22, 2009.
36. Access to Justice Denied: Ashcroft v. Iqbal. Subcommittee on
the Constitution, Civil Rights, and Civil Liberties. October 27, 2009.
37. Bye, Bye, Bargains? Retail Price Fixing, the Leegin Decision,
and Its Impact on Consumer Prices. Subcommittee on Courts and
Competition Policy. April 28, 2009.
38. A New Age for Newspapers: Diversity of Voices, Competition, and
the Internet. Subcommittee on Courts and Competition Policy. April 21,
2009.
39. Federal Arbitration Act: Is the Credit Card Industry Using It
to Quash Legal Claims? Subcommittee on Commercial and Administrative
Law. May 5, 2009.
40. Sunshine in Litigation Act of 2009. Subcommittee on Commercial
and Administrative Law. June 4, 2009. (H.R. 1508).
41. Cell Tax Fairness Act of 2009. Subcommittee on the Commercial
and Administrative Law. June 9, 2009.
42. Bankruptcy Judgeship Needs. Subcommittee on Commercial and
Administrative Law. June 16, 2009.
43. To Consider Possible Impeachment of United States District
Judge G. Thomas Porteous, Jr. (Part I). Task Force on Judicial
Impeachment. November 17, 18, 2009.
44. To Consider Possible Impeachment of United States District
Judge G. Thomas Porteous, Jr. (Part II). Task Force on Judicial
Impeachment. December 8, 2009.
45. To Consider Possible Impeachment of United States District
Judge G. Thomas Porteous, Jr. (Part III). Task Force on Judicial
Impeachment. December 10, 2009.
46. To Consider Possible Impeachment of United States District
Judge G. Thomas Porteous, Jr. (Part IV). Task Force on Judicial
Impeachment. December 15, 2009.
47. Juvenile Justice Accountability and Improvement Act of 2009.
Subcommittee on Crime, Terrorism, and Homeland Security. June 9, 2009.
48. Mandatory Minimums and Unintended Consequences. Subcommittee on
Crime, Terrorism, and Homeland Security. July 14, 2009. (H.R. 2934,
H.R. 834, H.R. 1466).
49. National Prison Rape Elimination Commission Report and
Standards. Subcommittee on Crime, Terrorism, and Homeland Security.
July 8, 2009.
50. Role of the Lending Industry in the Home Foreclosure Crisis.
Subcommittee on Commercial and Administrative Law. September 9, 2009.
51. Proposals to Fight Fraud and Protect Taxpayers. Committee on
the Judiciary. April 1, 2009. (H.R. 1748, H.R. 1292, H.R. 1667,
H.R.1788, H.R. 1779, H.R. 1793, H.R. 78).
52. Accountability, Transparency, and Uniformity in Corporate
Deferred and Non-Prosecution Agreements. Subcommittee on Commercial and
Administrative Law. June 25, 2009.
53. Home Foreclosures: Will Voluntary Mortgage Modification Help
Families Save Their Homes? (Part I). Subcommittee on Commercial and
Administrative Law. July 9, 2009.
54. Ramifications of Auto Industry Bankruptcies (Part II).
Subcommittee on Commercial and Administrative Law. July 21, 2009.
55. Ramifications of Auto Industry Bankruptcies (Part III).
Subcommittee on Commercial and Administrative Law. July 22, 2009.
56. Medical Debt: Is Our Healthcare System Bankrupting Americans?
Subcommittee on Commercial and Administrative Law. July 28, 2009.
57. Mandatory Binding Arbitration: Is it Fair and Voluntary?
Subcommittee on Commercial and Administrative Law. September 15, 2009.
58. An Undue Hardship? Discharging Educational Debt in Bankruptcy.
Subcommittee on Commercial and Administrative Law. September 23, 2009.
59. Legal Services Corporation. Subcommittee on Commercial and
Administrative Law. October 27, 2009.
60. Too Big to Fail: The Role for Bankruptcy and Antitrust Law in
Financial Regulation Reform (Part I). Subcommittee on Commercial and
Administrative Law. October 22, 2009.
61. Protecting Employees in Airline Bankruptcies. Subcommittee on
Commercial and Administrative Law. December 16, 2009.
62. Competition in the Ticketing and Promotion Industry.
Subcommittee on Courts and Competition Policy. February 26, 2009.
63. Railroad Antitrust Enforcement Act of 2009. Subcommittee on
Courts and Competition Policy. May 19, 2009. (H.R. 233).
64. Transparency and Integrity in Corporate Monitoring.
Subcommittee on Commercial and Administrative Law. November 19, 2009.
65. Home Foreclosures: Will Voluntary Mortgage Modification Help
Families Save Their Homes? (Part II). Subcommittee on Commercial and
Administrative Law. December 11, 2009.
66. Impact of Federal Habeas Corpus Limitations on Death Penalty
Appeals. Subcommittee on the Constitution, Civil Rights, and Civil
Liberties. December 8, 2009.
67. Over-Criminalization of Conduct/Over-Federalization of Criminal
Law. Subcommittee on Crime, Terrorism, and Homeland Security. July 22,
2009.
68. State Taxation: The Role of Congress in Defining Nexus.
Subcommittee on Commercial and Administrative Law. February 4, 2010.
69. Domestic and International Trademark Implications of HAVANA
CLUB and Section 211 of the Omnibus Appropriations Act of 1999.
Committee on the Judiciary. March 3, 2010.
70. Expansion of Top Level Domains and Its Effects on Competition.
Subcommittee on Courts and Competition Policy. September 23, 2009.
71. First Amendment and Campaign Finance Reform After Citizens
United. Subcommittee on the Constitution, Civil Rights, and Civil
Liberties. February 3, 2010.
72. Executive Accountability Act of 2009. Subcommittee on Crime,
Terrorism, and Homeland Security. July 27, 2009. (H.R. 743).
73. Biologics and Biosimilars: Balancing Incentives for Innovation.
Subcommittee on Courts and Competition Policy. July 14, 2009.
74. Reauthorization of the Innocence Protection Act. Subcommittee
on Crime, Terrorism, and Homeland Security. September 22, 2009.
75. Crime Victims Rights Act of 2004. Subcommittee on Crime,
Terrorism, and Homeland Security. September 29, 2009.
76. Cyberbullying and Other Online Safety Issues for Children.
Subcommittee on Crime, Terrorism, and Homeland Security. September 30,
2009. (H.R. 1966, H.R. 3630).
77. Girls in the Juvenile Justice System: Strategies to Help Girls
Achieve Their Full Potential. Subcommittee on Crime, Terrorism, and
Homeland Security. October 20, 2009.
78. Racial Disparities in the Criminal Justice System. Subcommittee
on Crime, Terrorism, and Homeland Security. October 29, 2009.
79. Equal Justice for Our Military Act of 2009. Subcommittee on
Courts and Competition Policy. June 11, 2009. (H.R. 569).
80. Protecting the American Dream (Part I): A Look at the Fair
Housing Act. Subcommittee on the Constitution, Civil Rights, and Civil
Liberties. March 11, 2010.
81. Civil Rights Division of the Department of Justice.
Subcommittee on the Constitution, Civil Rights, and Civil Liberties.
December 3, 2009.
82. Legal Issues Relating to Football Head Injuries (Part I and
Part II). Committee on the Judiciary. October 28, 2009 and January 4,
2010.
83. Department of Justice With Attorney General Eric Holder.
Committee on the Judiciary. May 14, 2009.
84. Democracy Restoration Act of 2009. Subcommittee on the
Constitution, Civil Rights, and Civil Liberties. March 16, 2010. (H.R.
3335).
85. Report by the Office of the Inspector General of the Department
of Justice on the Federal Bureau of Investigation's Use of Exigent
Letters and Other Informal Requests for Telephone Records. Subcommittee
on the Constitution, Civil Rights, and Civil Liberties. April 14, 2010.
86. Youth Prison Reduction Through Opportunities, Mentoring,
Intervention, Support, and Education (PROMISE) Act. Subcommittee on
Crime, Terrorism, and Homeland Security. July 15, 2009. (H.R. 1064).
87. Civil Access to Justice Act of 2009. Subcommittee on Commercial
and Administrative April 27, 2010. (H.R. 3764).
88. Protecting the American Dream (Part II): Combating Predatory
Lending Under the Fair Housing Act. Subcommittee on the Constitution,
Civil Rights, and Civil Liberties. April 29, 2010.
89. Federal Bureau of Prisons Oversight. Subcommittee on Crime,
Terrorism, and Homeland Security. July 21, 2009.
90. State Taxation: The Impact of Congressional Legislation on
State and Local Government Revenues. Subcommittee on Commercial and
Administrative Law. April 15, 2010.
91. Private Student Loan Bankruptcy Fairness Act of 2010.
Subcommittee on Commercial and Administrative Law. April 22, 2010.
(H.R. 5043).
92. Patent Reform Act of 2009. Committee on the Judiciary. April
30, 2009. (H.R. 1260).
93. State Taxation: The Role of Congress in Developing
Apportionment Standards. Subcommittee on Commercial and Administrative
Law. May 6, 2010.
94. Piracy of Live Sports Broadcasting Over the Internet. Committee
on the Judiciary. December 16, 2009.
95. Achieving the Promise of the Americans with Disabilities Act in
the Digital Age--Current Issues, Challenges, and Opportunities.
Subcommittee on the Constitution, Civil Rights, and Civil Liberties.
April 22, 2010.
96. Combating Organized Retail Crime--The Role of Federal Law
Enforcement. Subcommittee on Crime, Terrorism, and Homeland Security.
November 5, 2009.
97. To Amend Title 18, United States Code, to Include Constrictor
Snakes of the Species Python Genera as Injurious Animal. Subcommittee
on Crime, Terrorism, and Homeland Security. November 6, 2009. (H.R.
2811)
98. Electronic Communications Privacy Act Reform. Subcommittee on
the Constitution, Civil Rights, and Civil Liberties. May 5, 2010.
99. Help Find the Missing Act or Billy's Law. Subcommittee on
Crime, Terrorism, and Homeland Security. January 21, 2010. (H.R. 3695).
100. Keeping Youth Safe While In Custody: Sexual Assault in Adult
and Juvenile Facilities. Subcommittee on Crime, Terrorism, and Homeland
Security. February 23, 2010.
101. Credit Card Fair Fee Act of 2009. Committee on the Judiciary.
April 28, 2010. (H.R. 2695).
102. Recent Inspector General Reports Concerning the FBI.
Subcommittee on Crime, Terrorism, and Homeland Security. February 24,
2010.
103. Ethical Imperative for Reform of Our Immigration System.
Subcommittee on Immigration, Citizenship, Refugees, Border Security,
and International Law. July 14, 2010.
104. United States Citizenship and Immigration Services.
Subcommittee on Immigration, Citizenship, Refugees, Border Security,
and International Law. March 23, 2010.
105. Pay to Delay: Are Patent Settlements that Delay Generic Drug
Market Entry Anticompetitive? Subcommittee on Courts and Competition
Policy. June 3, 2009.
106. Too Big to Fail: The Role for Bankruptcy and Antitrust Law in
Financial Regulation Reform (Part II). Subcommittee on Courts and
Competition Policy. November 17, 2009.
107. Competition in the Airline Industry. Committee on the
Judiciary. June 16, 2010.
108. Protecting Older Workers Against Discrimination Act.
Subcommittee on the Constitution, Civil Rights, and Civil Liberties.
June 10, 2010. (H.R. 3721).
109. ECPA Reform and the Revolution in Location Based Technologies
and Services. Subcommittee on the Constitution, Civil Rights, and Civil
Liberties. June 24, 2010.
110. Americans with Disabilities Act at 20--Celebrating Our
Progress, Affirming Our Commitment. Subcommittee on the Constitution,
Civil Rights, and Civil Liberties. July 22, 2010.
111. Executive Office for Immigration Review. Subcommittee on
Immigration, Citizenship, Refugees, Border Security, and International
Law. June 17, 2010.
112. Design Patents and Auto Replacement Parts. Committee on the
Judiciary. March 22, 2010.
113. Enforcement of the Criminal Laws Against Medicare and Medicaid
Fraud. Subcommittee on Crime, Terrorism, and Homeland Security. March
4, 2010.
114. Criminal Justice Reinvestment Act of 2009, and the Honest
Opportunity Probation with Enforcement (HOPE) Initiative Act of 2009.
Subcommittee on Crime, Terrorism, and Homeland Security. May 11, 2010.
(H.R. 4080, H.R. 4055).
115. Rape Kit Backlogs: Failing the Test of Providing Justice to
Sexual Assault Survivors. Subcommittee on Crime, Terrorism, and
Homeland Security. May 20, 2010.
116. Sharing and Analyzing Information to Prevent Terrorism.
Committee on the Judiciary. March 24, 2010.
117. Impact of China's Antitrust Law and Other Competition Policies
on U.S. Companies. Subcommittee on Courts and Competition Policy. July
13, 2010.
118. Examining the State of Judicial Recusals After Caperton v.
A.T. Massey. Subcommittee on Courts and Competition Policy. December
10, 2009.
119. Is There Life After Trinko and Credit Suisse?: The Role of
Antitrust in Regulated Industries. Subcommittee on Courts and
Competition Policy. June 15, 2010.
120. Health Insurance Industry Antitrust Enforcement Act of 2009.
Subcommittee on Courts and Competition Policy. October 8, 2009. (H.R.
3596).
121. Competition in the Media and Entertainment Distribution
Market. Committee on the Judiciary. February 25, 2010.
122. End Discriminatory State Taxes for Automobile Renters Act of
2009. Subcommittee on Commercial and Administrative Law. June 15, 2010.
(H.R. 4175).
123. Protecting Employees and Retirees in Business Bankruptcies Act
of 2010. Subcommittee on Commercial and Administrative Law. May 25,
2010. (H.R. 4677).
124. Open Access to the Courts Act of 2009. Subcommittee on Courts
and Competition Policy. December 16, 2009. (H.R. 4115).
125. Legal Issues Concerning State Alcohol Regulation. Subcommittee
on the Courts and Competition Policy. March 18, 2010.
126. Antitrust Implications of American Needle v. NFL. Subcommittee
on Courts and Competition Policy. January 20, 2010.
127. Administrative Conference of the United States. Subcommittee
on Commercial and Administrative Law. May 20, 2010.
128. Removal Clarification Act of 2010. Subcommittee on Courts and
Competition Policy. May 25, 2010. (H.R. 5281).
129. United States v. Stevens: The Supreme Court's Decision
Invalidating the Crush Video Statute. Subcommittee on Crime, Terrorism,
and Homeland Security. May 26, 2010.
130. Legal Liability Issues Surrounding the Gulf Coast Oil
Disaster. Committee on the Judiciary. May 27, 2010.
131. Racial Profiling and the Use of Suspect Classifications in Law
Enforcement Policy. Subcommittee on the Constitution, Civil Rights, and
Civil Liberties. June 17, 2010.
132. Civil Division of the United States Department of Justice.
Subcommittee on Commercial and Administrative Law. June 24, 2010.
133. Federal Trade Commission's Bureau of Competition and the U.S.
Department of Justice's Antitrust Division. Subcommittee on Courts and
Competition Policy. July 27, 2010.
134. Tribal Law and Order Act of 2009. Subcommittee on Crime,
Terrorism, and Homeland Security. December 10, 2009. (H.R. 1924).
135. United States Patent and Trademark Office. Committee on the
Judiciary. May 5, 2010.
136. United States Department of Justice. Committee on the
Judiciary. May 13, 2010.
137. Senior Financial Empowerment Act of 2009. Subcommittee on
Crime, Terrorism, Homeland Security. May 25, 2010. (H.R. 3040).
138. Proposed Combination of Comcast and NBC-Universal. Committee
on the Judiciary. June 7, 2010.
139. Collateral Consequences of Criminal Convictions: Barriers to
Reentry for the Formerly Incarcerated. Subcommittee on Crime,
Terrorism, and Homeland Security. June 9, 2010.
140. Role and Operations of the United States Secret Service.
Subcommittee on Crime, Terrorism, and Homeland Security. June 29, 2010.
141. Medical Bankruptcy Fairness Act. Subcommittee on Commercial
and Administrative Law. July 15, 2010. (H.R. 901).
142. Ensuring Justice for Victims of the Gulf Coast Oil Disaster.
Committee on the Judiciary. July 21, 2010.
143. Federal Rulemaking and the Regulatory Process. Subcommittee on
Commercial and Administrative Law. July 27, 2010.
144. Online Privacy, Social Networking, and Crime Victimization.
Subcommittee on Crime, Terrorism, and Homeland Security. July 28, 2010.
145. Protecting the American Dream (Part III): Advancing and
Improving the Fair Housing Act on the 5-Year Anniversary of Hurricane
Katrina. Subcommittee on the Constitution, Civil Rights, and Civil
Liberties. July 29, 2010.
146. Domestic Minor Sex Trafficking. Subcommittee on Crime,
Terrorism, and Homeland Security. September 15, 2010.
147. Competition in the Evolving Digital Marketplace. Subcommittee
on Courts and Competition Policy. September 16, 2010.
148. Holocaust Insurance Accountability Act of 2010. Subcommittee
on Commercial and Administrative Law. September 22, 2010.
149. ECPA Reform and the Revolution in Cloud Computing.
Subcommittee on the Constitution, Civil Rights, and Civil Liberties.
September 23, 2010.
150. Protecting America's Harvest. Subcommittee on Immigration,
Citizenship, Refugees, Border Security, and International Law.
September 24, 2010.
151. Reining in Overcriminalization: Assessing the Problems,
Proposing Solutions. Subcommittee on Crime, Terrorism, and Homeland
Security. September 28, 2010.
152. Comprehensive Alcohol Regulatory Effectiveness (CARE) Act of
2010. Committee on the Judiciary. September 29, 2010.
153. Courtroom Use: Access to Justice, Effective Judicial
Administration, and Courtroom Security. Subcommittee on Courts and
Competition Policy. September 29, 2010.
154. Reauthorization of the Second Chance Act. Subcommittee on
Crime, Terrorism, and Homeland Security. September 29, 2010.
155. Role of Immigration in Strengthening America's Economy.
Subcommittee on Immigration, Citizenship, Refugees, Border Security,
and International Law. September 30, 2010.
156. Faith-Based Initiatives: Recommendations of the President's
Advisory Council on Faith-Based and Community Partnerships and Other
Current Issues. Subcommittee on the Constitution, Civil Rights, and
Civil Liberties. November 18, 2010.
157. Antitrust Laws and Their Effects on Healthcare Providers,
Insurers, and Patients. Subcommittee on Courts and Competition Policy.
December 1, 2010.
158. Foreclosed Justice: Causes and Effects of the Foreclosure
Crisis (Part I and II). Committee on the Judiciary. December 2, 15,
2010.
159. Civil Liberties and the National Security. Subcommittee on the
Constitution, Civil Rights, and Civil Liberties. December 9, 2010.
160. Espionage Act and the Legal and Constitutional Issues Raised
by WikiLeaks. Committee on the Judiciary. December 16, 2010.
Committee Prints
Serial No. and Title
1. Federal Rules of Appellate Procedure. December 1, 2009.
2. Federal Rules of Civil Procedure. December 1, 2009.
3. Federal Rules of Criminal Procedure. December 1, 2009.
4. Federal Rules of Evidence. December 1, 2009.
5. Federal Rules of Bankruptcy. December 1, 2009.
6. Federal Rules of Appellate Procedure. December 1, 2010.
7. Federal Rules of Civil Procedure. December 1, 2010.
8. Federal Rules of Criminal Procedure. December 1, 2010.
9. Federal Rules of Evidence. December 1, 2010.
10. Federal Rules of Bankruptcy. December 1, 2010.
House Documents
H. Doc. No. and Title
111-7. National Drug Control Strategy 2009 Annual Report. Message
from the President of the United States transmitting the
Administration's 2009 National Drug Control Strategy, pursuant to 21
U.S.C. 1504. Referred jointly to the Committees on Armed Services,
Education and Labor, Energy and Commerce, Foreign Affairs, Homeland
Security, Judiciary, Natural Resources, Oversight and Government
Reform, Small Business, Transportation and Infrastructure, Veterans'
Affairs, and Ways and Means. January 15, 2009. (Presidential Message
No. 005).
111-28. Amendments to the Federal Rules of Appellate Procedure.
Communication from the Chief Justice, the Supreme Court of the United
States transmitting amendments to the Federal Rules of Appellate
Procedure that have been adopted by the Supreme Court, pursuant to 28
U.S.C. 2074. Referred to the Committee on the Judiciary. April 21,
2009. (Executive Communication No. 01263).
111-29. Amendments to the Federal Rules of Civil Procedure.
Communication from the Chief Justice, the 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 21, 2009.
(Executive Communication No. 01264).
111-30. Amendments to the Federal Rules of Criminal Procedure.
Communication from the Chief Justice, the 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 21,
2009. (Executive Communication No. 01265).
111-31. Amendments to the Federal Rules of Bankruptcy Procedure.
Communication from the Chief Justice, the 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. April 21,
2009. (Executive Communication No. 01266).
111-107. National Drug Control Strategy 2010. Message from the
President of the United States transmitting the Administration's 2010
National Drug Control Strategy, pursuant to 21 U.S.C. 1504. Referred
jointly to the Committees on Armed Services, Education and Labor,
Energy and Commerce, Foreign Affairs, Homeland Security, Judiciary,
Natural Resources, Oversight and Government Reform, Small Business,
Transportation and Infrastructure, Veterans' Affairs, and Ways and
Means. May 12, 2010. (Presidential Message No. 0060).
111-110. Amendments to the Federal Rules of Criminal Procedure.
Communication from the Chief Justice, the 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. May 13, 2010.
(Executive Communication No. 07472).
111-111. Amendments to the Federal Rules of Civil Procedure.
Communication from the Chief Justice, the 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. May 13, 2010.
(Executive Communication No. 07473).
111-112. Amendments to the Federal Rules of Appellate Procedure.
Communication from the Chief Justice, the Supreme Court of the United
States transmitting amendments to the Federal Rules of Appellate
Procedure that have been adopted by the Supreme Court, pursuant to 28
U.S.C. 2074. Referred to the Committee on the Judiciary. May 13, 2010.
(Executive Communication No. 07474).
111-113. Amendments to the Federal Rules of Evidence. Communication
from the Chief Justice, the Supreme Court of the United States
transmitting amendments to the Federal Rules of Evidence that have been
adopted by the Supreme Court, pursuant to 28 U.S.C. 2072. Referred to
the Committee on the Judiciary. May 13, 2010. (Executive Communication
No. 07475).
111-114. Amendments to the Federal Rules of Bankruptcy Procedure.
Communication from the Chief Justice, the 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. May 13, 2010.
(Executive Communication No. 07476).
111-152. Veto Message on H.R. 3808. Message from the President of
the United States transmitting notification of the veto of H.R. 3808,
the ``Interstate Recognition of Notarizations Act of 2010''. Referred
to the Committee on the Judiciary. November 18, 2010. (Presidential
Message No. 0074).
__________
Legislation Enacted into Law
A variety of legislation within the Committee's jurisdiction was
enacted into law during the 110th Congress. The public laws 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 Laws
Public Law 111-2. Lilly Ledbetter Fair Pay Act of 2009. (S. 181).
(Approved January 29, 2009).
Public Law 111-9. To extend certain immigration programs. (H.R.
1127). (Approved March 20, 2009).
Public Law 111-10. Fraud Enforcement and Recovery Act. (S. 386).
(Approved May 20, 2009).
Public Law 111-16. Statutory Time-Periods Technical Amendments Act
of 2009. (H.R. 1626). (Approved May 7, 2009).
Public Law 111-22. Helping Families Save Their Homes Act of 2009.
(S. 896). (Approved May 20, 2009).
Public Law 111-30. Antitrust Criminal Penalty Enhancement and
Reform Act of 2004 Extension Act. (H.R. 2675). (Approved June 19,
2009).
Public Law 111-36. Webcaster Settlement Act of 2009. (H.R. 2344).
(Approved June 30, 2009).
Public Law 111-41. Korean War Veterans Recognition Act. (H.R.
2632). (Approved July 27, 2009).
Public Law 111-45. To authorize the Director of the United States
Patent and Trademark Office to use funds made available under the
Trademark Act of 1946 for patent operations in order to avoid furloughs
and reductions-in-force, and for other purposes. (H.R. 3114). (Approved
August 7, 2009).
Public Law 111-48. Miami Dade College Land Conveyance Act. (H.R.
838). (Approved August 12, 2009).
Public Law 111-49. Judicial Survivors Protection Act of 2009. (S.
1107). (Approved August 12, 2009).
Public Law 111-62. A joint resolution granting the consent and
approval of Congress to amendments made by the State of Maryland, the
Commonwealth of Virginia, and the District of Columbia to the
Washington Metropolitan Area Transit Regulation Compact. (S.J.Res. 19).
(Approved August 19, 2009).
Public Law 111-79. Foreign Evidence Request Efficiency Act of 2009.
(S.1289). (Approved October 19, 2009).
Public Law 111-83. Department of Homeland Security Appropriations
Act, 2010. (H.R. 2892). (Approved October 28, 2009).
Public Law 111-94. Proclaiming Casimir Pulaski to be an honorary
citizen of the United States posthumously. (H.J.Res. 26). (Approved
November 6, 2009).
Public Law 111-95. A bill to amend title 36, United States Code, to
grant a federal charter to the Military Officers Association of
America, and for other purposes. (S. 832). (Approved November 6, 2009).
Public Law 111-113. Reserve Officers Association Modernization Act
of 2009. (S. 1599). (Approved December 14, 2009).
Public Law 111-122. Human Rights Enforcement Act of 2009. (S.
1472). (Approved December 22, 2009).
Public Law 111-141. An act to extend expiring provisions of the USA
PATRIOT Improvement and Reauthorization Act of 2005 and Intelligence
Reform and Terrorism Prevention Act of 2004 until February 28, 2011.
(H.R. 3961). (Approved February 27, 2010).
Public Law 111-143. Criminal History Background Checks Pilot
Extension Act of 2009. (S. 2950) (Approved March 1, 2010).
Public Law 111-144. Temporary Extension Act of 2010. (H.R. 4691).
(Approved March 2, 2010).
Public Law 111-145. Travel Promotion Act of 2009. (H.R. 1299).
(Approved March 4, 2010).
Public Law 111-146. Trademark Technical and Conforming Amendment
Act of 2010. (S. 2968). (Approved March 17, 2010).
Public Law 111-154. Prevent All Cigarette Trafficking Act of 2009.
(S. 1147). (Approved March 31, 2010).
Public Law 111-157. Continuing Extension Act of 2010. (H.R. 4851).
(Approved April 15, 2010).
Public Law 111-160. A joint resolution granting the consent and
approval of Congress to amendments made by the State of Maryland, the
Commonwealth of Virginia, and the District of Columbia to the
Washington Metropolitan Area Transit Regulation Compact. (S.J.Res. 25)
(Approved April 14, 2010).
Public Law 111-174. Federal Judiciary Administrative Improvements
Act of 2010. (S. 1782). (Approved May 27, 2010).
Public Law 111-175. Satellite Television Extension and Localism Act
of 2010. (S. 3333). (Approved May 12, 2010).
Public Law 111-190. To amend the Antitrust Criminal Penalty
Enhancement and Reform Act of 2004 to extend the operation of such Act,
and for other purposes. (H.R. 5330). (Approved June 9, 2010).
Public Law 111-192. Preservation of Access to Care for Medicare
Beneficiaries and Pension Relief Act of 2010. (H.R. 3962). (Approved
June 25, 2010).
Public Law 111-203. Dodd-Frank Wall Street Reform and Consumer
Protection Act. (H.R. 4173). (Approved July 21, 2010).
Public Law 111-211. Indian Arts and Crafts Amendments Act of 2010.
(H.R. 725). (Approved July 29, 2010).
Public Law 111-220. Fair Sentencing Act of 2010. (S. 1789).
(Approved August 3, 2010).
Public Law 111-223. Securing the Protection of Our Enduring and
Established Constitutional Heritage Act. (H.R. 2765). (Approved August
10, 2010).
Public Law 111-225. Cell Phone Contraband Act of 2010. (S. 1749).
(Approved August 10, 2010).
Public Law 111-268. Combat Methamphetamine Enhancement Act of 2010.
(H.R. 2923). (Approved October 12, 2010).
Public Law 111-272. Law Enforcement Officers Safety Act
Improvements Act of 2010. (S. 1132). (Approved October 12, 2010).
Public Law 111-273. Secure and Responsible Drug Disposal Act of
2010. (S. 3397). (Approved October 12, 2010).
Public Law 111-287. International Adoption Simplification Act. (S.
1376). (Approved November 30, 2010).
Public Law 111-293. Help HAITI Act of 2010. (H.R. 5283). (Approved
December 9, 2010).
Public Law 111-294. Animal Crush Video Prohibition Act of 2010.
(H.R. 5566). (Approved December 9, 2010).
Public Law 111-295. Copyright Cleanup, Clarification, and
Corrections Act of 2010. (S. 3689). (Approved December 9, 2010).
Public Law 111-306. A bill to require the accreditation of English
language training programs, and for other purposes. (S. 1338).
(Approved December 14, 2010).
Public Law 111-307. Asian Carp Prevention and Control Act. (S.
1421). (Approved December 14, 2010).
Public Law 111-314. Charles `Pete' Conrad Astronomy Awards Act.
(H.R. 3237). (Approved December 18, 2010).
Public Law 111-327. Bankruptcy Technical Corrections Act of 2010.
(H.R. 6198). (Approved December 22, 2010).
Public Law 111-341. Criminal History Background Checks Pilot
Extension Act of 2010. (S. 3998). (Approved December 22, 2010).
Public Law 111-342. Preserving Foreign Criminal Assets for
Forfeiture Act of 2010. (S. 4005). (Approved December 22, 2010).
Public Law 111-347. James Zadroga 9/11 Health and Compensation Act
of 2010. (H.R. 847). (Approved January 2, 2011).
Public Law 111-349. To establish a pilot program in certain United
States district courts to encourage enhancement of expertise in patent
cases among district judges. (H.R. 628). (Approved January 4, 2011).
Public Law 111-350. To enact certain laws relating to public
contracts as title 41, United States Code, ``Public Contracts''. (H.R.
1107). (Approved January 4, 2011).
Public Law 111-369. Access to Criminal History Records for State
Sentencing Commissions Act of 2010. (H.R. 6412). (Approved January 4,
2011).
Public Law 111-356. Northern Border Counternarcotics Strategy Act
of 2010. (H.R. 4748). (Approved January 4, 2011).
Public Law 111-364. Diesel Emissions Reduction Act of 2010. (H.R.
5809). (Approved January 4, 2011).
Private Laws
Private Law 111-1. A bill for the relief of Shigeru Yamada.
(S. 4010). (Approved December 22, 2010).
Private Law 111-2. Private bill for the relief of Hotaru
Nakama Ferschke. (S. 1774). (Approved December 22, 2010).
Conference Appointments
Members of the Committee were named by the Speaker as
conferees on the following bills which were not referred to the
Committee but which contained legislative language within the
Committee's Rule X jurisdiction:
H.R. 4173--A bill to promote the financial stability of the
United States by improving accountability and transparency in
the financial system, to end ``too big to fail'', to protect
the American taxpayer by ending bailouts, to protect consumers
from abusive financial services practices, and for other
purposes. ``Dodd-Frank Wall Street Reform and Consumer
Protection Act''. Passed the House December 11, 2009 (223 yeas;
202 nays). Passed the Senate, amended, May 20, 2010 (59 yeas;
39 nays). The Senate requested a conference May 20, 2010. The
Senate appointed conferees May 25, 2010. The House agreed to a
conference and appointed conferees June 9, 2010 (including from
the Committee on the Judiciary). Conference report filed in the
House June 29, 2010 (H. Rept. 111-517). The House agreed to the
conference report June 30, 2010 (237 yeas; 192 nays). The
Senate agreed to the conference report July 15, 2010 (60 yeas;
39 nays). Became Public Law 111-203, July 21, 2010.
Summary of Activities of the Committee on the Judiciary
During the 111th 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 its Subcommittees.
Intellectual Property Activities
During the 111th Congress, the full Judiciary Committee
retained original jurisdiction over intellectual property
legislation and oversight matters. Intellectual property laws,
which primarily are patents, copyrights and trademarks, were
created to promote innovation and creativity. Industries that
have grown around the creation and use of intellectual property
rights play a critical role in our economy. The United States
Patent and Trademark Office is responsible for examination and
registration of patent and trademark rights. The Copyright
Office is responsible for examination and registration of
copyrights. Civil enforcement of Federal intellectual property
laws may be obtained through the Federal courts by private
right of action. Criminal enforcement of Federal intellectual
property laws is carried out by the Department of Justice.
Hearing on Copyright Licensing in a Digital Age: Competition,
Compensation and the Need to Update the Cable and Satellite TV
Licenses (Serial No. 111-3)
On February 25, 2009, the Committee held a hearing
regarding the Satellite Home Viewer Extension and
Reauthorization Act of 2004 and related issues. Witnesses
included: Marybeth Peters, Register of Copyright, U.S.
Copyright Office; Fritz Attaway, Executive Vice President,
Motion Picture Association of America; Bob Gabrielli, Senior
Vice President, DIRECTV; Chris Murray, Internet and
Telecommunications Counsel, Consumers Union; Kyle McSlarrow,
President and Chief Executive Officer, National Cable and
Telecommunications Association; and David Rehr, President and
Chief Executive Officer, National Association of Broadcasters.
Hearing on Competition and Commerce in Digital Books (Serial No. 111-
31)
On September 10, 2009, the Committee held a hearing on
competition in the digital book industry, including issues
related to the Google books settlement. Witnesses included:
David C. Drummond, Senior Vice President of Corporate
Development and Chief Legal Officer, Google Inc.; Paul Misener,
Vice President of Global Policy, Amazon.com; Marc Maurer, J.D.,
President, National Federation of the Blind; John M. Simpson,
Consumer Advocate, Consumer Watchdog; Paul Aiken, Executive
Director, Authors Guild; Marybeth Peters, Register of
Copyrights, U.S. Copyright Office; Randal C. Picker, Paul H.
and Theo Leffmann Professor of Commercial Law, University of
Chicago Law School; and David Balto, Senior Fellow, Center for
American Progress.
Hearing on Piracy of Live Sports Broadcasting Over the Internet (Serial
No. 111-94)
On December 16, 2009, the Committee held a hearing to
examine how the piracy of live sporting events transmitted over
the Internet impacts sports leagues, consumers, broadcasters,
and copyright owners. Witnesses included: Michael J. Mellis,
Sr. Vice President and General Counsel, MLB Advanced Media,
L.P.; Lorenzo Fertitta, Chief Executive Officer, Ultimate
Fighting Championship; Michael Seibel, Chief Executive Officer,
Justin.TV Inc.; Ed Durso, Executive Vice President,
Administration, ESPN, Inc.; and Christopher S. Yoo, Professor
of Law and Communication, University of Pennsylvania Law
School.
Hearing on Domestic and International Trademark Implications of HAVANA
CLUB and Section 211 of the Omnibus Appropriations Act of 1999
(Serial No. 111-69)
On March 3, 2010, the Committee held a hearing on the
domestic and international trademark implications of Section
211 of the Omnibus Appropriations Act of 1999. Section 211 of
the Omnibus Appropriations Act of 1999 prevents recognition of
ownership rights in trademarks nationalized and confiscated by
the Cuban government. The World Trade Organization (WTO) ruled
that the law violated the WTO Agreement on Trade Related
Aspects of Intellectual Property, and hearing evaluated
competing proposals to bring the U.S. into compliance with its
treaty obligations. The following witnesses gave testimony and
submitted written statements for the record: Mark Z. Orr, Vice
President of North American Affairs, Pernod Ricard USA, Inc.;
Bruce A. Lehman, Former Assistant Secretary of Commerce and
Expert Counsel for Bacardi, USA; Mark T. Esper, Ph.D, Executive
Vice President, Global Intellectual Property Center, U.S.
Chamber of Commerce; William A. Reinsch, President, National
Foreign Trade Council; and John K. Veroneau, Partner, Covington
& Burling, LLP.
Hearing on Design Patents and Auto Replacement Parts (Serial No. 111-
112)
On March 22, 2010, the Committee held a hearing on the
intellectual property and economic impact of design patents in
exterior automotive parts. The hearing examined the use of
design patent protection for exterior automotive parts, whether
an exception to this protection is needed for replacement
parts, and what impact such an exception might have on the
United States intellectual property system and United States
treaty obligations related to intellectual property. The
following witnesses gave testimony and submitted written
statements for the record: Jack Gillis, Director of Public
Affairs, Consumer Federation of America; Damian Porcari,
Licensing and Enforcement, Ford Global Technologies, LLC;
Robert C. Passmore, Senior Director, Personal Lines, Property
Casualty Insurers Association of America; and Perry Saidman,
Saidman Design Law Group.
Hearing on the United States Patent and Trademark Office (Serial No.
111-135)
On May 5, 2010, the Committee held a hearing on the United
States Patent and Trademark Office (USPTO). The hearing took a
close look at initiatives of USPTO to reduce the patent
application backlog, improve examiner production and
satisfaction, and strengthen the organization's information
technology infrastructure. The hearing also focused on the role
that inconsistent funding of the USPTO plays in its operational
challenges. The following witnesses gave testimony and
submitted a written statement for the record: Honorable David
Kappos, Under Secretary of Commerce for Intellectual Property
and Director of the United States Patent and Trademark Office;
Robert Budens, President, Patent Office Professional
Association; James Johnson, Counsel, Sutherland Asbill &
Brennan LLP and Board Member of the Trademark Public Advisory
Committee; and Damon Matteo, Vice President and Chief
Intellectual Property Officer, Palo Alto Research Center and
Chair of the Patent Public Advisory Committee.
Oversight Hearings on Executive Branch Agencies and Their Activities
During the 111th Congress, the Committee and its
Subcommittees held extensive hearings concerning the work of
Executive Branch agencies under the Committee's jurisdiction.
This included not only the Department of Justice (DOJ), but
also such agencies as the U.S. Patent and Trademark Office, the
Administrative Conference of the United States, and the
Department of Homeland Security. With respect to DOJ and its
component agencies alone, the Committee and its Subcommittees
held 25 such hearings during the 111th Congress. These hearings
included testimony from the Attorney General, the Director of
the FBI, and other officials from DOJ's Antitrust, Civil, Civil
Rights, Criminal, and National Security Divisions, the Office
of Justice Programs, the Office of Legal Policy, the Executive
Office of Immigration Review, the FBI, Bureau of Prisons, and
Bureau of Alcohol, Tobacco, Firearms, and Explosives.
Hearings held by each Subcommittee are described in the
relevant sections of this report. Full Committee hearings on
agency oversight included the following:
Hearing on the Department of Justice With Attorney General Eric Holder
(Serial No. 111-83)
On May 14, 2009, Attorney General Holder appeared before
the Committee for an oversight hearing concerning the
Department of Justice.
Hearing on the Federal Bureau of Investigation (Serial No. 111-30)
On May 20, 2009, Director Robert S. Mueller III appeared
before the Committee for an oversight hearing concerning the
Federal Bureau of Investigation.
Classified Hearing on the Patriot Act and Related Matters
On October 29, 2009, the Committee held a classified
oversight hearing concerning the operation of the Patriot Act
and related matters. Witnesses included Assistant Attorney
General for National Security David S. Kris and Michael E.
Leiter, Director of the National Counterrorism Center.
Sharing and Analyzing Information To Prevent Terrorism (Serial No. 111-
116)
On March 24, 2010, the Committee held a hearing focusing on
the efforts of the FBI and other federal agencies to improve
the sharing and analyzing of information to prevent terrorism.
Witnesses included Timothy J. Healy, Director of the FBI's
Terrorist Screening Center; Russell E. Travers, Deputy Director
for Information Sharing and Knowledge Development, National
Counterrorism Center; Patrick F. Kennedy, Undersecretary for
Management, Department of State; and Patricia Cogswell, Acting
Deputy Assistant Secretary, Office of Policy, Department of
Homeland Security.
Hearing on the United States Patent and Trademark Office (Serial No.
111-135)
On May 5, 2010, the Committee held an oversight hearing on
the United States Patent and Trademark Office (PTO). Witnesses
included David J. Kappos, Undersecretary of Commerce for
Intellectual Property and Director of the U.S. PTO; Robert D.
Budens, President of the Patent Office Professonal Association;
James H. Johnson. Board Member, Trademark Public Advisory
Committee; and Damon C. Matteo, Chairman, Patent Public
Advisory Committee.
Hearing on the United States Department of Justice (Serial No. 111-136)
On May 13, 2010, Attorney General Eric Holder appeared
before the Committee for his second oversight hearing
concerning the Department of Justice.
Continuation of Investigations on U.S. Attorney Removals, the
Politicization of the Department of Justice, and OLC Approval of
Waterboarding and Other Interrogation Techniques
As described in the Activities Report for the 110th
Congress, in 2007, the Committee undertook an extensive
investigation into the abrupt removal of a number of U.S.
Attorneys in 2006 and related allegations of politicization of
the Department of Justice.2a Because the White House
asserted executive privilege and immunity to Congressional
subpoena, as a result of which the Committee was unable to
obtain access to relevant White House documents and to procure
the recorded testimony of key White House officials, the full
House held several such officials in contempt and the Committee
was forced to file a civil lawsuit seeking the subpoenaed
documents and testimony.\3\ The federal district court found in
favor of the Committee, largely upholding the Committee's
authority.\4\ As of the end of the 110th Congress, the decision
was on appeal.
---------------------------------------------------------------------------
\2a\See Report on the Activities of the Committee on the Judiciary
of the House of Representatives During the One Hundred and Tenth
Congress Pursuant to Clause 1 (D) Rule XI of the House of
Representatives, H. Rep. 110-941 (January, 2009) at 31-40.
\3\See Committee on the Judiciary v. Miers, Civil Action No. 08-
0409 (JDB) (United States District Court for the District of Columbia,
filed March 10, 2008).
\4\Committee on the Judiciary v. Miers, 558 F.Supp. 2d 53 (D.D.C.
2008).
---------------------------------------------------------------------------
In March, 2009, the Committee reached an agreement with the
former Bush Administration to resolve the Committee's lawsuit
and the previously issued contempt citations.\5\ Pursuant to
that agreement, the Committee proceeded over the next several
months to receive access to previously subpoenaed White House
documents and to obtain the on-the-record testimony of former
White House officials Harriet Miers and Karl Rove. Committee
members and staff questioned Ms. Miers at a deposition session
on June 15, 2009, and questioned Mr. Rove on July 7 and 20,
2009.
---------------------------------------------------------------------------
\5\See Agreement Concerning Accommodation in Committee on the
Judiciary, U.S. House of Representatives v. Harriet Miers, et al.
(March 4, 2009)
---------------------------------------------------------------------------
On August 11, 2009, the Committee publicly released over
5,400 pages of White House documents and more than 700 pages of
Miers and Rove transcripts, and also forwarded them to the
special U.S. Attorney investigating the U.S. Attorney firings.
On July 21, 2010, the Department of Justice wrote a
detailed letter to Chairman Conyers concerning the special U.S.
Attorney's investigation.
The letter noted that the joint Office of Professional
Responsibility/Office of the Inspector General report concluded
that ``then Attorney General Gonzales made a `series of
statements after the removals' that were `inaccurate and
misleading' to Congress and others, and that other improprer
conduct occurred.'' However, it explained that the
investigation did not find sufficient evidence to meet the high
standard for criminal prosecution of any of the officials
involved. The letter also stated explicitly that the actions of
former DOJ leadership ``were contrary to DOJ principles'' and
that Attorney General Holder had ``taken steps to ensure those
mistakes will not be repeated.''\6\
---------------------------------------------------------------------------
\6\See Letter from Assistant Attorney General Ron Weich to Chairman
Conyers (July 21, 2010) at 4,5,6.
---------------------------------------------------------------------------
During the 111th Congress, the Committee also pursued the
investigation begun in 2008 concerning the prior approval by
DOJ's Office of Legal Counsel (OLC) of waterboarding and other
``enhanced'' interrogation techniques.\7\ Specifically, the
Committee made arrangements to obtain the testimony of the
author of several key OLC memos, then director of OLC and now
federal judge Jay Bybee. Judge Bybee was interviewed on the
record by Committee members and staff on May 26, 2010, and the
transcript and related documents were publicly released and
forwarded to the Department of Justice on July 15, 2010. Judge
Bybee testified that a number of the harsh interrogation
techniques reportedly used by the CIA in 2001-04 had not been
approved by OLC, which is relevant to the Department's
continuing investigation of the use of such techniques.\8\
---------------------------------------------------------------------------
\7\By early 2009, the prior OLC opinions had been revoked and the
use of waterboarding and other ``enhanced'' interrogation techniques
had been banned. A description of the Committee's 2008 investigation on
the subject can be found in House Committee on the Judiciary Majority
Staff, Final Report to Chairman John Conyers, Jr., Reining in the
Imperial Presidency: Lessons and Recommendations Relating to the
Presidency of George W. Bush (March, 2009) at 119-125.
\8\The transcript of and documents used in the Bybee interview were
made available on the Committee Web site.
---------------------------------------------------------------------------
Oversight Concerning the Gulf Oil Spill
The full Committee held several oversight hearings
concerning liability issues relating to the disastrous Gulf
Coast oil spill of April, 2010 and to victim compensation
efforts led by Gulf Coast Claims Facility Administrator Kenneth
Feinberg. These included the following:
Hearing on Liability Issues Surrounding the Gulf Coast Oil Disaster
(Serial No. 111-130)
On May 27, 2010, the Committee heard testimony from a
number of witnesses concerning liability issues stemming from
the April 20, 2010 explosion on the Deepwater Horizon oil
vessel that killed 11 workers and resulted in an environmental
and economic disaster in the Gulf Coast region. These witnesses
included: Keith D. Jones, father of Gordon Jones who died while
working on the Deepwater Horizon; Rachel G. Clingman, Acting
General Counsel, Transocean, Ltd.; Douglas Harold Brown, Chief
Mechanic, Transocean, Ltd. and survivor of the Deepwater
Horizon explosion; James W. Ferguson, Senior Vice President and
Deputy General Counsel, Halliburton, Inc.; Stephen L. Stone,
Offshore Oil Rig Roustabout, Transocean, Ltd., and survivor of
the Deepwater Horizon explosion; William C. Lemmer, Sr. Vice
President and General Counsel, Cameron International
Corporation; Byron Encalade, President, Louisiana Oysters
Association; Vincent J. Folet, Partner, Holland and Knight LLP;
Hon. Jim Hood, Attorney General, State of Mississippi; Tom C.
Galligan, Jr., President and Professor, Colby-Sawyer College;
and Daryl Willis, Vice President, Resources, BP America.
Hearing on Ensuring Justice for the Victims of the Gulf Coast Oil
Disaster (Serial No. 111-142)
On July 21, 2010, the Committee conducted a hearing
examining the procedures for the submission and resolution of
claims by individuals and businesses for costs and damages
incurred as a result of the Gulf Coast oil disaster. The sole
witness was Kenneth P. Feinberg, the Administrator of the Gulf
Coast Claims Facility.
Oversight on Antitrust Activities
The Committee on the Judiciary has jurisdiction over
competition policy and all laws relevant to antitrust. In
addition, the Committee has jurisdiction over the federal
agencies empowered to enforce those laws, the Antitrust
Division of the U.S. Department of Justice as well as the
Bureau of Competition of the Federal Trade Commission. The bulk
of antitrust issues were examined at the subcommittee level
this past session by the Subcommittee on Courts and Competition
Policy. However, the Committee exercised its general oversight
over antitrust to examine competition in minority broadcast
ownership, the media and entertainment distribution markets,
and the airline industry. With respect to legislation, the
Committee held a hearing examining the implications of
legislation that would have created short-term collective
bargaining rights for merchants seeking to reduce the
interchange surcharges charged by banks for credit card
transactions. In addition, the Committee passed legislation
that would have removed the antitrust exemption for railroad
companies as well as health insurance companies.
Hearing on Trends Affecting Minority Broadcast Ownership (Serial No.
111-24)
On July 9, 2009, the Committee held a hearing to examine
issues facing small and minority-owned terrestrial radio
stations, such as ratings systems, advertising revenue, and
competition. Witnesses included: Kendall Minter, Chairman of
the Board, Rhythm and Blues Foundation; Andrew Schwartzman,
President, Media Access Project; Michael Skarzynski, President.
Arbitron, Inc.; and James L. Winston, Executive Director,
National Association of Black Owned Broadcasters.
Hearing on Competition in the Media and Entertainment Distribution
Market (Serial No. 111-121) and Field Hearing on the Proposed
Combination of Comcast and NBC Universal (Serial No. 111-138)
On February 25, 2010, the Committee held a hearing on
competition in modern media markets and the issue of horizontal
and vertical mergers, including discussion of the proposed
merger of Comcast and NBC Universal. Witnesses included: Brian
L. Roberts, Chairman and Chief Executive Officer, Comcast
Corporation; Jeff Zucker, President and Chief Executive
Officer, NBC Universal; Jean M. Prewitt, President and Chief
Executive Officer, Independent Film & Television Alliance;
Thomas W. Hazlett, Professor of Law & Economics, George Mason
University School of Law; Mark Cooper, Ph.D., Director of
Research, Consumer Federation of America; Larry Cohen,
President, Communications Workers of America; Andrew Jay
Schwartzman, President and Chief Executive Officer, Media
Access Project; and Marc H. Morial, President and Chief
Executive Officer, National Urban League.
On June 7, 2010, the Committee held a field hearing at the
Donald P. Loker Conference Center at the California Science
Center, Los Angeles, California, to further discuss these and
related issues. Witnesses included: Will Griffin, President and
Chief Operating Officer, Hip Hop On Demand; Alex Nogales,
President and CEO, National Hispanic Media Coalition; Samuel
Kang, Managing Attorney, The Greenlining Institute; Allen
Hammond, Phil and Bobbie Sanfilippo Professor of Law, Santa
Clara University School of Law; Alfred C. Liggins III, resident
and Chief Executive Officer, Radio One, Inc.; Stanley E.
Washington, Chairman and Chief Executive Officer, National
Coalition of African American Owned Media; Paula Madison,
Executive Vice President, Diversity, NBC Universal; Jim
Weitkamp, District 9 Vice President, Communications Workers of
America; Suzanne de Passe, Co-Chair, de Passe Jones
Entertainment; Darnell M. Hunt, Ph.D., Professor of Sociology,
University of California, Los Angeles; Kathryn F. Galan,
Executive Director, National Association of Latino Independent
Producers; and Frank G. Washington, Chairman and Chief
Executive Officer, Tower of Babel, LLC.
Hearing on Competition in the Airline Industry (Serial No. 111-107)
On June 16, 2010, the Committee held a hearing regarding
competition in the airline industry, including the proposed
merger of United and Continental Airlines. Witnesses included:
Glenn F. Tilton, Chairman, President and Chief Executive
Officer, UAL Corporation; Jeffrey A. Smisek, Chairman,
President and Chief Executive Officer, Continental Airlines;
Darren Bush, Ph.D., J.D., Associate Professor of Law,
University of Houston Law Center; Jay Pierce, Chairman,
Continental Master Executive Council, Air Line Pilots
Association, International; Wendy J. Morse, Chairman, United
Master Executive Council, Air Line Pilots Association, Intl.;
William S. Swelbar, Research Engineer, Department of
Aeronautics and Astronautics, Massachusetts Institute of
Technology; Robert Roach, Jr., General Vice President--
Transportation, The International Association of Machinists and
Aerospace Workers; and Patricia A. Friend, International
President, Association of Flight Attendants--CWA.
Oversight on Bankruptcy and Foreclosure Activities
Hearing on Ramifications of Auto Industry Bankruptcies (Serial No. 111-
22)
On May 21, 2009, the Committee held a hearing on the
economic and social consequences of automobile industry
bankruptcies. Witnesses included: Joan Claybrook, President
Emeritus, Public Citizen; Andrew Grossman, Senior Legal Policy
Analyst, The Heritage Foundation; Damon Lester, President,
National Association of Minority Dealers; Randy Henderson,
Owner, Webster Chrysler Jeep, Inc.; Clarence Ditlow, Executive
Director, Center for Auto Safety; Lynn M. LoPucki, Security
Pacific Bank Professor of Law, UCLA Law School; Ralph Nader,
Consumer Advocate; David Arthur Skeel, M.D., S. Samuel Arsht
Professor of Corporate Law, University of Pennsylvania Law
School; and Bruce Fein, Principal, The Lichfield Group.
Hearing on Foreclosed Justice: Causes and Effects of the Foreclosure
Crisis--Part II (Serial No. 111-000 as listed on Jan. 6, 2011)
On December 2, 2010, the Committee heard testimony from a
number of witnesses concerning the implications of faulty
foreclosure-related documentation practices by mortgage
servicers from the perspective of three federal government
regulators and a state court judge. Additionally, Members
discussed concerns about the effectiveness of the Treasury
Department's Home Affordable Modification Program in addressing
the continuing home foreclosure crisis. The witnesses were
Phyllis Caldwell, Chief of Homeownership Preservation,
Department of the Treasury; Edward DeMarco, Acting Director,
Federal Housing Finance Agency; Julie Williams, Chief Counsel,
Office of the Comptroller of the Currency; and Judge F. Dana
Winslow, New York State Supreme Court.
On December 15, 2010, the Committee received testimony from
witnesses on the implications of faulty foreclosure-related
documentation practices by mortgage servicers from the
perspective of consumer advocates, a former homeowner who lost
her home in foreclosure, an academic, and a representative of
the securitization industry. The hearing examined: (1) whether
foreclosure documentation irregularities undermine due process;
(2) whether the entities seeking foreclosures actually have the
right to do so; and (3) the status of loan modifications and
other loss mitigation efforts. Witnesses included Senator
Sheldon Whitehouse for the State of Rhode Island; James A.
Kowalski, Jr., Esq.; Thomas A. Cox, Maine Attorneys Saving
Homes Project; Dr. Joseph Mason, Louisiana State University;
Sandra Hines, a former homeowner; Vanessa G. Fluker, Esq.; Tom
Deutsch, American Securitization Forum; and Professor
Christopher Peterson, S.J. Quinney College of Law, University
of Utah.
Other Oversight Activities
The Committee held several hearings and forums relating to
legal issues concerning football head injuries. These included
the following:
Hearing on Legal Issues Relating to Football Head Injuries (Serial No.
111-82)
On October 28, 2009, the Committee conducted a hearing and
heard from a number of witnesses with respect to legal issues
relating to football head injuries. These witnesses included:
Hon. Bill Pascrell, Jr., U.S. House of Representatives, 8th
District, New Jersey; Roger S. Goodell, Commissioner, National
Football League; DeMaurice Smith, Executive Director, NFL
Players Association; Gay Culverhouse, Former President, Tampa
Bay Buccaneers; Dr. Andrew M. Tucker, Member, NFL Mild
Traumatic Brain Injury Committee; Dr. Robert C. Cantu, Clinical
Professor of Neurosurgery, Boston University School of
Medicine; David R. Weir, Lead Author, NFL's Player Care
Foundation Study of Retired NFL Players; George Martin,
Executive Director, NFL Alumni Association; Tiki Barber and
Merril Hoge, Retired NFL Players; Dick Benson, High School
Football Safety Advocate; Eleanor M. Perfetto, Wife of Former
NFL Player Ralph Wenzel; Christopher Nowinski, Co-Director,
Center for the Study of Traumatic Encephalopathy, Boston
University; Dr. Ann C. McKee, Associate Professor, Neurology
and Pathology, Boston University School of Medicine; Dr, Joseph
Maroon, Vice Chair, Department of Neurosurgery, University of
Pittsburgh; Dr. Julian Bailes, Chairman, Department of
Neurosurgery, West Virginia School of Medicine; and Dr. Joel
Morgenlander, Professor of Neurology, Duke University Medical
Center.
Hearing on Legal Issues Relating to Football Head Injuries Part II
(Serial No. 111-82)
On January 4, 2010, at the Wayne State School of Medicine
Conference Center in Detroit, Michigan, the Committee further
examined legal issues relating to football head injuries.
Witnesses included: DeMaurice Smith, Executive Director, NFL
Players Association; Dr. Joseph C. Maroon, Vice Chair,
Department of Neurosurgery, University of Pittsburgh; David
Klossner, Director of Health and Safety, National Collegiate
Athletic Association; Bob Colgate, Assistant Director, National
Federation of State High School Associations; Scott Hallenbeck,
Executive Director, USA Football; Lemuel J. Barney, Kyle
Turley, and Bernard P. Parrish, Retired NFL Players; Dr. Bennet
I. Omalu, Co-Director, Brain Injury Research Institute, West
Virginia University; Dr. Ira Casson, Former Co-Chairman, NFL
Mild Traumatic Brain Injury Committee; Vincent R. Ferrara,
Founder and CEO, Xenith, LLC; Dan Arment, President, Riddell;
R. David Halstead, Technical Director, Southern Impact Research
Center; Dr. Randall R. Benson, Assistant Professor of
Neurology, Wayne State University; Dr. Jeffrey S. Kutcher,
Department of Neurology, University of Michigan; Christopher
Nowinski, Co-Director, Center for the Study of Traumatic
Encephalopathy; Robert L. Schmidt, Chairman, Vincent T.
Lombardi Foundation; George Martin, Executive Director, NFL
Alumni Association; and Luther Campbell, Trainer of
Professional Athletes.
Forum on Head Injuries and Other Sports Injuries in Youth, High School,
College, and Professional Football
On February 1, 2010, at the Prairie View A&M University
College of Nursing in Houston, Texas, the Committee held a
forum concerning the prevention of head injuries in all levels
of football and the education of players, parents, educators,
and the public about the dangers of concussions. Participants
included: Jon Butler, Vice President, National Council of Youth
Sports; Ron Courson, Director of Sports Medicine, University of
Georgia Athletic Association; Dick Benson, High School Football
Safety Advocate; Chester Pitts, NFL Player, Houston Texans, Dr.
Stan Herring, Team Physician for Seattle Seahawks, American
College of Sports Medicine; Patrick Donohue, Esq., Founder of
the Sarah Jane Brain Foundation; Dr. Bennet Omalu, Co-Director,
Brain Injury Research Institute, West Virginia University; Dr.
Howard Derman, Concussion Specialist for Houston Texans,
Director, Headache and Pain Center at Methodist Hospital;
Trevor Cobb, Retired NFL Player; James Hardin, Head Athletic
Trainer, University of Texas in Austin; Kevin Sumlin, Head
Football Coach, University of Houston, Dr. Cindy Ivanhoe,
Associate Professor, Baylor University; Wes Speights, Athletic
Trainer, Houston Independent School District; and Christopher
Pichon, Principal, Landis Elementary School.
Forum on Key Issues Related to the Identification and Prevention of
Head Injuries in Football
On May 24, 2010, at the Alexander Hamilton U.S. Custom
House in New York, New York, the Committee held a forum
relating to key issues concerning the identification and
prevention of football head injuries. Participants included:
Dr. Hunt Batjer, Co-Chair; NFL Head, Neck and Spine Committee;
Dr. Richard C. Ellenbogen, Co-Chair, NFL Head, Neck and Spine
Committee; Dr. Thom A. Mayer, Medical Director, NFL Players
Association; Dr. Walter J. Koroshetz, Deputy Director, National
Institute of Neurological Disorders, National Institutes of
Health; Charlotte D. Bingham, Managing Director, Equal
Opportunity Office, Texas Tech University System; Tammy
Plevretes, Football Safety Advocate; Nolan Harrison, Corey
Louchiey, Retired NFL Players; and Dr. Daniel L. Alkon,
Scientific Director, Blanchette Rockefeller Neurosciences
Institute.
Hearing on the Espionage Act and the Legal and Constitutional Issues
Raised by WikiLeaks (Serial No. Not Available as of Jan. 6,
2011)
On December 16, 2010, the Committee held a hearing on the
legal issues raised by the recent release of U.S. government
documents by WikiLeaks, including the constitutional and
statutory issues raised by calls for a criminal prosecution of
the organization. Witnesses included: Geoffrey R. Stone of the
University of Chicago; Abbe D. Lowell of McDermott, Will a&
Emery LLP; Kenneth L. Wainstein of O'Melveny & Myers LLP;
Gabriel Schoenfeld of the Hudson Institute; Steven I. Vladeck
of American University; Thomas S. Blanton of the National
Security Archve at George Washington University; and legal
advocate Ralph Nader of the District of Columbia.
Legislative Activities
H.R. 628, ``Pilot Program in District Courts for Patent Cases''
Summary.--Introduced by Representative Darrell Issa, H.R.
628 establishes a pilot program in certain United States
district courts to develop expertise in trying patent-related
cases among district court judges.
Legislative History.--Introduced on January 22, 2009, H.R.
628 was referred to the House Committee on the Judiciary. On
March 17, 2009, under suspension the House passed H.R. 628
without amended by recorded vote 409-7 (Roll No. 130). On March
18, 2009, H.R. 628 was referred to the Senate Committee on the
Judiciary. On December 13, 2010, H.R. 628 was passed by the
Senate, with an amendment, by unanimous consent. On January 4,
2011 President Obama signed H.R. 628. and became Public Law
No.: 111-349.
H.R. 801, the ``Fair Copyright in Research Works Act''
Summary.--Introduced by Chairman John Conyers, Jr., H.R.
801 amends title 17, United States Code, to prohibit any
federal agency from imposing any condition, in connection with
a funding agreement, that requires the transfer or license to
or for a federal agency, or requires the absence or
abandonment, of specified exclusive rights of a copyright owner
in an extrinsic work.
Legislative History.--Introduced on February 3, 2009, H.R.
801 was referred to the House Committee on the Judiciary
Committee. On March 16, 2009, H.R. 801 was referred to the
Subcommittee on Courts and Competition Policy. No further
action was taken on the bill.
H.R. 848, the ``Performance Rights Act''
Summary.--Introduced by Chairman John Conyers, Jr., H.R.
848, would extend the scope of public performance rights to
terrestrial broadcast performances. H.R. 848 grants performers
the right to receive compensation from terrestrial radio, and
contains significant protections for the broadcast radio
industry, including a scale-based fee system for radio stations
with gross annual revenues of less than $1.25 million, a one-
to-three-year-delay of the bill's implementation as to smaller
and noncommercial broadcasters, and a requirement that, in
making any royalty determinations, the Copyright Royalty Judges
consider the effect on minority and religious broadcasters and
religious and minority royalty recipients.
Legislative History.--Introduced on February 4, 2009, H.R.
848 was referred to the House Committee on the Judiciary. On
February 4, 2009, Senator Patrick Leahy introduced a similar
bill, S. 379, the Performance Rights Act. On March 10, 2009,
the full House Committee on the Judiciary held a legislative
hearing on H.R. 848. The following witnesses appeared and
submitted statements for the record: Billy Corgan, Vocalist and
Lead Guitarist, The Smashing Pumpkins; Mitch Bainwol, Chairman
and Chief Executive Officer, Recording Industry Artist
Association (RIAA); Paul Almeida, President, Department for
Professional Employees, AFL-CIO; W. Lawrence Patrick,
President, Patrick Communications; Stan Liebowitz, Ph.D.,
Ashbel Smith Distinguished Professor of Managerial Economics,
University of Texas at Dallas; and Steve Newberry, Chairman of
the Radio Board, National Association of Broadcasters (NAB). On
May 13, 2009, the Committee met in open session to mark-up and
ordered H.R. 848, as amended, favorably reported by a roll call
vote of 21 to 9. On December 14, 2010 the Committee on the
Judiciary reported the bill. (H. Rept. 111-680).
H.R. 1107, To enact certain laws relating to public contracts as title
41, United States Code, ``Public Contracts''
Summary.--Introduced by Rep. John Conyers, Jr., H.R. 1107
revises and restates certain laws relating to public contracts
and re-enacts those laws as title 41, United States Code. The
bill was prepared by the Office of the Law Revision Counsel of
the House of Representatives, as part of its responsibility
under 2 U.S.C. 285b to submit to the Committee on the Judiciary
proposed bills to enact titles of the United States Code into
positive law.
Legislative History.--Introduced on February 23, 2009, H.R.
1107 was referred to the House Committee on the Judiciary. On
March 18, 2009, the Committee ordered the bill, H.R. 1107,
favorably reported, by a voice vote. On May 6, 2009, H.R. 1107
passed the House by voice vote without amendment under
suspension of the rules. On December 2, 2010 the Senate passed
H.R. 1007, with an amendment, by unanimous consent. On December
17, 2010,on motion to suspend the rules, the House agreed to
the Senate amendments by record vote 385-0. On January 4, 2011,
President Obama signed H.R. 1107 and became Public Law No.:
111-350.
H.R. 1260, the ``Patent Reform Act of 2009''
Summary.--Introduced by Representative John Conyers, Jr.,
H.R. 1260, the Patent Reform Act of 2009, amends several
provisions of the patent law. Specifically, it provides rules
regarding the calculation of damages, establishes a post-grant
opposition procedure, revises inter partes reexamination,
permits third parties to submit prior art, makes changes to
venue in patent cases, and switches the United States patent
filing system from a first-to-invent system, to a first-
inventor-to-file system.
Legislative History.--Introduced on March 3, 2009, H.R.
1260 was referred to the House Committee on the Judiciary. On
April 30, 2009, pursuant to notice, the Committee held a
legislative hearing on H.R. 1260. The following witnesses
appeared and submitted statements for the record: David Simon,
Chief Patent Counsel, Intel, Inc.; Phillip S. Johnson, Chief
Intellectual Property Counsel, Johnson & Johnson; John R.
Thomas, Professor, Georgetown University Law School; Jack W.
Lasersohn, Partner, Vertical Group; Dean Kamen, Inventor, DEKA
Research and Development Inc.; Mark Chandler, Senior Vice
President, Cisco; and Bernard Cassidy, Senior Vice President
and General Counsel, Tessera Inc.
H.R. 2196, the ``Design Piracy Prohibition Act''
Summary.--Introduced by Representative William Delahunt,
H.R. 2196 would amend title 17, United States Code, to extend
protection to fashion design, and for other purposes. The bill
includes clothing, handbags, duffel bags, tote bags, and
eyeglass frames as protected items.
Legislative History.--Introduced on April 30, 2009, H.R.
2196 was referred to the Committee on the Judiciary. No further
action was taken on the bill. On August 5, 2010, the Senate
introduced S. 3728, the Innovative Design Protection and Piracy
Prevention Act. S. 3728 was reported by Senator Leahy with an
amendment in the nature of a substitute, without a written
report on December 6, 2010. S. 3728 was placed on the Senate
Legislative Calendar under General Orders on December 6, 2010.
H.R. 2344, the ``Webcaster Settlement Act of 2009''
Summary.--Introduced by Representative Jay Inslee, H.R.
2344 amends section 114 of title 17, United States Code, to
allow the recording industry to negotiate and enter into
alternative royalty fee agreements with webcasters within
thirty days of its enactment.
Legislative History.--Introduced on May 12, 2009, H.R. 2344
was referred to the Committee on the Judiciary. On May 13,
2009, the Committee met in open session and ordered the bill
favorably reported without amendment, by voice vote, a quorum
being present. On May 21, 2009, Senator Ron Wyden introduced S.
1145, the Webcaster Settlement Act. S. 1145 was referred to the
Senate Judiciary Committee. On June 9, 2009, the House passed
H.R. 2344 on a motion to suspend the rules, by voice vote. On
June 17, 2009 the Senate passed S. 1145 without amendment by
Unanimous Consent. On June 30, 2009 President Obama signed H.R.
2344. and became Public Law No.: 111-36.
H.R. 2695, the ``Credit Card Fair Fee Act of 2009''
Summary.--Introduced by Representative John Conyers, Jr.,
H.R. 2695 permits merchants to collectively negotiate with
banks and payment card networks regarding rates and terms for
access to the networks in a limited series of negotiations.
H.R. 2695 creates an antitrust exemption that is limited to the
duration and content of these negotiation sessions, which are
scheduled and overseen by the Department of Justice.
Legislative History.--Introduced on April 28, 2010, H.R.
2695 was referred to the Judiciary Committee. On that same day,
the Committee to examine the merits of Congress granting a
limited antitrust exemption to merchants, banks, and payment
networks so that the parties can negotiate a fair credit card
interchange rate. Witnesses at the hearing included: Dave
Carpenter, President, J.D. Carpenter Companies on behalf of the
National Association of Convenience Stores; Ed Mierzwinski,
Director, Consumer Program, U.S. PIRG; John Blum, Vice
President of Operations, Chartway Federal Credit Union, on
behalf of the National Association of Federal Credit Unions;
and Douglas Kantor, Partner, Steptoe & Johnson LLP, on behalf
of the National Association of Convenience Stores, the Society
of Independent Gasoline Marketers of America, and the Merchants
Payments Coalition. (Serial No. 111-101)
H.R. 3114, To authorize the Director of the United States Patent and
Trademark Office to use funds made available under the
Trademark Act of 1946 for patent operations in order to avoid
furloughs and reductions-in-force, and for other purposes
Summary.--Introduced by Representative John Conyers, Jr.,
H.R. 3114 gave the Director of the United States Patent and
Trademark Office (USPTO) temporary authority to use funds made
available for trademark registration purposes for patent
administration expenses, notwithstanding provisions restricting
the use of such fees to activities relating trademark
registrations, provided the Director certifies to Congress that
the use of such funds is reasonably necessary to avoid USPTO
furloughs or a reduction-in-force.
Legislative History.--Introduced on July 7, 2009, H.R. 3114
was referred to the House Committee on the Judiciary. On the
same day, under suspension of the rules the House passed H.R.
3114 by voice vote. On July 8, 2009, H.R. 3114 was received by
the Senate and read twice. On July 16, 2009, the Senate passed
H.R. 3114 without amendment by unanimous consent. On August 7,
2009, H.R. 3114 was signed by the President and become Public
Law 111-45.
H.R. 3570, the ``Satellite Home Viewer Update and Reauthorization Act''
Summary.--Introduced by Chairman John Conyers, Jr., H.R.
3570 would amend title 17, United States Code, to reauthorize
the satellite statutory license, to conform the satellite and
cable statutory licenses to all-digital transmissions, and for
other purposes. The bill would modernize, improve and simplify
the compulsory copyright licenses governing the retransmission
of distant and local television signals by cable and satellite
television operators, under Sections 111, 119 and 122 of
Chapter 17 of the United States Code.
Legislative History.--Introduced on September 15, 2009,
H.R. 3570 was referred to the Committee on the Judiciary. On
February 25, 3009, the full House Committee on th Judiciary
held a hearing on ``Copyright Licensing in a Digital Age:
Competition, Compensation and the Need to Update the Cable and
Satellite TV Licenses''. The purpose of the hearing was to
assess the Satellite Extension and Reauthorization Act. The
following witnesses participated: Ms. Marybeth Peters, Register
of Copyrights, U.S. Copyright Office; Mr. Fritz Attaway,
Executive Vice President, the Motion Picture Association; Mr.
Bob Gabrielli, Senior Vice President, DIRECTV, Inc; Mr. Chris
Murray, Internet and Telecommunications Counsel, Consumers
Union; Mr. Kyle McSlarrow, President and CEO, the National
Cable & Telecommunications Association (NATA); Mr. David K.
Rehr, President and CEO, the National Association of
Broadcasters (NAB). On September 16, 2009 a committee markup
was held and the bill was ordered to be reported by a roll call
vote of 34 to 0. On October 28, 2009 the Committee filed an
amended report. (H. Rept. 111-319). On October 28, 2009 the
bill was placed on the Union Calendar, Calendar No. 182. On May
7, 2010, Senator Patrick Leahy introduced S. 3333, the
``Satellite Television Extension and Localism Act of 2010''. On
May 27, 2010, President Obama signed S. 3333. (Public Law No.:
111-175). See S. 3333 for further action.
H.R. 4515, the ``Trademark Technical and Conforming Amendment Act of
2010''
Summary.--Introduced by Representative John Conyers, Jr.,
H.R. 4515, the ``Trademark Technical and Conforming Amendment
Act of 2010'' makes available an existing six-month grace
period for trademark applications to applications filed in the
United States Patent and Trademark Office (USPTO) pursuant to
the Madrid Protocol, an international agreement that
streamlines trademark filing in multiple countries.
Additionally, this legislation gives the Director of the USPTO
discretion to allow applicants to correct good faith and
harmless errors.
Legislative History.--Introduced on January 26, 2010, H.R.
4515 was referred to the House Committee on the Judiciary. No
further action was taken on the bill. A measure that
incorporated much of H.R. 4515, S. 3325, the Trademark
Technical and Conforming Amendment Act of 2010, was
subsequently signed by the President on March 17, 2010 and
became Public Law 111-146. See S. 2968 for further action.
H.R. 4954, ``To amend title 35, United States Code, to provide recourse
under the patent law for persons who suffer competitive injury
as a result of false markings''
Summary.--Introduced by Representative Darrell E. Issa,
H.R. 4954 limits the right to file a civil action for false
marking of a patent to persons who have suffered a competitive
injury as a result of the false marking. The bill allows
recovery of damages adequate to compensate for the injury.
Legislative History.--Introduced on March 25, 2010, H.R.
4954 was referred to the House Committee on the Judiciary. No
further action was taken on the bill.
H.R. 5322, the ``Patent and Trademark Office Funding Stabilization Act
of 2010''
Summary.--Introduced by Representative John Conyers, Jr.,
H.R. 5322, the Patent and Trademark Office Funding
Stabilization Act of 2010, would give the Director of the
United States Patent and Trademark Office (USPTO) authority to
set or adjust patent and trademark fees for a 10-year period,
establishes the United States Patent and Trademark Office
Public Enterprise Fund within the Treasury, requires all funds
collected by the USPTO to be deposited in the Public Enterprise
Fund, makes such funds available until expended, and
establishes a temporary 15% surcharge on all patent fees.
Legislative History.--Introduced on May 18, 2010, H.R. 5322
was referred to the House Committee on the Judiciary. No
further action was taken on the bill.
H. Con. Res. 328, ``Expressing the sense of the Congress regarding the
successful and substantial contributions of the amendments to
the patent and trademark laws that were initially enacted in
1980 by Public Law 96-517 (commonly referred to as the ``Bayh-
Dole Act'') on the occasion of the 30th anniversary of its
enactment.''
Summary.--Introduced by Representative John Conyers, Jr.,
H. Con. Res. 328 expresses the sense of Congress that the Bayh-
Dole Act and its amendments have helped to spur innovation,
benefitted public health and safety, and has led to the
development of new domestic industries and private sector jobs.
Expresses the gratitude of Congress for the bipartisan
leadership of specified former Members on the 30th anniversary
of enactment of the Bayh-Dole Act.
Legislative History.--Introduced on November 15, 2010, H.
Con. Res. 328 was referred to the House Committee on the
Judiciary. On the same day, under suspension of the rules the
House passed H.Con.Res. 328 by a recorded vote 385-1 (Roll No.
568). The bill was received by the Senate and referred to the
Senate Committee on the Judiciary on November 17, 2010.
H. Res. 1208, Supporting the goals of World Intellectual Property Day
Summary.--Introduced by Representative Adam Smith, H. Res.
1208 expresses support for the goals of World Intellectual
Property Day to promote, inform, and teach the importance of
intellectual property and recognizes the importance of
intellectual property and the challenges and threats to its
protection.
Legislative History.--Introduced on March 23, 2010, H. Res.
1208 was referred to the Committee on the Judiciary. On March
27, 2010, H. Res. 1208 was passed by the House on a motion to
the suspend the rules by voice vote.
S. 1670, the ``Satellite Television Modernization Act of 2009''
Summary.--Introduced by Senator Leahy, S. 1670 would
reauthorize, modernize, and simplify important portions of the
Copyright Act used by satellite providers and cable systems
that facilitate the retransmission of broadcast stations to
consumers.
Legislative History.--Introduced on September 15, 2009, S.
1670 was referred to the Committee on the Judiciary. On
February 25, 2009, the Senate Committee on the Judiciary held a
hearing on ``Ensuring Television Carriage in the Digital Age.''
The following witnesses testified: Charlie Ergen, Chairman and
CEO of DISH Network, L.L.C.; K. James Yager, CEO of Barrington
Broadcasting Group, L.L.C., and Chairman of the National
Association of Broadcaster's Television Board; Martin D.
Franks, Executive Vice President for Policy, Planning and
Government Relations, CBS Corporation; David L. Cohen,
Executive Vice President, Comcast Corporation; and the
Honorable Robert M. Hartwell, Vermont State Senator, Bennington
District. The following materials were submitted for the
Record: statement of Gigi B. Sohn, President of Public
Knowledge; statement of the Association of Public Television
Stations; statement of Bob Gabrielli, Senior Vice President,
DIRECTV, Inc.; and statement of Mike Mountford, CEO, National
Programming Service. The Senate Judiciary Committee considered
S. 1670 on September 24, 2009. The Committee voted to report
the Satellite Television Modernization Act of 2009, as amended,
favorably to the Senate by voice vote. The report was filed on
November 10, 2009 (Report No. 111-98).
S. 2968, the ``Trademark Technical and Conforming Amendment Act of
2010''
Summary.--Introduced by Senator Patrick Leahy, S. 2968, the
``Trademark Technical and Conforming Amendment Act of 2010,''
makes available an existing six-month grace period for
trademark applications to applications filed pursuant to the
Madrid Protocol, which is an international agreement that
streamlines trademark filing in multiple countries.
Additionally, this legislation gives the Director of the USPTO
discretion to allow applicants to correct good faith and
harmless errors. The legislation also requires a study and
report to Congress on concerning harm done businesses through
trademark litigation and the best use of Federal resources to
protect trademarks and prevent counterfeiting.
Legislative History.--S. 2968 was introduced on January 28,
2010, read twice, considered, read the third time, and passed
without amendment by unanimous consent. On January 29, 2010, S.
2968 was received by the House and referred to the House
Committee on the Judiciary. On March 3, 2010, under suspension
of the rules, the House passed S. 2968 without amendment by
voice vote. On March 17, 2010, H.R. 2968 was signed by the
President and become Public Law 111-146.
S. 3333, the ``Satellite Television Extension and Localism Act of
2010''
Summary.--Introduced by Senator Patrick Leahy, S. 3333
would modernize and extend important statutory copyright
licenses that allow cable and satellite companies to retransmit
the content transmitted by television broadcasters.
Legislative History.--Introduced on May 7, 2010 and passed
the same day in the Senate by unanimous consent. S. 3333 is a
bill built upon earlier bills introduced by members of the
House and Senate Judiciary and Commerce Committees, and over a
year of hearings, markups, and negotiations. On May 12, 2010,
S. 3333 passed the House on motion to suspend the rules and
passed by a voice vote. On May 27, 2010, President Obama signed
the bill (Public Law No.: 111-175).
S. 3689, the Copyright Cleanup, Clarification, and Corrections Act of
2010
Summary.--Introduced by Senator Leahy, S. 3689, streamlines
operating procedures of the United States Copyright Office,
including elimination of the requirement to keep a hard copy
version of the directory of internet service providers in the
office and permitting the Office to accept electronic
signatures. The bill also clarifies that nonmusical works
distributed by phonograph before 1978 are not automatically
public domain if they lacked a copyright notice, as Congress
clarified with respect to musical works in 1997. The bill also
corrects several technical errors in the copyright code.
Legislative History.--Introduced on August 2, 2010 and
passed without amendment by unanimous consent. On August 9,
2010 the bill was referred to the House Committee on the
Judiciary and to the Committee on Budget, for a period to be
subsequently determined by the Speaker of the House, in each
case for consideration of such provisions as fall within the
jurisdiction of the committee concerned. On November 15, 2010
Chairman John Conyers moved to suspend the rules and pass the
bill, as amended. On November 15, 2010 the bill was considered
under suspension of the rules. The bill passed by a roll call
vote of 385 to 0, with one member voting present. On November
19, 2010 the Senate agreed to the House amendments by unanimous
consent. On December 9, 2010 President Obama signed the bill.
(Public Law No: 111-295).
S. 3728, the Innovative Design Protection and Piracy Prevention Act
Summary.--Introduced by Senator Charles Schumer, S. 3728
amends title 17, United States Code, to extend protection to
fashion design, and for other purposes. The bill provides
protection for articles includes clothing, handbags, purses,
wallets, tote bags, belts, and eyeglass frames.
Legislative History.--Introduced on August 5, 2009, S. 3728
was referred to the Committee on the Judiciary. On December 6,
2009 Committee on Judiciary favorably reported the bill with an
amendment in the nature of a substitute without a written
report. On December 6, 2009, S. 3728 was placed on the Senate
Legislative Calendar under General Orders, Calendar No. 674.
SUBCOMMITTEE ON COMMERCIAL AND ADMINISTRATIVE LAW\1\
STEVE COHEN, Tennessee, Chairman
TRENT FRANKS, Arizona WILLIAM D. DELAHUNT, Massachusetts
JIM JORDAN, Ohio MELVIN L. WATT, North Carolina
DARRELL E. ISSA, California DANIEL MAFFEI, New York
J. RANDY FORBES, Virginia ZOE LOFGREN, California
HOWARD COBLE, North Carolina HENRY C. ``HANK'' JOHNSON, Jr.,
STEVE KING, Iowa Georgia
ROBERT C. ``BOBBY'' SCOTT,
Virginia
JOHN CONYERS, Jr., Michigan
JUDY CHU, California
----------
\1\Subcommittee chairmanship and assignments approved January 22, 2009.
Tabulation of subcommittee legislation and activity
Legislation referred to the Subcommittee......................... 44
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..................... 2
Legislation pending before the full Committee.................... 3
Legislation reported to the House................................ 1
Legislation discharged from the Committee........................ 0
Legislation pending in the House................................. 1
Legislation passed by the House.................................. 1
Legislation pending in the Senate................................ 1
Legislation vetoed by the President.............................. 0
Legislation enacted into public law.............................. 0
Legislation enacted into public law as part of another bill...... 3
Legislation on which hearings were held.......................... 9
Days of legislative hearings..................................... 9
Days of oversight hearings....................................... 26
Legislative Activities
H.R. 901, the ``Medical Bankruptcy Fairness Act''
Summary.--Until full implementation of the health care
reform legislation that was enacted earlier this year, the
United States will continue to lag in the provision of health
care for all of its citizens. Medicare and Medicaid cover only
the elderly and indigent, respectively. 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.''\9\ As a result, many go
without insurance. Approximately 45.7 million Americans, or
15.3 percent, did not have health insurance in 2007, the last
year for which data are available.\10\ While the health care
reform legislation enacted in March 2010 will address many of
these concerns, many of its provisions will not go into effect
until 2014 or beyond.
---------------------------------------------------------------------------
\9\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.
Id.
\10\U.S. Census Bureau, Income, Poverty and Health Insurance
Coverage in the United States: 2007. (Doc. P60-235), August 2008.
---------------------------------------------------------------------------
At any rate, even the insured face economic distress.\11\
According to one 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.''\12\ 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.''\13\ 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.\14\
---------------------------------------------------------------------------
\11\Reed Abelson, Insured, But Bankrupted by Health Crises, N.Y.
Times, July 1, 2009, available at http://www.nytimes.com/2009/07/01/
business/ 01meddebt.html?_r=1
\12\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).
\13\Carol Pryor et al., The Illusion of Coverage: How Health
Insurance Fails People When They Got Sick, The Access Project, at 5
(2007).
\14\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).
---------------------------------------------------------------------------
A 2005 study demonstrated a significant connection between
medical debt and financial hardship.\15\ The study, which
surveyed 1,692 low and moderate income people in various
locales around the nation,\16\ found that one-quarter of the
respondents stated that they had housing problems as a result
of their medical debt.\17\ 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.\18\ Some of the respondents reported that they were
evicted or were rendered homeless because of medical debt.\19\
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[.]''\20\
---------------------------------------------------------------------------
\15\Robert W. Seifert, Home Sick--How Medical Debt Undermines
Housing Security, The Access Project (Nov. 2005).
\16\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.
\17\Id. at 1.
\18\Id.
\19\Id.
\20\Carol Pryor et al., The Illusion of Coverage: How Health
Insurance Fails People When They Got Sick, The Access Project, at 3
(2007).
---------------------------------------------------------------------------
In June 2009, the authors of the 2005 medical bankruptcy
paper published a follow-up study in the American Journal of
Medicine, which, in contrast to the earlier study, was based on
``national random-sample survey of bankruptcy filers.''\21\ The
authors surveyed a random sample of 2,314 bankruptcy filers in
2007, abstracted their court records, and performed follow-up
interviews with 1,032 of them.
---------------------------------------------------------------------------
\21\David U. Himmelstein, et al. Medical Bankruptcy in the United
States, 2007, Am. J. Med., June 2009.
---------------------------------------------------------------------------
The authors found that 62.1 percent of the 2007 sample had
a medical cause.\22\ Of these medical debtors, 92 percent had
medical debts over $5,000 or 10 percent of pretax family
income.\23\ The rest had lost significant income or had
mortgaged their home to pay medical bills.\24\ The authors
additionally found that 77.9 percent of the individuals whose
illness led to bankruptcy had health insurance at the onset of
the bankrupting illness and that 60.3 percent had private
insurance as their primary coverage.\25\ Limiting the
definition of ``medical bankruptcy'' to only those cases where
the debtor specifically cited illness or medical bills as the
cause of bankruptcy, 44.4 percent of bankruptcy filings were
``medical bankruptcies.''\26\
---------------------------------------------------------------------------
\22\Id. at 3.
\23\Id.
\24\Id.
\25\Id. at 4.
\26\Id. at 5.
---------------------------------------------------------------------------
Legislative History.--Rep. Carol Shea-Porter introduced
H.R. 901, the ``Medical Bankruptcy Fairness Act,'' on February
4, 2009. The bill would amend Section 522 of the Bankruptcy
Code to allow a ``medically distressed debtor'' (as defined in
the Act) to exempt up to $250,000 of the debtor's interest in
the residence of the debtor or the debtor's dependent. The Act
would also create an exemption to the ``means test'' contained
in Section 707(b) of the Bankruptcy Code for medically
distressed debtors and economically distressed caregivers.
The Subcommittee on Commercial and Administrative Law held
an oversight hearing on ``Medical Debt: Is Our Health Care
System Bankrupting Americans?'' on Tuesday, July 28, 2009. The
witnesses were: Elizabeth Edwards, Senior Fellow, Center for
American Progress; Dr. Stephani Woolhandler, Professor of
Medicine, Harvard Medical School; Aparna Mathur, Ph.D.,
Research Fellow, American Enterprise Institute; and Professor
John A.E. Pottow, Professor of Law, University of Michigan Law
School.
On July 15, 2010, the Subcommittee held a hearing on H.R.
901. The witnesses were the Honorable Cecelia Morris, Judge,
United States Bankruptcy Court for the Southern District of New
York; Aparna Mathur, Ph.D., American Enterprise Institute; and
Peter Wright, Franklin Pierce Law Center.
No further action was taken with respect to H.R. 901 during
the 111th Congress.
H.R. 1478, the ``Carmelo Rodriguez Military Medical Accountability Act
of 2009''
Summary.--H.R. 1478, the ``Carmelo Rodriguez Military
Medical Accountability Act of 2009,'' would amend the Federal
Tort Claims Act (FTCA)\27\ to allow service members to sue for
damages when they are harmed by medical malpractice committed
by government-employed or directed healthcare providers. It
would amend the FTCA by adding a new section 2681 to chapter
171 of title 28 of the United States Code. Section 2681(a)
would allow service members to sue the government to redress
healthcare-related malpractice (and only healthcare-related
malpractice) committed by government-employed or directed
healthcare providers. The new section 2681 would not apply,
however, to ``any claim arising out of the combatant activities
of the Armed Forces during time of armed conflict.'' This
exclusion is broader than the exclusion that appears in the
existing FTCA, which is limited to claims ``arising out of the
combatant activities . . . during time of war,''\28\ and has
been interpreted to apply only to combatant activities pursuant
to a formal declaration of war.
---------------------------------------------------------------------------
\27\28 U.S.C. Sec. Sec. 1346(b)(1), 2671-2680.
\28\28 U.S.C. Sec. 2680(j).
---------------------------------------------------------------------------
Legislative History.--Representative Maurice Hinchey (D-NY)
introduced H.R. 1478 on March 12, 2009. On March 24, 2009, the
CAL Subcommittee held a hearing on H.R. 1478.\29\ The hearing
consisted of two witness panels. The first panel included
Representative Maurice Hinchey. The second witness panel
included: retired Major General John D. Altenburg, Jr., a
former Deputy Judge Advocate General of the United States Army
and of counsel at Greenberg Traurig, LLP; Eugene R. Fidell, the
Florence Rogatz Visiting Lecturer at Yale Law School, the
President of the National Institute of Military Justice, and of
counsel to the law firm of Feldesman Tucker Leifer Fidell LLP;
Ivette Rodriguez, the sister of Carmelo Rodgriguez, the
deceased Marine sergeant after whom H.R. 1478 is named; and
Stephen A. Saltzburg, the Wallace and Beverley Woodbury
Professor of Law at the University of Virginia Law School, a
member of the House of Delegates of the American Bar
Association, and the co-chair of the ABA's Military Justice
Committee of the Criminal Justice Section, who testified on
behalf of the ABA. On May 19, 2009, the CAL Subcommittee marked
up H.R. 1478, and ordered the bill to be favorably reported, as
amended, by a roll call vote. On October 7, 2009, the Committee
marked up H.R. 1478, and ordered the bill to be favorably
reported, as amended by the Subcommittee, by a roll call vote
of 14 to 12, a quorum being present. Congress took no further
action on H.R. 1478 before the end of the 111th Congress.
---------------------------------------------------------------------------
\29\H.R. 1478, the Carmelo Rodriguez Military Medical
Accountability Act of 2009: Hearing Before the Subcomm. on Com. and
Admin. Law of the H. Comm. on the Judiciary, 111th Cong. (2009).
---------------------------------------------------------------------------
H.R. 1521, the ``Cell Tax Fairness Act of 2009''
Summary.--H.R. 1521, the ``Cell Tax Fairness Act of 2009,''
would impose on States and localities a five-year moratorium on
any new discriminatory taxes on mobile services, mobile service
providers, and mobile service property.
Legislative History.--Representative Zoe Lofgren (D-CA)
introduced H.R. 1521 on March 16, 2009. On June 9, 2009, the
CAL Subcommittee held a hearing on H.R. 1521.\30\ Witnesses at
the hearing included supporters of the legislation: Robert D.
Atkinson, President of Information Technology and Innovation
Foundation; Indiana Representative Mara Candelaria Reardon; and
Florida Representative Joseph A. Gibbons. The CAL Subcommittee
also received testimony from opponents of the legislation:
Joanne Hovis, President of Columbia Telecommunications
Corporation, who spoke on behalf of the National Association of
Telecommunications Officers and Advisors, the National
Association of Counties, the Government Finance Officers
Association, the United States Conference of Mayors, and the
National League of Cities; and Don Stapley, President of the
National Association of Counties, who spoke on behalf of the
Government Finance Officers Association, the United States
Conference of Mayors, and the National League of Cities. On
September 15, 2010, the CAL Subcommittee marked up H.R. 1521,
and ordered it to be favorably reported, by voice vote. The
Committee took no further action on H.R. 1521 before the end of
the 111th Congress.
---------------------------------------------------------------------------
\30\H.R. 1521, the Cell Tax Fairness Act of 2009: Hearing Before
the Subcomm. on Com. and Admin. Law of the H. Comm. on the Judiciary,
111th Cong. (2009).
---------------------------------------------------------------------------
H.R. 2247, the ``Congressional Review Act Improvement Act''
Summary.--H.R. 2247, the ``Congressional Review Act
Improvement Act,'' amends the Congressional Review Act (CRA) to
reduce administrative burdens and duplicative paperwork by
repealing the requirement that agencies submit copies of all
final rules and reports thereon directly to both the House and
the Senate. The bill instead requires that the House and Senate
receive a weekly list of all final rules from the Comptroller
General of the Government Accountability Office and to have
such list printed in the Congressional Record with a statement
of referral for each rule. The bill does not affect the
authority of Congress under the CRA to disapprove an agency
rule.
Legislative History.--Rep. Steve Cohen introduced H.R. 2247
on May 5, 2009. The Committee on the Judiciary held no hearings
on H.R. 2247 during the 111th Congress. The Subcommittee on
Commercial and Administrative Law, however, held an oversight
hearing on the CRA on November 6, 2007, during the 110th
Congress. Testimony was received from the Honorable John V.
Sullivan, Parliamentarian, House of Representatives; Morton
Rosenberg, Specialist in American Public Law, Congressional
Research Service, and Professor Sally Katzen, George Mason
University School of Law. At that hearing, Mr. Sullivan
testified about the burdens of implementing the CRA imposed on
the Office of the Parliamentarian. Mr. Sullivan had previously
testified before the Subcommittee in the 109th Congress on the
same topic.\31\ Additionally, Mr. Sullivan's predecessor,
Charles W. Johnson, testified before the Subcommittee in the
105th Congress on the same topic.\32\
---------------------------------------------------------------------------
\31\10th Anniversary of the Congressional Review Act: Hearing
Before the Subcomm. on Commercial and Administrative Law of the H.
Comm. on the Judiciary, 110th Cong. 38-42 (2006) (statement of John V.
Sullivan, Parliamentarian, U.S. House of Representatives).
\32\Congressional Review Act: Hearing Before the Subcomm. on
Commercial and Administrative Law of the H. Comm. on the Judiciary,
105th Cong. 12-21 (1997) (statement of Charles W. Johnson III,
Parliamentarian, U.S. House of Representatives).
---------------------------------------------------------------------------
On May 13, 2009, the Committee met in open session and
considered H.R. 2247. On May 20, 2009, the Committee met in
open session and ordered H.R. 2247, favorably reported, without
amendment, by voice vote, a quorum being present.
On June 12, 2009, the Committee reported H.R. 2247 as H.
Rep. No. 111-150. On June 16, 2009, the House passed H.R. 2247
under suspension of the rules by a 414-0 vote.
H.R. 2247 was referred to the Senate Committee on Homeland
Security and Government Affairs, which took no action on the
bill during the 111th Congress.
H.R. 2765, the ``Securing the Protection of our Enduring and
Established Constitutional Heritage Act'' or the ``SPEECH Act''
Summary.--H.R. 2765 is intended to dissuade potential
defamation plaintiffs from circumventing First Amendment
protections by filing suit in foreign jurisdictions that lack
similar protections, a phenomenon referred to as ``libel
tourism.'' The bill amends title 28 of the United States Code
to add provisions to prevent U.S. courts from recognizing or
enforcing a foreign defamation judgment when (1) such judgment
is inconsistent with the First Amendment; (2) enforcement would
be inconsistent with Section 230 of the Communications Act of
1934, providing immunity for interactive computer services from
suits based on content hosted by such services; or (3) the
foreign court's assertion of personal jurisdiction over the
defamation defendant is inconsistent with the due process
standards of the United States Constitution. H.R. 2765 also
provides for a declaratory judgment remedy for a defamation
defendant based on one of the grounds enumerated in the bill.
H.R. 2765 also contains a fee-shifting provision that requires
a court, absent exception circumstances, to award a reasonable
attorney's fee to a party that successfully resists recognition
or enforcement of a foreign defamation judgment based on one of
the grounds enumerated in the bill.
Legislative History.--On February 12, 2009, the
Subcommittee on Commercial and Administrative Law held a
hearing on the problem of libel tourism and possible
legislative alternatives for addressing it. Witnesses included
Bruce D. Brown, a partner at the law firm of Baker & Hostetler
LLP; Rachel Ehrenfeld, Director of the American Center for
Democracy; Laura R. Handman, a partner at the law firm of Davis
Wright Tremaine; and Linda J. Silberman, the Martin Lipton
Professor of Law at New York University Law School.
On June 9, 2009, Rep. Steve Cohen introduced H.R. 2765. On
June 10, 2009, the Committee on the Judiciary met in open
session to consider H.R. 2765 and ordered H.R. 2765 favorably
reported without amendment, by a voice vote. On June 15, 2009,
the Committee reported H.R. 2765 as H. Rep. No. 111-154 (2009).
On that same day, the House of Representatives passed the bill
by voice vote on motion to suspend the rules.
On July 14, 2010, the Senate Committee on the Judiciary
reported H.R. 2765 favorably with an amendment in the nature of
a substitute, which passed the Senate on July 19, 2010.
On July 27, 2010, the House passed the Senate amendment to
H.R. 2765 by voice vote on motion to suspend the rules.
On August 10, 2010, the President signed H.R. 2765 into law
as Public Law No. 111-223.
H.R. 3764, the ``Civil Access to Justice Act of 2009''
Summary.--H.R. 3764, the ``Civil Access to Justice Act of
2009,'' would re-authorize the Legal Services Corporation by
amending the Legal Services Corporation Act (42 U.S.C. 2996 et
al.). H.R. 3764 would authorize $750,000,000 for LSC for each
of the next five fiscal years; create new limitations on
Federal funding; eliminate most of the limitations on non-
Federal funding sources; and strengthen corporate governance
and internal controls.
Legislative History.--Representative Bobby Scott introduced
H.R. 3764 on October 8, 2009. On April 27, 2010, the CAL
Subcommittee held a hearing on H.R. 3764.\33\ The hearing
consisted of two witness panels. The first panel included
Representative Bobby Scott and Senator Tom Harkin. The second
witness panel included: John Levi, Chairman of the Board of the
Legal Services Corporation; Jeffrey Schantz, Inspector General
of the Legal Services Corporation; Ken Boehm, Chair of the
National Legal and Policy Center; and Rebekah Diller, Deputy
Director, Justice Program, Brennan Center for Justice. The CAL
Subcommittee took no further action on H.R. 3764 before the end
of the 111th Congress.
---------------------------------------------------------------------------
\33\H.R. 3764, the Civil Access to Justice Act of 2009: Hearing
Before the Subcomm. on Com. and Admin. Law of the H. Comm. on the
Judiciary, 111th Cong. (2010).
---------------------------------------------------------------------------
H.R. 4175, the ``End Discriminatory State Taxes for Automobile Renters
Act of 2009''
Summary.--H.R. 4175, the ``End Discriminatory State Taxes
for Automobile Renters Act of 2009,'' would prohibit a State or
locality from levying or collecting a new discriminatory tax on
the rental of motor vehicles, the business of renting motor
vehicles, or motor vehicle rental property.
Legislative History.--Representative Rick Boucher (D-VA)
introduced H.R. 4175 on December 2, 2009. On June 15, 2010, the
CAL Subcommittee held a hearing on H.R. 4175.\34\ The hearing
consisted of two witness panels. The first panel included
Representative Rick Boucher. The second witness panel included:
Raymond T. Wagner, Jr., Vice President, Government Affairs of
Enterprise Holdings, a motor vehicle rental company; Timothy
Firestine, Chief Administrative Officer for Montgomery County,
Maryland, who testified on behalf of the National League of
Cities, the National Association of Counties, the United States
Conference of Mayors, and the Government Finance Officers
Association; and Sally Greenberg, Executive Director of the
National Consumers League, a consumer rights organization. The
CAL Subcommittee took no further action on H.R. 4175 before the
end of the 111th Congress.
---------------------------------------------------------------------------
\34\H.R. 4715, the End Discriminatory State Taxes for Automobile
Renters Act of 2009: Hearing Before the Subcomm. on Com. and Admin. Law
of the H. Comm. on the Judiciary, 111th Cong. (2010).
---------------------------------------------------------------------------
H.R. 4283--Transparency and Integrity in Corporate Monitoring Act of
2009
Summary.--H.R. 4283, the Transparency and Integrity in
Corporate Monitoring Act of 2009, prohibits United States
attorneys or assistant United States attorneys who participate
in the investigation or prosecution of an organization for a
criminal offense for which a deferred prosecution or non-
prosecution agreement is made from acting as or working for,
for a specified period of time after their service, corporate
monitors selected to oversee the implementation of such
agreements. The bill also authorizes the Attorney General to
seek a civil penalty or injunctive relief to address violations
of the Act.
Legislative History.--On November 19, 2009, the
Subcommittee on Commercial and Administrative Law held a
hearing on ``Transparency and Integrity in Corporate
Monitoring.'' The hearing included one panel, with testimony
from the following four witnesses: Anthony Barkow, Executive
Director, Center on the Administration of Criminal Law, New
York University School of Law; Ms. Eileen R. Larence, Director
of Homeland Security and Justice, U.S. Government
Accountability Office; Mr. Gil M. Soffer, Partner, Katten
Muchin Rosenman, LLP; and, Mr. Brandon L. Garrett, Associate
Professor of Law, University of Virginia.
On December 11, 2009, CAL Subcommittee Chairman Steve Cohen
(D-TN) introduced H.R. 4283, the Transparency and Integrity in
Corporate Monitoring Act of 2009, to prohibit United States
attorneys and assistant United States attorneys from acting as
or working for corporate monitors for specified periods after
their service with the Government terminates. Nine members of
Congress co-sponsored the bill.
On April 26, 2010, the bill was referred to the
Subcommittee on Courts and Competition Policy. No further
action was taken on the legislation in the 111th Congress.
H.R. 4506, the ``Bankruptcy Judgeship Act of 2010''
Summary.--Pursuant to 28 U.S.C. Sec. 152(b)(2), the
Judicial Conference of the United States is required
periodically to submit to Congress recommendations regarding
the number of bankruptcy judges needed and to identify in which
districts they are needed.\35\ On February 9, 2009, the
Judicial Conference transmitted recommendations concerning
additional bankruptcy judgeships to the Chairman and Ranking
Member of the House Judiciary Committee and to the Majority and
Minority Leaders of the House of Representatives.\36\
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\35\28 U.S.C. Sec. 152(b)(2) (2007).
\36\Letter from James C. Huff, Secretary of the Judicial Conference
of the United States, to the Hon. John Conyers, Jr., Chairman of the H.
Comm. on the Judiciary (February 9, 2009) (on file with Subcommittee).
---------------------------------------------------------------------------
The Judicial Conference asserted that its proposal is
``essential to the efficient functioning of the bankruptcy
court system,'' noting that bankruptcy ``case filings are
increasing dramatically in the current state of our
economy.''\37\ According to the Judicial Conference, filings
have ``increased steadily since [the Bankruptcy Abuse
Prevention and Consumer Protection Act of 2005 (BAPCPA)] took
effect, and are even approaching record pre-BAPCPA
levels.''\38\
---------------------------------------------------------------------------
\37\Id.
\38\Judicial Conference of the United States, Bankruptcy Judgeship
Recommendations 4 (2009) (on file with Subcommittee).
---------------------------------------------------------------------------
The Judicial Conference proposed the addition of 13
bankruptcy judgeships in 10 judicial districts and the
conversion of 22 existing temporary bankruptcy judgeships in 15
judicial districts to permanent status.\39\ Additionally, the
Judicial Conference proposes to extend two existing temporary
judgeships for an additional five years.\40\ Overall, the
proposal affects 25 judicial districts in 9 of the 12
geographically based federal judicial circuits (all except the
Seventh, Tenth, and District of Columbia Circuits.)\41\
---------------------------------------------------------------------------
\39\Id., Table 1.
\40\Id.
\41\Id.
---------------------------------------------------------------------------
Legislative History.--Rep. Steve Cohen introduced H.R. 4506
together with Judiciary Committee Chairman Rep. John Conyers,
Jr., and Ranking Member Rep. Lamar S. Smith on January 26,
2010. The bill adopts the recommendations of the Judicial
Conference of the United States, authorizing 13 new permanent
bankruptcy judgeships, converting 22 temporary judgeships to
permanent judgeships, and extending authorization for 2
temporary judgeships for 5 more years. To offset mandatory
costs, the bill also raises filing fees by $1.00 for Chapter 7
and Chapter 13 cases and by $42.00 for Chapter 11 cases.
No legislative hearing was held on H.R. 4506. The
Subcommittee on Commercial and Administrative Law held a
hearing on ``Bankruptcy Judgeship Needs'' on June 16, 2009. At
that hearing, the Subcommittee considered the Judicial
Conference's bankruptcy judgeship recommendations, as reflected
in H.R. 4506. Testimony was received from the Honorable Barbara
M.G. Lynn, Judge, United States District Court for the Northern
District of Texas, on behalf of the Judicial Conference of the
United States; the Honorable David S. Kennedy, Chief Judge of
the United States Bankruptcy Court for the Western District of
Tennessee, on behalf of the National Conference of Bankruptcy
Judges; William Jenkins, Jr., Director, Homeland Security and
Justice Issues, Government Accountability Office; and Carey D.
Ebert, President of the National Association of Consumer
Bankruptcy Attorneys.
On January 27, 2010, the Committee met in open session and
ordered H.R. 4506 favorably reported without amendment, by
voice vote, a quorum being present. The Committee reported the
bill on March 9, 2010 as H. Rep. No. 111-430 (2010). On March
12, 2010, the House of Representatives passed H.R. 4506 on
motion to suspend the rules by a recorded vote of 345-5.
On May 27, 2010, the Senate Committee on the Judiciary
reported H.R. 4506 favorably to the full Senate without
amendment.
H.R. 4677, the ``Protecting Employees and Retirees in Business
Bankruptcies Act of 2010''
Summary.--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.''\42\ 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.''\43\ 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.\44\
---------------------------------------------------------------------------
\42\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).
\43\Thomas H. Jackson, Of Liquidation, Continuation, and Delay: An
Analysis of Bankruptcy Policy and Nonbankruptcy Rules, 60 Am. Bankr. L.
J. 399, 399 (1986).
\44\Paul F. Festersen, Equitable Powers in Bankruptcy
Rehabilitation: Protection of the Debtor and the Doomsday Principle, 46
Am. Bankr. L. J. 311, 311 (1972).
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The Bankruptcy Code contains several provisions dealing
with labor issues in Chapter 11. These include Section 1113,
which establishes procedures and standards by which a Chapter
11 debtor may reject a collective bargaining agreement.\45\ As
enacted, Section 1113 ``seeks to reconcile the policy of the
Bankruptcy Code, which fosters rehabilitation of debtors, with
that of labor law, which seeks to protect employee rights
through collective bargaining.''\46\ Section 1113 provides the
exclusive means by which a collective bargaining agreement may
be rejected.\47\ A Chapter 11 plan may not be confirmed unless
the debtor has complied with section 1113.\48\ In addition, a
debtor is prohibited from unilaterally terminating or altering
any provision of a collective bargaining agreement without
having first complied with section 1113.\49\
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\45\11 U.S.C. 1113 (2006).
\46\Alan N. Resnick, & Henry J. Sommer, 7 Collier on Bankruptcy
para.1113.01(15th ed. rev'd 2007).
\47\11 U.S.C.A. 1113(a) (2006).
\48\11 U.S.C.A. 1129(a)(1) (2006); Alan N. Resnick, & Henry J.
Sommer, 7 Collier on Bankruptcy para.1113.02 (15th ed. rev'd 2007).
\49\11 U.S.C.A. 1113(f) (2006).
---------------------------------------------------------------------------
In recent years, news headlines have been filled with
numerous reports about the bankruptcy filings of corporate
giants such as CIT Group, Chrysler, General Motors, Lehman
Brothers, Linens 'n Things, Delphi Corporation, Delta Air
Lines, Enron, and WorldCom.\50\ In 2002 alone, the ten largest
companies filing for bankruptcy employed nearly 445,000
employees.\51\ In 2009, the number of businesses filing for
bankruptcy protection rose by 38 percent over the previous
year's filings.\52\ 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.''\53\ Pensions funded by a company's stock are typically
rendered worthless after the company files for bankruptcy.\54\
---------------------------------------------------------------------------
\50\Tomoeh Murakami Tse, Taxpayers on Hook as Some Bailed Out Firms
Prove Frail, Washington Post, Nov. 16, 2009, available at http://
www.washingtonpost.com/wp-dyn/content/article/2009/11/15/
AR2009111502280.html; Bill Vlasic and Nick Bunkley, Obama is Upbeat for
G.M.'s Future, N.Y. Times, June 1, 2009, available at http://
www.nytimes.com/2009/06/02/business/02auto.html; Andrew Ross Sorkin,
Lehman Files for Bankruptcy; Merrill is Sold, N.Y. Times, Sept. 14,
2008, available at http://www.nytimes.com/2008/09/15/business/
15lehman.html?_r=1; Mae Anderson, Linens 'n Things Files for
Bankruptcy, Associated Press, May 2, 2008, http://www.usatoday.com/
money/industries/retail/2008-05-02-linens_N.htm; Delphi Files for
Bankruptcy, CNNMoney.com, October 8, 2005, available at http://
money.cnn.com/2005/10/08/news/fortune500/delphi_bankrupt/index.htm;
Chris Isidore, Delta Air Lines Files for Bankruptcy, CNNMoney.com,
Sept. 15, 2005, available at http://money.cnn.com/2005/09/14/news/
fortune500/delta/index.htm; Christopher Edmonds, Enron Files for
Chapter 11Bankruptcy Protection, TheStreet.com, Dec. 2, 2001, http://
www.thestreet.com/story/10004757/enron-files-for-chapter-11-bankruptcy-
protection.html.
\51\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.
\52\Chelsea Emery, U.S. Business Bankruptcies Rise 38 Percent in
2009, Reuters, Jan. 5, 2010, http://www.reuters.com/article/
idUSN059048720100105
\53\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.
\54\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).
---------------------------------------------------------------------------
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.''\55\
---------------------------------------------------------------------------
\55\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 the U.S. Airways case, 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.''\56\
The Third Circuit interprets this phrase to mean ``necessary to
prevent liquidation,''\57\ whereas the Second Circuit applies
``a more debtor-friendly'' standard,\58\ that focuses on the
``debtor's ultimate long-term economic health.''\59\ 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.''\60\ 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.''\61\
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\56\11 U.S.C.A. Sec. 1113(b)(1) (2006).
\57\Wheeling Pittsburgh Steel Corp. v. United Steelworkers, 791
F.2d 1074, 1088 (3d 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'').
\58\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).
\59\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.'').
\60\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).
\61\Id.
---------------------------------------------------------------------------
Second, Chapter 11 may restrict self-help options available
to organized labor. For example, the Second Circuit, in In re
Northwest Airlines Corp., 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.\62\ This is apparently ``the first federal
appeals court to deny workers the right to strike following
contract rejection in bankruptcy.''\63\
---------------------------------------------------------------------------
\62\ 483 F.3d 160 (2d Cir. 2007).
\63\ 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).
---------------------------------------------------------------------------
Legislative History.--House Judiciary Committee Chairman
John Conyers, Jr. introduced H.R. 4677, the ``Protecting
Employees and Retirees in Business Bankruptcies Act of 2010,''
on February 24, 2010. A substantially similar bill, H.R. 3652,
the ``Protecting Employees and Retirees in Business
Bankruptcies Act of 2007,'' was introduced by Chairman Conyers
during the 110th Congress on September 25, 2007.
The Subcommittee on Commercial and Administrative Law held
an oversight hearing on ``Protecting Employees in Airline
Bankruptcies'' on December 16, 2009. The witnesses were: Capt.
Chesley Sullenberger, U.S. Airline Pilots Association; Capt.
Arnold Gentile, U.S. Airline Pilots Association; Capt. Bob
Coffman, Coalition of Airline Pilots Associations; Marshall
Huebner, Davis, Polk & Wardell LLP; Robert Roach, International
Association of Machinists; and Stephen Nagrotsky, International
Brotherhood of Teamsters. The purpose of the hearing was to
consider whether the Bankruptcy Code should be amended to
exempt airline employees from the Section 1113 process for
rejecting collective bargaining agreements in airline
bankruptcies.
The Subcommittee held a legislative hearing on H.R. 4677 on
May 25, 2010. The witnesses were Babette Ceccotti, Cohen,
Weiss, and Simon, LLP; Capt. John Prater, Air Line Pilots
Association; James H.M. Sprayregen, Kirkland & Ellis LLP;
Janette Rook, Association of Flight Attendants; Tim Conway,
United Steelworkers; Michael Bernstein, Arnold & Porter LLP;
and Robert Roach, Jr., International Association of Machinists
and Aerospace Workers.
On September 15, 2010, the Subcommittee met to markup H.R.
4677. During the markup, the Subcommittee adopted an amendment
offered by Rep. Dan Maffei that carved an exception to the
Section 1113 process for workers covered by Title II of the
Railway Labor Act (i.e., airline employees.) The Subcommittee
forwarded the bill to full Committee by an 8-4 vote.
No further action was taken on H.R. 4677 during the 111th
Congress.
H.R. 5043, the ``Private Student Loan Bankruptcy Fairness Act of 2010''
Summary.--Under Section 523(a)(8) of the Bankruptcy Code,
educational debt is not dischargeable in bankruptcy unless the
debtor seeking discharge of such debt demonstrates, through an
adversary proceeding, that repayment of his or her educational
debt would impose an undue hardship on the debtor and the
debtor's dependents.\64\ This conditional dischargeability
applies to debt resulting from federally issued loans,
federally guaranteed loans, and private loans issued by
nonprofit and for-profit institutions.\65\ This provision also
applies to debt resulting from obligations to repay funds
received as an educational benefit, scholarship, or
stipend.\66\
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\64\11 U.S.C. Sec. 523(a)(8) (2006). Some commentators have
questioned whether there is any justification for the ``undue
hardship'' test or have raised concerns about how courts apply the
test. See, e.g., Rafael I. Pardo and Michelle R. Lacey, The Real
Student-Loan Scandal: Undue Hardship Discharge Litigation, 83 Am.
Bankr. L.J. 179 (2009); John A.E. Pottow, The Nondischargability of
Student Loans in Personal Bankruptcy Proceedings: The Search for a
Theory, Canadian Bus. L. J. 44, no. 2 (2007): 245-278. H.R. 5043,
however, does not address the ``undue hardship'' test except to the
extent that it exempts for-profit educational loan debt from that test.
\65\11 U.S.C. Sec. 523(a)(8) (2006).
\66\Id.
---------------------------------------------------------------------------
Congress first made student loan debt conditionally
dischargeable in 1976 in an amendment to the Higher Education
Act.\67\ That provision was limited to debt from direct federal
student loans and federally insured and guaranteed loans.\68\
In 1978, Congress added this conditional dischargeability
provision to the Bankruptcy Code as Section 523(a)(8).\69\ As
originally enacted in 1978, Section 523(a)(8) allowed a debtor
to discharge his or her educational debt either by showing
undue hardship or if her loan had been in repayment for more
than five years at the time of her bankruptcy filing.\70\
Congress perceived that federal student loan debtors were
abusing the bankruptcy system by seeking to discharge student
loan debt soon after graduation without attempting repayment
and in the absence of extenuating circumstances.\71\ Congress
was also seeking to protect the financial viability of the
federal student loan program and, ultimately, to safeguard
taxpayer money.\72\
---------------------------------------------------------------------------
\67\20 U.S.C. Sec. 1087-3 (1976) (repealed by Bankruptcy Reform Act
of 1978, Pub. L. No. 95-598, Sec. 316, 92 Stat. 2549, 2678 (effective
Oct. 1, 1979)).
\68\Id.
\69\Bankruptcy Reform Act of 1978, Pub. L. No. 95-598, Sec. 316, 92
Stat. 2549, 2678 (effective Oct. 1, 1979).
\70\Id.
\71\Rafael I. Pardo, Michelle R. Lacey, Undue Hardship in the
Bankruptcy Courts: An Empirical Assessment of the Discharge of
Educational Debt, 74 U. Cin. L. Rev. 405 (2005). Whether Congress's
belief was warranted is debatable, given a lack of empirical evidence
to support the perception that there was rampant abuse of the
bankruptcy system by student loan debtors. Id.
\72\Id.
---------------------------------------------------------------------------
Although student loans issued by private, for-profit
institutions do not involve protecting the financial integrity
of a government program, Congress nonetheless extended Section
523(a)(8) to cover debt resulting from such loans as part of
the Bankruptcy Abuse Prevention and Consumer Protection Act of
2005 (BAPCPA).\73\ BAPCPA's legislative history sheds little
light regarding the particular rationale for extending this
kind of protection to loans issued by for-profit educational
lenders.\74\
---------------------------------------------------------------------------
\73\Pub. L. No. 109-8, 119 Stat. 23, 59 (2005). Pursuant to section
1501 of the Act, most of its provisions became effective on October 17,
2005.
\74\H.R. Rep. No. 109-031 (2005).
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Section 523(a)(8) may pose a particularly difficult burden
on debtors seeking to discharge private student loans because
such debtors are more likely to become financially distressed
and are more likely to need bankruptcy relief when they become
financially distressed than debtors with federal student loans.
This greater risk of bankruptcy stems from certain
characteristics of private loans that federal loans do not
have, but which are similar to other types of consumer loans
like credit cards or subprime mortgages.\75\
---------------------------------------------------------------------------
\75\Deanne Loonin, Too Small to Help: The Plight of Financially
Distressed Private Student Loan Borrowers, National Consumer Law
Center, April 2009.
---------------------------------------------------------------------------
Federal student loans offer certain protections to minimize
the risk that a financially distressed debtor will need
bankruptcy relief, whereas private student loans are not
required to have, and often do not have, such consumer
protections.\76\ For example, federal loans have fixed interest
rates (currently 5.6% for subsidized Stafford loans, 6.8% for
unsubsidized loans\77\), whereas private loans often have
variable rates that can be as high as 19%.\78\ Federal loans
have 1.5% origination fees\79\, where as private loans have no
limits on origination fees and can have fees of up to 10%.\80\
Private lenders often charge additional fees such as late fees
or fees for any deferments or forbearance, and half of the
private loans in one survey had no forbearance option at
all.\81\ Federal loans also provide flexible options for
distressed debtors, such as income-based repayment plans and
partial or complete loan forgiveness in some circumstances,
whereas private lenders are not required to offer such
options.\82\ Finally, in contrast to federal loans, most
private loans do not have any limits on loan amounts,
increasing the risk that a borrower will become financially
overextended.\83\
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\76\Deanne Loonin and Alys Cohen, Paying the Price: The High Cost
of Private Student Loans and the Dangers for Student Borrowers,
National Consumer Law Center, March 2008.
\77\Federal Student Loan Amounts and Terms for 2009-10, The Project
on Student Debt, June 2009, available at http://
projectonstudentdebt.org/files/pub/2009-10_loan_terms.pdf.
\78\Deanne Loonin, Too Small to Help: The Plight of Financially
Distressed Private Student Loan Borrowers, National Consumer Law
Center, April 2009; Deanne Loonin and Alys Cohen, Paying the Price: The
High Cost of Private Student Loans and the Dangers for Student
Borrowers, National Consumer Law Center, March 2008.
\79\Federal Student Loan Amounts and Terms for 2009-10, The Project
on Student Debt, June 2009, available at http://
projectonstudentdebt.org/files/pub/2009-10_loan_terms.pdf. The
origination fees for PLUS loans are 4%. Id.
\80\Deanne Loonin, Too Small to Help: The Plight of Financially
Distressed Private Student Loan Borrowers, National Consumer Law
Center, April 2009; Deanne Loonin and Alys Cohen, Paying the Price: The
High Cost of Private Student Loans and the Dangers for Student
Borrowers, National Consumer Law Center, March 2008.
\81\Id.
\82\Id. There is some evidence that some private lenders have begun
to offer some flexible repayment options, but not income-based
repayment. Id. Moreover, cancellations and settlements are rare. Id.
\83\Deanne Loonin, Too Small to Help: The Plight of Financially
Distressed Private Student Loan Borrowers, National Consumer Law
Center, April 2009; Thomas Harnisch, The Public Realities of Private
Student Loans, American Association of State Colleges and Universities,
April 2008.
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Legislative History.--On September 23, 2009, the
Subcommittee on Commercial and Administrative Law held an
oversight hearing on ``An Undue Hardship? Discharging
Educational Debt in Bankruptcy.'' Representative Danny Davis
testified on the first witness panel on behalf of the
Congressional Black Caucus Community Reinvestment Task Force.
On the second panel, the witnesses were: Lauren Asher,
President, The Institute for College Access and Success; Rafael
I. Pardo, Associate Professor of Law, Seattle University School
of Law; J. Douglas Cuthbertson, Miles & Stockbridge PC; and
Brett Weiss, Joseph, Greenwald & Laake, PA, on behalf of the
National Association of Consumer Bankruptcy Attorneys.
Rep. Steve Cohen and Rep. Danny Davis introduced H.R. 5043,
the ``Private Student Loan Bankruptcy Fairness Act,'' on April
15, 2010. The bill would make dischargeable in bankruptcy debt
from private student loans issued by for-profit lenders. The
current treatment of debt from student loans issued by
governmental units or nonprofit institutions and obligations to
repay funds for educational benefits, scholarships, and
stipends under bankruptcy law would remain largely unchanged.
The Subcommittee held a legislative hearing on H.R. 5043 on
April 22, 2010. The witnesses were Deanne Loonin, National
Consumer Law Center; John Hupalo, Ramirez Capital Advisors;
Valisha Cooks, a private student loan borrower; and Adrian
Lapas, on behalf of the National Association of Consumer
Bankruptcy Attorneys.
On September 15, 2010, the Subcommittee held a markup of
H.R. 5043. The Subcommittee forwarded the bill to full
Committee by a vote of 6-3.
No further action was taken on this bill during the 111th
Congress.
Oversight Activities
DOJ Civil Division Oversight
Summary.--On June 24, 2010, the Subcommittee on Commercial
and Administrative Law held its first oversight hearing of the
Civil Division of the United States Department of Justice since
the Obama Administration took office. Moreover, it was the
first oversight hearing on the Civil Division since 2003.\84\
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\84\See Reauthorization of the U.S. Department of Justice:
Executive Office for U.S. Attorneys, Civil Division, Environment and
Natural Resources Division, Executive Office for U.S. Trustees, and
Office of the Solicitor General, Hearing Before the Subcomm. on
Commercial and Administrative Law of the H. Comm. on the Judiciary,
108th Cong. (2003) (conducting oversight of multiple Justice Department
components, including Civil Division).
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The Civil Division is responsible for a broad range of
litigation activity that includes defending the
constitutionality of federal legislation, recovering money for
the United States that was lost through fraud, enforcing
federal consumer protection laws, defending immigration
enforcement actions, and representing the United States in
habeas cases. The vast majority of the Civil Division's work is
defensive in nature.
Among the issues discussed during the hearing were the
implementation of new Freedom of Information Act guidelines,
Guantanamo detainee habeas defense; the government's response
to the Deepwater Horizon oil spill in the Gulf of Mexico; state
legal challenges to health care reform legislation; potential
federal government legal challenge to an Arizona immigration
law; the status of litigation concerning the storage of spent
nuclear waste; and the Division's role in response to mortgage
fraud and the financial crisis; and abusive debt collection
practices.
Credit Cards and Bankruptcy
Summary.--Holding credit card debt may be a particularly
strong factor in pushing many people into bankruptcy. Professor
Ronald Mann of Columbia University Law School conducted a study
of several industrialized nations showing that high-interest-
rate consumer debt strongly correlates with bankruptcy
filings.\85\ Moreover, a consumer with credit card debt is more
likely to file for bankruptcy than a consumer with any other
form of debt.\86\ While many factors explain why credit card
debt is a particularly difficult burden for many borrowers,
that burden may be unnecessarily exacerbated by certain credit
card lending practices.
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\85\See Abusive Credit Card Practices and Bankruptcy: Hearing on S.
257 Before the Subcomm. On Admin. Oversight and the Courts of the S.
Comm. on the Judiciary, 111th Cong. 3 (2009) (statement of Adam J.
Levitin, Associate Professor of Law, Georgetown University Law Center)
(citing Ronald J. Mann, Charging Ahead: The Growth and Regulation of
Payment Card Markets (2006)).
\86\Id.
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The substantial increase in the number and amount of fees
charged by credit card issuers has been a significant cause of
unsustainable credit card debt.\87\ For instance, the average
late payment fee more than doubled from $12.83 in 1995 to
$33.64 in 2005.\88\ Some commentators believe that issuers
impose these fees in higher amounts, impose them more quickly,
and assess them more often than previously because issuers now
rely on these fees as a major source of revenue, rather than as
a way to deter bad borrowing behavior.\89\ Over time, the
amount accumulated penalty fees can exceed the amount of the
underlying credit card purchases or cash advances, trapping a
borrower in debt even after he or she has paid off the amount
owed for the purchases or advances.\90\
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\87\Examples of fees include cash advance, balance transfer,
overseas transfer, late-payment, and over-limit fees. Lucy Lazarony,
Credit card penalties get more severe, bankrate.com, available at
http://www.bankrate.com/brm/news/cc/20010514a.asp.
\88\U.S. Gen. Accounting Office, Credit Cards: Increased Complexity
in Rates and Fees Heighten Need for More Effective Disclosures to
Consumers 18 (2006).
\89\See, e.g., Legislative Hearing Regarding H.R. 627, The Credit
Cardholders' Bill of Rights of 2009 and H.R. 1456, The Consumer
Overdraft Protection Fair Practices Act of 2009 Before the Subcomm. on
Financial Inst. and Consumer Credit of the H. Comm. on Fin. Servs.,
111th Cong. 14 (2009) (statement of Travis B. Plunkett, Legislative
Director, Consumer Federation of America and Edmund Mierzwinski,
Consumer Program Director, U.S. Public Interest Research Group);
Hearing on Credit Cards and Bankruptcy: Opportunities for Reform Before
the Subcomm. on Admin. Oversight and the Courts of the S. Comm. on the
Judiciary, 110th Cong. 3 (2008) (statement of John Rao, Director,
National Association of Consumer Bankruptcy Attorneys).
\90\See, e.g., Discover Bank v. Owens, 822 N.E.2d 869 (Ohio Mun.
2004) (finding that credit card lender was not entitled to collect
unpaid balance from debtor because accumulation of $1518 in over-limit
fees, $1,160 in late fees, $369.62 in credit insurance fees, and
$6,008.66 in interest and other fees based on $1,963 principal debt
where debtor had already paid $3,492 was unconscionable); In re Blair,
No. 02-1140 (Bankr. W.D.N.C. filed Feb. 10, 2004) (finding that a
majority of credit card company's claims against bankruptcy debtor
consisted of interest and fees rather than principal).
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Similarly, credit card issuers have been imposing high
penalty interest rates. A penalty interest rate is an increased
interest rate imposed on a borrower for making a late payment,
exceeding his or her credit limit, or based on some other
triggering event.\91\ Additionally, issuers sometimes apply
penalty interest rates retroactively to debts that were already
paid at a lower rate.\92\ Penalty rate provisions were
contained in 94% of new credit card solicitations in 2008.\93\
Almost 11% of all balances borrowed on credit cards carry
penalty pricing and most borrowers are unaware they are being
charged the penalty rate.\94\ The average penalty rate in 2008
is 16.9 percentage points higher than the average purchase
rate.\95\ Sometimes, penalty interest rates can be as high as
30% to 40%.\96\
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\91\Joshua M. Frank, Priceless or Just Expensive? The Use of
Penalty Rates in the Credit Card Industry, Center For Responsible
Lending, Dec. 16, 2008, at 4, available at http://
responsiblelending.org/pdfs/priceless-or-just-expensive.pdf.
\92\Hearing on Financial Services Issues: A Consumer's Perspective
Before the Subcomm. On Financial Inst. and Consumer Credit, Sept. 15,
2004, at 16-17 (statement of Tamara Draut, Director of Economic
Opportunity Program, Demos).
\93\Joshua M. Frank, Priceless or Just Expensive? The Use of
Penalty Rates in the Credit Card Industry, Center For Responsible
Lending, Dec. 16, 2008, at 1, available at http://
responsiblelending.org/pdfs/priceless-or-just-expensive.pdf.
\94\Id.
\95\Id.
\96\Kathleen Day and Caroline E. Mayer, Credit Card Penalties, Fees
Bury Debtors, Wash. Post, March 6, 2005, available at http://
www.washingtonpost.com/wp-dyn/articles/
A10361-2005Mar5.html.
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Universal default provisions in credit card contracts allow
credit card companies to raise interest rates for debtors who
are late with payments, exceed credit limits, or otherwise have
troubles with other creditors.\97\ Some critics contend that it
is unfair and abusive for credit card issuers to charge a
higher interest rate when the borrower has met his or her
obligations to that issuer.\98\ Card issuers respond that
interest rate penalties that increase because of universal
default are related to the credit risk of the borrower.\99\
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\97\Bill Burt, Universal Default Rules Explained, bankrate.com,
http://www.bankrate.com/brm/news/credit-management/20040120a1.asp.
\98\See, e.g., Legislative Hearing Regarding H.R. 627, The Credit
Cardholders' Bill of Rights of 2009 and H.R. 1456, The Consumer
Overdraft Protection Fair Practices Act of 2009 Before the Subcomm. on
Financial Inst. and Consumer Credit of the H. Comm. on Fin. Servs.,
111th Cong. 17 (2009) (statement of Travis B. Plunkett, Legislative
Director, Consumer Federation of America and Edmund Mierzwinski,
Consumer Program Director, U.S. Public Interest Research Group)
(contending that it ``is fundamentally unfair to impose a penalty
interest rate on a consumer who has not made a late payment or
defaulted on an obligation'').
\99\Id.
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Over the last two decades, credit card issuers marketed
aggressively to groups of borrowers that did not previously
have much access to consumer credit, including moderate and
low-income, financially troubled, college-age, elderly, and
minority borrowers. On the one hand, these efforts gave many
consumers a degree of purchasing power that they were once
denied. On the other hand, whether because of a lack of
extensive experience with consumer credit products or because
of a lack of sufficient financial wherewithal, these types of
borrowers were particularly vulnerable to being trapped by
credit card debt, a problem exacerbated by the fact that such
borrowers were also more likely to miss payments or exceed
credit limits, thereby triggering the penalty fees and interest
rates that significantly increase their debt.\100\ Lower income
borrowers are more likely to rely on the credit cards for
borrowing rather than simply for convenience.\101\ They are
also more likely to carry a monthly balance.\102\ Arguably, the
onus should be on the lender to foresee the financial trouble
that such types of borrowers could end up in, rather than
encouraging the most vulnerable consumers to accrue
unsustainable debt.
---------------------------------------------------------------------------
\100\Kathleen Day and Caroline E. Mayer, Credit Card Penalties,
Fees Bury Debtors, Washington Post, March 6, 2005, available at http://
www.washingtonpost.com/wp-dyn/articles/A10361-2005Mar5.html; Jennifer
Wheary and Tamara Draut, Who Pays? The Winners and Losers of Credit
Card Deregulation, Demos, August 1, 2007, p. 1 (finding that
cardholders earning less than $50,000 a year were twice as likely to
pay interest rates above 20 percent and that African-American and
Latino card holders were more likely than whites to pay interest rates
higher than 20 percent].
\101\See Gallup Poll News Service, Average American Owes $2900 in
Credit Card Debt, April 16, 2004 (showing that households earning less
than $40,000 per year owed between 11% and 14.3% of their income in
credit card debt, in contrast to households earning more than $100,000
owing 2.3%).
\102\See Board of Governors of the Federal Reserve System, ``Report
to the Congress on Practices of the Consumer Credit Industry in
Soliciting and Extending Credit and their Effects on Consumer Debt and
Insolvency,'' June 2006 at 9 (stating that 61% of lowest income
households with a credit card carry balances).
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Credit card lenders also often market aggressively to those
exiting bankruptcy.\103\ Lenders do so because consumers
exiting bankruptcy because such consumers have had their debts
wiped and cannot have any new debts discharged for several
years.\104\ Some bankruptcy attorneys and consumer advocates
worry that this practice irresponsibly tempts desperate
consumers.\105\
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\103\Caroline E. Mayer, Bankrupt and Swamped with Credit Offers,
Washington Post, April 15, 2005, available at http://
www.washingtonpost.com/wp-dyn/articles/A54745-2005Apr14.html.
\104\Id.
\105\Id.
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On April 2, 2009, the Subcommittee on Commercial and
Administrative Law held a hearing on ``Consumer Debt: Are
Credit Cards Bankrupting Americans?'' The witnesses were Adam
Levitin, Associate Professor of Law, Georgetown University Law
Center; David John of the Heritage Foundation; Edmund
Mierzwinski, Consumer Program Director, U.S. Public Interest
Research Group; and Brett Weiss, a consumer bankruptcy attorney
with the firm of Joseph, Greenwald & Laake, PA, on behalf of
the National Association of Consumer Bankruptcy Attorneys.
The Continuing Home Mortgage Foreclosure Crisis
Summary.--The most recent statistics continue to paint a
grim picture of the Nation's home foreclosure crisis. Between
December 2007 and September 2010, more than 2.3 million homes
were lost to foreclosure. One in every 78 households received
at least one foreclosure filing in the first 6 months of this
year. Sales of new and existing homes fell to the lowest levels
on record in July 2010. Seven to 8 million U.S. homes are
vacant or in the foreclosure process. Owners of about 11
million homes, or 23 percent of households with a mortgage,
owed more than their property was worth as of June 30, 2010.
Nearly 8% of both African Americans and Latinos have lost their
homes to foreclosure as compared to 4.5% of whites. Analysts
project that between 10 and 13 million foreclosures will have
occurred by the time the crisis abates, as reported by the
Center for Responsible Lending.
Bank repossessions of foreclosed homes increased 38% in the
second quarter of 2010, for a record total of 269,952 for the
quarter, and the number of repossessions of foreclosed homes is
expected to top 1 million by year's end.\106\ This was a 5%
jump from the previous quarter.\107\ Foreclosure filings--
including default and auction notices and bank repossessions--
were reported on 932,234 properties in the first quarter of
2010, a 7 percent increase from the previous quarter and a 16
percent increase from the first quarter of 2009.\108\ In the
first quarter of 2010, one in 138 U.S. households received a
foreclosure filing.\109\ In 2009, a record 3 million homeowners
received foreclosure notices.\110\
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\106\Alejandro Lazo, U.S. Home Foreclosures Reach Record High in
Second Quarter, L.A. Times, July 15, 2010, available at http://
www.latimes.com/business/realestate/la-fi-foreclosures-
20100715,0,5786857.story.
\107\Id.
\108\David M. Kinchen, Realty Trac: Foreclosures Up 7% in First
Quarter 2010, huntingtonnews.net, April 15, 2010, available at http://
www.huntingtonnews.net/columns/100415-kinchen-columnsforeclosures.html.
\109\Id.
\110\Janet Morrissey, Still Hunting for a Bottom in Housing, Time,
Jan. 7, 2010, available at http://www.time.com/time/business/article/
0,8599,1952132,00.html.
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The dramatic growth in the number of home foreclosures
began four years ago. In 2006, there were 1.2 million
foreclosures in the United States, representing an increase of
42 percent over the prior year.\111\ From 2007 through 2008,
mortgage foreclosures were estimated to result in ``a whopping
$400 billion worth of defaults and $100 billion in losses to
investors in mortgage securities,''\112\ translating into
``roughly one per 62 American households . . . .''\113\ For
example, the Mortgage Bankers Association issued a report in
2007 stating that the ``number of Americans who fell behind on
their mortgage payments rose to a 20-year high in the third
quarter'' of the prior year.\114\
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\111\Nelson D. Schwartz, Can the Mortgage Crisis Swallow a Town?,
N.Y. Times, Sept. 4, 2007.
\112\Op-ed, Mark Zandi, The Mortgage Mess, Boston Globe, July 22,
2007. Similarly, the Center for Responsible Lending, estimated that 20
percent of subprime home loans made between 2005 and 2006 could end in
foreclosure. Geraldine Fabrikant, After Foreclosure, a Big Tax Bill
From the I.R.S., N.Y. Times, Aug. 20, 2007.
In 2007, up to 2 million households were at risk of losing their
homes through foreclosure. See, e.g., Steve Lohr, Loan by Loan, the
Making of a Credit Squeeze, N.Y. Times, Aug. 19, 2007, at 1 Bus. Sec.;
Evolution of an Economic Crisis? The Subprime Lending Disaster and the
Threat to the Broader Economy: Hearing Before the Joint Economic
Committee, 110th Cong. (2007) (prepared testimony of Martin Eakes, CEO
of the Center for Responsible Lending) (citing a range of projected
foreclosures with the highest at 1.7 million); Roger Lowenstein,
Subprime Time--How Did Homeownership Become So Rickety, N.Y. Times
Magazine, Sept. 2, 2007, at 11.
\113\Nelson D. Schwartz, Can the Mortgage Crisis Swallow a Town?,
N.Y. Times, Sept. 4, 2007.
\114\Brian Louis, Paulson Mortgage Plan Surfaces Too Late to Stem
Housing Slide, Bloomberg.com (Dec. 7, 2007).
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The glut of foreclosures has adversely affected new home
sales and depressed home values generally. Federal Reserve
Chairman Ben Bernanke in January 2008 acknowledged that
``housing starts and new home sales have both fallen by about
50 percent from their respective peaks.''\115\ The Wall Street
Journal reported in October 2008, ``The relentless slide in
home prices has left nearly one in six U.S. homeowners owing
more on a mortgage than the home is worth, raising the
possibility of a rise in defaults--the very misfortune that
touched off the credit crisis [in 2007].''\116\ The Journal
explained that more foreclosures are likely ``because it is
hard for borrowers in financial trouble to refinance or sell
their homes and pay off their mortgage if their debt exceeds
the home's value.''\117\ As a result, home values nationwide
have fallen an average of 19% from their peak in 2006 and this
``price plunge has wiped out trillions of dollars in home
equity.''\118\
---------------------------------------------------------------------------
\115\Federal Reserve Chairman Ben S. Bernanke, Speech at the Women
in Housing and Finance and Exchequer Club Joint Luncheon, Washington,
DC (Jan. 10, 2008), at http://www.federalreserve.gov/newsevents/speech/
bernanke20080110a.htm; see, e.g., Brian Louis, Paulson Mortgage Plan
Surfaces Too Late to Stem Housing Slide, Bloomberg.com (Dec. 7, 2007)
(reporting 48 percent drop in new home sales since 2005).
\116\James R. Hagerty & Ruth Simon, Housing Pain Gauge: Nearly 1 in
6 Owners ``Under Water''--More Defaults and Foreclosures Are Likely as
Borrowers with Greater Debt Than Value in Their Homes Are Put in a
Tight Spot, Wall St. J., Oct. 8, 2008, at A5.
\117\Id.
\118\Dennis Cauchon, Why Home Values May Take Decades To Recover,
U.S.A. Today, Dec. 12, 2008, at 1A; see also Bob Willis & Shobhana
Chandra, U.S. Economy: Housing Prices Collapse at Near-Depression Pace,
Bloomberg.com (Dec. 23, 2008) (``Sales of single-family houses in the
U.S. dropped in November [2008] by the most in two decades and resale
prices collapsed at a pace reminiscent of the Great Depression, dashing
hopes that the market was close to a bottom.''); Shobhana Chandra, U.S.
Home Resales Fall; Prices Drop by Record 13.2%, Bloomberg.com (Dec. 23,
2008); Kathleen M. Howley, Mortgage Delinquencies, Foreclosures Rise to
Record, Bloomberg.com (Dec. 5, 2008) (reporting that the median home
price in the fourth quarter of 2008 will be 19% lower from the record
in 2006's second quarter, according to a November 24, 2008 forecast by
Fannie Mae, the world's largest mortgage buyer).
---------------------------------------------------------------------------
There are substantial societal and economic costs of home
foreclosures that adversely impact American families, their
neighbors, communities and municipalities. Foreclosures depress
home values across entire communities. A single foreclosure
``could impose direct costs on local government agencies
totaling more than $34,000.''\119\ Federal Reserve Chairman Ben
Bernanke noted, ``At the level of the individual community,
increases in foreclosed-upon and vacant properties tend to
reduce house prices in the local area, affecting other
homeowners and municipal tax bases.''\120\ As a consequence of
nearby foreclosures on subprime loans, forty million homeowners
may see their property values decline as by more than $350
billion.\121\ Last year, home equity losses totaled $7
trillion.\122\
---------------------------------------------------------------------------
\119\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).
\120\Ben Bernanke, Federal Reserve Chairman, Remarks at the
Independent Community Bankers Conference (Mar. 4, 2008) (reprinted by
Bloomberg.com, available at http://www.bloomberg.com/apps/
news?pid=20601068&sid=apeU.0IaETdM&refer=economy).
\121\See Center for Responsible Lending, Updated Projections of
Subprime Foreclosures in the United States and Their Impact on Home
Values and Communities, Aug. 2008, available at http://
www.responsiblelending.org/pdfs/updated-foreclosure-and-spillover-
brief-8-18.pdf.
\122\Janet Morrissey, Still Hunting for a Bottom in Housing, Time,
Jan. 7, 2010, available at http://www.time.com/time/business/article/
0,8599,1952132,00.html.
---------------------------------------------------------------------------
During the 111th Congress, the Subcommittee on Commercial
and Administrative Law held two oversight hearings on the
Treasury Department's Home Affordable Modification Program. On
July 9, 2009, the Subcommittee held a hearing on ``Home
Foreclosures: Will Voluntary Mortgage Modification Help
Families Save Their Homes.'' The witnesses were: Alan M. White,
Assistant Professor of Law, Valparaiso University School of
Law; James H. Carr, Chief Operating Officer, National Community
Reinvestment Coalition; Mark Calabria, Ph.D., Director of
Financial Regulation Studies, Cato Institute; and Irwin Trauss,
Philadelphia Legal Assistance. On December 11, 2009, the
Subcommittee held a hearing on ``Home Foreclosures: Will
Voluntary Mortgage Modification Help Families Save Their Homes?
Part II.'' The witnesses were: Adam Levitin, Georgetown
University Law Center; Faith Schwartz, HOPE NOW; Margery
Golant, Golant & Golant, P.A.; and Henry H. Hildebrand, III,
National Association of Chapter 13 Trustees.
The Subcommittee also held a hearing on ``The Role of the
Lending Industry in the Home Foreclosure Crisis'' on September
9, 2009. The witnesses were: the Hon. Elizabeth Magner, United
States Bankruptcy Judge for the Eastern District of Louisiana;
Lewis D. Wrobel, Attorney at Law; Joseph Mason, Ph.D.,
Associate Professor, Department of Finance, E.J. Ourso College
of Business, Louisiana State University; and Suzanne Sangree,
Chief Solicitor, Baltimore City Department of Law.
On July 19, 2010, the Committee held a briefing at the
Cecil C. Humphreys School of Law at the University of Memphis.
There were three witness panels. Panel I consisted of: the
Honorable A C Wharton, Mayor, City of Memphis and Webb Brewer,
Brewer & Barlow PLC. Panel II consisted of the Honorable David
Kennedy, Chief Judge, United States Bankruptcy Court for the
Western District of Tennessee and the Honorable Jennie Latta,
Judge, United States Bankruptcy Court for the Western District
of Tennessee. Panel III consisted of Dr. Phyllis Betts,
Director, Center for Community Building and Neighborhood
Action, University of Memphis; Sapna Raj, Attorney, Memphis
Area Legal Services; Steve Lockwood, Executive Director,
Frayser Community Development Corporation; Beverly Anderson,
Community Development Council of Greater Memphis; and Scott
Bernstein, Center for Neighborhood Technology.
Auto Industry Bankruptcies
Summary.--The Committee devoted substantial efforts at
examining the repercussions of the Chapter 11 bankruptcy
filings by Chrysler LLC and General Motors Corporation in 2009
on American jobs, consumers, and the Nation's bankruptcy
system. Over the course of three hearings, the Committee and
its Subcommittee on Commercial and Administrative Law heard
from a broad spectrum of stakeholders in the automobile
industry as well as the government officials tasked with
overseeing the industry's restructuring.
Among the issues that the Committee and its Subcommittee on
Commercial and Administrative Law examined were: the impact of
the termination of numerous G.M. and Chrysler automobile
dealerships; the risk that the asset sales involving the viable
assets of G.M. and Chrysler may have constituted impermissible
sub rosa plans that undermined chapter 11's reorganization plan
requirements; the treatment of those with tort claims against
Old G.M. and Old Chrysler; the treatment of future asbestos
claims; and the impact of the G.M. and Chrysler bankruptcies on
auto parts suppliers.
The full Committee on the Judiciary held a hearing on
``Ramifications of Auto Industry Bankruptcies'' on May 21,
2009. The witnesses were: Professor Lynn LoPucki, UCLA Law
School; Damon Lester, President, National Association of
Minority Auto Dealers; Randy Henderson, Owner, Webster Chrysler
Jeep Inc, appearing on behalf of National Automobile Dealers
Association; Andrew Grossman, Senior Legal Policy Analyst,
Center for Legal and Judicial Studies, Heritage Foundation;
Clarence Ditlow, President, Center for Auto Safety; Ralph
Nader, Consumer Advocate; Joan Claybrook President Emeritus,
Public Citizen; Bruce Fein, Principal, The Lichfield Group; and
Professor David Arthur Skeel, University of Pennsylvania Law
School.
The Subcommittee on Commercial and Administrative Law held
a hearing on ``Ramifications of Auto Industry Bankruptcies,
Part II'' on Tuesday, July 21, 2009. The sole witness at the
hearing was Ron Bloom, Senior Advisor, U.S. Department of the
Treasury.
The Subcommittee on Commercial and Administrative Law held
a hearing on ``Ramifications of Auto Industry Bankruptcies,
Part III'' on Wednesday, July 22, 2009. Witnesses on the first
panel of that hearing included Louann Van Der Wiele, Vice
President and Associate General Counsel, Chrysler Group LLC;
Kevyn D. Orr, Jones Day, bankruptcy counsel for Chrysler LLC;
Michael J. Robinson, Vice-President and General Counsel of
North America, General Motors Company; and Harvey Miller, Weil
Gotshal, bankruptcy counsel for General Motors Corporation.
Witnesses on the second panel included Professor Douglas Baird,
University of Chicago Law School; Daniel J. Ikenson, Associate
Director, Center for Trade Policy Studies, CATO Institute;
Richard Mourdock, Indiana State Treasurer; Jeremy Warriner,
claimant against Chrysler LLC; John J. Fitzgerald, President,
Fitzgerald Auto Malls; Jim Tarbox, President, Tarbox Motors,
Inc.; Greg Williams, formerly of Huntington Chevrolet; and
Robert G. Knapp, Knapp Chevrolet.
Legal Services Corporation
Summary.--The Judiciary Committee has oversight
jurisdiction over the Legal Services Corporation. Established
in 1974, the Legal Services Corporation (LSC) is a private,
nonprofit, federally funded corporation that helps provide
legal assistance to low-income individuals and families in
civil matters by distributing congressionally appropriated
federal funds in the form of grants to local legal services
providers.\123\ These providers offer legal assistance to low-
income clients in all 50 states, the District of Columbia, and
the United States territories. Although Congress has not
authorized Federal funds for LSC since FY1980, Congress
continues to appropriate LSC funds annually. Legal aid
advocates contend that the funding is inadequate to meet the
growing need for legal assistance to the poor and contains
onerous restrictions. Many of the restrictions exist due to the
controversial nature of LSC and its mission. Further, recent
critical audits and reports have kept LSC and its grantees in
the spotlight.
---------------------------------------------------------------------------
\123\Legal Services Corporation Act of 1974, Pub. L. No. 93-355, 88
Stat. 378, 42 U.S.C. Sec. 2996 et seq.
---------------------------------------------------------------------------
Hearings.--On October 27, 2009, the CAL Subcommittee held a
hearing on the Legal Services Corporation.\124\ The hearing
consisted of two witness panels. The first panel included
Helaine Barnett, the President of the Legal Services
Corporation and Michael D. McKay, Vice Chairman of the Board of
the Legal Services Corporation. The second witness panel
included: H. Thomas Wells, Jr., Immediate Past President of the
American Bar Association and a partner at Maynard, Cooper &
Gale, P.C.; Harrison McIver, Executive Director and CEO of
Memphis Area Legal Services, Inc.; Don Saunders, Director of
the Civil Legal Services Division at the National Legal Aid and
Defender Association; and Susan Ragland, Director, Financial
Management and Assurance Team, Government Accountability
Office. The hearing allowed the Members to receive testimony
from LSC regarding the criticisms of its activities and
internal controls, and its recently released report on the
unmet civil legal needs of low-income persons, and from
witnesses who advocate increased funding for LSC and
eliminating the restrictions placed on the spending of LSC
grantee programs. The witnesses also discussed legislation to
re-authorize LSC.
---------------------------------------------------------------------------
\124\The Legal Services Corporation: Hearing Before the Subcomm. on
Com. and Admin. Law of the H. Comm. on the Judiciary, 111th Cong.
(2009).
---------------------------------------------------------------------------
The Federal Arbitration Act
Summary.--The Judiciary Committee has jurisdiction over the
Federal Arbitration Act, Title 9 of the United States Code. On
February 12, 1925 Congress codified the use of arbitration
through the Federal Arbitration Act.\125\ Title 9 was adopted
as a means to put arbitration agreements in commercial and
admiralty contracts\126\ on the same footing as other
contracts, and as a way to avoid the costly and time consuming
litigation process.\127\ Arbitration law establishes
alternative dispute resolution procedures for certain types of
disputes\128\ with an eye towards keeping those disputes out of
court, thereby facilitating efficient adjudication.\129\ The
Supreme Court has interpreted the Act to supersede all state
laws that conflict with the spirit of the Act.\130\ In order to
facilitate settlements by arbitration, Title 9 provides a
strong presumption that courts will enforce determinations
arrived at under this process.\131\ Though avenues for judicial
review of arbitration determinations exist and have been
utilized by parties, the title itself has rarely been amended.
The Supreme Court has upheld arbitration clauses in a wide
array of contracts by recognizing Congress' expansive powers
under the Commerce Clause.\132\
---------------------------------------------------------------------------
\125\9 U.S.C. 1 et seq. For an analysis of the legislative history
of the Federal Arbitration Act, see Margaret L. Moses, Statutory
Misconstruction: How the Supreme Court Created a Federal Arbitration
Law Never Enacted by Congress, 34 Fla. St. U.L. Rev. 99, 101-114 (Fall
2006).
\126\As Representative Graham noted in the House floor debate in
1924, ``[t]his bill simply provides for one thing, and that is to give
an opportunity to enforce an agreement in commercial contracts and
admiralty contracts--an agreement to arbitrate, when voluntarily placed
in the document by the parties to it.'' 68 Cong. Rec. 1931 (1924).
\127\See H.R. Rep. No. 96, 68th Cong., 1st Sess., 1 (1924).
\128\Legislative history reveals that Congress intended the Federal
Arbitration Act to cover disputes between merchants of approximately
equal strength, Arbitration of Interstate Commercial Disputes: Hearing
of S. 1005 and H.R. 646 Before the J. Comm. of Subcomms. on the
Judiciary, 68th Cong. 10 (1924), but not involving disputes with
workers, Sales and Contracts to Sell in Interstate and Foreign
Commerce, and Federal Commercial Arbitration: Hearing on S. 4213 and S.
4214 Before a Subcomm. of the S. Comm. on the Judiciary, 67th Cong. 9,
14 (1923), or disputes where the arbitration agreement could be
considered an adhesion contract, Arbitration of Interstate Commercial
Disputes: Hearing of S. 1005 and H.R. 646 Before the J. Comm. of
Subcomms. on the Judiciary, 68th Cong. 15 (1924).
\129\Matthew Parrott, Is Compulsory Court-Annexed Medical
Malpractice Arbitration Constitutional? How the Debate Reflects a Trend
Towards Compulsion in Alternative Dispute Resolution, 75 Fordham L.
Rev. 2685, 2692. (Apr. 2007).
\130\Preston v. Ferrer, 128 S. Ct. 978, 987 (2008) (``When parties
agree to arbitrate all questions arising under a contract, the [Federal
Arbitration Act] supersedes state laws . . .'').
\131\See 68 Cong. Rec. 1931 (1924).
\132\See, e.g., Allied-Bruce Terminix Companies, Inc. v. Dobson,
513 U.S. 265 (1995); Gilmer v. Interstate/Johnson Lane Corp., 500 U.S.
20 (1991).
---------------------------------------------------------------------------
Although arbitration was initially conceived as a
privately-run, voluntary process for resolving disputes, mainly
between businesses, written and oral testimony from
Congressional hearings during the 110th Congress indicated that
the use of arbitration had expanded in the last twenty years.
Many businesses are now requiring arbitration of disputes in
their consumer, employment, and franchise relationships.
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.\133\ The secret nature of arbitration, the
ability of the drafter to dictate the terms of the arbitration
process, and the apparent loss of civil protections when
compared to a court proceeding have created controversy among
consumer and employee advocates and small business owners.
---------------------------------------------------------------------------
\133\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. Several
recent developments necessitated the CAL Subcommittee to hold
hearings generally on arbitration.
Legislative History.--On May 5, 2009, the CAL Subcommittee
held a hearing entitled ``The Federal Arbitration Act: Is the
Credit Card Industry Using the Act to Quash Legal
Claims?''\134\ The witnesses who testified at the hearing
included: Michael Donovan, a principal of Donovan Searles, LLC;
Professor Richard Frankel, Drexel University Law School;
Professor Christopher R. Drahozal, the University of Kansas
School of Law; and David Arkush, Director of Congress Watch.
The hearing provided CAL Subcommittee members the opportunity
to hear testimony on mandatory binding arbitration clauses in
credit card contracts.
---------------------------------------------------------------------------
\134\The Federal Arbitration Act: Is the Credit Card Industry Using
the Act to Quash Legal Claims: Hearing Before the Subcomm. on Com. and
Admin. Law of the H. Comm. on the Judiciary, 111th Cong. (2009).
---------------------------------------------------------------------------
On September 15, 2009, the CAL Subcommittee held a hearing
entitled ``Mandatory Binding Arbitration: Is It Fair and
Voluntary?''\135\ The hearing consisted of two witness panels.
The first panel included Representative Linda Sanchez (CA-39)
and Representative Hank Johnson (GA-4), who each discussed
their respective legislation amending the Federal Arbitration
Act.\136\ The second witness panel included: Alison Hirschel, a
professor at the University of Michigan Law School and speaking
on behalf of NCCNHR: The National Consumer Voice for Long-Term
Care; Cliff Palefsky, a principal with McGuinn, Hillsman &
Palefsky, P.C., who spoke on behalf of the National Employment
Lawyers Association; Stuart Rossman, an attorney with the
National Consumer Law Center; and Stephen Ware, a professor at
the University of Kansas School of Law. The hearing provided
CAL Subcommittee members the opportunity to hear testimony on
mandatory binding arbitration clauses generally and
specifically about each introduced bill on arbitration.
---------------------------------------------------------------------------
\135\Mandatory Binding Arbitration: Is It Fair and Voluntary:
Hearing Before the Subcomm. on Com. and Admin. Law of the H. Comm. on
the Judiciary, 111th Cong. (2009).
\136\On February 26, 2009, Representative Linda T. Sanchez
introduced H.R. 1237, the ``Fairness in Nursing Home Arbitration Act of
2009''. On February 12, 2009, Representative Hank Johnson introduced
H.R. 1020, the ``Arbitration Fairness Act of 2009''.
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State Taxation Affecting Interstate Commerce
Summary.--The Judiciary Committee has jurisdiction over
state taxation affecting interstate commerce. The CAL
Subcommittee held a series of hearings to discuss the major
principles underlying several of the legislative proposals
before Congress and the Committee. These principles include
nexus and apportionment, and the impact of each on State and
local government revenues. Specifically, States currently levy
a tax on income earned or on a transaction occurring in part
within its borders. States may levy and the taxpayer is liable
only if there exists a nexus, or connection, between the State
and the taxpayer. Several individuals and businesses have
approached Congress to contend that some states have imposed
taxes without sufficient nexus over the individuals or
businesses. Some states have urged Congress to grant the States
the authority to require remote sellers, with whom the States
do not have sufficient nexus, to collect and remit taxes for
certain transactions. Many legislative proposals, introduced or
discussed in response to taxpayers' or States' concerns, would
limit or expand the ability of states to levy a tax or a fee by
establishing or solidifying what constitutes sufficient nexus.
Once a state establishes nexus over the income, property,
or activity of the taxpayer, the taxpayer is liable to pay the
tax. But how do states determine what portion of the total
value of a multi-state taxpayer's property, income, and
receipts that each state is entitled to tax and the taxpayer is
liable to remit? Currently, states attribute the amount of
property, income, and receipts for tax purposes based on
different methods. Some contend that these methods burden
interstate commerce.
Legislative History.--On February 4, 2010, the CAL
Subcommittee held a hearing entitled ``State Taxation: The Role
of Congress in Defining Nexus.''\137\ The witnesses who
testified at the hearing included: Professor Walter
Hellerstein, University of Georgia Law School; Joseph Crosby,
Chief Operating Officer and Senior Director of Policy for the
Council on State Taxation; and Commissioner R. Bruce Johnson,
Utah Tax Commission. The hearing provided CAL Subcommittee
members the opportunity to review the intricacies of nexus and
its impact on state taxation. The hearing also provided CAL
Subcommittee members the opportunity to examine the pending
legislation and legislative proposals before the CAL
Subcommittee concerning state taxation.
---------------------------------------------------------------------------
\137\State Taxation: The Role of Congress in Defining Nexus:
Hearing Before the Subcomm. on Com. and Admin. Law of the H. Comm. on
the Judiciary, 111th Cong. (2010).
---------------------------------------------------------------------------
On April 15, 2010, the CAL Subcommittee held a hearing
entitled ``State Taxation: The Impact of Congressional
Legislation on State and Local Government Revenues.''\138\ The
hearing consisted of two witness panels. The first panel
included Vermont Governor James Douglas and Judge B. Glen
Whitney, County Judge of Tarrant County, Texas, and President-
Elect of the National Association of Counties. The second
witness panel included: Robert Ward, Deputy Director of the
Nelson A. Rockefeller Institute of Government; Joseph Henchman,
Tax Counsel and Director of State Projects for the Tax
Foundation; Kerri Korpi, Director of Research and Collective
Bargaining Services at the American Federation of State, County
and Municipal Employees; and Scott Pattison, Executive Director
of the National Association of State Budget Officers. The
hearing provided CAL Subcommittee members the opportunity to
receive testimony concerning the current financial situation of
state and local governments. The hearing also provided a
platform to discuss the impact of federal legislative proposals
affecting state taxation and revenue.
---------------------------------------------------------------------------
\138\State Taxation: The Impact of Congressional Legislation on
State and Local Government Revenues: Hearing Before the Subcomm. on
Com. and Admin. Law of the H. Comm. on the Judiciary, 111th Cong.
(2010).
---------------------------------------------------------------------------
On May 6, 2010, the CAL Subcommittee held a hearing
entitled ``State Taxation: The Role of Congress in Developing
Apportionment Standards.''\139\ The witnesses who testified at
the hearing included: Professor John Swain, University of
Arizona College of Law; Daniel De Jong, Tax Counsel for Tax
Executives Institute; and Jim Eads, Executive Director of the
Federation of Tax Administrators. The hearing provided CAL
Subcommittee members the opportunity to review the intricacies
of the division of tax bases for multi-state enterprises and
how the methods impact interstate commerce and state taxation.
---------------------------------------------------------------------------
\139\State Taxation: The Role of Congress in Developing
Apportionment Standards: Hearing Before the Subcomm. on Com. and Admin.
Law of the H. Comm. on the Judiciary, 111th Cong. (2010).
---------------------------------------------------------------------------
Voice over Internet Protocol
Summary.--Voice over Internet Protocol (VoIP) is both a
communication technology and service which allows users to
communicate with others across the country or internationally
over the Internet inexpensively and virtually simultaneous. The
pricing and ease of use have led to the rapid growth of VoIP.
In fact, from 2004 to October 2008, the number of VoIP
subscribers within the United States increased from fewer than
1 million to over 18.5 million. However, this expansion and
predicted explosion in use have overwhelmed state and local
taxing authorities and VoIP service providers because there
exists no clear and Constitutional taxing model. Further,
because VoIP offers advantages over traditional analog voice
services, some estimate that VoIP could completely supplant
traditional voice services in less than 15 years.\140\
---------------------------------------------------------------------------
\140\Jim Nason, VoIP: New Technology Versus Legacy Tax Policy,
(February 2005), available at http://www.tmcnet.com/voip/0205/VoIP-New-
Technology-Versus-Legacy-Tax-Policy.htm.
---------------------------------------------------------------------------
History.--On March 31, 2009, the CAL Subcommittee held a
hearing entitled ``VoIP: Who Has Jurisdiction to Tax It?''\141\
Witnesses who testified at the hearing included: John Barnes,
Director of Product Management and Development for Verizon;
Robert Cole, Tax Research Manager for Sprint Nextel; Wisconsin
Representative Phil Montgomery, Chair of the National Council
of State Legislators Committee on Communications, Financial
Services & Interstate Commerce; and James R. Eads, Jr.,
Executive Director of the Federation of Tax Administrators. The
hearing afforded the Members of the CAL Subcommittee an
opportunity to review the issues concerning State and local
taxation of VoIP and to discuss potential legislation.
---------------------------------------------------------------------------
\141\VoIP: Who Has Jurisdiction to Tax It?: Hearing Before the
Subcomm. on Com. and Admin. Law of the H. Comm. on the Judiciary, 111th
Cong. (2009).
---------------------------------------------------------------------------
The Administrative Conference of the United States (ACUS)
Summary.--The Administrative Conference of the United
States (ACUS) is an independent, non-partisan agency devoted to
analyzing the administrative law process and providing guidance
to Congress. ACUS began operations with the appointment and
confirmation of its first Chairman in 1968. ACUS ceased
operations on October 31, 1995, due to termination of funding
by Congress, but the statutory provisions establishing ACUS
were not repealed. Subsequently, Congress reauthorized ACUS in
2004, but no funds were appropriated. Congress reauthorized
ACUS again in 2008, and in 2009 authorized $3.2 million for
each of fiscal years 2009 through 2011 for ACUS. ACUS was
officially re-established in March 2010, when the Senate
confirmed President Obama's nominee as Chairman, Paul Verkuil.
Legislative History.--On May 20, 2010, after Chairman
Verkuil's nomination was confirmed by the Senate, the
Subcommittee on Commercial and Administrative Law (``CAL'')
held a hearing on the Administrative Conference of the United
States. The hearing consisted of two panels. The first panel
included two witnesses: The Honorable Stephen G. Breyer,
Associate Justice, U.S. Supreme Court, Washington, DC; and, The
Honorable Antonin G. Scalia, Associate Justice, U.S. Supreme
Court, Washington, DC. The second panel included testimony from
four witnesses: Mr. Paul R. Verkuil, Chairman, Administrative
Conference of the United States; Ms. Sally Katzen, Executive
Managing Director, Podesta Group; Mr. Jeffrey S. Lubbers,
Professor of Practice in Administrative Law, American
University Washington College of Law; and, Curtis W. Copeland,
Ph.D., Specialist in American National Government,
Congressional Research Service.
No further action on ACUS was taken in the 111th Congress.
Office of Information and Regulatory Affairs (OIRA)
Summary.--The Office of Information and Regulatory Affairs
(OIRA) is a Federal office established by Congress in the 1980
Paperwork Reduction Act, and is part of the Office of
Management and Budget, within the Executive Office of the
President. Under the Paperwork Reduction Act, OIRA reviews all
collections of information by the Federal Government. OIRA also
develops and oversees the implementation of government-wide
policies in several areas, including information quality and
statistical standards. In addition, OIRA reviews draft
regulations under Executive Order 12866.
The Office of the Administrator within OIRA was created by
Congress as part of the establishment of OIRA in the Paperwork
Reduction Act of 1980. The Senate confirmed President Obama's
nomination for Administrator, Cass R. Sunstein, on September
10, 2009.
Legislative History.--On July 27, 2010, the Subcommittee on
Commercial and Administrative Law (CAL) held a hearing on
Federal Rulemaking and the Regulatory Process. The hearing
consisted of two panels. The first panel included Cass R.
Sunstein, Administrator of the Office of Information and
Regulatory Affairs (OIRA), Executive Office of the President,
Office of Management and Budget, Washington, DC. The second
panel included four witnesses: Sally Katzen, Senior Advisor/
Consultant, Podesta Group, and former Administrator of the
Office of Information and Regulatory Affairs (``OIRA''),
Washington, DC; Gary D. Bass, Ph.D., Executive Director, OMB
Watch, Washington, DC; Richard A. Williams, Ph.D., Managing
Director, Regulatory Studies Program and Government
Accountability Project, Mercatus Center at George Mason
University, Arlington, VA; and, Curtis W. Copeland, Ph.D.,
Specialist in American National Government--Government and
Finance Division, Congressional Research Service, Washington,
DC. No further action was taken on OIRA in the 111th Congress.
SUBCOMMITTEE ON THE CONSTITUTION, CIVIL RIGHTS, AND CIVIL LIBERTIES\1\
JERROLD NADLER, New York, Chairman
F. JAMES SENSENBRENNER, Jr., WisconsinELVIN L. WATT, North Carolina
TOM ROONEY, Florida ROBERT C. ``BOBBY'' SCOTT,
STEVE KING, Iowa Virginia
TRENT FRANKS, Arizona WILLIAM D. DELAHUNT, Massachusetts
LOUIE GOHMERT, Texas HENRY C. ``HANK'' JOHNSON, Jr.,
JIM JORDAN, Ohio Georgia
TAMMY BALDWIN, Wisconsin
JOHN CONYERS, Jr., Michigan
STEVE COHEN, Tennessee
SHEILA JACKSON LEE, Texas
JUDY CHU, California
--------------------
\1\Subcommittee chairmanship and assignments approved January 22, 2009.
Tabulation of subcommittee legislation and activity
Legislation referred to the Subcommittee......................... 174
Legislation on which hearings were held.......................... 6
Legislation reported favorably to the full Committee............. 2
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.................... 1
Legislation reported to the House................................ 2
Legislation discharged from the Committee........................ 2
Legislation pending in the House................................. 1
Legislation failed passage by the House.......................... 1
Legislation passed by the House (including suspensions).......... 20
Legislation pending in the Senate................................ 0
Legislation vetoed by the President (not overridden)............. 0
Legislation enacted into Public Law.............................. 1
Days of legislative hearings..................................... 5
Days of oversight hearings....................................... 23
Legislative Activities
H.R. 157, the ``District of Columbia House Voting Rights Act of 2009''
Summary.--H.R. 157, the ``District of Columbia House Voting
Rights Act of 2009,'' would treat the District of Columbia as a
single Congressional District for the purpose of granting
voting representation in the U.S. House of Representatives. The
legislation would increase the size of the House of
Representatives by two seats, proving one voting seat for the
District of Columbia and one other state, which would be Utah,
the state next in line to receive a seat based on the 2000
Census. Following the 2012 Census, one of the additional seats
would be allocated based on that Census, and one would be
retained by the District of Columbia.
Legislative History.--H.R. 157 was introduced by Delegate
Eleanor Holmes Norton on January 6, 2009, and referred to the
Committee on the Judiciary. On January 27, 2009, the
Subcommittee on the Constitution, Civil Rights and Civil
Liberties held a hearing on H.R. 157 the ``District of Columbia
House Voting Rights Act of 2009.'' In examining this
legislative approach to securing voting representation in the
U.S. House of Representatives for residents of the District of
Columbia, witnesses provided testimony on the constitutionality
of this approach. Some witnesses also discussed the experiences
of residents of the District of Columbia, who do not have
voting representation in Congress, but who are treated like
U.S. citizens in every other regard, such as taxation and
military service.
The hearing consisted of two witness panels. Testifying on
the first panel were House Majority Leader Steny Hoyer, former
Representative Tom Davis, Representative Jason Chaffetz, and
Representative Louie Gohmert. Testifying on the second panel
were Wade Henderson, President and CEO of the Leadership
Conference on Civil Rights; Captain Yolanda Lee, of the
District of Columbia Army National Guard; Professor Viet Dinh,
Professor of Law at the Georgetown University Law Center,
former U.S. Assistant Attorney General for Legal Policy at the
U.S. Department of Justice from 2001 to 2003; and Professor
Jonathan Turley, J.B. and Maurice Shapiro Professor of Public
Interest Law at the George Washington University Law School.
On February 25, 2009, the Judiciary Committee met to
consider H.R. 157. the Committee approved an amendment in the
nature of a substitute offered by Mr. Nadler and Mr. Conyers by
a vote of 24 to 5. The Committee also considered the following
amendments: An amendment offered by Mr. Smith, to the amendment
in the nature of a substitute offered by Mr. Nadler and Mr.
Conyers, providing for intervention and standing by Members of
Congress in any action challenging the constitutionality of
H.R. 157. The amendment failed by a vote of 15 to 15. An
amendment offered by Mr. Sensenbrenner to the amendment in the
nature of a substitute, requiring Utah to redistrict into four
single-member districts. The amendment failed by a vote of 9 to
19. A motion to table the appeal of the ruling of the chair
that an amendment offered by Mr. Chaffetz to amend the
amendment in the nature of a substitute, repealing the Office
of the District of Columbia Delegate, is non-germane. The
motion to table was agreed to by a vote of 17 to 11. An
amendment offered by Mr. Issa to the amendment in the nature of
a substitute, increasing the U.S. House of Representatives to
436, providing a seat only for the District of Columbia, and
eliminating the additional seat for Utah. The amendment failed
by a vote of 12 to 20. An amendment offered by Mr. Chaffetz to
the amendment in the nature of a substitute, providing that
H.R. 157 cannot be construed to suggest that the District of
Columbia should have Senate representation. The amendment
failed by a vote of 12 to 18. The Committee reported H.R. 157
favorably, as amended, by a vote of 20 to 12. H. Rept. 111-22.
The bill was placed on the Union Calendar, Calendar No. 8.
H.R. 847, the ``James Zadroga 9/11 Health and Compensation Act of
2009''
Summary.--This legislation would establish both a health
care and health monitoring program for first responders and
other individuals suffering serious health problems caused by
exposure to toxic materials in the wake of the terrorist
attacks of September 11, 2001. It would also reopen the Victim
Compensation Fund (VCF) established after the attacks, to
provide compensation to, and to resolve outstanding legal
claims of, those individuals suffering the latent effects of
that exposure. These individuals were unable to file for relief
from the first VCF solely because their injuries had not become
manifest before the Fund went out of existence. The VCF portion
of the bill is within the jurisdiction of the Judiciary
Committee.
Legislative History.--H.R. 847 was introduced on February
4, 2009, and was referred to the Committees on Energy and
Commerce and Judiciary. On March 31, 2009, the Subcommittee
held a hearing jointly with the Subcommittee on Immigration,
Citizenship, Refugees, and Border Security on H.R. 847, the
``James Zadroga 9/11 Health and Compensation Act of 2009'' (the
Zadroga Act).
Testifying were Kenneth Feinberg, Former Special Master,
Victim Compensation Fund; Barbara Burnette, Detective, New York
Police Department; Christine LaSala, Chief Executive Officer,
World Trade Center Captive Insurance Fund; James Melius, MD,
Administrator, N.Y.S. Laborers' Health and Safety Trust Fund;
Michael Cardozo, Corporation Counsel, City of New York; Ted
Frank, American Enterprise Institute; Rich Wood, President,
Plaza Construction Corporation.
The witnesses discussed the health impact of the attacks
and its aftermath, the exposure to the toxic materials, the
assurances received by governmental officials concerning the
safety of the working environment, the legal status of the
pending cases, and the economic impact on construction
contractors who now have significant legal exposure as a result
of having responded to the World Trade Center site, first as a
rescue mission, then as a recovery operation. Mr. Feinberg
discussed his experience with the first VCF, and discussed
possible strategies for addressing the current situation.
On July 29, 2010, it was ordered reported, as amended, by
the Committee on Energy and Commerce, and by the Committee on
the Judiciary. H.Rpt. 111-560.
It was considered by the House on July 29, 2010. A motion
to suspend the rules and pass failed on a vote of 255-159. The
House subsequently considered the legislation on September 29,
2010. It passed on a vote of 268-160. Cloture on the motion to
proceed to the bill was not invoked in Senate by Yea-Nay Vote
of 57-42.
H.R. 984, the ``State Secret Protection Act of 2009''
Summary.--H.R. 984, the State Secret Protection Act of
2009, 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. 984 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
Freedom of Information Act and Classified Information
Procedures Act (CIPA)--legislation passed by Congress in 1980
to govern court handling of secret information in criminal
cases--and adjusted for civil litigation, H.R. 984 protects
legitimate secrets from harmful disclosure while preventing
abuse and maximizing the ability of litigants to achieve
justice in the courts.
Legislative History.--Rep. Nadler (D-NY) introduced H.R.
984, the State Secret Protection Act of 2009, on February 11,
2009. On June 4, 2009, the Subcommittee on Constitution, Civil
Rights, and Civil Liberties held a hearing on H.R. 984, at
which the following witnesses testified: Honorable Patricia
Wald, retired Chief Judge, U.S. Court of Appeals for the
District of Columbia; Honorable Asa Hutchinson, Senior Partner,
AH Law Group and former member of Congress (1997-2001), DEA
Administrator (2001-2003), and DHS Undersecretary (2003-2005);
Ben Wizner, Security Project Staff Attorney, American Civil
Liberties Union; Andrew Grossman, Senior Legal Policy Analyst,
The Heritage Foundation. Letters in support of H.R. 984 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; Lou Fisher, Specialist in
Constitutional Law, Law Library of the Library of Congress; The
Constitution Project; Human Rights First; American Association
of Law Libraries et al.; the American Civil Liberties Union;
and Public Citizen.
Taken as a whole, witness testimony and additional
materials submitted for this hearing established that:
(1) Congress has the constitutional authority to codify the
state secrets privilege and should exercise this authority in a
way that ensures judicial review of the privilege that is both
independent and meaningful.
(2) Judges are well-qualified to handle and review
sensitive national security information and have done so in
other contexts, including under the Freedom of Information Act
(FOIA), the Classified Information Procedures Act (CIPA), and
the Foreign Intelligence Surveillance Act (FISA).
(3) Currently, there is little uniformity in how courts
handle state secret privilege claims, and court dismissal of
cases at the pleadings stage based on the prospective assertion
from the Government that litigation inevitably will require
disclosure of state secrets raises valid concern that such
dismissals are not necessary or just.
(4) H.R. 984 incorporates useful techniques that would
prevent harmful disclosure of valid secrets while allowing
cases to go forward whenever possible, including requiring
courts to consider appointment of independent experts or
special masters, requiring pre-hearing conferences to narrow
the disputed issues and ensure that any necessary protective
orders are in place, allowing the parties to conduct
nonprivileged discovery, and requiring courts to consider
whether substitutes are possible for privileged information.
(5) H.R. 984 sets an appropriate standard of judicial
review by requiring an independent assessment of the
Government's claim and directing courts to weigh testimony of
Government experts as they do other expert testimony. This
necessarily requires consideration of the Government's unique
expertise in national security or diplomatic affairs and its
likely superior access to factual information relevant to its
claim as well as its potential bias or conflict of interest, as
appropriate or necessary based on the facts of the particular
case.\142\
---------------------------------------------------------------------------
\142\See, e.g., Legislative Hearing 111th Congress, tr. at 28
(statement of Hon. Patricia M. Wald) (``H.R. 984 provides that the
judge make his independent evaluation of the harm in a manner that
weights the testimony of Government experts like those of other
experts. Judges are confronted every day with expert testimony of all
kinds and are accustomed to evaluating it on the basis of the expert's
background, firsthand knowledge of the subject, and inherent
credibility, as well as the consistency and persuasiveness of his
testimony''); id., tr. at 32-3 (statement of Hon. Asa Hutchinson) (``I
do not believe it is appropriate, as the companion Senate bill does, to
include language requiring that executive branch assertions of the
privilege be given `substantial weight.' The standard of review in H.R.
984 provides proper respect for executive branch experts, whereas a
`substantial weight' standard would unfairly tip the scales in favor of
executive branch claims before the judge's evaluation occurs, and would
undermine the thoroughness of the judge's own review.'')
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On June 11, 2009, the Subcommittee on Constitution, Civil
Rights, and Civil Liberties reported the bill favorably, as
amended, by a voice vote. On November 5, 2009, the Judiciary
Committee ordered H.R. 984 favorably reported, as amended, by a
roll call vote of 18 to 12.
H.R. 1843, the ``John Hope Franklin Tulsa-Greenwood Race Riot Claims
Accountability Act of 2009''
Summary.--H.R. 1843 was introduced on April 1, 2009, by
Rep. John Conyers. The legislation provides that any Greenwood,
Oklahoma, claimant (survivors of the Tulsa, Oklahoma, Race Riot
of 1921 or their descendants) who has not previously obtained a
determination on the merits of a Greenwood claim may, in a
civil action commenced within five years after the date of
enactment, obtain that determination. On April 2, 2009, the
Subcommittee on the Constitution, Civil Rights, and Civil
Liberties held markup of the legislation. The bill passed the
subcommittee by voice vote, without amendment, and was referred
to the full Committee for action.
The Greenwood neighborhood of Tulsa, Oklahoma, was one of
the nation's most prosperous African-American communities
entering the decade of the Nineteen Twenties. Serving over 8000
residents, the community boasted a commercial district known
nationally as the ``Negro Wall Street.'' In May 1921, the
community was burned to the ground and up to 300 of its
residents were killed by a racist mob. In the wake of the
violence, the State and local governments quashed claims for
redress and effectively erased the incident from official
memory. The suits were ultimately dismissed as time barred in
Alexander v. State of Oklahoma 382 F.3d 1206 (11th Cir. 2004).
This legislation is named in honor of the late Dr. John Hope
Franklin, the noted historian, who was a first-hand witness to
the destructive impact that the riot had on the African-
American community of Tulsa.
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. 3335, the ``Democracy Restoration Act of 2009''
Summary.--On March 16, 2010, the Subcommittee on the
Constitution, Civil Rights, and Civil Liberties held a hearing
on the ``Democracy Restoration Act of 2009'' (H.R. 3335). An
estimated 5.3 million American citizens are not permitted to
vote because of a felony conviction, with the impact of voting
prohibitions falling disproportionately on the minority
community. As many as 4 million of these people have completed
their sentences and lead normal, mainstream lives but remain
unable to vote due to a past felony conviction. This
legislation is designed to clarify and, in some cases, expand
the voting rights of people with felony convictions.
The hearing explored the history and impact of felony
disenfranchisement on state and Federal voting systems and the
legal basis for action by the Federal government. The following
witnesses offered testimony on the legislation: Hilary O.
Shelton, Director of the NAACP's Washington Bureau; Roger
Clegg, President and General Counsel of the Center for Equal
Opportunity; Burt Neuborn, Inez Milholland Professor of Civil
Liberties at NYU School of Law; Hans A. von Spakovsky, Senior
Legal Fellow at The Heritage Foundation; Ion Sancho: Supervisor
of Elections for Leon County, Florida; Carl Wicklund; Executive
Director of the American Probation and Parole Association; and
Andres Idarraga: a third year student at Yale Law School, and a
person who was disenfranchised due to a prior felony
conviction.
Prior Congressional Consideration.--On October 21, 1999,
the Subcommittee on the Constitution held a hearing on the H.R.
906, the ``Civic Participation and Rehabilitation Act,'' the
predecessor legislation to the ``Democracy Restoration Act.''
H.R. 3721, the ``Protecting Older Workers Against Discrimination Act''
Summary.--On June 10, 2010, the Subcommittee held a hearing
to examine the Supreme Court's decisions in Gross v. FBL
Financial Services, Inc., where the Court ruled that a
plaintiff cannot bring admixed-motive claim under the Age
Discrimination in Employment Act (ADEA), and to consider H.R.
3721, the bill introduced by Representative George Miller in
response to Gross. Testimony was received from: Jocelyn
Samuels, Senior Counselor, Civil Rights Division, Department of
Justice; Jack Gross, plaintiff in Gross v. FBL Financial
Services, Inc., Des Moines, Iowa; Eric Dreiband, Partner, Jones
Day, Washington, D.C.; and Helen Norton, Professor, University
of Colorado Law School, Boulder, CO.
In a 5-4 decision authored by Justice Thomas, the Supreme
Court ruled in Gross v. FBL Financial Services, Inc. that a
plaintiff cannot bring a mixed-motive claim under the ADEA and,
instead, must always allege and prove that age was a ``but
for'' cause of a challenged employment decision. In refusing to
apply the statutory framework and precedent from Title VII of
the Civil Rights Act of 1964, which prohibits employment
decisions motivated in whole or in part by a protected
characteristic, the Gross majority departed from the widely
accepted presumption that Title VII's framework and standards
apply to related federal statutes.
In October 2009, Representative George Miller, Chairman of
the House Education and Labor Committee introduced H.R. 3721,
the Protecting Older Workers Against Discrimination Act in
response to Gross. H.R. 3721 seeks to ensure uniformity by
amending the ADEA, and other federal laws, to make clear that
Title VII's standards and framework apply and that unlawful
discrimination is established when it is shown that a protected
characteristic was a determinative (``but for'') factor or was
a motivating factor in an adverse employment decision, even if
other factors also motivated that decision.
At the June 10, 2010 hearing, Ms. Samuels testified that,
by rejecting ``its prior construction of identical language in
Title VII,'' the Supreme Court raised the burden of proof for
ADEA plaintiffs and ``effectively reduced the protections
available to older workers.'' Ms. Samuels testified that lower
courts already had begun to apply the Gross decision beyond the
ADEA to claims under the Americans with Disabilities Act of
1990 (ADA), Section 1983 of the Civil Rights Act of 1866, the
Family and Medical Leave Act and other laws, and that ``Gross
has and will continue to create confusion and unpredictability
in the law.'' Ms. Samuels supported legislation like H.R. 3721
to ``create unity in the law, renew the ability of older
workers and others to effectively challenge discrimination
against them, and move us closer to realizing the law's promise
of equal employment opportunity.''
Plaintiff Jack Gross testified that he filed an age
discrimination complaint after he was demoted despite 13
consecutive years of performance reviews in the top 3 to 5
percent of his company. A jury ruled in his favor, finding that
Mr. Gross had shown that age was a motivating factor in the
decision to demote him and that his employer did not prove that
it would have demoted him regardless of his age. After the
Court of Appeals for the 8th Circuit overturned that verdict--
ruling that Mr. Gross needed direct evidence of
discrimination--Mr. Gross appealed to the Supreme Court. Rather
than ruling on the issue presented, whether or not a plaintiff
needs direct evidence of discrimination to obtain a mixed-
motive jury instruction, the Supreme Court decided instead that
shifting the burden of proof in age discrimination is never
appropriate. Describing the Supreme Court's decision as a
``bait and switch,'' Mr. Gross urged Congress to pass H.R. 3721
to overturn the Gross decision.
Mr. Dreiband agreed that the Supreme Court decision removed
the availability of mixed-motive claims for ADEA plaintiffs,
but testified that this was a benefit to older workers as it
deprived employers of asserting and proving the ``same
decision'' defense (i.e., that the employer would have made the
same decision regardless of the plaintiff's age), which allows
a successful employer to avoid money damages. Professor Norton
disagreed with Mr. Dreiband's position that the removal of
mixed-motive claims benefits plaintiff-employees, pointing to
Mr. Gross's case as one example of a plaintiff who had been
harmed--by having his jury verdict overturned--by the Court's
decision. Professor Norton further testified that H.R. 3721
would restore the longstanding rule for proving unlawful
discrimination developed under Title VII, and that previously
had governed claims under other civil rights laws like the
ADEA.
H.R. 5751, the ``Lobbying Disclosure Enhancement Act''
Summary.--H.R. 5751 was introduced by Representative Mary
Jo Kilroy to amend the Lobbying Disclosure Act of 1995 to
require registrants to pay an annual fee of $50, to impose a
penalty of $500 for failure to file timely reports required by
that Act, to provide for the use of the funds from such fees
and penalties for reviewing and auditing filings by
registrants, and for other purposes.
Legislative History.--Representative Mary Jo Kilroy
introduced H.R. 5751 on July 7, 2010 and it was referred to the
Committee on the Judiciary. On July 28, 2010 Representative
Robert ``Bobby'' Scott moved to suspend the rules and pass the
bill as amended and the resolution passed the U.S. House of
Representatives by voice vote. On July 29, 2010 the bill was
received by the U.S. Senate. On August 5, 2010 the bill was
referred to the Senate Committee on the Judiciary.
H.J. Res. 21, A Constitutional Amendment Concerning Senate Vacancies
Summary.--H.J. Res. 21 would amend the U.S. Constitution to
require that Senate vacancies be filled only by elections, and
not by gubernatorial appointments. Under the XVIIth Amendment
to the Constitution, states may elect to hold elections or to
empower the executive of the state to make temporary
appointments until the next general election.
Legislative History.--H.J. Res. 21 was introduced on
February 11, 2009 and referred to the Committee on the
Judiciary.
On March 11, 2009, the Subcommittee held a joint hearing
with the Senate Judiciary Subcommittee on the Constitution to
examine proposed constitutional amendment, and its Senate
companion, S.J. Res. 7.
Testifying at the hearing were Senator Mark Begich;
Representative David Dreier; Representative Aaron Schock;
Vikram D. Amar, Associate Dean for Academic Affairs and
Professor of Law, University of California, Davis; Robert
Edgar, President and CEO, Common Cause; Pamela S. Karlan,
Kenneth and Harle Montgomery Professor of Public Interest Law,
Stanford Law School; Kevin J. Kennedy, Director and General
Counsel, Wisconsin Government Accountability Board; Thomas H.
Neale, Specialist in American National Government,
Congressional Research Service; David Segal, Analyst, FairVote
and Rhode Island State Representative; Matthew Spalding, Ph.D,
Director, B. Kenneth Simon Center for American Studies, The
Heritage Foundation.
H. Res. 73, Observing the birthday of Martin Luther King, Jr., and
encouraging the people of the United States to observe the
birthday of Martin Luther King, Jr., and the life and legacy of
Dr. Martin Luther King, Jr., and for other purposes
Summary.--H. Res. 73 was introduced by Representative John
Lewis to observe the birthday of Martin Luther King, Jr., and
encourage the people of the United States to observe the
birthday of Martin Luther King, Jr. In the face of hatred and
violence, Dr. King preached a doctrine of nonviolence and civil
disobedience to combat segregation, discrimination, and racial
injustice, and believed that people have the moral capacity to
care for other people. In 1968, Representative John Conyers
introduced legislation to establish the birthday of Martin
Luther King, Jr. as a Federal holiday. In 1983, Congress passed
and President Ronald Reagan signed legislation creating the
birthday of Martin Luther King, Jr. holiday.
Legislative History.--Representative John Lewis introduced
H. Res. 73 on January 16, 2009 and it was referred to the
Committee on the Judiciary. On January 21, 2009, Representative
John Conyers, Jr. moved to suspend the rules and the bill
passed the U.S. House of Representatives by voice vote.
H. Res. 134, Recognizing the 50th Anniversary of Dr. Martin Luther
King, Jr.'s visit to India, and the positive influence that the
teachings of Mahatma Gandhi had on Dr. King's work during the
Civil Rights Movement
Summary.--H. Res. 134 was introduced by Representative John
Lewis to recognize the 50th Anniversary of Dr. Martin Luther
King, Jr.'s visit to India, and the positive influence that the
teachings of Mahatma Gandhi had on Dr. King's work during the
Civil Rights Movement. Dr. King, his wife Coretta Scott King,
and Lawrence Reddick, then-chairman of the history department
at Alabama State College, arrived in Bombay, India, on February
10, 1959 and stayed until March 10, 1959. Dr. King was warmly
welcomed by members of Indian society throughout his visit, and
met with Prime Minister Jawaharlal Nehru, land reform leader
Vinoba Bhave, and other influential Indian leaders to discuss
issues of poverty, economic policy, and race relations. The
trip to India had a profound impact on Dr. King, and inspired
him to use nonviolence as an instrument of social change to end
segregation and racial discrimination in America throughout the
rest of his work during the Civil Rights Movement.
Legislative History.--Representative John Lewis introduced
H. Res. 134 on February 4, 2009 and it was referred to the
Committee on the Judiciary. On February 10, 2009,
Representative Henry ``Hank'' Johnson moved to suspend the
rules and the bill passed the U.S. House of Representatives by
a roll call vote of 406-0.
H. Res. 150, Expressing the sense of the House of Representatives that
A. Philip Randolph should be recognized for his lifelong
leadership and work to end discrimination and secure equal
employment and labor opportunities for all Americans
Summary.--H. Res. 150 was introduced by Representative
Charles Rangel to express the sense of the House of
Representatives that A. Philip Randolph should be recognized
for his lifelong leadership and work to end discrimination and
secure equal employment and labor opportunities for all
Americans. A. Philip Randolph was the leader of the successful
movement to organize the Pullman Company which led to the
formation of the Brotherhood of Sleeping Car Porters, an
organization that advanced the claims of African-American
railway workers to dignity, respect, and a decent livelihood.
He was one of the central figures speaking out for African-
American rights during the 1930s and 1940s and focused on labor
and employment issues. Mr. Randolph was one of the leading
forces behind the March on Washington for Jobs and Freedom and
worked with many old friends and foes of his earlier labor
struggles to ensure the success of the event, which took place
on August 28, 1963, drew a crowd of over 250,000 people, and
was the occasion of a meeting with President Kennedy and Dr.
Martin Luther King, Jr. A. Philip Randolph died in 1979 as an
elder statesman of the civil rights movement, a much admired
figure and role model for the young people of this Nation.
Legislative History.--Representative Charles Rangel
introduced H. Res. 150 on February 10, 2009 and it was referred
to the Committee on the Judiciary and the Committee on
Education and Labor, where it was further referred to the
Subcommittee on Workforce Protection. On December 15, 2009,
Representative John Conyers, Jr. moved to suspend the rules and
the bill passed the U.S. House of Representatives by a roll
call vote of 395-23.
H. Res. 505, Condemning the murder of Dr. George Tiller, who was shot
to death at his church on May 31, 2009
Summary.--H. Res. 505 was introduced by Representative
Louise McIntosh Slaughter to condemn the murder of Dr. George
Tiller, who was shot to death at his church. Dr. Tiller was
murdered in Wichita, Kansas, on May 31, 2009 at his place of
worship, a place intended for peace and refuge that in a moment
became a place for violence and murder. The resolution stated
that places of worship should be sanctuaries, but have
increasingly borne witness to reprehensible acts of violence,
with 38 people in the United States killed in their place of
worship in the past 10 years and 30 people wounded in those
same incidents. Violence is deplorable, and never an acceptable
avenue for expressing opposing viewpoints and H. Res. 505
commits to the American principle that tolerance must always be
superior to intolerance, and that violence is never an
appropriate response to a difference in beliefs.
Legislative History.--On June 4, 2009, Representative
Louise McIntosh Slaughter introduced H. Res. 505 and it was
referred to the Committee on the Judiciary. On June 9, 2009,
Representative Jerrold Nadler moved to suspend the rules and
the bill passed the U.S. House of Representatives by a roll
call vote of 423-0.
H. Res. 530, Commending the purpose of the third annual Civil Rights
Baseball Game and recognizing the historical significance of
the location of the game in Cincinnati, Ohio
Summary.--H. Res. 530 was introduced by Representative
Steve Driehaus to commend the purpose of the third annual Civil
Rights Baseball Game and recognize the historical significance
of the location of the game in Cincinnati, Ohio. Baseball was
at the forefront of the civil rights movement and was
integrated before either the Armed Forces or the public
schools. The Major League Baseball Civil Rights Game was
created to honor those who fought both on and off the field for
the equal treatment of all people. Civil Rights Baseball Game
was held in Cincinnati, Ohio, at the Great American Ballpark on
June 20, 2009 which is historically significant because
Cincinnati was an integral stop along the Underground Railroad
as one of the first free `stations' slaves would encounter when
escaping north.
Legislative History.--On June 11, 2009, Representative
Steve Driehaus introduced H. Res. 530 and it was referred to
the Committee on the Judiciary. On June 15, 2009,
Representative Robert ``Bobby'' Scott moved to suspend the
rules and the bill passed the U.S. House of Representatives by
voice vote.
H. Res. 901, Recognizing November 14, 2009, as the 49th anniversary of
the first day of integrated schools in New Orleans, Louisiana
Summary.--Representative Gwen Moore introduced H. Res. 901
to recognize November 14, 2009, as the 49th anniversary of the
first day of integrated schools in New Orleans, Louisiana. Six
years after the Brown v. Board of Education (347 U.S. 483)
decision, on November 14, 1960, Ruby Bridges, at the age of 6,
became the first African-American student to attend the all-
white William Frantz Elementary School in New Orleans,
Louisiana. Ruby Bridges had the courage to attend the William
Frantz Elementary School every day during the 1960-61 school
year despite ongoing riots and protests in New Orleans, having
to be escorted to school by Federal marshals, and having no
other students in her classroom. H. Res. 901 commends Ruby
Bridges for her bravery and courage 49 years ago, and for her
lifetime commitment to raising awareness of diversity through
improved educational opportunities for all children.
Legislative History.--On November 6, 2009, Representative
Gwen Moore introduced H. Res. 901 and it was referred to the
Committee on the Judiciary and the Committee on Education and
Labor. On January 4, 2010 the Committee on Education and Labor
referred the bill to the Subcommittee on Early Childhood,
Elementary, and Secondary Education and the Committee on the
Judiciary referred it to the Subcommittee on the Constitution,
Civil Rights, and Civil Liberties. On February 2, 2010
Representative Marcia Fudge moved to suspend the rules agree to
the resolution, as amended. On February 3, 2010, the bill was
considered as unfinished business and on motion to suspend the
rules the bill passed the U.S. House of Representatives by a
roll call vote of 416-0.
H. Res. 1010, Celebrating the life and work of Dr. Martin Luther King,
Jr. during the 30th anniversary of the Stevie Wonder song
tribute to Dr. King, ``Happy Birthday,'' and for other purposes
Summary.--H. Res. 1010 was introduced by Representative
John Conyers, Jr. to celebrate the life and work of Dr. Martin
Luther King, Jr. during the 30th anniversary of the Stevie
Wonder song tribute to Dr. King, ``Happy Birthday.'' The
campaign to secure a Federal holiday in honor of Dr. Martin
Luther King, Jr. lasted 15 years. The 1980 Stevie Wonder song
tribute to Dr. King, ``Happy Birthday,'' solidified the
campaign's success. The first Dr. Martin Luther King, Jr.
Federal holiday was observed on January 20, 1986, and
celebrated with a concert headlined by Stevie Wonder, who has,
in the years since, continued his commitment to promoting peace
and equality, for which he has been recognized with a Lifetime
Achievement Award from the National Civil Rights Museum in
Memphis, Tennessee.
Legislative History.--Representative John Conyers, Jr.
introduced H. Res. 1010 on January 13, 2010 and it was referred
to the Committee on Judiciary. On January 20, 2010
Representative John Conyers, Jr. moved to suspend the rules and
the bill passed the U.S. House of Representatives by voice
vote.
H. Res. 1271, Honoring the life and achievements of Rev. Benjamin
Lawson Hooks
Summary.--Representative John Conyers, Jr. introduced H.
Res. 1271 to honor the life and achievements of Rev. Benjamin
Lawson Hooks. Dr. Hooks studied prelaw at LeMoyne College in
Memphis and continued his studies at Howard University in
Washington, DC, and at DePaul University Law School in Chicago,
Illinois. After college, he served in the United States Army
during World War II and had the job of guarding Italian
prisoners who were able to eat in restaurants that were off
limits to him, an experience that he found humiliating and that
deepened his determination to do something about bigotry in the
South. In 1954, Dr. Hooks served on a roundtable with Thurgood
Marshall and other Southern African-American attorneys to
formulate a possible litigation strategy days before the
Supreme Court decision in Brown v. Board of Education of Topeka
was handed down. In 1965, he was appointed by Tennessee
Governor Frank G. Clement to serve as a criminal judge in
Shelby County, becoming the first African-American criminal
court judge in the State of Tennessee. Later in his life, Rev.
Hooks also served as the Executive Director and CEO of the
National Association for the Advancement of Colored People and
under his leadership, the NAACP fought for affirmative action,
led efforts to end apartheid in South Africa, and addressed
racism in sports. The House of Representatives honored the life
and achievements of Dr. Benjamin Lawson Hooks, for his
commitment to justice on the bench in Memphis, Tennessee, for
his strong work with the National Association for the
Advancement of Colored People to formulate strategies for
eliminating barriers to civil rights, and for his leadership in
promoting equal opportunity for all.
Legislative History.--Representative John Conyers, Jr.
introduced H. Res. 1271 on April 20, 2010 and it was referred
to the Committee on the Judiciary. On April 20, 2010
Representative Steve Cohen moved to suspend the rules and the
bill passed the U.S. House of Representatives by a roll call
vote of 407-0.
H. Res. 1281, Celebrating the life and achievements of Dr. Dorothy
Irene Height and recognizing her life-long dedication and
leadership in the struggle for human rights and equality for
all people until her death at age 98 on April 20, 2010
Summary.--Representative Marcia Fudge introduced H. Res.
1281 to celebrate the life and achievements of Dr. Dorothy
Irene Height and recognizing her life-long dedication and
leadership in the struggle for human rights and equality for
all people. Dr. Height led many national organizations,
including 33 years of service on the staff of the National
Board of the Young Women's Christian Association, director of
the National YWCA School for Professional Workers, and became
the first director of the Center for Racial Justice, served as
president of the National Council of Negro Women for four
decades, as president of Delta Sigma Theta Sorority, and
continued to provide guidance as chair and president emerita of
NCNW until her death on April 20, 2010.
Legislative History.--On April 21, 2010 Representative
Marcia Fudge introduced H. Res. 1281 and it was referred to the
Committee on the Judiciary. On April 21, 2010, Representative
John Conyers, Jr. moved to suspend the rules and the bill
passed the U.S. House of Representatives by voice vote.
H. Res. 1375, Recognizing the 90th anniversary of the 19th Amendment
Summary.--Representative Jim Cooper introduced H. Res. 1375
to recognize the 90th anniversary of the 19th Amendment. Women
were denied the right to vote in many states for 144 years
after the Declaration of Independence was signed. In 1919, the
66th Congress of the United States passed a resolution
proposing an amendment to the Constitution extending the right
of suffrage to women. On August 18, 1920, the Tennessee House
of Representatives voted for ratification by a one-vote margin,
passing the amendment in Nashville, Tennessee, becoming the
36th and final of the three-fourths of States needed to ratify
the amendment, entering it into the Constitution.
Legislative History.--On May 19, 2010 Representative Jim
Cooper introduced H. Res. 1375 and it was referred to the
Committee on the Judiciary. On July 26, 2010 the bill was
further referred to the Subcommittee on the Constitution, Civil
Rights, and Civil Liberties. On September 15, 2010, Mr. Cohen
moved to suspend the rules and the bill passed the U.S. House
of Representatives by voice vote.
H. Res. 1470, Honoring the life, achievements, and distinguished career
of Chief Justice William S. Richardson
Summary.--Representative Charles Djou introduced H. Res.
1470 to honor the life, achievements, and distinguished career
of Chief Justice William S. Richardson. H. Res. 1470 emphasizes
that, among his judicial accomplishments, Chief Justice William
S. Richardson changed the face of higher education in Hawaii by
opening avenues for the Islands' most disadvantaged groups and
by building a more equitable society for the people of Hawaii.
Legislative History.--On June 23, 2010 Representative
Charles Djou introduced H. Res. 1470 and it was referred to the
Committee on the Judiciary. On July 20, 2010 Representative
Robert ``Bobby'' Scott moved to suspend the rules and the bill
passed the U.S. House of Representatives by voice vote.
H. Res. 1504, Recognizing and honoring the 20th anniversary of the
enactment of the Americans with Disabilities Act of 1990
Summary.--Representative Steny Hoyer introduced H. Res.
1504 to recognize and honor the 20th anniversary of the
enactment of the Americans with Disabilities Act of 1990. Prior
to the passage of the Americans with Disabilities Act, people
with disabilities faced significantly lower employment rates,
lower graduation rates, and higher rates of poverty than people
without disabilities, and were too often denied the opportunity
to fully participate in society due to intolerance and unfair
stereotypes. H. Res. 1504 recognizes and honors the 20th
anniversary of the enactment of the Americans with Disabilities
Act of 1990 and salutes all people whose efforts contributed to
the enactment of the Americans with Disabilities Act. H. Res.
1504 encourages all Americans to celebrate the advance of
freedom and the opening of opportunity made possible by the
enactment of the Americans with Disabilities Act and pledges
the Congress to continue to work on a bipartisan basis to
identify and address the remaining barriers that undermine the
Nation's goals of equality of opportunity, independent living,
economic self-sufficiency, and full participation for Americans
with disabilities.
Legislative History.--On July 1, 2010, Representative Steny
Hoyer introduced H. Res. 1504 and it was referred to the
Committee on the Judiciary, the Committee on Education and
Labor, the Committee on Transportation and Infrastructure, and
the Committee on Energy and Commerce. On July 2, 2010 the
Committee on Transportation and Infrastructure referred it to
the Subcommittee on Highways and Transit and the Subcommittee
on Railroads, Pipelines, and Hazardous Materials. On July 26,
2010, the Committee on the Judiciary referred it to the
Subcommittee on the Constitution, Civil Rights, and Civil
Liberties. On July 26, 2010, Representative Jared Polis moved
to suspend the rules and the bill passed the U.S. House of
Representatives by a roll call vote of 377-0.
H. Res. 1566, Recognizing the 50th anniversary of the Student
Nonviolent Coordinating Committee (SNCC) and the pioneering
college students whose determination and nonviolent resistance
led to the desegregation of lunch counters and places of public
accommodation over a 5-year period
Summary.--Representative John Lewis introduced H. Res. 1566
to recognize the 50th anniversary of the Student Nonviolent
Coordinating Committee (SNCC) and the pioneering college
students whose determination and nonviolent resistance led to
the desegregation of lunch counters and places of public
accommodation over a 5-year period. The enthusiasm of the
students and the support they garnered for their pacifism in
the face of hatred, led to the beginning of integration within
the United States and the enactment of the Voting Rights Act of
1965. H. Res. 1566 recognizes the 50th anniversary of the
founding of the Student Nonviolent Coordinating Committee and
commemorates the significance and importance of the SNCC and
its role in organizing the national sit-in movement and the
role that they played in the desegregation of United States
society and for creating the political climate necessary to
pass legislation to expand civil rights and voting rights for
all people in the United States
Legislative History.--On July 28, 2010, Representative John
Lewis introduced H. Res. 1566 and it was referred to the
Committee on the Judiciary. On July 30, 2010, Representative
Steve Cohen moved to suspend the rules and the bill passed the
U.S. House of Representatives by a roll call vote of 410-0.
H. Res. 1713, Recognizing the 50th anniversary of Ruby Bridges
desegregating a previously all-White public elementary school
Summary.--Representative John Lewis introduced H. Res. 1713
to recognize the 50th anniversary of Ruby Bridges desegregating
a previously all-White public elementary school. Six years
after the Brown decision, on November 14, 1960, Ruby Bridges,
at the age of six, was the first African-American child to
integrate the previously all-White William Frantz Elementary
School. She was the only student in her class for an entire
year, taught by the only remaining teacher, Mrs. Barbara Henry,
after the other teachers and students withdrew from the school
in a gesture of disapproval of desegregation. Ruby Bridges was
among the first in a line of civil rights pioneers that paved
the way for the eventual desegregation of all public schools in
the United States.
Legislative History.--On November 15, 2010, Representative
John Lewis introduced H. Res. 1713 and it was referred to the
Committee on the Judiciary. On November 15, 2010,
representative John Conyers, Jr. moved to suspend the rules and
the bill passed the U.S. House of Representatives by a roll
call vote of 376-0.
H. Con. Res. 35, Honoring and praising the National Association for the
Advancement of Colored People on the occasion of its 100th
anniversary
Summary.--H. Con. Res. 35 was introduced by Representative
Al Green to commemorate the 100th anniversary of the founding
of the National Association for the Advancement of Colored
People (NAACP). The NAACP is the 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. 35 on January 28, 2009 and it was referred to the
Committee on the Judiciary. On February 10, 2009 Representative
Henry ``Hank'' Johnson moved to suspend the rules and agree to
the resolution. On February 12, 2009 the resolution passed the
U.S. House of Representatives by a roll call vote of 424-0. On
February 13, 2009 the bill was received in the U.S. Senate,
considered, and agreed to without amendment and with a preamble
by Unanimous Consent.
H. Con. Res. 242, Honoring and praising the National Association for
the Advancement of Colored People on the occasion of its 101st
anniversary
Summary.--H. Con. Res. 242 was introduced by Representative
Al Green to commemorate the 101st anniversary of the founding
of the National Association for the Advancement of Colored
People (NAACP). The NAACP is the 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. 242 on February 25, 2010 and it was referred to the
Committee on the Judiciary. On June 16, 2010 Representative
Steve Cohen moved to suspend the rules and the resolution
passed the U.S. House of Representatives by a roll call vote of
421-0. On June 17, 2009 the bill was received in the U.S.
Senate. On June 18, 2010, the U.S. Senate agreed to the
resolution without amendment and with a preamble by Unanimous
Consent.
H. Con. Res. 249, Commemorating the 45th anniversary of Bloody Sunday
and the role that it played in ensuring the passage of the
Voting Rights Act of 1965
Summary.--H. Con. Res. 249 was introduced by Representative
John Lewis to commemorate the 45th anniversary of Bloody Sunday
and the role that it played in ensuring the passage of the
Voting Rights Act of 1965. The historic struggle for equal
voting rights led nonviolent civil rights marchers to gather on
the Edmund Pettus Bridge in Selma, Alabama, on March 7, 1965, a
day that would come to be known as ``Bloody Sunday.'' John
Lewis and the late Hosea Williams led these marchers across the
Edmund Pettus Bridge in Selma, Alabama, where they were
attacked with billy clubs and tear gas by State and local
lawmen. Eight days after Bloody Sunday, President Lyndon B.
Johnson called for a comprehensive and effective voting rights
bill as a necessary response by Congress and the President to
the interference and violence, in violation of the 14th and
15th Amendments, encountered by African-American citizens when
attempting to protect and exercise the right to vote. A
bipartisan Congress approved the Voting Rights Act of 1965 and
on August 6, 1965, President Lyndon B. Johnson signed this
landmark legislation into law.
Legislative History.--Representative John Lewis introduced
H. Con. Res. 249 on March 4, 2010 and it was referred to the
Committee on the Judiciary. On March 10, 2010, Representative
Steve Cohen moved to suspend the rules and the bill passed the
U.S. House of Representatives by a roll call vote of 409-0. On
March 16, 2010, the bill was received in the U.S. Senate which
agreed to the resolution without amendment and with a preamble
by Unanimous Consent.
S. Con. Res. 29, A concurrent resolution expressing the sense of the
Congress that John Arthur ``Jack'' Johnson should receive a
posthumous pardon for the racially motivated conviction in 1913
that diminished the athletic, cultural, and historic
significance of Jack Johnson and unduly tarnished his
reputation
Summary.--Senator John McCain introduced S. Con. Res. 29 to
express the sense of Congress that John Arthur ``Jack'' Johnson
should receive a posthumous pardon for the racially motivated
conviction in 1913 that diminished the athletic, cultural, and
historic significance of Jack Johnson and unduly tarnished his
reputation. Jack Johnson was a professional boxer and traveled
throughout the United States, fighting White and African-
American heavyweights. He was a flamboyant, defiant, and
controversial figure who challenged racial biases. In 1908,
Jack Johnson defeated reigning White title-holder Tommy Burns
to become the first African-American to hold the title of
Heavyweight Champion of the World. In October 1912, Jack
Johnson became involved with a White woman whose mother
disapproved of their relationship and sought action from the
Department of Justice, claiming that Jack Johnson had abducted
her daughter. He was arrested by Federal marshals on October
18, 1912, for transporting the woman across State lines for an
``immoral purpose'' in violation of the Mann Act. Charges
against Jack Johnson were dropped when the woman refused to
cooperate with Federal authorities, and then married him, but
Federal authorities persisted and summoned a White woman named
Belle Schreiber, who testified that Jack Johnson had
transported her across State lines for the purpose of
``prostitution and debauchery.'' In 1913, he was convicted of
violating the Mann Act and sentenced to 1 year and 1 day in
Federal prison. S. Con. Res. 29 expresses the sense of Congress
that Jack Johnson should receive a posthumous pardon to expunge
a racially motivated abuse of the prosecutorial authority of
the Federal Government from the annals of criminal justice in
the United States and in recognition of the athletic and
cultural contributions of Jack Johnson to society.
Legislative History.--On June 16, 2009, Senator John McCain
introduced S. Con. Res. 29 and it was referred to the U.S.
Senate Judiciary Committee. On June 24, 2009, the U.S. Senate
Judiciary Committee discharged the bill by Unanimous Consent
and the bill was agreed to in the U.S. Senate without amendment
and with a preamble by Unanimous Consent. On June 25, 2009, the
bill was received in the U.S. House of Representatives and it
was referred to the Committee on the Judiciary. On July 23,
2009 the bill was referred to the Subcommittee on the
Constitution, Civil Rights, and Civil Liberties. On July 29,
2009, Representative Henry ``Hank'' Johnson asked unanimous
consent to discharge the bill from committee and for the bill
to be considered. On July 29, 2009 the bill passed the U.S.
House of Representatives by voice vote.
Oversight Activities
Lessons Learned from the 2008 Election
Summary.--On March 19, 2009, the Subcommittee on the
Constitution, Civil Rights, and Civil Liberties convened a
hearing on ``Lessons Learned From the 2008 Election.'' The
hearing focused on the administration of elections in 2008 and
the election system failures that need to be addressed in order
to ensure that all eligible voters have a meaningful
opportunity to participate in the political process. This
hearing provided an opportunity for Members to examine the best
practices and the shortcomings of the past election and to
discuss policy recommendations for addressing unresolved issues
for future elections. The hearing witnesses were Barbara
Arnwine, Executive Director, Lawyers Committee for Civil Rights
Under Law; Matthew Segal, Executive Director, Student
Association for Voter Empowerment; James Tucker, Consulting
Attorney, Native American Rights Fund; Hilary Shelton,
Director, Washington Bureau of the NAACP; James Terry, Chief
Public Advocate, Consumers Rights League; Glenn D. Magpantay,
Staff Attorney, Asian American Legal Defense Fund; and Tova
Wang, Vice President for Research, Common Cause.
Related Legislation.--On January 6, 2009, Judiciary
Chairman John Conyers introduced H.R. 97, the ``Deceptive
Practices and Voter Intimidation Prevention Act of 2009'',
which would afford voters greater protections again deceptive
practices and intimidation in voting. On January 6, 2009,
Judiciary Committee Chairman John Conyers introduced H.R. 103,
the ``Caging Prohibition Act of 2009,'' which would afford a
voter greater protections when his or her right to vote has
been challenged. On January 6, 2009, Judiciary Committee
Chairman John Conyers introduced H.R. 105, the ``Voting
Opportunity and Technology Enhancement Rights of 2009,'' which
would provide for substantial election reform on issues ranging
from absentee ballots to provisional ballots, and from voter
caging to deceptive practices.
Hearing on: the Public Safety and Civil Rights Implications of State
and Local Enforcement of Federal Immigration Laws. (Serial No.
111-19)
On April, 2, 2009, the Subcommittee held a hearing jointly
with the Subcommittee on Immigration, Citizenship, Refugees,
Border Security, and International Law on the Public Safety and
Civil Rights Implications of State and Local Enforcement of
Federal Immigration Laws.
The following witnesses testified: Julio Cesar Mora,
Avondale, AZ; Antonio Ramirez, Frederick, Maryland Community
Advocate; Deborah Weissman, Reef C. Ivey II Distinguished
Professor of Law, Director of Clinical Programs, University of
North Carolina at Chapel Hill School of Law; Ray Tranchant,
Operations Director, Advanced Technology Center, Virginia
Beach, VA, Adjunct Professor at Cambridge College, Cambridge,
MA, Chesapeake Campus, and Bryant and Stratton College; David
Harris, Professor of Law, University of Pittsburgh School of
Law; Hubert Williams, President, Police Foundation; George
Gascon, Chief, Mesa Arizona Police Department; Kris Kobach,
Professor of Law, University of Missouri--Kansas City School of
Law.
The hearing focused on the public safety and civil rights
concerns that arise when state and local law enforcement get
involved in immigration enforcement, most commonly through an
agreement with the U.S. Immigration and Customs Enforcement
(ICE) under 287(g) of the Immigration and Nationality Act. The
subcommittees received testimony concerning incidents of racial
profiling and the erosion of trust between the police and local
communities that can occur when states and localities attempt
to enforce immigration laws without appropriate and necessary
safeguards.
Witnesses also described how some localities with 287(g)
agreements are conducting large-scale ``sweeps'' in which
hundreds of law enforcement officers and/or deputized
``posses'' enter predominantly Latino neighborhoods to
interrogate, issue citations, and/or arrest people, set up
roadblocks and check the identification of individuals.\143\
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\143\Hearing on the Public Safety and Civil Rights Implications of
State and Local Enforcement of Federal Immigration Laws, before the H.
Judiciary Subcomm. on Immigration, Citizenship, Refugees, Border
Security and International Law and the Subcomm. on the Constitution,
Civil Rights, 105th Cong. 11 (2009) (Testimony of Julio Cesar Mora).
---------------------------------------------------------------------------
Legal Issues Surrounding the Military Commissions System
Summary.--On July 8, 2009, the Subcommittee held the first
of two hearings focusing on the adequacy of military
commissions and the effectiveness and necessity of possible
reforms. Testimony was received from: the Honorable Adam B.
Schiff; Lt. Col. Darrel Vandeveld, former prosecutor,
Guantanamo Bay Military Commissions; Deborah Pearlstein,
Associate Research Scholar, Princeton University; Thomas
Joscelyn, Senior Fellow and Executive Director, Center for Law
and Counterterrorism, Foundation for Defense of Democracies;
and Denny LeBoeuf, Director, John Adams Project, ACLU.
Shortly after taking office, President Obama announced his
intention to close the Guantanamo Bay facility and temporarily
halted use of military commissions to try detainees currently
held at the facility pending the outcome of his
Administration's review and an examination of the adequacy of
the military commission process itself. In his remarks on
national security a few months later, the President confirmed
that, whenever possible, the Administration would use the
federal courts to prosecute Guantanamo detainees who have
violated criminal laws, but also indicated that military
commissions remain an appropriate and necessary venue for the
prosecution of others. The President acknowledged that the
existing military commission system fails to provide a
legitimate legal framework for convictions, but expressed his
belief that, with sufficient reform, a military commission
system could do so. The Subcommittee's July 8, 2009 hearing
provided an opportunity to explore concerns regarding the need
for and legal adequacy of the existing military commission
system and to consider the range of reforms that might be
necessary.
Representative Adam Schiff testified that ``the commission
system has proved so flawed and its due process so inadequate
and discredited that in the case of the detainees at
Guantanamo, it should be completely junked.'' Representative
Schiff further explained how H.R. 1315, the ``Terrorist
Detainees Procedures Act of 2009,'' which he had introduced
that year, provided an alternative to the existing military
commission system that would establish a mechanism for
designating detainees as ``unlawful combatants'' and make use
of the existing military justice and courts martial system to
prosecute such detainees.
Lt. Col. Vandeveld and Ms. Leboeuf agreed that the military
commissions system was fatally flawed and should be abandoned
rather than reformed. Lt. Col. Vandeveld testified that he
asked for reassignment from his post as a military prosecutor
at Guantanamo because--after discovering a ``confession
obtained through torture'' and the withholding of exculpatory
evidence from the defense--he determined that he ``could not
ethically or legally prosecute the defendant within the
military commission system at Guantanamo.'' Lt. Col. Vandeveld
cited three specific concerns that he felt would not be
adequately addressed through reform of the existing military
commission system: (1) admissibility of evidence obtained
through torture or coercion; (2) the gathering and handling of
information, including classified or sensitive information
withheld from the defense; and (3) institutional deficiencies,
including inexperienced judges and insufficiently funded
defense teams.
Echoing these concerns, Ms. Leboeuf cautioned that military
commission trials would never be deemed fair or competent and
that they ``cannot produce reliable verdicts. Perhaps, worst of
all, no judgments under military commission will ever truly be
final.'' While expressing ``doubt that the use of a new
military commission system going forward is a wise or necessary
course of policy,'' Ms. Pearlstein took the position that such
a system would be legally adequate if certain reforms were
made, including: (1) assuring that statements made under
torture are inadmissible and that commission rules reflect the
standards for voluntariness required for admissibility in
criminal court; and (2) ensuring an adequate review process
that considers questions of fact as well as law. Mr. Joscelyn
testified that ``the commissions have been far from perfect,''
and that ``it will take some work to make the commissions
function properly,'' but offered no opinion on possible reforms
but, instead, testified that--whether the Administration chose
to try terrorists in the courts or military commissions--it
should make sure to protect the intelligence-gathering function
of detention.
Hearing on Continuity of Congress in the Wake of a Catastrophic Attack
(Serial No. 111-17)
Summary.--On July 23, 2009, the Subcommittee held a hearing
on the Continuity of Congress in the Wake of a Catastrophic
Attack. The hearing examined the impact of an attack that would
kill or incapacitate a significant number of Representatives
and Senators, and the options under the Constitution for
reconstituting the institution and ensuring the continuation of
the legislative branch in a time of crisis.
Witnesses at the hearing were Rep. Brian Baird; Rep. Dana
Rohrabacher; John C. Fortier, Research Fellow, American
Enterprise Institute; R. Eric Petersen, Analyst in American
National Government, Congressional Research Service; Harold
Relyea, Former Analyst, Congressional Research Service.
Hearing on Proposals for Reform of the Military Commission System
(Serial No. 111-26)
Summary.--On July 30, 2009, the Subcommittee held its
second hearing focusing on the military commission system,
which provided a further opportunity to consider the specific
reforms passed by the Senate as part of the National Defense
Authorization Act for Fiscal Year 2010, and to explore
additional changes that might be warranted or necessary.
Testimony was received from: David Kris, Assistant Attorney
General, Department of Justice; Jeh Charles Johnson, General
Counsel, Department of Defense; Maj. David J.R. Frakt, USAFR,
Lead Defense Counsel, Office of Military Commissions; Col.
Peter R. Masciola, USAFG, Chief Defense Counsel, Office of
Military Commissions; Steven A. Engel, Dechert LLP; Eugene R.
Fidell, Senior Research Scholar in Law and Florence Rogatz
Lecturer in Law, Yale Law School.
On July 23, 2009 the Senate passed S. 1390, the ``National
Defense Authorization Act for Fiscal Year 2010'' (NDAA FY 2010)
with a section amending the Military Commission Act of 2006.
Assistant Attorney General David Kris and Department of Defense
General Counsel Jeh Johnson testified in support of the
proposed Senate reforms but also suggested others. For example,
while Assistant AG Kris and Mr. Johnson noted with approval the
Senate's proposal to ban admission of statements obtained by
cruel, inhuman, or degrading treatment, Assistant AG Kris
testified that the Administration believed that the bill needed
to adopt a voluntariness standard for the admission of other
statements of the accused. This standard should take into
account ``challenges and realities of the battlefield and armed
conflict'' and that, without such a standard, ``there is a
serious likelihood that courts would hold that admission of
involuntary statements of the accused in military commission
proceedings is unconstitutional.'' Assistant AG Kris also
recommended that Congress: (1) remove the offense of material
support for terrorism because this ``is not a traditional law
of war offense, thereby threatening to reverse hard-won
convictions and leading to questions about the [military
commission] system's legitimacy;'' and (2) include a sunset
provision.
Col. Masciola testified of the need to ensure learned
counsel with experience in capital cases for any death-penalty
eligible cases, and suggested several specific reforms to
ensure adequate and equitable discovery and resources for the
defense. Major Frakt similarly provided several specific
recommendations for reform and also identified offenses,
including material support of terrorism and criminal
conspiracy, that he believed do not qualify as ``law of war''
offenses and, therefore, not be triable in any military
commission system. Mr. Engel, who served in the Office of Legal
Counsel during the Bush Administration and worked on the
military commission system established under the Military
Commission Act of 2006, agreed with the Administration's
proposal for adopting a voluntariness standard and urged that
this standard set out sufficient guidance ``to ensure its
proper application in the wartime context.'' He disagreed,
however, with the Administration recommendation to remove
material support for terrorism as a triable offense. Mr.
Fidell, president of the National Institute of Military
Justice, also agreed that voluntariness was the proper standard
for admissibility of detainee statements and endorsed the
Senate changes to provisions ensuring appellate review of
military commission decisions.
Hearing on the USA PATRIOT Act (Serial No. 111-35)
Summary.--On September 22, 2009, the Subcommittee held a
hearing on the USA PATRIOT Act, focusing on three provisions
that were set to expire at the end of 2009. These provisions
included the so-called ``roving'' Foreign Intelligence
Surveillance Act (FISA) wiretaps,\144\ FISA Section 215
business record orders,\145\ and the so-called FISA ``lone
wolf'' provision of the Intelligence Reform and Terrorism
Protection Act (IRTPA).\146\ The hearing provided the
Subcommittee the opportunity to question and explore the
efficacy of these expiring provisions and begin to determine
whether or not they should be reauthorized and/or modified.
Five witnesses testified at this hearing: Todd Hinnen, Deputy
Assistant Attorney General, National Security Division, United
States Department of Justice; Suzanne Spaulding, Esq., former
Staff Director, House Permanent Select Committee on
Intelligence; The Honorable Thomas B. Evans, Jr., former Member
of Congress (R-DE); Kenneth L. Wainstein, former Assistant
Attorney General, National Security Division, United States
Department of Justice and; Michael German, Policy Counsel,
American Civil Liberties Union.
---------------------------------------------------------------------------
\144\Pub. L. 107-56, 206.
\145\Pub. L. 107-56, 215.
\146\Pub. L. 108-456 6001(a).
---------------------------------------------------------------------------
Section 206 of the PATRIOT Act amended FISA to permit
multipoint or ``roving'' wiretaps, which permit the government
to include multiple surveillance sites associated with a
facility authorized in an order of the Foreign Intelligence
Surveillance Court (FISC) if it can show that the target was
taking steps to thwart surveillance. FISA roving authority
allows the government to follow a target that switches
communication facilities without having to return to court and
obtain a new order, thus avoiding the risk of losing valuable
foreign intelligence information during the time required to
obtain and serve a new court order. While there was general
support for the need to renew FISA roving authority, various
experts including Suzanne Spaulding raised concerns that FISA
roving warrants could increase the prospect the government may
intercept communications between individuals who are not FISA
targets. This potential exists, according to Ms. Spaulding,
because of the generally ``less rigorous'' statutory standards
for FISA roving warrants than those governing issuance of
roving wiretap warrants in criminal investigations under Title
III of the Omnibus Crime Control and Safe Streets Act of 1968,
as amended by the Electronic Communications Privacy Act of
1986.
Section 6001(a) of the Intelligence Reform and Terrorism
Protection Act (IRTPA), commonly referred to as the ``Lone
Wolf'' provision, broadened the definition of individuals who
could be FISA targets. It permits surveillance of non-U.S.
persons preparing to engage in or engaging in international
terrorism, without requiring evidence linking those persons to
an identifiable foreign power or terrorist organization. This
provision was created in response to the FBI's attempt to
obtain a FISA order to search the laptop of Zacarias Moussaoui
in October, 2001. The FBI believed it had insufficient
information to demonstrate that Moussaoui was an agent of a
foreign power, as required by FISA at the time, although the
term ``foreign power'' included international terrorist groups.
Critics of the Lone Wolf provision argued generally that it
undermines constitutional justification for the entire FISA
statute: that the extraordinary FISA powers used by our
government are constitutional only because they are used
against our most serious adversaries, foreign governments and
organized foreign powers. Accordingly, these witnesses asserted
that expanding the reach of the statute to individuals acting
alone puts the whole FISA regime at risk. Todd Hinnen, Deputy
Assistant Attorney General of the Justice Department's National
Security Division, testified that the Lone Wolf provision has
never been used, but that the Justice Department believes it is
essential to have the tool available for the rare situation in
which it might become necessary.
Section 215 of the USA PATRIOT Act allows the government to
obtain a FISA order requiring private parties to produce
``tangible things'' such as business records that are relevant
to foreign intelligence, counterterrorism, or
counterintelligence investigations. In support of
reauthorization, the Justice Department represented that, based
on its operational experience, there will continue to be
instances in which FBI investigators need to obtain
transactional information that does not fall within scope of
authorities relating to National Security Letters (NSLs), and
where they must operate in an environment that precludes the
use of less secure criminal authorities. Critics of this
provision generally objected to its permissive ``relevance to
an authorized investigation'' standard. This broad standard is
seen as, among other things, having a chilling effect on the
exercise of First Amendment Rights when applied to libraries
and/or businesses that sell books and periodicals
The Impact of Recent Supreme Court Decisions on Civil Rights
Jurisprudence
Summary.--On October 8, 2009, the Subcommittee on the
Constitution, Civil Rights, and Civil Liberties held an
oversight hearing on the Impact of Recent Supreme Court
Decisions on Civil Rights Jurisprudence. A careful review of
the Supreme Court's most recent opinions show steady movement
toward rolling back the Warren and Burger Court era precedents
that conservatives have long viewed as the significant
overreaching of Congress and the Judiciary. While the Court did
not overrule any major constitutional precedents, it left many
areas of civil rights jurisprudence in a confused state. Years
of settled law on issues involving race, religion, speech,
abortion, and the standing to bring suits have all been
unsettled by recent Supreme Court rulings. The effect of these
decisions has resulted in an incremental narrowing of many
individual rights and governmental powers granted under the
Constitution.
This hearing was intended to provide an opportunity for
members of the Subcommittee to explore the current state of
civil rights laws in light of recent Supreme Court decisions.
The following witnesses offered testimony: Armand Derfner,
Partner, Derfner Altman & Wilborn; Aderson B. Francois,
Associate Professor of Law, Howard University School of Law;
Debo P. Adegbile, Director of Litigation, NAACP Legal Defense
and Educational Fund, Inc. and Ms. Dahlia Lithwick, Senior
Editor, Slate Magazine.
Access to Justice Denied: An Oversight Hearing on Ashcroft v. Iqbal
Summary.--On Tuesday, October 27, 2009, the Subcommittee on
the Constitution, Civil Rights, and Civil Liberties convened a
hearing entitled ``Access to Justice Denied: An Oversight
Hearing on Ashcroft v. Iqbal.'' The purpose of this hearing was
to examine the U.S. Supreme Court's recent decision in Ashcroft
v. Iqbal and its impact on civil litigation. The Court's May
18, 2009, decision in Iqbal substantially altered longstanding
notice pleading standards to require courts to determine the
``plausibility'' of allegations in pleadings in advance of any
discovery. The hearing witnesses were Arthur Miller, University
Professor, New York University School of Law; John Vail, Vice
President and Senior Counsel, Center for Constitutional
Litigation; Debo Adegbile, Director of Litigation, NAACP Legal
Defense and Educational Fund; and Gregory Katsas, Partner,
Jones Day.
Related Legislation.--On November 19, 2009, Subcommittee
Chairman Jerrold Nadler introduced H.R. 4115, the ``Open Access
to Courts Act of 2009.'' The legislation would restore the
notice pleading standard to that articulated by the U.S.
Supreme Court in Conley v. Gibson 355 U.S. 41 (1957).
Oversight Hearing on the Civil Rights Division of the Department of
Justice
Summary.--On December 3, 2009, the Subcommittee on the
Constitution, Civil Rights, and Civil Liberties held an
oversight hearing on the Civil Rights Division of the
Department of Justice. The Civil Rights Division is the primary
federal entity responsible for enforcing federal statutes
prohibiting discrimination on the grounds of race, sex,
disability, religion, and national origin. Established in 1957,
the Division has grown in size and scope over the decades, and
has been instrumental in many of our nation's battles to
advance civil rights. Reports from the Citizens Commission on
Civil Rights and the Leadership Conference on Civil Rights in
2006-07 suggested concerns about Division enforcement
priorities and actions in such areas as voting, employment, and
housing. Reports and allegations of politicized hiring and
other improprieties in the Division also occurred during this
period, culminating in a July 2, 2008 report by the DOJ Office
of Inspector General and Office of Professional Responsibility
entitled An Investigation of Allegations of Politicized Hiring
and Other Improper Personnel Actions in the Civil Rights
Division.
On June 14, 2007, based upon concerns raised by Committee
oversight hearings and nonpartisan reports, Chairman Conyers
and Chairman Nadler asked the Government Accountability Office
(GAO) to undertake a report concerning the enforcement
priorities, data collection, and case management information
system of the Division. This hearing provided an opportunity
for members of the Subcommittee to raise questions in response
to the recently completed two reports in response to that
request, and to ask the newly-confirmed head of the Civil
Rights Division about his response to the reports and his plans
for the future of the Division. The following witnesses offered
testimony: Hon. Thomas E. Perez, Assistant Attorney General,
U.S. Department of Justice, Civil Rights Division; Eileen Regen
Larence, Director, Homeland Security and Justice Issues, U.S.
Government Accountability Office; Grace Chung Becker, former
Acting Assistant Attorney General, Civil Rights Division and
Joseph Rich, Director, Fair Housing Project, Lawyers' Committee
for Civil Rights Under Law.
The Impact of Federal Habeas Corpus Limitations on Death Penalty
Appeals
Summary.--On December 8, 2009, the Subcommittee on the
Constitution, Civil Rights, and Civil Liberties held an
oversight hearing on the Impact of Federal Habeas Corpus
Limitations on Death Penalty Appeals. Congress passed the
Antiterrorism and Effective Death Penalty Act of 1996 in
response to the concern that the then-existing habeas process
provided death row inmates an excessive number of opportunities
to postpone their sentence. As expected, this streamlined
procedure had the effect of expediting the pace of executions
and increasing their number. Since the passage of the
legislation, however, there have been concerns about the equity
of the process in the context of the death penalty. Although
more than a decade has elapsed since its enactment, there has
been a dearth of research examining the processing of cases
under the Act's provisions.
This hearing was intended to provide an opportunity for the
Subcommittee to explore the impact of Federal habeas
limitations on death penalty appeals and analyze proposals
designed to address any perceived injustice caused by existing
legals standards. The following witnesses offered testimony:
Stephen Hanlon, American Bar Association Death Penalty
Moratorium Project; Justice Gerald Kogan, former Chief Justice,
Florida Supreme Court (1987-1998); Michael O'Hare, Supervisory
Assistant State's Attorney, Connecticut State's Attorney
Office; Prof. John H. Bloom, Cornell Law School.
Related Legislation.--The Effective Death Penalty Appeals
Act (H.R. 3986) was introduced on November 3, 2009, by Rep.
Hank Johnson. The bill was designed to create a procedural
remedy for a person on death row to petition for appeal on the
basis of newly discovered evidence of innocence.
Hearing on the First Amendment and Campaign Finance Reform After
Citizens United (Serial No. 111-71)
Summary.--On February 3, 2010, the Subcommittee held a
hearing on the Supreme Court's decision in Citizens United v.
Federal Election Commission.\147\ The following witnesses
presented testimony: Laurence H. Tribe, Carl M. Loeb University
Professor, Harvard Law School; Monica Y. Youn, Counsel and
Director of the Campaign Finance Reform Project, Brennan Center
for Justice, New York University School of Law; Sean Parnell,
President, Center for Competitive Politics; Donald J. Simon,
Partner, Sonosky, Chambers, Sachse, Endreson & Perry, LLP.
---------------------------------------------------------------------------
\147\130 S.Ct. 876 (2010).
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In Citizens United, the Supreme Court struck down
limitations on direct spending by corporations and unions on
campaign-related communications, specifically, advertisements
occurring during a certain period of time before an election
that advocate voting for or against a named candidate, which
are called ``electioneering communications,'' imposed by the
Bipartisan Campaign Reform Act of 2002, known as the McCain-
Feingold Act.\148\ The Court overruled its prior decision
Austin v. Michigan Chamber of Commerce,\149\ which had upheld
regulations on corporate speech based on the principle that
corporations are different than individuals and that such
restrictions were necessary to maintain the integrity of the
electoral process. On that basis, the Court overruled the parts
of its prior decision McConnell v. Federal Election
Commission\150\ that relied on Austin's premise that
corporations receive a lesser degree of free speech protection
than individuals do.
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\148\Pub. L. No. 107-155.
\149\494 U.S. 652 (1990).
\150\540 U.S. 93, 203-209 (2003) (upholding limits on
electioneering communications in a facial challenge).
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Witnesses discussed the impact of the Citizens United
decision, and options available to Congress to address issues
raised by the decision.
Related Legislation.--Rep. Chris Van Hollen introduced H.R.
5175, the ``Democracy is Strengthened by Casting Light on
Spending in Elections Act'' on April 29, 2010. It passed the
House on June 24, 2010 by a vote of 219-206, and was placed on
the Senate Calendar. It received no further action in the
Senate.
Hearing on Protecting the American Dream: A Look at the Fair Housing
Act (Serial No. 111-88)
Summary.--On March 11, 2010, Subcommittee Chairman Jerrold
Nadler convened the first in a series of hearings on the Fair
Housing Act entitled Protecting the American Dream: A Look at
the Fair Housing Act. This hearing examined Fair Housing Act
education, investigation, and enforcement, both past and
present, particularly in the context of the current housing
crisis. The hearing witnesses were National Fair Housing
Alliance President Shanna Smith, Lawyers' Committee for Civil
Rights Under Law Executive Director Barbara Arnwine, John
Relman of the firm Relman & Dane, National Gay & Lesbian Task
Force Action Fund Executive Director Rea Carey, Howard
University School of Law Associate Dean Okianer Christian Dark,
and Baruch College Professor Kenneth Marcus.
Oversight ``Report by the Office of the Inspector General of the
Department of Justice on the Federal Bureau of Investigation's
Use of Exigent Letters and Other Informal Requests for
Telephone Records''
Summary.--On April 14, 2010, the Subcommittee held a
hearing to examine the report by the Office of the Inspector
General of the Department of Justice (OIG) on the Federal
Bureau of Investigation's use of exigent letters and other
informal requests for telephone records.\151\ Testifying at the
hearing were the Glenn Fine, Inspector General, U.S. Department
of Justice; and Valerie Caproni, General Counsel, Federal
Bureau of Investigation.
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\151\Oversight and Review Section, Office of the Inspector General,
U.S. Department of Justice, A Review of the Federal Bureau of
Investigation's Use of Exigent Letters and Other Informal Requests for
Telephone Records (January 2010) http://www.ca3.uscourts.gov/opinarch/
101440p.pdf (Last Visited Jan. 15, 2010).
---------------------------------------------------------------------------
The OIG report was initiated in response to two earlier OIG
reports in March 2007 and March 2008 which ``focused on the
misuses of national security letters [which] noted the FBI's
practice of issuing exigent letters, instead of national
security letters or other legal process, to obtain telephone
records from three communications service providers.''\152\ Mr.
Fine discussed the findings of the report which traced the
development of exigent letters, reviewed the manner in which
applicable laws and procedures were violated in their use, and
steps the FBI had taken to address OIG concerns. Valerie
Caproni further discussed the response by the FBI to the OIG's
reports.
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\152\Report by the Office of the Inspector General of the
Department of Justice on the Federal Bureau of Investigation's Use of
Exigent Letters and Other Informal Requests for Telephone Records,
Hearing before the Subcomm. on the Constitution, Civil Rights, and
Civil Liberties of the H. Comm. on the Judiciary, 111th Cong. 11 (2010)
(Testimony of Glenn Fine).
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Hearing on Achieving the Promises of the Americans with Disabilities
Act in the Digital Age--Current Issues, Challenges, and
Opportunities
Summary.--On April 22, 2010, the Subcommittee held a
hearing to explore advances in technology and accessibility
design that have taken place since passage of the Americans
with Disabilities Act of 1990 (ADA), and to gain a greater
understanding of how the ADA is achieving its promise of equal
opportunity and full participation for people with disabilities
with regard to new and advancing technologies. Testimony was
received from: the Honorable Samuel R. Bagenstos, Principal
Deputy Assistant Attorney General, U.S. Department of Justice;
Mark D. Richert, Esq., Director, Public Policy, American
Foundation for the Blind; Judy Brewer, Director, Web
Accessibility Initiative, World Wide Web Consortium; Steven I.
Jacobs, President, Ideal Group, Inc.; Daniel F. Goldstein,
Brown, Goldstein & Levy, LLP.
Testifying that ``access to the Internet and emerging
technologies is not simply a technical matter, it's a
fundamental issue of civil rights,'' Principal Deputy Assistant
AG Bagenstos confirmed the Department of Justice's longstanding
position that websites operated by private or public entities
are covered by the ADA and must be fully accessible to
individuals with disabilities. He also described recent DOJ
settlements with various universities to ensure that new
technologies used as part of the curricula, such as electronic
book readers, would be accessible to students with
disabilities, and indicated that the DOJ plans to issue updated
regulations and guidance addressing accessibility issues for
new and emerging technologies.
Mr. Richert and Mr. Goldstein testified that the ADA,
through Titles II and III, applies to the Internet and other
emerging technologies and requires that such technologies are
equally accessible to persons with disabilities. Mr. Richert
urged the DOJ to ``clarify that accessibility obligations under
the ADA also extend to high-tech equipment,'' and urged
Congress to pass H.R. 3101, the Twenty-first Century
Communications and Video Accessibility Act to ensure that
mobile and other Internet-equipped devices and video
technologies are accessible to people with disabilities. Mr.
Goldstein further testified that ``[i]n the field of
technology, the ADA has been instrumental in making some Web
sites, workplace software applications, ATMs, point of sale
machines, cell phones, and e-book reading devices accessible to
people with disabilities. However, as we stand here today, we
are not even halfway there . . . .'' Focusing on the technical
aspects of accessibility, Ms. Brewer and Mr. Jacobs testified
regarding available accessibility resources and guidelines. Ms.
Brewer, director of the Web Accessibility Initiative at the
World Wide Web Consortium who testified before the Subcommittee
on this issue ten years earlier, explained that ``in the
intervening years, we've shown that businesses can flourish
while producing accessible Web sites and services.''
Hearing on Protecting the American Dream Part II: Combating Predatory
Lending Under the Fair Housing Act (Serial No. 111-95)
Summary.--On April 29, 2010, the Subcommittee held a
hearing on ``Protecting the American Dream Part II: Combating
Predatory Lending Under the Fair Housing Act.'' The hearing
examined predatory and discriminatory lending practices, as
well as existing and proposed enforcement mechanisms. Assistant
Attorney General for the Civil Rights Division Thomas Perez
discussed the Department of Justice's new fair lending unit in
the Civil Rights Division's Housing and Civil Enforcement
Section. Memphis Mayor A.C. Wharton, Jr. discussed the impact
of predatory lending on the City of Memphis. Predatory lending
victim, Gillian Miller, discussed her experience. Consumer
attorney Gary Klein, and Center for Equal Opportunity President
Roger Clegg also testified.
Hearing on Electronic Communication Privacy Act Reform (Serial No. 111-
98)
Summary.--On May 5, 2010, the Subcommittee held a hearing
on Electronic Communications Privacy Act (ECPA)\153\ Reform.
ECPA is a series of statutes governing law enforcement access
to various types of wire and electronic communications, and to
transactional records associated with these communications. The
purpose of the hearing was to consider reforms to ECPA
potentially necessitated by advances in technology and the
resulting availability of remarkable new technology-based
services. Such technological advances include cloud computing,
social networking and location-based services. Four witnesses
testified at this hearing: Jim Dempsey, Vice President for
Public Policy, Center of Democracy and Technology; Albert
Gidari, partner at Perkins Coie LLP; and Annmarie Levins,
Associate General Counsel, Microsoft Corporation and; Orin
Kerr, Professor, George Washington University Law School.
---------------------------------------------------------------------------
\153\Pub. L. No. 99-508, 100 Stat. 1848 (codified in Title 18
U.S.C. including 2510-21, 2701-10, 3121-26).
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Originally enacted in 1986, ECPA was intended to
reestablish the balance of interests between privacy and law
enforcement, which Congress found had been upset--to the
detriment of privacy--by the development of wireless
communications and computer technologies, and by attendant
changes to the structure of the telecommunications industry. In
addition to the goal of balancing privacy interests with the
needs of law enforcement, recognizing that consumers may not
trust new technologies if privacy interests were not
appropriately protected, Congress also intended ECPA to advance
and encourage the development of new technologies and services
by strengthening consumer privacy.
The Subcommittee's hearing explored several areas where
ECPA may need updating because technology growth has ``outpaced
the law.'' Subcommittee members were educated about these new
technologies and how ECPA's application to them is creating
confusion for magistrate judges, private industry and law
enforcement. Witnesses representing the views of privacy
advocacy groups and private industry explained how, for
example, a single e-mail can be subject to different legal
standards in its lifecycle depending on how old it is, where it
is stored, and whether or not it has been opened. Equally
problematic for industry, privacy and law enforcement
stakeholders is ECPA's lack of clarity regarding historical and
prospective location information generated by cell phones and
other hand-held devices. Witnesses explained how magistrate
judges in the same district disagree on the legal standard for
government access to location information. This hearing was the
first in a series of three educational hearings held by the
Subcommittee to study key technology and legal issues
associated with ECPA reform.
Racial Profiling and the Use of Suspect Classifications in Law
Enforcement Policy (Serial No. 111-131)
Summary.--On June 17, 2010, the Subcommittee on the
Constitution, Civil Rights, and Civil Liberties held a hearing
on Racial Profiling and the Use of Suspect Classifications in
Law Enforcement Policy. In response to concerns about the issue
of racial profiling, the Department of Justice under the past
two presidents, along with members of Congress, have introduced
a series of executive orders and legislative proposals designed
to address the practice. This hearing was intended to provide
an opportunity for the Subcommittee to explore the impact of
racial profiling and of the use of suspect classifications in
law enforcement policy, with the aim of improving the current
administrative and legislative proposals. The hearing witnesses
included, Hilary O. Shelton, NAACP Washington Bureau; Chief
Christopher Burbank, Salt Lake City Police Department; Brian L.
Withrow, Ph.D., Associate Professor of Criminal Justice, Texas
State University; Professor Deborah Ramirez, Northeastern
University Law School; Amardeep Singh, Sikh Coalition; David
Harris, Professor of Law, Pittsburgh University School of Law;
Farhana Khera, President and Executive Director, Muslim
Advocates.
Related Legislation.--Representative John Conyers, Jr.
introduced H.R. 5748, the ``End Racial Profiling Act of 2010,''
(ERPA) on July 15, 2010, and the bill was referred to the
Committee on the Judiciary. ERPA was also introduced as H.R.
4611 and S. 2481 in the 110th Congress. ERPA prohibits the use
of racial profiling in law enforcement, and mandates policy
changes and the undertaking of studies, overseen by the
Attorney General, to ensure racial profiling does not take
place. The bill creates a civil cause of action as the remedy
for those who have experienced racial profiling. ERPA was also
introduced in the Senate during the 109th Congress as S. 2138.
The Border Security Search Accountability Act of 2009,
introduced as H.R. 1726, sets the guidelines for electronic
device searches at U.S. border crossings, and requires the
submission of reports that detail the presence or absence of
racial profiling in such searches. The Act was also introduced
in 2008 as H.R. 6869. The Surface Transportation Act of 2009,
H.R. 3617, passed the House with a provision for a grant to
prevent racial profiling on federal roads and interstate
highways. The ``No More Tulias: Drug Enforcement Evidentiary
Standards Improvement Act of 2009,'' H.R. 68, sought to
eliminate Byrne grants to state anti-drug task forces that
engaged in racial profiling. It was previously introduced in
2007 as H.R. 253, and in 2005 as H.R. 2620.
Hearing on ECPA Reform and the Revolution in Location-Based
Technologies and Services (Serial No. 111-109)
Summary.--On June 24, 2010, the Subcommittee held a hearing
on ECPA reform focusing specifically on location-based
technologies and services. This hearing was the second in a
series of educational hearings held by the Subcommittee to
study key technology and legal issues associated with ECPA
reform. Five witnesses testified at this hearing: Professor
Matt Blaze, Associate Professor of Computer and Information
Science, University of Pennsylvania, Philadelphia, PA; Mike
Amarosa, Senior Vice President for Public Affairs,
TruePosition; Hon. Stephen Wm. Smith, United States Magistrate
Judge, Southern District of Texas; Marc J. Zwillinger,
Zwillinger Genetski LLP; and Richard Littlehale, Assistant
Special Agent-in-Charge of the Tennessee Bureau of
Investigation, Technical Services Unit.
With the advent of ``smart phones'' and other sophisticated
hand-held devices, more and more data is generated and
available concerning the ``location'' of cell phones and their
users. The hearing began with Professor Blaze educating the
Subcommittee on location technologies--specifically how
different technologies interface with cell phones and locate
their positions with varying degrees of specificity and
precision in various types of environments, both indoors and
out. Professor Blaze explained how, even if a network only
records cell tower data (as opposed to GPS), the precision of
that data will vary widely for any given customer over the
course of a day and, for a typical user over time, some of that
data will likely have locational precision similar to that of
GPS. Indeed, in urban areas where providers are using microcell
technology, the level of precision for cell tower location data
can include individual floors and rooms within buildings.
Marc Zwillinger explained how the government currently
applies ECPA to obtain both historical and prospective
location-based data. For prospective cell tower data, the
government is currently seeking ``hybrid'' orders from
magistrate judges that combine pen register trap and traces
orders with 18 U.S.C. 2703(d) orders. Magistrate Judge Smith
testified how, because ECPA is unclear as to the standard
Congress intended for prospective cell site data, many
magistrate judges (including himself) are requiring search
warrants for all prospective cell cite data. Some magistrates
are also requiring search warrants for historical cell cite
data. Magistrate Judge Smith and other witnesses urged the
Subcommittee to reform ECPA by, among other things, creating
clear standards for law enforcement access to location-based
data.
Hearing on Americans with Disabilities Act at 20--Celebrating Our
Progress, Affirming Our Commitment (Serial No. 111-110)
Summary.--On July 22, 2010, the Subcommittee held a hearing
to commemorate the 20th anniversary of passage of the Americans
with Disabilities Act of 1990 and to provide an opportunity to
reflect on the progress that has been made by virtue of the ADA
and to explore ways to fulfill the full promise of the ADA.
Testimony was received from: the Honorable Steny Hoyer,
Representative in Congress from the State of Maryland; the
Honorable James R. Langevin, a Representative in Congress from
the State of Rhode Island; the Honorable Thomas E. Perez,
Assistant Attorney General, Civil Rights Division, United
States Department of Justice; the Honorable Richard Thornburgh,
former Governor of Pennsylvania, Attorney General of the United
States under Presidents Ronald Reagan and George H.W. Bush, and
Under Secretary General of the United Nations; Cheryl
Sensenbrenner, Immediate Past Board Chair, American Association
of People with Disabilities; Lt. Col. Gregory D. Gadson,
Director, U.S. Army Wounded Warrior Program; Jonathan M. Young,
Chairman, National Council on Disability; and Casandra Cox,
Member, Policy Committee, Coalition of Institutionalized Aged
and Disabled.
Hailed by many as the most significant and comprehensive
civil rights legislation since the Civil Rights Act of 1964,
the Americans with Disabilities Act was enacted with
overwhelming bipartisan support. In signing the ADA into law,
President Bush characterized the law as an ``emancipation
proclamation for people with disabilities'' and called for
``the shameful wall of exclusion [of people with disabilities
from mainstream American life to] finally come tumbling down.''
The basic framework and language of the ADA places an
affirmative obligation on employers, governmental entities, and
places of public accommodations to ensure that people with
disabilities have an equal chance to participate in mainstream
American life. Through its requirements of reasonable
accommodation and modification, the ADA requires that steps be
taken to remove barriers that prevent full participation by
people with disabilities, unless doing so causes undue burden
or hardship.
At the July 22, 2010 hearing, the witnesses noted the
tremendous progress made as a result of the ADA with, for
example, Representative Langevin testifying that the ADA
``codified the collective ideal that no one should suffer
discrimination because of a disability. It shattered barriers,
opening schools, sidewalks, public transportation, public
accommodations and workplaces to millions of individuals.''
While applauding progress made to date, the witnesses also
focused on challenges that remained. Several witnesses,
including Representatives Hoyer and Langevin, Mr. Thornburgh,
and Ms. Sensenbrenner testified regarding the continued
difficulties that people with disability face in finding and
keeping jobs and emphasized the need to focus on increasing
employment opportunities and greater accessibility in the areas
of transportation and emerging technology.
Assistant AG Perez testified about the continued,
unnecessary institutionalization of people with disabilities
and highlighted recent DOJ work to ensure that states meet
their obligation, under the Supreme Court's decision in
Olmstead v. L.C., to ensure that individuals are placed in the
most integrated and least restrictive environment possible. Ms.
Cox, a former resident of an adult home, testified that
``living in an adult home was one of the most dehumanizing
experiences that I have gone through in my life.'' Ms. Cox
testified about the lack of support provided to those seeking
to leave the adult home setting and how, having been fortunate
enough to be chosen to participate in a small statewide
initiative to move residents from adult homes, she is now
thriving in a supported housing community. Citing to DAI v.
Patterson, a recent court ruling requiring New York state to
move residents from adult homes to less restrictive settings,
Ms. Cox noted that the case represented ``a perfect application
of the ADA as it was meant to protect those who need it most.
[The ADA] certainly has given me back my life.''
Mr. Villalobos, who was paralyzed as the result of a car
accident in 1993 when he was just eight years old, testified
about how ADA-required accommodations were essential to his
continued participation in educational and other opportunities
and emphasized the importance ``for policy makers to be
proactive about inclusion of all people with disabilities.''
Protecting the American Dream Part III: Advancing and Improving the
Fair Housing Act on the 5-Year Anniversary of Hurricane Katrina
(Serial No. 111-145)
Summary.--The third fair housing hearing, entitled
Protecting the American Dream Part III: Advancing and Improving
the Fair Housing Act on the 5-Year Anniversary of hurricane
Katrina, occurred on July 29, 2010, and examined fair housing
issues in the context of Hurricane Katrina, both in the
immediate aftermath of the Hurricane and today. The hearing
witnesses were Greater New Orleans Fair Housing Action Center
Executive Director James Perry, Mississippi Center for Justice
Senior Attorney Reilly Morse, Tulane University Law School
Professor Stacy Seicshnaydre, and Mercatus Center Gulf Coast
Recovery Project Managing Director Daniel Rothschild.
Related Legislation.--Subcommittee Chair Jerrold Nadler
introduced two bills. H.R. 4820, the ``Fair and Inclusive
Housing Rights Act of 2010,'' on March 11, 2010, which would
amend the Fair Housing Act to prohibit discrimination on the
basis of sexual orientation and gender identity. On December 8,
2010, Subcommittee Chair Jerrold Nadler introduced H.R. 6500,
the ``Housing Opportunities Made Equal (HOME) Act,'' which
amends the Fair Housing Act to prohibit discrimination in the
sale or rental of housing, the financing of housing, and in
brokerage services on the basis of sexual orientation, gender
identity, source of income, and marital status; to make clear
that discriminatory actions prohibited under the Fair Housing
Act are unlawful during both pre- and post-acquisition of
housing; to make the failure to affirmatively further fair
housing a discriminatory housing practice, which allows such a
practice to be remedied through a private right of action; to
improve the definition of ``familial status'' so that it more
accurately reflects contemporary family arrangements; to
provide the Department of Justice with the same authority that
the Department of Housing and Urban Development has to compel
production of documents from an entity during an investigation,
prior to the commencement of formal litigation; to require that
reasonable accommodations be made for a person with a
disability seeking housing financing; and to deem that a design
and construction violation continues until it has been
remedied.
Hearing on ECPA Reform and the Revolution in Cloud Computing (Serial
No. 111-149)
Summary.--On September 23, 2010, the Subcommittee held a
hearing on ECPA reform focusing on cloud computing and how the
growth of cloud computing technologies and services may require
reforms to ECPA to ensure that, among other things, standards
governing law enforcement access to e-mail and other electronic
content are applied consistently under the law, regardless of
where such content is stored. This hearing was the third in a
series of educational hearings held by the Subcommittee to
study key technology and legal issues associated with ECPA
reform. Representatives from five major cloud computing
companies testified on the first panel of witnesses: Google
(Richard Salgado, Senior Counsel, Law Enforcement and
Information Security); Microsoft (Mike Hintze, Associate
General Counsel); Salesforce (David Schellhase, Executive Vice
President and General Counsel); Rackspace (Perry Robinson,
Associate General Counsel) and; Amazon (Paul Misener, Vice
President for Global Public Policy). Edward Felten, Professor
of Computer Science and Public Affairs and Director of the
Center for Information Technology Policy, Princeton University,
also testified on the first panel. Witnesses for the second
panel included: Kevin Werbach, Associate Professor of Legal
Studies and Business Ethics, The Wharton School, University of
Pennsylvania; Fred H. Cate, Professor of Law and Director of
Center for Applied Cybersecurity Research, Indiana University
Maurer School of Law; Marc J. Zwillinger, Zwillinger Genetski
LLP.; Thomas B. Hurbanek, Senior Investigator, Computer Crime
Unit, New York State Police and; Kurt F. Schmid, Executive
Director, Chicago High Intensity Drug Trafficking Area Program.
Cloud computing is a general term for an Internet-based
service that remotely ``hosts'' or stores data and allows the
user to access her data from multiple types of devices and
locations. Professor Edward W. Felten educated the Subcommittee
about the many types of services that are provided ``in the
cloud.'' Common examples he cited included e-mail, document
management, investment tracking, photo-sharing, project
management and hard-drive backup. Services provided via the
cloud often substitute for traditional packaged software.
Rather than buying a software product and installing it on a
computer, consumers can subscribe to a service that provides
similar functionality via the cloud. Businesses also benefit
from outsourcing their information management. A business can
put its back-office (i.e., payroll, sales, inventory, etc.) and
customer-facing computing infrastructures ``in the cloud'' by
contracting with a service provider to lease access to
resources in the provider's data center.
Witnesses observed that Congress, when enacting ECPA in
1986, may not have anticipated our current world where storage
of content on third-party cloud servers would be so cost
efficient that neither individuals nor businesses need ever
delete an e-mail or other electronic records or documents.
Professor Cate and Marc Zwillinger explained, however, that
Internet companies are struggling to apply the existing and
somewhat outdated categories of information protected by ECPA
to their products and services. Moreover, the resulting
application of ECPA to cloud based services creates disparities
in privacy protections for information stored ``in the cloud''
verses information stored on local servers or computers.
Whereas a ``probable cause'' search warrant is generally
required for law enforcement to access content stored on an
individual's computer or local network, content stored in the
cloud can be obtained through the use of an 18 U.S.C.
Sec. 2703(d) order (requiring less than a probable cause
showing) or a mere administrative or grand jury subpoena
(requiring no court approval). Because of disparate and lower
standards governing law enforcement access to content in the
cloud, industry witnesses from SalesForce and Rackspace
explained that their foreign customers often have concerns
about undue government access to information stored in the
cloud. For U.S. cloud computing companies to expand to the
fullest extent possible, potential customers of U.S. cloud
companies want assurances that the U.S. government will not get
access to their data without deliberate due process. Industry
witnesses from Salesforce and Rackspaces, as well as Google,
Microsoft and Amazon all urged the Subcommittee to reform ECPA
to provide a neutral, uniform standard for law enforcement
access to content, no matter where it is stored.
Professor Werbach supported this industry argument by
reminding the Subcommittee that government action to promote
trust in electronic commerce and legislation creating safe
harbors for digital intermediaries played an important role in
the growth of the Internet over the past fifteen years. He also
argued there can be little doubt that the Internet has been a
major boon to innovation, investment, freedom, and other
national goals. Professor Werbach therefore urged Congress to
consider how to ensure that outdated legislative and regulatory
regimes do not undermine those benefits in the coming years.
Hearing on Faith-Based Initiatives: Recommendations of the President's
Advisory Council on Faith-Based and Community Partnerships and
Other Current Issues (Serial No. 111-156)
Summary.--On November 18, 2010, the Subcommittee held a
hearing to examine the recommendations for improving and
strengthening social service partnerships between the
government and nongovernmental organizations that were issued
in March 2010 by President Obama's Advisory Council on Faith-
Based and Neighborhood Partnerships (Advisory Council), as well
as other legal or policy issues related to government
partnerships with faith-based organizations. Testimony was
received from: Melissa Rogers, Director, Center for Religion
and Public Affairs, Wake Forest University Divinity School;
Douglas Laycock, Armistead M. Dobie Professor of Law, Horace W.
Goldsmith Research Professor of Law, Professor of Religious
Studies, University of Virginia School of Law; and Barry W.
Lynn, Executive Director, Americans United for Separation of
Church and State.
The federal government often partners with nongovernmental
organizations to provide a broad array of social services. When
these nongovernmental partners are faith-based organizations,
care must be taken to ensure that constitutional commitments
guaranteeing equal protection of the laws and the free exercise
of religion and forbidding government establishment of religion
are met. Questions of whether and how government partnerships
comply with these requirements, along with the adequacy of
safeguards to monitor and ensure government compliance, have
been the subject of considerable debate and concern.
By executive order issued shortly after he took office,
President Obama established the Advisory Council to, among
other things, make recommendations for improving and
strengthening social service partnerships between the
government and non-governmental organizations. In its March
2010 report, the Advisory Council's Taskforce on Reform of the
Office of Faith-Based and Neighborhood Partnerships made
several recommendations regarding church-state issues,
including a recommendation for enhanced guidance on permissible
versus prohibited use of federal funds, improved monitoring of
constitutional and other legal requirements accompanying
federal funds, and greater safeguards for the religious liberty
rights of the beneficiaries of federally funded programs.
Consideration of the legal and policy issues related to
religion-based employment decisions--including whether and when
a faith-based organization can base employment decisions on
matters of religious faith in jobs paid for with taxpayer
dollars--was not within the Council's mandate, and there was no
recommendation on this issue. On November 17, 2010, the day
before the hearing, President Obama issued an executive order,
Fundamental Principles and Policymaking Criteria for
Partnerships with Faith-Based and Other Neighborhood
Organizations, that addressed many of the Advisory Council's
recommendations.
At the Subcommittee hearing on November 18, 2010, Professor
Rogers highlighted six elements of the executive order: (1)
requiring that beneficiaries have the right to an alternative
provider if they object to their providers religious character
and that beneficiaries are advised of this in writing; (2)
clarifying prohibitions on the use of direct government aid for
explicitly religious activities, ``meaning activities that
contain overt religious content, like prayer, worship, and
proselytizing,'' and requiring additional guidance on this and
the need for entities to separate privately-funded religious
services from programs subsidized by federal funds; (3)
requiring monitoring of government-funded programs to ensure
that church-state rules are being followed; (4) requiring
agencies to post guidance and lists of entities receiving funds
online; (5) requiring that awards of federal funds be made free
from political interference (or the appearance of such
interference), and based on merit and not on religious
affiliation or lack thereof; (6) creating an interagency
working group to create uniform regulations and guidance around
these and other issues. Professor Rogers also testified that
the executive order ``doesn't call for churches to form
separate corporations if they wish to receive direct government
aid, and that is a change that 13 council members, including
me, advocated as a way of insulating churches from government
oversight.''
With regard to religion-based employment decisions by
faith-based groups in government-funded jobs, an issue that was
not considered by the Advisory Council, Professor Rogers said
``[i]n my view, it is wrong to allow any religious group,
including my own, to place a religious test on a job that is
funded by government grant. Because current rules and policies
permit this in some instances, I believe this matter must be
addressed.'' Professor Rogers testified that the DOJ Office of
Legal Counsel opinion, interpreting the Religious Freedom
Restoration Act (RFRA) to exempt a faith-based organization
from complying with a Congressionally-mandated
nondiscrimination provision in a federal grant program, should
be reconsidered and withdrawn.
Testifying that President Obama's executive order embodied
several core ``charitable choice'' rules--that there should be
``no discrimination between religious and secular providers, no
surrender of religious identity for the religious providers, no
discrimination on the basis of religion against the recipients
of the services, no coercion to participate in religious
activities, the guarantee of an alternative secular provider to
any recipient who asks for one, audit of the government money
only as long as it was segregated from the religious provider's
money, no use of government funds to support the religious
activities''--Professor Laycock testified that the remaining
question in dispute is whether religious providers may take
religion into account when making employment decisions. Taking
the opposite view from Professor Rogers and Reverend Lynn,
Professor Laycock testified that requiring religious
organizations to ``surrender [their] right to hire people who
support [their] mission'' interfered with First Amendment
rights of assembly and free exercise.
Noting that 73% of Americans surveyed are opposed to
religious discrimination in federally funded jobs, Reverend
Lynn testified that religious organizations should follow the
same nondiscrimination requirements as others when receiving
federal funds. ``[T]he free exercise of religion is not
burdened when a group voluntarily accepts government funds
knowing that it contains constraints on certain religiously-
motivated conduct like hiring only your own followers. The
First Amendment to the United States Constitution is not an
excuse to refuse to play by American rules when you are playing
with Americans' dollars.''
Hearing on National Security and Civil Liberties (Serial No. 111-159)
Summary.--On Thursday, December 9, 2010, the Subcommittee
held a hearing to examine the relationship between national
security and civil liberties, and to assess the extent to which
executive branch national security actions have affected
freedom and civil liberties in the United States. Witnesses
included: Ambassador Thomas R. Pickering; Laura W. Murphy of
the American Civil Liberties Union; Jamil N. Jaffer of Kellogg,
Huber, Hansen, Todd, Evans & Figel, P.L.L.C.; Michael W. Lewis
of the Ohio Northern University Claude W. Pettit College of
Law; investigative reporter Jeremy Scahill; Mary Ellen
O'Connell of the University of Notre Dame Law School; and Bruce
E. Fein of the Litchfield Group. Testimony addressed the legal
and constitutional issues raised by executive branch policies
in the area of detention, interrogation, targeted killings, and
related matters.
SUBCOMMITTEE ON COURTS AND COMPETITION POLICY\1\
HENRY C. ``HANK'' JOHNSON, Jr.,
Georgia, Chairman
HOWARD COBLE, North Carolina JOHN CONYERS, Jr., Michigan
JASON CHAFFETZ, Utah RICK BOUCHER, Virginia
F. JAMES SENSENBRENNER, Jr., WisconsinHARLES A. GONZALEZ, Texas
BOB GOODLATTE, Virginia SHEILA JACKSON LEE, Texas
DARRELL E. ISSA, California MELVIN L. WATT, North Carolina
GREGG HARPER, Mississippi MIKE QUIGLEY, Illinois
DANIEL MAFFEI, New York
JARED POLIS, Colorado
--------------------
\1\Subcommittee chairmanship and assignments approved January 22, 2009.
Tabulation of subcommittee legislation and activity
Public:..........................................................
Legislation referred to the Subcommittee......................... 72
Legislation on which hearings were held.......................... 5
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..................... 2
Legislation pending before the full Committee.................... 0
Legislation reported to the House................................ 4
Legislation discharged from the Committee........................ 0
Legislation pending in the House................................. 4
Legislation passed by the House.................................. 4
Legislation pending in the Senate................................ 2
Legislation vetoed by the President (not overridden)............. 1
Legislation enacted into Public Law.............................. 0
Legislation enacted into Public Law as part of other legislation. 0
Days of legislative hearings..................................... 5
Days of oversight hearings....................................... 16
Jurisdiction of the Subcommittee
The Subcommittee on Courts and Competition Policy has
jurisdiction over: antitrust law, monopolies, and restraints of
trade, administration of U.S. Courts, Federal Rules of
Evidence, Civil and Appellate Procedure, judicial ethics, other
appropriate matters as referred by the Chairman, and relevant
oversight.
Legislative Activities
H.R. 233, the ``Railroad Antitrust Enforcement Act of 2009''
Summary.--Introduced by Representative Tammy Baldwin, H.R.
233, Amends the Clayton Act (the Act) to make federal antitrust
laws applicable to all common carriers subject to the Surface
Transportation Board (STB), regardless of whether the carrier
filed a rail carrier rate or whether a complaint challenging a
rate is filed. Subjects to antitrust review agreements among
rail carriers to pool or divide traffic, services, or earnings.
Authorizes the Federal Trade Commission (FTC) to enforce
certain provisions of the Act against STB-approved agreements
or combinations, including those related to rates.
Legislative History.--Introduced on January 7, 2009, H.R.
233 was referred to the Committee on the Judiciary, On February
9, 2009, H.R. 233 was referred to the Subcommittee on Courts
and Competition Policy. On May 19, 2009, the Subcommittee held
a legislative hearing. The following witnesses appeared and
submitted a written statement for the record: The Honorable
Rodney Alexander, Member of Congress, 5th district of Louisiana
, M. Howard Morse, Chair, Exemptions and Immunities Committee,
American Bar Association Sector of Antitrust Law, J. Michael
Hemmer, Vice Chairman, Policy and Advocacy Committee,
Association of American Railroads, Terry Huval, Director,
Lafayette Utilities System, and Dr. Mark Cooper, Director of
Research, Consumer Federation of America. On July 30, 2009, the
Subcommittee met in open session and ordered favorably reported
H.R. 233, amended by voice vote. On June 1, 2009, related bill
S. 146 Motion to proceed withdrawn by unanimous consent in
Senate. (S. Rept. 111-9)
H.R. 569, the ``Equal Justice for Our Military Act of 2010''
Summary.--Introduced by Representative Susan Davis, H.R.
569, amends titles 28 and 10, United States 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.--Introduced on January 15, 2009, H.R.
569 was referred to the House Committee on the Judiciary. On
May, 29, 2009, H.R. 569, was referred to the Subcommittee on
Courts and Competition. On June 11, 2009, the Subcommittee held
a legislative hearing H.R. 569, the Equal Justice for Our
Military Act of 2010 pursuant to notice. The following
witnesses appeared and submitted statements for the record: The
Honorable Susan Davis, Member of Congress, 53rd District, State
of California; Dwight H. Sullivan, Civilian Appellate Defense
Counsel, United States Air Force Appellate Defense Division,
Major General (Ret.) John D. Altenburg Jr., of Counsel,
Greenberg Traurig, LLP. On July 30, 2009, the Subcommittee held
a markup to consider H.R. 569 and reported the bill favorable
to Full Committee by voice vote. On January 27, 2010, the Full
Committee considered and ordered reported favorably (amended)
by voice vote. H. Rept. 111-547. (Senate version) S. 357. No
further action.
H.R. 628, To establishes a pilot program in certain United States
district courts to encourage enhancement of expertise in patent
cases among district court judges.
Summary.--Introduced by Representative Darrell E. Issa,
H.R. 628 establishes a pilot program in certain United States
district courts to encourage enhancement of expertise in patent
cases among district court judges.
Legislative History.--Introduced on January 22, 2009, H.R.
628 was referred to the House Committee on the Judiciary. On
March 17, 2009, Representative Henry ``Hank'' C. Johnson, Jr.
moved to suspend the rules on the floor and pass the bill under
suspension of the rules. The House proceeded with forty minutes
of debate on H.R. 628. At the conclusion of debate, the Chair
put the question on the motion to suspend the rules.
Representative Issa objected to the vote on the grounds that a
quorum was not present. Further proceedings on the motion were
postponed. The point of no quorum was withdrawn. On motion to
suspend the rules. The House passed H.R. 628 and agreed to the
bill by recorded vote (409-7). On March 18, 2009, H.R. 628 was
referred to the Senate Committee on the Judiciary. On December
13, 2010, H.R. 628 was passed by the Senate with amendment by
Unanimous Consent. On December 17, 2010, as amended by the
Senate, the House passed the bill, H.R. 628, by a vote of (371-
1).
H.R. 1626, the ``Statutory Time-Periods Technical Amendments Act of
2009''
Summary.--Introduced by Representative Henry ``Hank'' C.
Johnson, Jr., to make technical amendments to laws containing
time periods affecting judicial proceedings.
Legislative History.--Introduced on March 19, 2009, H.R.
1626, was referred to the Committee on the Judiciary, to the
Committee on Energy and Commerce, and in addition, to the
Subcommittee on Health 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. On April 22, 2009, Representative Anthony
Weiner moved to suspend the rules and pass the bill. H.R. 1626,
was agreed to by voice vote. On April 27, 2009, H.R. 1626,
passed the Senate without amendment by Unanimous Consent. On
May 7, 2009, H.R. 1626 became Public Law 111-16.
H.R. 3190, the ``Discount Pricing Consumer Protection Act of 2009''
Summary.--Introduced by Representative Henry C. ``Hank'' C.
Johnson, Jr., H.R. 3190, restores the rule that agreements
between manufacturers and retailers, distributors, or
wholesalers to set the price below which the manufacturer's
product or service cannot be sold violates the Sherman Act.
Legislative History.--Introduced on July 13, 2009, H.R.
3190, was referred to the Committee. On July 29, 2009, H.R.
3190, was referred to the Subcommittee on Courts and
Competition Policy. On July 30, 2009, the Subcommittee met in
open session and ordered the bill favorably reported by voice
vote. On January 13, 2010, the Committee considered and ordered
reported the bill by voice vote. No further action. S. 148, the
``Discount Pricing Consumer Protection Act'' (Senate Rept. 111-
227) introduced by Senator Kohl, January 6, 2009.
H.R. 3596, the ``Health Insurance Industry Antitrust Enforcement Act of
2009''
Summary.--Introduced by Representative John Conyers, Jr.,
H.R. 3596, ensures that health insurance issuers and medical
malpractice insurance issuers cannot engage in price fixing,
bid rigging, or market allocations to the detriment of
competition and consumers.
Legislative History.--Introduced on September 17, 2009,
H.R. 3596, was referred to the Committee on the Judiciary. On
October 2, 2009, H.R. 3596 was referred to the Subcommittee on
Courts and Competition Policy. On October 8, 2009, the
Subcommittee held a legislative hearing. The following
witnesses appeared and submitted written statements for the
record: James D. Hurley, Member, Medical Professional Liability
Subcommittee, American Academy of Actuaries, Dr. Peter J.
Mandell, Former President, California Orthopaedic Association,
and Ilene Knable Gotts, Chair, Section of Antitrust Law,
American Bar Association. On October 21, 2009, the Committee
met in open session, and ordered the bill reported amended by
roll call vote of 20-9. (H. Rept. 111-322) The bill was
incorporated into H.R. 3962, the Affordable Health Care for
America Act, which passed the House on November 7, 2009, by a
vote of 220-215. S. 1681
H.R. 3632, the ``Federal Judiciary Administrative Improvements Act of
2009''
Summary.--Introduced by Representative Henry ``Hank'' C.
Johnson, Jr., to provide improvements for the operations of the
Federal courts.
Legislative History.--Introduced on September 23, 2009,
H.R. 3632, was referred to the House Committee on the
Judiciary. On October 19, 2009, H.R. was referred to the
Subcommittee on Courts and Competition Policy. On October 28,
2009, Representative Steve Cohen, moved to suspend under the
rule and pass H.R. 3632 on the House floor. The House agreed
and passed H.R. 3632 by voice vote. The Senate companion bill,
S. 1782, the Federal Judiciary Administrative Improvement Act
of 2010, was introduced by Senator Sheldon Whitehouse on
October 14, 2009. On March 16, 2010, the Senate Committee on
the Judiciary discharged S. 1782 by Unanimous Consent. S. 1782
was amended by Senator Kaufman for Senator Whitehouse in the
nature of a substitute. On March 16, 2010 S. 1782 passed the
Senate with an amendment by Unanimous Consent. On May 18, 2010,
Representative Henry ``Hank'' C. Johnson, Jr., moved to suspend
the rules and pass S. 1782. The House proceeded with forty
minutes of debate on S. 1782. On motion to suspend the rules
and pass the bill, S. 1782 was agreed to by voice vote. On May
27, 2010, S. 1782 became Public Law No: 111-174.
H.R. 4113, the ``Federal Courts Jurisdiction and Venue Clarification
Act of 2010''
Summary.--Introduced by Representative Lamar Smith, H.R.
4113, amends Title 28, U.S.C. to clarify the jurisdiction of
the Federal Courts.
Legislative History.--Introduced on November 19, 2009, H.R.
4113 was referred to the House Committee on the Judiciary. On
January 4, 2010, H.R. 4113 was referred to the Subcommittee on
Courts and Competition Policy. On September 28, 2009,
Representative Bobby Scott, moved to suspend the rules on the
House floor and pass the bill as amended. The bill, H.R. 4113,
passed, as amended, by voice vote. No Senate action taken.
H.R. 4115, the ``Open Access to Courts Act of 2009''
Summary.--Introduced by Representative Jerrold Nadler, H.R.
4115, prohibits a U.S. district court from dismissing a
complaint unless it appears beyond doubt that the plaintiff can
prove no set of facts in support of the claim which would
entitle the plaintiff to relief or on the basis of a
determination by the judge that the factual contents of the
complaint do not show the plaintiff's claim to be plausible or
are insufficient to warrant a reasonable interference that the
defendant is liable for the misconduct alleged.
Legislative History.--Introduced on November 19, 2009, H.R.
4115 was referred to the House Committee on the Judiciary. On
December 11, 2009, H.R. 4115 was referred to the Subcommittee
on Courts and Competition Policy. On December 16, 2009, the
Subcommittee on Courts and Competition Policy held a
legislative hearing on H.R. 4115 pursuant to notice. The
following witnesses appeared and submitted statements for the
record: The Honorable Jerrold Nadler, Member of Congress, 8th
district of New York, Eric Schnapper, Professor of Law,
University of Washington, School of Law, Gregory G. Katsas,
Former Assistant General, Civil Division, U.S. Department of
Justice, Jonathan L. Rubin, Patton Boggs, Joshua P. Davis,
Professor, Center for Law and Ethics, University of San
Francisco, School of Law. No further action.
H.R. 5034, the ``Comprehensive Alcohol Regulatory Effectiveness Act of
2010''
Summary.--Introduced by Representative Bill Delahunt, to
support state based alcohol regulation, to clarify evidentiary
rules for alcohol matters, and to ensure the collection of all
alcohol taxes.
Legislative History.--Introduced on April 15, 2010, H.R.
5034 was referred to the House Committee on the Judiciary. On
June 15, 2010, H.R. 5034 was referred to the Subcommittee on
Courts and Competition Policy. On September 22, 2010, the
Subcommittee on Courts and Competition discharged. On September
29, 2010, the Full Committee held a legislative hearing on H.R.
5034. The following witnesses appeared and submitted statement
for the record: Panel I, Representative Mike Thompson, 1st
district of California, Representative Peter DeFazio, 4th
district of Oregon, Representative Bruce Braley, 1st district
of Iowa, Representative Edolphus Towns, 10th district of New
York, Representative George Radanovich, 19th district of
California, and Representative Gary Miler, 42nd district of
California. Panel II, the Honorable Mark L. Shurtleff, Attorney
General for the State of Utah, Richard Doyle, Chairman and CEO,
Harpoon Brewery, Nida Samona, Chairperson, Michigan Liquor
Control Commission, Stephen M. Diamond, Professor of Law,
University of Miami, Einer Richard Elhauge, Petrie Professor of
Law, Harvard Law School, Tracy K. Genesen, Partner, Kirkland `
Ellis, LLP, and Michele Simon, Research and Policy Director,
Marin Institute.
H.R. 5281, The ``Removal Clarification Act of 2010''
Summary.--Introduced by Representative Henry C. ``Hank'' C.
Johnson, Jr. amends title 28, United States code, with respect
to removal to U.S. district court from a state court of: (1)
any civil action against the United States or a federal agency
or officer, or specified others; or (2) a criminal prosecution
commenced in a state court against any of them.
Legislative History.--Introduced on May 12, 2010, H.R. 5281
was referred to the Committee on the Judiciary. On May 21,
2010, H.R. 5281 was referred to the Subcommittee on Courts and
Competition Policy. On May 25, 2010, the Subcommittee held a
legislative hearing pursuant to notice. The following witnesses
appeared and submitted statements for the record: Beth S.
Brinkmann, Deputy Assistant Attorney General, Civil Division,
U.S. Department of Justice, Irvin B. Nathan, General Counsel,
Office of the General Counsel, U.S. House of Representatives,
Lonny Hoffman, George Butler Research Professor of Law,
University of Houston Law Center, and Arthur D. Hellman,
Professor of Law, University of Pittsburgh School of Law. The
Subcommittee on Courts and Competition Policy discharged. On
July 27, 2010, the House considered H.R. 5281 under suspension
of the rules and passed the bill, as amended by voice vote. On
December 3, 2010, the Senate passed H.R. 5281 with an amendment
and sent the bill back to the House. On December 8, 2010, the
House passed H.R. 5281, as amended by the Senate with the DREAM
Act as a House amendment.
Oversight Hearings
Pursuant to its obligations under Rule X of the House
Rules, the Committee submitted the following subject matters as
part of its oversight plan for the 111th Congress.
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 111th Congress, the Subcommittee also examined the
state of judicial recusals after Caperton v. A.T. Massey. On
December 10, 2009, the Subcommittee held an oversight hearing
on judicial recusals. The witnesses were: Judge M. Margaret
McKeown, United States Courts of Appeals, Ninth Circuit
District; Charles G. Geyh, Associate Dean of Research, John F.
Kimberling Professor of Law, Indiana University, Maurer School
of Law; Richard E. Flamm, Author of Judicial Disqualification:
Recusal and Disqualification of Judges; Conflicts of Interest
and Law Firm Disqualification; Eugene Volokh, Gary T. Schwartz,
Professor of Law, University of California, Norman L. Reimer,
Executive Director, National Association of Criminal Defense
Lawyers; and Arthur D. Hellman, Professor of Law, University of
Pittsburgh, Sally Ann Semenko Endowed Chair. In response to
this hearing, Chairman Johnson commissioned a study by the
Congressional Research Service to evaluate judicial recusal law
in each state.
The Subcommittee also considered a Government
Accountability Office (``GAO'') report on federal courthouse
construction and its effects on courts and access to justice.
On September 29th, the Subcommittee held a hearing to examine
the implications of the report and the need for courthouses to
be adequately funded. The witnesses were: The Honorable Jim
Cooper, Member of Congress, 5th District of Tennessee; Mark L.
Goldstein, Director, Physical Infrastructure, U.S. Government
Accountability Office; The Honorable Michael A. Ponsor, U.S.
District Judge, District of Massachusetts and Chairman of the
Judicial Conference's Committee on Space and Facilities; Robert
A. Peck, Commissioner of Public Buildings, U.S. General
Services Administration; The Honorable Robert J. Conrad, Jr.,
Chief U.S. District Judge, Western District of North Carolina;
and Judith Resnik, Arthur Liman Professor of Law, Yale Law
School.
The Subcommittee also considered a number of legislative
items to ensure the proper functioning of the courts. These
included annual evaluation of the Rules Package, passage of
time computation legislation to harmonize the federal rules
with amendments to the federal time-computation rules intended
to provide predictability and uniformity to the current process
of calculating court deadline, and passage of the ``Judicial
Survivors Protection Act of 2009'' to authorize a six-month
open enrollment period for a federal judicial official to opt
into the Judicial Survivors' Annuities System.
The Subcommittee held a hearing on the ``Open Access to
Courts Act of 2009'' which establishes a pleading standard
following the Supreme Court's decision in Ashcroft v. Iqbal.
The Subcommittee also held a hearing on and marked up the
``Removal Clarification Act of 2010'' which will allow federal
officers to properly remove to federal court when they are sued
for actions undertaken in their official capacity.
Antitrust Law
The Subcommittee on Courts and Competition has jurisdiction
over competition policy and all laws relevant to antitrust. In
addition, the Subcommittee has jurisdiction over the federal
agencies empowered to enforce those laws, the Antitrust
Division of the U.S. Department of Justice as well and the
Bureau of Competition of the Federal Trade Commission.
Chairman Johnson initiated a series of hearings entitled,
``An Antitrust System for the 21st Century.'' The purpose of
this series of hearings was to examine the findings and
recommendations made by the Congressionally-mandated,
bipartisan Antitrust Modernization Commission, in 2007. The
Commission had been tasked by Congress with evaluating the
nation's antitrust laws and offering recommendations for
updating them.
As part of this series, the Subcommittee held hearings
examining whether there were entities in the banking industry
that were''too big to fail,'' and if so, if their existence
marked a failure of antitrust enforcement; the continuing need
for the McCarran-Ferguson antitrust exemption for insurance
companies; the impact of the Credit Suisse and Trinko decisions
on antitrust enforcement in regulated industries.''
The Subcommittee held hearings regarding consolidation in a
number of industries, in the wake of prominent mergers in those
industries. Some of the industries reviewed by the Committee
included ticketing and concert promotion; online search;
combined television and broadband providers; and newspaper.
With respect to legislation, the Subcommittee held hearings
examining the antitrust implications of major financial and
health care reform legislation as it was debated by both
Houses. Voted out of subcommittee were separate pieces of
legislation that would have removed the antitrust exemption for
health insurance companies; would have removed the antitrust
exemption for railroad companies; and would have overturned a
2004 Supreme Court decision, the net result of which would have
been that threshold price agreements between manufacturers and
retailers would once more be illegal. Passed into law was a 10-
year reauthorization of the Antitrust Criminal Penalty
Enhancement and Reform Act, a statute designed to help uncover
global price-fixing cartels.
In addition, the Subcommittee exercised oversight over
disproportionate enforcement of the antitrust laws against
physicians; the implications of the Supreme Court's decision in
American Needle v. NFL; and the enforcement records of the
federal antitrust agencies.
List of Oversight Hearings
Competition in the Ticketing and Promotion Industry,
February 26, 2009 (Serial No. 111-62)
```Too Big To Fail?': The Role of Antitrust Law in
Government-Funded Consolidation in the Banking Industry, March
17, 2009 (Serial No. 111-33)
A New Age for Newspapers: Diversity of Voices, Competition
and the Internet, April 21, 2009 (Serial No. 111-38)
`Bye Bye Bargains?' ``Retail Price Fixing, the Leegin
Decision, and Its Impact on Consumer Prices'', April 28, 2009
(Serial No. 111-37)
Pay to Delay: Are Patent Settlements That Delay Generic
Drug Market Entry Anticompetitive?, June 3, 2009 (Serial No.
111-105)
Biologics and Biosimilars: Balancing Incentives for
Innovation, June 14, 2009 (Serial No. 111-73)
Expansion of Top Level Domains and its Effects on
Competition, September 23, 2009 (Serial No. 111-70)
Too Big to Fail: The Role for Bankruptcy and Antitrust Law
in Financial Regulation Reform, Part II, November 17, 2009
(Serial No. 111-106)
Examining the State of Judicial Recusals after Caperton v.
A.T. Massey, December 10, 2009 (Serial No. 111-118)
The Antitrust Implications of American Needle v. NFL,
January 20, 2010 (Serial No. 111-126)
Legal Issues Concerning State Alcohol Regulation, March 18,
2010 (Serial No. 111-125)
Design Patents and Auto Replacement, March 22, 2010 (Serial
No. 111-112)
The United States Patent and Trademark Office, May 5, 2010
(Serial No. 111-)
Is There Life After Trinko and Credit Suisse?: The Role of
Antitrust in Regulated Industries'', June 15, 2010 (Serial No.
111-119)
Impact of China's Antitrust Law and other Competition
Policies on U.S. Companies, July 13, 2010 (Serial No. 111-117)
The Federal Trade Commission's Bureau of Competition and
the Department of Justice's Antitrust Division, July 27, 2010
(Serial No. 111-133)
Competition in the Evolving Digital Marketplace, September
16, 2010 (Serial No. 111-)
Courtroom Use: Access to Justice, Judicial Administration,
and Courtroom Security, September 29, 2010 (Serial No. 111-153)
Antitrust Laws and Their Effects on Healthcare Providers,
Insurers and Patients, December 1, 2010 (Serial No. 111-)
Hearing on ``Competition in the Ticketing and Promotion Industry''
(Serial No. 111-62)
The hearing was held to examine the state of competition in
the ticketing and promotion industry and to determine the
effects of a merger between Live Nation and Ticketmaster on the
industry. The hearing explored the procompetitive benefits and
the anticompetitive effects of the proposed merger, including
the effects upon competition as well as any efficiencies to be
gained. Ticketmaster is a ticketing and marketing company that
provides ticket sales, ticket resale services and ticket
marketing and distribution services in domestic and global
markets. Ticketmaster acts as the sales agent of more than 80%
of the major arenas and stadiums in the United States, in what
is referred to in the industry as the ``primary,'' or initial
direct sale, ticket market. The company also participates in
artist management through its acquisition of a majority share
of Front Line Management. Front Line is one of the world's
leading artist management companies with nearly 200 clients and
more than 80 executive managers. It manages a wide range of
talent including Aerosmith, Christina Aguilera, Jimmy Buffett,
the Eagles, Chicago and Guns N' Roses. Ticketmaster acquired
its majority share in Frontline in 2008 shortly before the
expiration of its contract with Live Nation.
The size of the deal and the merging companies
automatically triggers review by one of the federal antitrust
agencies under the Hart-Scott-Rodino amendments to the Clayton
Act. The overarching goal of antitrust law enforcement is to
promote competition. The reviewing agency identified the
product markets in which the companies competed, and considered
a number of factors, provided in detail below, in determining
whether the procompetitive benefits of the merger outweighed
its anticompetitive effects.
The following witnesses appeared and submitted a written
statement for the record: The Honorable Bill Pascrell, Jr.,
Member of Congress, 8th District of New Jersey, Michael Rapino,
President & Chief Executive Officer, Live Nation Worldwide,
Incorporated, Irving Azoff, Chief Executive Officer,
Ticketmaster Entertainment, Incorporated, Robert W. Doyle, Jr.,
Partner, Doyle, Barlow & Mazard, PLLC, Peter A. Luukko,
President & Chief Operating Officer, Comcast-Spectacor, Luke
Froeb, William C. and Margaret W. Oehmig Associate Professor of
Management, Owen Graduate School of Management, Vanderbilt
University, Ed Mierzwinski, Consumer Program Director, U.S.
PIRG, the Federation of Public Interest Research Groups,
Adam B. Jaffe, Professor of Economics and Dean of Arts and
Sciences, Brandeis University, Suzanne Michel, Chief
Intellectual Property Counsel and Deputy Assistant Director for
Policy Coordination, Federal Trade Commission, Mark Myers, Co-
Chair of the National Academy of Sciences Report Patent System
for 21st Century, and Daniel B. Ravicher, Executive Director,
Public Patent Foundation.
Hearing on `Too Big To Fail?': The Role of Antitrust Law in Government-
Funded Consolidation in the Banking Industry (Serial No. 111-
33)
The hearing examined whether the nation's recent economic
downturn was worsened by the policies regarding the antitrust
laws and the lessons that we should learn to prevent or limit
systemic risk of ``too big to fail'' institutions. We explored
the cause, antitrust enforcement to date, perceived problems,
and possible remedies. The federal government investment of
hundreds of billions of dollars into financial institutions.
Some of these investments have been made directly into
financial institutions that were colloquially termed ``too big
to fail.'' Others were distributed to financial institutions
through the Troubled Asset Relief Program (``TARP''). Although
the stated goal of the TARP funding was to increase liquidity
in the credit markets and stimulate lending, some of the funds
were used by recipient banks to acquire competing banks that,
in some cases, were denied TARP funding. These events raised
two interrelated issues. First, are there institutions that are
``too big to fail,'' and should antitrust law have prevented
them from becoming embedded in the economy to such an extent
that government intervention was required to prevent a failure?
More than 5400 bank mergers occurred between 1990 and 2005.
Those mergers included 74 ``mega-mergers'' where the buyer and
seller each had more than $10 billion in assets.
The following witnesses appeared and submitted a written
statement for the record: Albert A. Foer, President, American
Antitrust Institute, (AAI), C.R. ``Rusty'' Cloutier, President
& Chief Executive Officer, MidSouth Bank, N.A., William Askew,
Senior Policy Advisor, Financial Services Roundtable, Deborah
A. Garza, Former Assistant Attorney General, Division of
Antitrust, U.S. Department of Justice, Mark N. Cooper, Director
of Research, Consumer Federation of America, Adam B. Jaffe,
Professor of Economics and Dean of Arts and Sciences, Brandeis
University, Suzanne Michel, Chief Intellectual Property Counsel
and Deputy Assistant Director for Policy Coordination, Federal
Trade Commission, Mark Myers, Co-Chair of the National Academy
of Sciences Report Patent System for 21st Century, and Daniel
B. Ravicher, Executive Director, Public Patent Foundation.
Hearing on ``A New Age for Newspapers: Diversity of Voices, Competition
and the Internet'' (Serial No. 111-38)
The hearing addressed changes in the industry and
continually decreasing revenues, newspapers have taken a number
of steps to stay in business including consolidation, reduction
in workforce, cutting back on quantity and quality of content,
cutting back on frequency of content, and filing for bankruptcy
protection. Others have been forced to close their doors
forever. The hard times that print journalism is facing is
illustrated by a list compiled by Time Magazine that ranks the
country's ten most endangered papers from our nation's major
cities; Specifically, the list included publications from
Boston, Chicago, Detroit, Fort Worth, New York, Miami,
Minneapolis, Philadelphia and San Francisco.
The following witnesses appeared and submitted a written
statement for the record: Carl Shapiro, Deputy Assistant
Attorney General for Economics, Antitrust Division, U.S.
Department of Justice, Brian Tierney, Chief Executive Officer,
Philadelphia Media Holdings, John Nichols, American Journalist,
Bernie Lunzer, President, The Newspaper Guild, Ben Scott,
Policy Director, Free Press, C. Edwin Baker, Nicholas F.
Gallicchio Professor, University of Pennsylvania, and Dan
Gainor, Vice President, Business and Media Institute, Media
Research Center.
Hearing on `Bye Bye Bargains?' ``Retail Price Fixing, the Leegin
Decision, and Its Impact on Consumer Prices'' (Serial No. 111-
37)
The purpose of this hearing was to examine the effect of
the Supreme Court's July 2007 decision in Leegin Creative
Leather Products, Inc. v. PSKS, Inc. on the competitiveness of
retail prices. Leegin overturned the bright-line per se
prohibition against minimum retail price agreements between
manufacturers and retailers and instead now subjects all such
agreements to a more evidence-intensive ``rule of reason''
analysis. The impact of this shift may be to eliminate sales
and discounts in retail pricing. As a result, the decision has
had the effect, in some instances, of eliminating competition
among retailers selling the same manufacturer's product so-
called ``intrabrand competition.'' Should more manufacturers
begin to fix a minimum price for their products, intrabrand
competition could be drastically reduced, limiting the ability
of retailers to vigorously undercut each other, the ability of
consumers to price-shop, and the ability of retailers to move
merchandise through sales, close-outs, and bargain bins. In his
dissent in Leegin, Justice Breyer estimated that even if only
10 percent of manufacturers engaged in minimum retail price
fixing, the annual retail bills for the average family of four
would increase by between $750 and $1,000.
The following witnesses appeared and submitted a written
statement for the record: Pamela Jones Harbour, Commissioner,
Federal Trade Commission, Thomas G. Hungar, Partner, Gibson,
Dunn ` Crutcher, LLP, Tod Cohen, Vice President, Deputy General
Counsel for Government Relations eBay Incorporated, and Richard
Brunell, Director of Legal Advocacy, American Antitrust
Institute.
Hearing on Pay to Delay: Are Patent Settlements That Delay Generic Drug
Market Entry Anticompetitive? (Serial No. 111-105)
The hearing provided an opportunity to hear testimony
related to whether or not settlements of patent infringement/
invalidation lawsuits between pharmaceutical companies that
sell ``brand'' drugs and generic drug manufacturers that are
attempting to enter the market with a less expensive generic
equivalent drug are anticompetitive and do harm to consumers,
or are an efficient way to avoid litigation expenses and
ultimately benefit consumers.
The following witnesses appeared and submitted a written
statement for the record: Richard Feinstein, Director of the
Bureau of Competition, Federal Trade Commission, Heather
Bresch, Executive Vice President, Chief Operating Officer,
Mylan Incorporated, William P. Kennedy, Chief Executive
Officer, Orlando, Nephron Pharmaceuticals Corporation, Guy
Donatiello, Vice President, Intellectual Property, Endo
Pharmaceuticals, and William Vaughan, Senior Health Policy
Analyst, Consumer Union, and Bret M. Dickey, Senior Vice
President, Compass Lexecon.
Hearing on ``Biologics and Biosimilars: Balancing Incentives for
Innovation'' (Serial No. 111-73)
The hearing examined proposals to establish an expedited
regulatory pathway for generic versions of biological
pharmaceutical products similar to the pathway for generic
drugs established in the Hatch-Waxman Act, how such a pathway
can benefit consumers, and what intellectual property
protections are necessary to ensure such a pathway does not
harm research and development investment in the biotechnology
industry.
The following witnesses gave testimony and submitted a
written statement for the record: Panel I, The Honorable Anna
G. Eshoo, Member of Congress, 14th Congressional District,
State of California. Panel II, Bruce A. Leicher, Senior Vice
President and General Counsel, Momenta Pharmaceuticals,
Incorporated; Jeffrey P. Kushan, on behalf of the Biotechnology
Industry Organization; Alex M. Brill, Research Fellow, American
Enterprise Institute; Jack W. Lasersohn, General Partner,
Verticle Group, on behalf of National Venture Capital
Association; Larry McNeely, Healthcare Reform Advocate, United
States Public Interest Research Groups; and Teresa Stanek Rea,
President, American Intellectual Property Law Association.
Hearing on ``Expansion of Top Level Domains and its Effects on
Competition'' (Serial No. 110-70)
This hearing focused on the impact that the proposed
expansion of generic Top Level Domain Names could have on
consumer use and confidence in the Internet, whether companies
will be forced to make huge investments in new domain names in
order to prevent trademark infringing abuse by cybersquatters,
and what will be the nature of the relationship between the
United States government and the Internet Corporation for
Assigned Names and Numbers (ICANN) following expiration of the
current agreement between the U.S. and ICANN.
The following witnesses gave testimony and submitted a
written statement for the record: Doug Brent, Chief Operating
Officer, Internet Corporation for Assigned Names and Numbers
(ICANN); Richard Heath, President, International Trademark
Association; Paul Stahura, Chief Executive Officer, President,
eNOM; and Steve DelBianco, Executive Director, NetChoice.
Hearing on ``Too Big to Fail: The Role for Bankruptcy and Antitrust Law
in Financial Regulation Reform, Part II'' (Serial No. 111-106)
The purpose of the hearing was to provide an opportunity
for Members to examine those portions of President Obama
Administration's financial regulatory reform package that were
within the Judiciary Committee's jurisdiction, with a
particular focus on the antitrust, courts, and bankruptcy
implications of the Administration's proposal for enhanced
resolution authority. The Administration had argued that a lack
of proper regulation of large non-bank financial institutions
that were highly interconnected with other actors in the
Nation's financial system (i.e., those institutions that were
said to be ``too big to fail''), coupled with an inability of
the Bankruptcy Code to handle properly the insolvency of such
institutions, contributed to the recent financial crisis and
will continue to constrain the government's capacity to address
future crises. Accordingly, the hearing focused on the
Administration's proposals for an appropriate regulatory regime
for large interconnected non-bank financial institutions as
well as resolution authority to handle any future insolvencies
of such institutions. The hearing allowed Members to consider
whether the exemptions from antitrust oversight sought by the
government under resolution authority would have a harmful
effect on consumers by failing to properly safeguard
competition in the market and inadvertently creating a new
generation of ``too big to fail'' institutions. Members also
had the opportunity to examine certain courts and bankruptcy
concerns that the resolution authority proposal raises.
The following witnesses submitted a written statement for
the record: Christopher L. Sagers, Associate Professor of Law,
Cleveland-Marshall College of Law, Edwin E. Smith, Bingham
McCutchen, LLP, on behalf of the National Bankruptcy
Conference, Michael A. Rosenthal, Gibson, Dunn & Crutcher, LLP,
and Charles Calomiris, Henry Kaufman Professor of Financial
Institutions, Columbia Business School.
Hearing on ``Examining the State of Judicial Recusals after Caperton v.
A.T. Massey'' (Serial No. 111-118)
This hearing explored: (1) the current state of judicial
recusals in the federal and state court systems in light of
Caperton; (2) whether reform to judicial recusal laws is ripe
for review; and (3) the pros and cons of potential substantive
and procedural reform to judicial recusal laws. An impartial
judicial system is essential to effective law and order and
overall public confidence in the judiciary. To ensure
confidence, current federal laws impart an objective standard
requiring judges to recuse themselves from a case where there
exists an appearance of bias, or more severely, where actual
bias exists. Judicial recusal laws are imperative to ensuring
the public's Constitutional right to due process of law by
demanding that judges remain neutral arbiters, free from
influence or self-dealing. The question presented in light of
recent case law, was whether the current federal judicial
recusal laws do enough to ensure an impartial judiciary in
which the public can place their trust. In June 2009, the
United States Supreme Court decided Caperton v. A.T. Massey, a
case which set a ceiling on campaign contributions for elected
state judges. Caperton is the most recent case in a string of
judicial recusal cases that bring the judicial recusal issue to
the forefront and attention of media, academics and the public.
Other recent cases include Cheney v. U.S. District Court for
the District of Columbia and U.S. v. Siegelman. Responding to
these decisions, there are those who suggest changing
substantive and procedural aspects of federal judicial recusal
laws so as to promote greater transparency to the public and
within the judicial branch. Suggested substantive changes seek
to resolve circuit splits on issues of timeliness and the
definition of ``reasonable observer.'' Suggested procedural
changes include: a system to prevent judges from deciding their
own disqualification motions; mandatory disclosure rules
revealing reasons for both recusal and denied disqualification
motions; procedures for factual investigation into judicial
conflicts; and a prescribed judicial replacement system for
judges who do recuse. Proponents of such changes are primarily
concerned with judicial recusals at the federal appellate and
U.S. Supreme Court levels, as appealing disqualification
motions is very difficult, if not nearly impossible at this
stage.
The following witnesses submitted a written statement for
the record: Judge M. Margaret McKeown, United States Courts of
Appeals, Ninth Circuit District, Charles G. Geyh, Associate
Dean of Research, John F. Kimberling Professor of Law, Indiana
University, Maurer School of Law, Richard E. Flamm, Author of
Judicial Disqualification: Recusal and Disqualification of
Judges; Conflicts of Interest and Law Firm Disqualification,
Eugene Volokh, Gary T. Schwartz, Professor of Law, University
of California, Norman L. Reimer, Executive Director, National
Association of Criminal Defense Lawyers and Arthur D. Hellman,
Professor of Law, University of Pittsburgh, Sally Ann Semenko
Endowed, Chair.
Hearing on ``The Antitrust Implications of American Needle v. NFL''
(Serial No. 111-126)
The purpose of this hearing was to examine the competitive
implications of the National Football League's (NFL) position
in the case of American Needle v. National Football League that
was heard by the U.S. Supreme Court on January 13, 2010. In
American Needle, the National Football League sought a
declaration of its single-entity status by the Supreme Court.
Single entities, under Copperweld et seq., are afforded special
protections under antitrust law. Single entities are deemed
incapable of forming illegal conspiracies with their wholly-
owned subsidiaries or their own employees, because the entities
act with a unity of interest. As such, wholly-owned
subsidiaries and employees are not treated as separate
``persons.'' As a result, single entities are effectively
immunized from suit by the antitrust enforcement agencies and
private plaintiffs with respect to charges of illegal contracts
and conspiracies under antitrust law.
The case generated considerable speculation as to the
implications of a pro-NFL decision. Supporters of the NFL's
position argued that a pro-NFL decision in American Needle
would be limited in effect, simply securing the NFL's ability
to conduct the business of the league, staving off frivolous
litigation, and providing clarity regarding the legal status of
the NFL to courts of appeal that are unsettled on the issue.
Detractors of the NFL's position cautioned that a pro-NFL
decision could have a calamitous impact upon the personnel and
fans of the NFL, allowing the league to eliminate the free
agency system and impose a salary structure upon players, or
transfer franchises to other locations more easily, among other
actions.
The following witnesses submitted a written statement for
the record: Gary Gertzog, Senior Vice President, National
Football League, Kevin Mawae, President, National Football
League Players Association, William L. Daly, III, Deputy
Commissioner, National Hockey League, and Stephen F. Ross,
Lewis H. Vovakis Distinguished Faculty Scholar, Professor of
Law and Director of Sports Law, Policy and Research,
Pennsylvania State University.
Hearing on ``Legal Issues Concerning State Alcohol Regulation'' (Serial
No. 111-125)
The purpose of the hearing was to examine whether the
intent of Congress with the passage of select laws relating to
state alcohol regulation and the Twenty-First Amendment has
been thwarted by recent legal developments, and whether
competition laws should apply to the alcoholic beverage
industry or whether the nature of the product makes that
industry a special case that should be afforded protection from
the antitrust laws. In response to a 2005 Supreme Court
decision, Granholm v. Heald, some state regulations of alcohol
have been struck down or challenged as violating the
Constitution's Commerce Clause. Proponents of these challenges
claim that these regulations discriminate against out-of-state
producers of alcohol in order to protect in-state businesses,
resulting in fewer choices and higher prices for consumers.
Opponents claim that the regulations are protected by the
Twenty-First Amendment, which gives states wide latitude to
enact legislation regulating the importation and sale of
alcoholic beverages. They also argue that these regulations are
necessary to promote temperance, drinking age laws, and proper
tax collection. Since Granholm, there have been at least twenty
lawsuits challenging state regulations on these grounds. State
regulation of alcohol has also been subject to challenges under
the federal antitrust laws. State actions which violate Section
1 of the Sherman Act and do not qualify for immunity under
``state action'' doctrine are struck down under the Supremacy
Clause. As with the Commerce Clause, critics argue that the
Twenty-First Amendment should protect all state regulation of
alcohol from antitrust challenge. Proponents point to recent
court decisions which have held that the Sherman Act applies to
state regulation of alcohol.
The following witnesses appeared and submitted a written
statement for the record: Panel I, the Honorable Bobby L. Rush,
Member of Congress, 1st Congressional District, State of
Illinois, the Honorable Mike Thompson, Member of Congress, 1st
District, State of California, Representative Steve Cohen,
Member of Congress, 9th District, State of Tennessee, and
Representative George Radanovich, Member of Congress, 19th
District, State of California. Panel II, James C. Ho, Solicitor
General of Texas, Office of the Solicitor General, Ms. Nida
Samona, Chairperson, Michigan Liquor Control Commission, Mr.
Stephen Hindy, Chairman and President, Brooklyn Brewery, Ms.
Pamela S. Erickson, Chief Executive Officer, Public Action
Management, and Professor Darren Bush, Associate Professor of
Law, University of Houston Law Center.
Hearing on ``Domestic and International Trademark Implications of
HAVANA CLUB and Section 211 of the Omnibus Appropriations Act
of 1999'' (Serial No. 111-69)
This hearing examined Section 211 of the Omnibus
Appropriations Act of 1999, which prevents recognition of
ownership rights in trademarks nationalized and confiscated by
the Cuban government, the World Trade Organization (WTO)
decision that found the law to be in violation of WTO Agreement
on Trade Related Aspects of Intellectual Property, and
proposals to bring the U.S. into compliance with its treaty
obligations.
The following witnesses gave testimony and submitted
written statements for the record: Mark Z. Orr, Vice President
of North American Affairs, Pernod Ricard USA, Inc.; Bruce A.
Lehman, Former Assistant Secretary of Commerce and Expert
Counsel for Bacardi, USA; Mark T. Esper, Ph.D., Executive Vice
President, Global Intellectual Property Center, U.S. Chamber of
Commerce; William A. Reinsch, President, National Foreign Trade
Council; and John K. Veroneau, Partner, Covington & Burling,
LLP.
Hearing on ``Design Patents and Auto Replacement Parts'' (Serial No.
111-112)
This hearing examined the use of design patent protection
for auto parts, whether an exception to this protection is
needed for replacement auto parts, and what impact such an
exception might have on the United States intellectual property
system and United States treaty obligations related to
intellectual property.
The following witnesses gave testimony and submitted
written statements for the record: Jack Gillis, Director of
Public Affairs, Consumer Federation of America; Damian Porcari,
Licensing and Enforcement, Ford Global Technologies, LLC;
Robert C. Passmore, Senior Director, Personal Lines, Property
Casualty Insurers Association of America; and Perry Saidman,
Saidman Design Law Group.
Hearing on ``The United States Patent and Trademark Office'' (Serial
No. 111-135)
This hearing took a close look at initiatives by the United
States Patent and Trademark Office (USPTO) to reduce the patent
application backlog, improve examiner production and
satisfaction, and strengthen the organization's information
technology infrastructure. The hearing also focused on the role
that inconsistent funding of the USPTO plays in its operational
challenges.
The following witnesses gave testimony and submitted a
written statement for the record: Honorable David Kappos, Under
Secretary of Commerce for Intellectual Property and Director of
the United States Patent and Trademark Office; Robert Budens,
President, Patent Office Professional Association; James
Johnson, Counsel, Sutherland Asbill & Brennan LLP and Board
Member of the Trademark Public Advisory Committee; and Damon
Matteo, Vice President and Chief Intellectual Property Officer,
Palo Alto Research Center and Chair of the Patent Public
Advisory Committee.
Hearing on ``Is There Life After Trinko and Credit Suisse?: The Role of
Antitrust in Regulated Industries'' (Serial No. 111-119)
The purpose of this hearing was to examine the
ramifications of the Supreme Court's decisions in Verizon
Communications Inc. v. Law Offices of Curtis v. Trinko, LLP and
Credit Suisse Securities, LLC et al. v. Billing, et al., which
sharply limited the reach of the antitrust laws in the telecom
and securities industries. Since the decisions were issued,
legal experts have debated whether the holdings are fact-
specific and apply only to the telecom and securities
industries, or more broadly to all regulated industries.
Supporters of the broad interpretation argue that a limitation
on antitrust is necessary to ensure that companies operating in
regulated industries are not subject to potentially conflicting
obligations arising from the antitrust laws and their industry-
specific regulatory schemes. Critics of this view argue that,
absent an industry-specific exemption, Congress intended for
industries to be subject to antitrust oversight, and that
regulation is not an adequate substitute for antitrust. Critics
further note that, in those rare cases where agency regulation
imposes requirements that conflict with antitrust obligations,
existing law allows the courts to find an implied immunity from
antitrust. These critics go on to contend that irrespective of
the merits of the actual results in the Trinko and Credit
Suisse cases, the opinions should not be read as dramatically
reworking the law governing the application of antitrust to
regulated industry. Trinko and Credit Suisse also raised
questions about the role of courts and juries in overseeing
commercial business. Justice Scalia's Trinko opinion argues
that generalist courts and citizen jurors are not equipped to
decide complex antitrust matters and might make errors that
would be unreasonably costly to business.
Many commentators rejected this view, arguing that judges
and juries routinely handle difficult issues and that court-
based antitrust enforcement is needed to rein in
anticompetitive practices that regulators may not focus on or
consider central to their mission. A third issue was whether
companies now have fewer obligations to aid their competitors.
Generally under the antitrust laws, businesses enjoy the right
to ``refuse to deal'' with any other person or company. In
other words, a company can decide whether or not to engage in
commercial dealings with another party. A judicially-created
doctrine known as ``essential facilities'' doctrine placed some
boundaries on this right, arguing that there are certain
private services and networks that are so important--or
``essential''--that the owner/operators of these services and
networks have some limits on their right to discriminate among
those with whom they choose to do business. Although essential
facilities doctrine was judicially created, it has never been
recognized by the Supreme Court, a point again made in Trinko.
A fourth issue was the effect of the decisions on the vitality
of antitrust savings clauses written into legislation by
Congress. Antitrust savings clauses are included in legislation
as a way of preserving the full range of applicable antitrust
laws and remedies. In both Trinko and Credit Suisse, the
Supreme Court rejected antitrust claims despite the presence of
broad antitrust savings clauses in the relevant regulatory law.
Had the holdings merely found that, although the antitrust laws
applied, there was no basis for an antitrust claim in these
cases, there would be no controversy. Instead, the decisions
went further, suggesting in Trinko and actually holding in
Credit Suisse that the antitrust laws should not have applied
regardless of the underlying merits. Such a precedent could
weaken all existing antitrust savings clauses, throwing into
question what Congress must specify when it intends for the
antitrust laws to apply to an industry.
The following witnesses appeared and submitted a written
statement for the record: Howard A. Shelanski, Deputy Director
for Antitrust in the Bureau of Economics, Federal Trade
Commission, John Thorne, Senior Vice President, Verizon
Communications, Incorporated, Mark A. Lemley, William H. Neukom
Professor of Law, Stanford University, School of Law, and Dr.
Mark Cooper, Director of Research, Consumer Federation of
America.
``Impact of China's Antitrust Law and other Competition Policies on
U.S. Companies'' (Serial No. 111-117)
The hearing examined the anti-monopoly law recently
implemented by the People's Republic of China, focusing on
whether the law as written, or applied, have a discriminatory
impact on foreign competitors doing business in China. The
hearing focused on China's merger review process, application
of the anti-monopoly law to state owned enterprises, and the
treatment of intellectual property under the anti-monopoly law.
The following witnesses appeared and submitted a written
statement for the record: Shanker A. Singham, Partner, Squire
Sanders, LLP, on behalf of the U.S. Chamber of Commerce; Tad
Lipsky, Partner, Latham & Watkins; Susan Beth Farmer, Professor
of Law, Pennsylvania State University, Dickinson School of Law;
and the Honorable Thomas O. Barnett, Partner, Covington &
Burling, LLP, and Former Assistant Attorney General of the
Antitrust Division, U.S. Department of Justice.
``The Federal Trade Commission's Bureau of Competition and the
Department of Justice's Antitrust Division'' (Serial No. 111-
133)
The purpose of this hearing was to examine the enforcement
records of the two federal antitrust enforcement agencies, the
Federal Trade Commission's Bureau of Competition and the
Department of Justice's Antitrust Division. The hearing also
examined whether the Agencies are doing enough to promote
competition in such fields as banking, agriculture, and mobile
devices. The Agencies are jointly empowered to enforce the
federal antitrust laws, whose overarching goal is to promote
consumer welfare by ensuring robust competition in the
marketplace. The U.S. Supreme Court has referred to the
antitrust laws as ``the Magna Carta of free enterprise,''
declaring them ``a comprehensive charter of economic liberty
aimed at preserving free and unfettered competition.''
Effective antitrust enforcement is key to ensuring a vibrant,
competitive marketplace that rewards innovation and creativity
and offers consumers greater choice and lower prices. In the
absence of antitrust enforcement, companies have less incentive
to compete, and more incentive to maintain high profit margins
at the expense of consumer welfare and whether the Agencies are
effectively enforcing the antitrust laws, and how well they are
addressing certain ``hot-button'' issues. For example, the
Agencies have been criticized for lax merger enforcement and
wasteful infighting with respect to deciding which Agency
reviews a particular merger. Critics also point to different
enforcement tools available to the Agencies, and argue that
whether a party is found to have violated the antitrust laws
now depends significantly upon the investigating Agency.
The following witnesses appeared and submitted a written
statement for the record: The Honorable Christine A. Varney,
Assistant Attorney General for Antitrust, U.S. Department of
Justice, and the Honorable Jon Leibowitz, Chairman, Federal
Trade Commission.
``Competition in the Evolving Digital Marketplace'' (Serial No. 111-
147)
The purpose of this hearing was to examine a range of
competition issues in both the online and mobile markets. As
these markets evolve, their growth has been driven in large
part by innovative competitors and disruptive technologies.
While these markets currently appear fluid and competitive,
sustained anticompetitive behavior by companies with market
power could choke off competition, in turn slowing innovation
and raising prices and reducing options for consumers. Former
Federal Trade Commission Timothy Muris has argued that there
should be looser antitrust enforcement in these nascent
markets, as the competitors, their products, and their relative
market shares are constantly changing. Proponents of this
position argue that antitrust enforcement actions in these
markets necessarily rely upon ``snapshots'' of the market that
may not adequately reflect the degree of competition from new
entrants or the tenuousness of existing market share, and would
only stifle innovation and create disincentives against
entrepreneurship.
The bipartisan Congressionally-established Antitrust
Modernization Commission, have argued that the antitrust laws
are developed from principles not tied to the particulars of
any single industry, and whose application is as appropriate in
developing markets as it is in more established markets.
Moreover, supporters of this position argue that Department of
Justice's antitrust case against Microsoft Corp. in 1998
highlights the dangers of waiting to act, in that, even though
Microsoft lost the case, its upstart competitor, Netscape, had
gone out of business by the time it won the case.
The following witnesses appeared and submitted a written
statement for the record: Richard Feinstein, Director, Bureau
of Competition, Federal Trade Commission, Edward J. Black,
President & Chief Executive Officer, Computer and
Communications Industry Association, Morgan Reed, Executive
Director, Association for Competitive Technology, C. Cleland,
President, Precursor, LLP, Geoffrey A. Manne, Executive
Director, International Center for Law & Economics, Lewis &
Clark Law School, and Dr. Mark N. Cooper, Director of Research,
Consumer Federation of America.
``Courtroom Use: Access to Justice, Judicial Administration, and
Courtroom Security'' (Serial No. 111-153)
The purpose of the hearing was to consider a recent
Government Accountability Office (GAO) report on federal
courthouse construction and its effects on courts and access to
justice. The GAO report concluded that many of the courthouses
built since 2000 include extra space as a result of excessive
construction, an overestimation of judges, and an absence of
planning for courtroom sharing. The GAO report found that the
there was an estimated 887,000 square feet of extra court
building space caused by the judiciary overestimating the
number of judges the courthouses would have in 10 years.
According to the GAO, one reason for the overestimation of
judges is inaccurate predictions as to when judges would take
senior status. The GAO pointed out that predicting when judges
take senior status is challenging, and overestimates in this
regards are due to factors difficult to predict, such as judges
deciding to leave the bench, dying, or remaining active after
they become eligible for senior status. The GAO essentially
determined that empty courtrooms were ``excess'' space
constituting a waste of funding. This is an instance where the
GAO is not appropriately applying the planning policies that
were in place at the time the building was planned. However, as
the judiciary notes, the courthouse space accounted for will be
needed at some point in the future, even if that exact time is
several years off. Most courthouses are occupied for many
decades and planning courthouse without taking account of
future needs of delivering justice would not only reduce the
useful life of federal courthouses, but would also risk
inadequate capacity to house needed judges and staff for the
future. One major factor contributing to judge overestimation
that the GAO cites is that it is not clear how many new
judgeships will ultimately be created by Congress. The GAO
report pointed out that Congress had not passed a comprehensive
judgeships bill to add to the number of total judgeships since
1990.
The following witnesses appeared and submitted a written
statement for the record: Panel The Honorable Jim Cooper,
Member of Congress, 5th District of Tennessee. Panel II, Mark
L. Goldstein, Director, Physical Infrastructure, U.S.
Government Accountability Office, The Honorable Michael A.
Ponsor, U.S. District Judge, District of Massachusetts, and
Chairman of the Judicial Conference's Committee on Space and
Facilities, Robert A. Peck, Commissioner of Public Buildings,
U.S. General Services Administration, The Honorable Robert J.
Conrad, Jr., Chief U.S. District Judge, Western District of
North Carolina, and Judith Resnik, Arthur Liman Professor of
Law, Yale Law School.
``Antitrust Laws and Their Effects on Healthcare Providers, Insurers
and Patients'' (Serial No. 111-157)
The purpose of this hearing was to examine the disparate
treatment of physicians and health insurers by the antitrust
enforcement agencies. Since 2000, the Department of Justice
(DOJ) and the Federal Trade Commission (FTC) (hereafter, the
Agencies) have brought more than 30 antitrust enforcement
actions against physicians for collusive behavior in the course
of negotiating reimbursement rates from insurance companies. In
contrast, hospital groups, physicians, and patient advocates
have complained that the Agencies have pursued fewer actions
against health insurance companies.
The following witnesses appeared and submitted a written
statement for the record: Panel I, Richard Feinstein, Director,
Bureau of Competition, Federal Trade Commission, and Sharis
Pozen, Chief of Staff and Counsel to the Assistant Attorney
General, Antitrust Division, U.S. Department of Justice. Panel
II, Melinda Hatton, Senior Vice President and General Counsel,
American Hospital Association, Arthur Lerner, Partner, Crowell
& Moring LLP on behalf of America's Health Insurance Plans, Dr.
Peter Mandell, Chair of the Council on Advocacy, American
Academy of Orthopaedic Surgeons, Dr. Michael Connair, American
Federation of State, County, and Municipal Employees, AFL-CIO,
and David Balto, Senior Fellow, Center for American Progress.
SUBCOMMITTEE ON CRIME, TERRORISM, AND HOMELAND SECURITY}1
ROBERT C. ``BOBBY'' SCOTT,
Virginia, Chairman
LOUIE GOHMERT, Texas PEDRO PIERLUISI, Puerto Rico
TED POE, Texas JERROLD NADLER, New York
BOB GOODLATTE, Virginia ZOE LOFGREN, California
DANIEL E. LUNGREN, California SHEILA JACKSON LEE, Texas
J. RANDY FORBES, Virginia MAXINE WATERS, California
TOM ROONEY, Florida STEVE COHEN, Tennessee
ANTHONY D. WEINER, New York
MIKE QUIGLEY, Illinois
THEODORE E. DEUTCH, Florida
----------
\1\Subcommittee chairmanship and assignments approved January 22, 2009.
Tabulation of subcommittee legislation and activity
Legislation referred to the Subcommittee......................... 312
Legislation on which hearings were held.......................... 20
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..................... 5
Legislation pending before the full Committee.................... 1
Legislation reported to the House................................ 6
Legislation discharged from the Committee........................ 5
Legislation pending in the House................................. 3
Legislation passed by the House (including suspensions).......... 37
Legislation pending in the Senate................................ 22
Legislation vetoed by the President (not overridden)............. 0
Legislation enacted into Public Law.............................. 7
Legislation enacted into Public Law as part of other legislation. --
Days of legislative hearings..................................... 12
Days of oversight hearings....................................... 26
Jurisdiction of the Subcommittee
The Subcommittee on Crime, Terrorism, and Homeland Security
has jurisdiction over: 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. 743, the ``Executive Accountability Act of 2009''
Summary.--H.R. 743, a bill introduced to address concerns
about the veracity of the executive branch with respect to
statements made in order to generate support in Congress for
use of the Armed Forces of the United States.
Legislative History.--H.R. 743 was introduced by Rep.
Walter B. Jones (R-NC) on January 28, 2009 and referred to the
Judiciary Committee. On July 27, 2009, the House Judiciary
Committee's Subcommittee on Crime, Terrorism, and Homeland
Security. The Subcommittee received testimony from the
following witnesses: The Subcommittee heard testimony from the
following witnesses: The Honorable Walter B. Jones, (NC); Dr.
Louis Fisher, Specialist in Constitutional Law, Law Library of
the Library of Congress; Washington, DC; Bruce Fein, Legal
Consultant, Washington, DC; and Jonathan F. Cohn, Partner,
Sidley and Austin, Washington, DC. (Serial No. 111-72) No
legislative action was taken on this bill.
H.R. 748, the ``Center to Advance, Monitory, and Preserve University
Security Act (CAMPUS Safety Act) of 2009''
Summary.--H.R. 748 was introduced to authorize the Director
of the Office of Community Oriented Policing Services to
establish and operate a National Center for Campus Public
Safety, which would assist campus safety agencies by providing
education and training, research, best practices information,
and other assistance.
Legislative History.--H.R. 748 was introduced on January
28, 2009 by Rep. Robert C. ``Bobby'' Scott (D-VA) and referred
to the House Judiciary Committee and the Senate Judiciary
Committee. This bill passed by the House by a voice vote on
February 3, 2009.
H.R. 1064, the ``Youth Prison Reduction through Opportunities,
Mentoring, Intervention, Support and Education Act'' (``Youth
PROMISE Act'')
Summary.--H.R. 1064, the ``Youth Prison Reduction through
Opportunities, Mentoring, Intervention, Support and Education
Act'' (``Youth PROMISE Act'') is legislation designed to
prevent youth violence, delinquency, and street gang crime, and
to redirect youth already involved in the juvenile or criminal
justice systems toward law abiding and productive lives. The
bill will provide federal support for evidence-based and
promising local community efforts and programs that prevent the
involvement of at risk youth in juvenile delinquency or
criminal street gang activity and provide positive alternatives
for youth who have become involved in juvenile delinquency or
criminal street gang activity.
Legislative History.--H.R. 1064 was introduced by Rep.
Robert C. ``Bobby'' Scott on February 13, 2009 and referred to
the following Committees: Judiciary; Education and Labor;
Energy and Commerce; and the House Financial Services. The
Subcommittee on Crime, Terrorism, and Homeland Security held a
hearing on July 15, 2009, on H.R. 1064. Testimony was received
from Marian Wright Edelman, President and Founder, Children's
Defense Fund; Deborah Prothrow-Stith, MD, Consultant, Spencer
Stuart; Leroy D. Baca, Sherriff, Los Angeles County; David B.
Muhlhausen, Ph.D., Senior Policy Analyst, Center for Date
Analysis, The Heritage Foundation; and Tracy Velazquez,
Executive Director, Justice Policy Institute. (Serial No. 111-
86)
On October 29, 2009, the Subcommittee on Crime, Terrorism,
and Homeland Security met in open session and ordered the bill
H.R. 1064 favorably reported, by voice vote, a quorum being
present. Rpt. #111-688 pt. 1. On December 16, 2009, the Full
Judiciary Committee met in open session and ordered the bill
H.R. 1064 favorably reported with an amendment, by a roll call
vote of 17 to 14, a quorum being present. We are still awaiting
floor action on the legislation. On February 13, 2009, Senator
Robert Casey (D-PA) introduced S. 435, the Senate companion
bill to the Youth PROMISE Act. That bill has 16 bi-partisan co-
sponsors in the Senate. December 17, 2010, House Committee on
Financial Services Granted an extension for further
consideration ending not later than December 21, 2010.
H.R. 1110, the ``Prohibiting Harassment through Outbound Number
Enforcement Act (PHONE Act) of 2009''
Summary.--H.R. 1110, this bill was introduced 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 hide the callers' true identity in order to
wrongfully obtain anything of value or to commit other abusive
acts. The bill provides for felony penalties of up to 5 years
in prison for violations committed with the intent to
wrongfully obtain anything of value. Certain abusive uses of
another person's caller ID information without commercial
motives are classified as misdemeanors under the bill.
Legislative History.--The bill was introduced by Robert C.
``Bobby'' Scott (D-VA) on February 23, 2009, and referred to
the Judiciary Committee. On October 7, 2009, the Committee met
in open session and ordered the bill H.R. 1110 favorably
reported, with one amendment, by a voice vote, a quorum being
present. Reported to the House, as amended, November 2, 2009.
House Report No. 111-321. Passed the House by a vote of 418 to
1, December 16, 2009.
H.R. 1139, the ``COPS Improvements Act of 2009''
Summary.--H.R. 1139, this bill was introduced to
reauthorize the programs administered by the Justice
Department's Office of Community Oriented Policing Services
(COPS) for public safety and community-based policing,
establish three grant programs: (1) The Troops-to-Cops Program,
(2) the Community Prosecutors Program, and (3) the Technology
Grants Program. The Troops-to-Cops Program would fund the
hiring of former members of the Armed Forces to serve as law
enforcement officers in community-oriented policing,
particularly in communities adversely affected by recent
military base closings. The Community Prosecutors Program would
authorize the Attorney General to make grants for additional
community prosecuting programs that would, for example, assign
prosecutors to pursue cases from specific geographic areas and
to deal with localized violent crime. The Technology Grants
Program would authorize the Attorney General to make grants to
develop new technologies to assist State and local law
enforcement agencies in refocusing some of their efforts from
reacting to crime to preventing crime.
Legislative History.--H.R. 1139 was introduced on February
23, 2009, by Rep. Anthony D. Weiner (D-NY). On March 25, 2009,
the Committee ordered the bill, H.R. 1139, favorably reported
with amendments, by a vote of 17 to 7. House Rpt.# 111-78. On
March 23, 2009, the House passed the bill by a vote of 342-78.
H.R. 1459, ``Fairness in Cocaine Sentencing Act of 2009''
Hearing on ``Unfairness in Federal Cocaine Sentencing: Is it Time to
Crack the 100 to 1 Disparity?''
Summary.--This hearing was held on May 21, 2009 and focused
on legislation that has been introduced in the 111th Congress
to address the disparities in federal sentencing for
distribution and importation of crack and powder cocaine. Under
federal law at the time of the hearing, possession of five (5)
grams of crack cocaine resulted in the same five-year mandatory
minimum sentence as selling 500 grams of powder cocaine. This
was referred to as the ``100 to 1'' disparity ratio between
crack and powder cocaine mandatory sentences. More than twenty
years after this federal law was enacted, many people
acknowledge that there is neither a scientific, medical nor
public policy rationale that supports the 100 to 1 disparity.
There were five bills introduced in the House during the 111th
Congress to address this disparity: H.R. 1459, the ``Fairness
in Cocaine Sentencing Act of 2009;'' H.R. 2178, the ``Crack
Cocaine Equitable Sentencing Act of 2009;'' H.R. 265, the
``Drug Sentencing Reform and Kingpin Trafficking Act of 2009,''
H.R. 1466, the ``Major Drug Trafficking Prosecution Act of
2009'' and H.R. 18, the ``Powder-Crack Cocaine Equalization Act
of 2009.'' This hearing focused on the different approaches
these bills take to address the disparity, as well as other
issues associated with cocaine sentencing. The Subcommittee
received testimony from the following witnesses: the Honorable
Charles B. Rangel, (D-NY), the Honorable Sheila Jackson Lee,
(D-TX), the Honorable Roscoe G. Bartlett, (R-MD), the Honorable
Maxine Waters, (D-CA); Lanny A. Breuer; Assistant Attorney
General, Criminal Division, U.S. Department of Justice,
Washington, DC; The Honorable Ricardo H. Hinojosa; U.S.
District Court Judge, Southern District of Texas, and Acting
Chair U.S. Sentencing Commission Washington, DC; Scott
Patterson, District Attorney, Easton, Maryland on behalf of
Joseph I. Cassilly, President of the National District
Attorneys Association, Alexandria, VA; Willie Mays Aikens,
Kansas City, MO; Bob Bushman, Vice President, National
Narcotics Officers Association Coalition, Washington, DC;
Veronica Coleman-Davis, President and CEO, National Institute
of Law and Equity, Memphis, TN; and Marc Mauer, Executive
Director of the Sentencing Project, Washington, DC. (Serial No.
111-27)
Legislative History.--H.R. 1459, the ``Fairness in Cocaine
Sentencing Act of 2009'' was introduced March 12, 2009, by Rep.
Robert C. ``Bobby'' Scott (D-VA) and referred to the House
Judiciary and the House Energy and Commerce Committees. H.R.
3245, the Fairness in Cocaine Sentencing Act of 2009 was
introduced on July 16, 2009 by Rep. Robert C. ``Bobby'' Scott
(D-VA) and referred to the House Judiciary and House Energy and
Commerce Committees. This bill included very narrow language
that would address the crack cocaine disparity. H.R. 3245
passed out of the Subcommittee on a voice vote on July 23,
2009. The legislation passed the Full Judiciary Committee on
July 29, 2009 by a 16-9 vote. On December 1, 2010, the
Judiciary Committee reported to the House. Rpt.# 111-670 pt. 1.
On March 15, 2010, Senate Judiciary, without written report--
reported by Patrick J. Leahy with an amendment in the nature of
a substitute S. 1789, the Fair Sentencing Act of 2009 by a 18-0
vote, which would lower the 100 to 1 disparity between crack
and powder cocaine to 18 to 1. On March 17, 2010, the Senate
passed S. 1789 with an amendment by unanimous consent. On March
18, 2010, S. 1789 was referred to the House Judiciary and House
Judiciary Committees. On July 28, 2010, S. 1789 passed the
House on the suspension calendar by voice vote. On August 3,
2010, President Barack Obama signed S. 1789 into law (Public
law 111-220).
H.R. 1514, the ``Juvenile Accountability Block Grants Reauthorization
Act of 2009''
Summary.--H.R. 1514 was introduced to reauthorize a program
that provides formula grants to states and localities to
provide individualized treatment of juvenile offenders.
Legislative History.--H.R. 1514 was introduced by Rep.
Robert C. ``Bobby'' Scott (D-VA) on March 16, 2009 and referred
to the Judiciary Committee and the Senate Judiciary Committee.
The bill was taken directly to the House floor for a vote, and
was passed by a vote of 364-45 on May 19, 2010.
H.R. 1727, the ``Managing Arson Through Criminal History (MATCH) Act''
Summary.--H.R. 1727 was introduced to establish guidelines
and incentives for states to establish criminal arsonist and
criminal bomber registries and to require the attorney general
to establish a national criminal arsonist and criminal bomber
registry program, and for other purposes.
Legislative History.--H.R. 1727 was introduced on March 26,
2009 by Rep. Mary Bono Mack, (R-CA-45) and referred to the
Judiciary Committee and the Senate Judiciary Committee. There
was no Judiciary Committee action on the bill, which was
adopted by the House by voice vote on September 30, 2009.
October 1, 2009 referred to the Senate Committee on the
Judiciary.
H.R. 1924, the ``Tribal Law and Order Act of 2009''
Summary--H.R. 1924 On December 10, 2009, a legislative
hearing on H.R. 1924, the ``Tribal Law and Order Act of 2009,''
sponsored by Representative Stephanie Herseth Sandlin (SD-At
Large). The Judiciary Committee had primary jurisdiction over
the bill, but it was also referred to the Committees on Natural
Resources, Energy and Commerce, and Education and Labor. There
was a Senate companion bill, S. 797 (Sen. Dorgan), which was
reported out of the Committee on Indian Affairs with amendments
that addressed the concerns with the original bill, and was
considered closely by the Committee. The Act was a
comprehensive bill was an effort to address the public safety
crisis occurring on Indian Country. The bill sought to reduce
crime through two approaches. First, it increased tribal
authority over crime by providing more resources to tribal law
enforcement and criminal justice systems and by increasing
tribal sentencing authority. Second, it provided for new
offices and positions within the federal government that focus
on tribal justice, extends concurrent federal jurisdiction to
PL-280 states, sets up a reporting system to provide for
accountability of the federal government, and establishes a
Commission to study and recommend changes. The bill amends the
Indian Law Enforcement Reform Act, the Indian Tribal Justice
Act, the Indian Tribal Justice Technical and Legal Assistance
Act of 2000, and the Omnibus Crime Control and Safe Streets Act
of 1968. At the hearing, both the needs of Indian country were
examined and the challenges with existing tribal justice
systems were examined. Witnesses conveyed the importance of
balancing more robust sentencing authority with the individual
rights of defendants. The Subcommittee heard testimony from the
following witnesses: The Honorable Stephanie Herseth Sandlin,
United States House of Representatives (SD-At Large); The
Honorable Tom Perrelli, Associate Attorney General, United
States Department of Justice, Washington, DC; Marcus Levings,
Great Plains Area Vice-President, National Congress of American
Indians, New Town, ND; Tova Indritz, Chair, National
Association of Criminal Defense Lawyers, Native American
Justice Committee, Albuquerque, NM; Scott Burns, Executive
Director, National District Attorneys Association, Alexandria,
VA; and Barbara Creel, Assistant Professor of Law, Southwest
Indian Law Clinic, University of New Mexico School of Law,
Albuquerque, NM. (Serial No. 111-134)
Legislative History.--H.R. 1924 was introduced on April 2,
2009, by Stephanie Herseth Sandlin (SD–At Large) and was
referred to the Committee on the Judiciary, as well as the
Committees on Natural Resources, Energy and Commerce, and
Education and Labor. On April 21, 2009, it was referred to the
Subcommittee on Health of Energy and Commerce, on May 21, 2009
to the Subcommittee on Healthy Families and Communities of
Education and Labor, and on May 26, 2009 to the Subcommittee on
Crime, Terrorism, and Homeland Security of the House Judiciary.
The Senate introduced a version of H.R. 1924, S. 797, which
passed the Senate by unanimous consent on June 23, 2010. It was
attached to H.R. 725, the Arts and Crafts bill and the
Fireworks bill H.R. 1333 was also included in the package (both
H.R. 1333 and S. 725 have previously passed the House on
suspension). The Senate-passed bill included HJC proposed-
provisions on sentencing and defendants' rights. On July 21,
2010, H.R. 725 passed the House and was signed by President
Barack Obama on July 29, 2010.
H.R. 1966, the `Megan Meier Cyberbullying Prevention Act;' and H.R.
3630, the `Adolescent Web Awareness Requires Education Act
(AWARE Act)'
Summary.--On September 30, 2009, the Subcommittee on Crime,
Terrorism, and Homeland Security held a hearing on
``Cyberbullying and other online safety issues for children''
to examined the problems of bullying perpetrated through the
Internet and certain other risks of online victimization for
children. H.R. 1996 was introduced to provide federal criminal
penalties for cyberbullying. H.R. 3630 was introduced to
establish a grant program to be implemented by the Department
of Justice to educate young people about safe use of the
Internet, partly to prevent cyberbullying and other activities
of online victimization. The two bills were examined, with
various views expressed about the policy and constitutional
implications of criminalizing cyberbullying. The hearing also
examined the need for educating children so that they can avoid
victimization on the Internet and the need to provide
comprehensive services to at-risk youth so that they are less
likely to engage in online bullying.
Legislative History.--H.R. 1966, the Megan Meier
Cyberbullying Prevention Act was introduced on April 2, 2009 by
Rep. Linda Sanchez (D-CA) and referred to the House Judiciary
Committee, Subcommittee on Crime, Terrorism, and Homeland
Security. H.R. 3630, the ``Adolescent Web Awareness Requires
Education Act (AWARE Act)'' was introduced on September 23,
2009 by Rep. Debbie Wasserman Schultz (D-FL) and referred to
the Judiciary Committee Subcommittee. The Subcommittee received
testimony from Rep. Linda Sanchez, sponsor of H.R. 1966, the
``Megan Meier Cyberbullying Prevention Act''; Rep. Debbie
Wasserman Schultz, sponsor of H.R. 3630, the ``Adolescent Web
Awareness Requires Education Act (AWARE Act)''; Robert O'Neil,
founding director of The Thomas Jefferson Center for the
Protection of Free Expression, Professor emeritus at University
of Virginia; Judy Westberg Warren, President, Web Wise Kids;
Harvey Silverglate, Attorney, Zalkind, Rodriquez, Lunt &
Duncan, LLP; Nancy Williard, M.S., J.D., Director of the Center
for Safe and Responsible Internet Use; John Palfrey, Professor
of Law at Harvard Law School, Chair of the Internet Safety Task
Force. No legislative action was taken on either bill. Serial
No. 111-76
H.R. 2157, ``DNA Expansion and Improvement Act of 2009.'' Hearing on
``Rape Kit Backlogs: Failing the Test of Providing Justice to
Sexual Assault Survivors''
Summary.--This hearing titled ``Rape Kit Backlogs: Failing
the Test of Providing Justice to Sexual Assault Survivors'' was
held on May 20, 2010. Each year, approximately 200,000 rapes
are reported in the United States. The majority of these sexual
assault victims submit to a medical examination immediately
after the attack so that the police can collect evidence for a
rape kit. While no national statistics exist to determine the
exact number of untested kits, some estimates put the number at
around 180,000. Testing a rape kit can identify the attacker,
confirm that a suspect had sexual contact with a victim,
corroborate the victim's account of the sexual assault, and
exonerate innocent suspect. There are various reasons why so
many rape kits go untested including a lack of resources,
prioritization of cases by prosecutors and police and delays at
police crime laboratories. This hearing explored why so many
rape kits are not tested and what can be done to clear up the
backlogs that exist in jurisdictions across the country.
Legislative History.--On November 11, 2009, Rep. Carolyn B.
Maloney (D-NY) introduced H.R. 4114, the Justice for Survivors
of Sexual Assault Act of 2009. On April 28, 2009, Rep. Anthony
Weiner (D-NY) introduced H.R. 2157, ``DNA Expansion and
Improvement Act of 2009'' and was referred to the House
Committee on the Judiciary. This bill which authorizes grants
for states and local governments to purchase or improve
forensic DNA technology. On June 12, 2009, H.R. 2157 was
referred the Subcommittee on Crime, Terrorism, and Homeland
Security. On May 20, 2010, the Subcommittee held a hearing and
received testimony from the following witnesses: The Honorable
Carolyn B. Maloney; The Honorable Anthony D. Weiner; The
Honorable Adam B. Schiff; The Honorable Jerrold Nadler; Kym L.
Worthy, Esq., Wayne County Prosecutor, Detroit, Michigan;
Valerie Neumann, Cincinnati, Ohio; Mariska Hargitay, Joyful
Heart Foundation, New York, New York; Dr. Christian Hassell,
Assistant Director, Laboratory Division; Federal Bureau of
Investigation, (FBI); U. S. Department of Justice, Washington,
DC; Jeffrey Boschwitz, Ph.D., Vice President, North American
Sales and Marketing; Orchid Cellmark Inc., Princeton, New
Jersey; and Peter Marone, Director, Virginia Department of
Forensic Science, Richmond, Virginia. (Serial No. 111-115)
H.R. 2289, the ``Juvenile Justice Accountability and Improvement Act of
2009''
Summary.--On June 9, 2009, the Subcommittee held a hearing
in which we examined the practice of imposing sentences of life
without parole on juvenile defendants. The United States
currently is the only country that continues to sentence
juveniles to life without parole. The hearing examined this
practice and addressed H.R. 2289, introduced by Congressman
Scott, which requires states, under risk of losing up to 10% of
certain funding, to offer a meaningful opportunity for parole
to juveniles sentenced to life after serving 15 years in
prison. It also establishes a similar opportunity for parole
for juveniles in federal custody, requires victim notification,
and establishes a grant program to improve legal representation
of children facing life in prison.
Legislative History.--H.R. 2289 was introduced on May 6,
2009 by Rep. Robert C. ``Bobby'' Scott (D-VA) and was referred
to the House Committee on the Judiciary. On June 5, 2009, it
was referred to the Subcommittee on Crime, Terrorism, and
Homeland Security. On June 9, 2009, the Subcommittee held a
hearing on the bill. The Subcommittee heard testimony from the
following witnesses: Professor Mark Osler, Baylor Law School
Waco, TX; Dr. Linda L. White, Former Board Member of the Murder
Victims' Families for Reconciliation, Magnolia, TX; Jennifer
Bishop-Jenkins, Co-Founder, National Organization of Victims of
``Juvenile Lifers'', Northfield, IL; Anita Colon, Pennsylvania
State Coordinator, National Campaign for Fair Sentencing for
Children, Springfield, PA; James Fox, District Attorney, San
Mateo County, CA; and Marc Mauer, Executive Director of the
Sentencing Project, Washington, DC. (Serial No. 111-47)
H.R. 2780, the ``Federal Restricted Buildings and Grounds Improvement
Act''
Summary.--H.R. 2780 was introduced to amend the federal
criminal code to clarify that the criminal prohibition on
entering federal restricted buildings and grounds does not
apply to individuals who are have lawful authority to do so.
Legislative History.--H.R. 2780 was introduced on June 6,
2009 by Rep. Thomas J. Rooney (R-FL) and referred to the House
Committee on the Judiciary and the Senate Committee on the
Judiciary. There was no House Committee action on the bill,
which was adopted by the House by voice vote on July 27, 2010.
On July 28, 2010, the H.R. 2780 was referred to the Senate
Committee on the Judiciary.
H.R. 2811, a bill to amend title 18, United States Code, to include
constrictor snakes of the species Python genera as an injurious
animal
Summary.--The Subcommittee held a hearing November 6, 2009,
and focused on legislation that has been introduced to amend
title 18, United States Code, to include constrictor snakes of
the species Python genera as an injurious animal. The addition
was intended to ban the further importation and interstate
transportation of pythons which were initially brought to the
U.S. and to Florida and sold as pets. Too often these animals
were subsequently introduced into the wild either by owners who
could no longer handle them or through escape from owners. Many
owners, particularly in South Florida, simply dumped them in
the Florida Everglades, believing that to be a suitable and
hospitable environment. The pythons have wreaked havoc on the
ecosystem, and have become a dominant predator. They have been
known to grow to 23 feet and can weigh up to 200 pounds. They
consume animals many times their size. In addition to the
environmental impact, there is also a safety issue. Since 1980
12 people have been killed by pet pythons, he most recent being
a 2 year old girl in Florida. The Subcommittee heard testimony
from the following witnesses: The Honorable Kendrick Meek,
Member of Congress, District 17 of Florida; Dan Ashe, Deputy
Director of the United States Fish and Wildlife Service,
Washington, DC; Andrew Wyatt, President, United States
Association of Reptile Keepers, Grandy, NC; Dr. Elliott
Jacobson, College of Veterinary Medicine, University of
Florida, Gainesville, FL; Nancy Perry, Vice President,
Government Affairs, The Humane Society of the United States
Washington, DC; and George Horne, Deputy Executive Director,
Operations and Maintenance, South Florida Water Management
District, MSC 5100, West Palm Beach, FL. Witnesses addressed
the pros and cons of the proposed legislation. Testimony also
included findings of a study by the U.S. Geological Survey
(USGS), the National Park Service (NPS) and the U.S. Fish &
Wildlife Service (USF&W) entitled, ``Giant Constrictors:
Biological and Management Profiles and an Establishment Risk
Assessment for Nine Large Species of Pythons, Anacondas and the
Boa Constrictor.'' (Serial No. 111-97)
Legislative History.--On June 10, 2009, Rep. Kendrick Meek
(D-FL-17) introduced H.R. 2811. On July 23, 2010 the bill was
referred to the House Judiciary Committee, Subcommittee on
Crime, Terrorism, and Homeland Security. Rep. Meek introduced
H.R. 2811 for the purpose of amending the first sentence of the
Lacey Act, Title 18 United States Code, Section 42 (a)(1) by
inserting, ``constrictor snakes of the species Python genera''
after ``polymorpha''. The purpose of the original bill was to
add the genus Python, which includes forty seven (47) species
of Pythons, to a list of injurious animals that are prohibited
from importation and interstate transportation into and
throughout the United States, its territories and possessions.
The bill was reported out of the Crime Subcommittee in its
original form. During the Full Committee markup, Representative
Rooney offered an amendment which, beginning in line 6 of H.R.
2811, deleted ``constrictor snakes of the species Python
Genera'' and inserted, ``Burmese Python of the species Python
Molurus Bivittatus; African Rock Python of the species Python
Sebae''. Under the amendment, two (actually three species since
the African Rock Python consists of two species the northern
African Python and the southern African python) of the forty-
seven species of Pythons were to be prohibited. The amendment
was accepted and the bill was reported out of the full
committee. The hearing was held following the full committee
markup at the request of several members. No further action was
taken on the bill.
H.R. 3040, the ``Senior Financial Empowerment Act of 2010''
Summary.--The hearing was held on May 25, 2010 and focused
on legislation that had been introduced in the 111th Congress
to address issues pertaining to mail, telemarketing and
Internet fraud targeting seniors. Elder financial abuse is
defined as ``the unauthorized use or illegal taking of funds or
property of peopled aged 60 and older.'' The terminology used
in the 2006 Older Americans Act is ``exploitation'', defined as
``. . . the fraudulent or otherwise illegal, unauthorized, or
improper act of process of an individual, including a care-
giver or fiduciary, that uses the resources of an older person
for monetary or personal benefit, profit, or gain, or that
results in depriving an older individual of rightful access to,
or use of, benefits, resources, belonging, or assets.''. Elder
Financial abuse has been called the ``crime of the 21st
Century''. It is a crime that can have significant impact on
its victims because they are incapable of recovering financial
losses. For every dollar lost to theft and abuse, there are
still more related costs associated with stress and health care
and the intervention of social services. Fraud complaints by
older persons is increasing annually. The Consumer Sentinel
Network (CSN) , a secure online database of millions of
consumer complaints had recorded 721, 418 fraud-related
complaints in 2009. The Subcommittee received testimony from
the following witnesses: the Honorable Tammy Baldwin (D-WI);
the Honorable Howard Coble (R-NC); Mr. Lee Hammond, Board
President, AARP; Mr. Robert Blancato, National Coordinator,
Elder Justice Coalition; and Ms. Latifa Ring, personal impact
witness.
Legislative History.--H.R. 3040, the Senior Financial
Empowerment Act of 2010 was introduced on June 25, 2009 by Rep.
Tammy Baldwin (D-WI). The bill referred to House Committee on
the Judiciary, House Energy and Commerce and the Senate
Judiciary Committee. It requires the Federal Trade Commission
(FTC): (1) to disseminate to seniors and their care-givers
information on mail, telemarketing, and Internet fraud
targeting seniors; (2) in response to a request about fraud
committed by a particular entity or individual, to provide to
the requester publicly available information on any record of
civil or criminal law enforcement action against such
individual or entity for fraud; and (3) to maintain a website
as an information resource for seniors and their care-givers
regarding Internet fraud. Authorizes FY2011-FY2015
appropriations. It also directs the Attorney General to
establish a grant program for mail, telemarketing, and Internet
fraud prevention education programs for senior citizens.
Authorizes FY2011-FY2015 appropriations. On July 29, 2010, on
motion to suspend the rules the House passed H.R. 3040, as
amended on a vote of 335-81. It was then received in the
Senate, read twice referred to the Committee on the Judiciary.
(Serial No. 111-137)
H.R. 3695 the ``Help Find the Missing Act'' or ``Billy's Law''
Summary.--This hearing was held on January 21, 2010. The
FBI and the Justice Department's National Institute of Justice
(NIJ) maintain databases which contain information about
missing persons and unidentified remains. H.R. 3695 was
introduced to strengthen and expand the accessability of these
databases. This hearing examined the history of the databases,
why they were created, whom they serve, why the public needs
access to more information, why law enforcement needs to be
encouraged to submit more information to the databases, and how
the bill can help both the public and law enforcement solve
cases of missing persons and unidentified remains. The
Subcommittee received testimony from Rep. Christopher Murphy
(D-CT); Rep. Ted Poe (R-TX); Ms. Janice Smolinski (mother of
Billy Smolinski, missing person); Steven Morris, Deputy
Assistant Director, Criminal Justice Information Services,
Federal Bureau of Investigation; and Kristina Rose, Acting
Director of the National Institute of Justice, U.S. Department
of Justice. (Serial No. 111-99)
Legislative History.--H.R. 3695 was introduced on October
1, 2009 by Rep. Christopher S. Murphy (D-CT) and referred to
the House Judiciary Committee and the Senate Judiciary
Committee. The bill was ordered reported with an amendment by
the Judiciary Committee on January 27, 2010 (adopted by voice
vote), and passed by the House under Suspension of the Rules by
voice vote on February 23, 2010. Rpt. #111-416. On February 24,
2010, the bill was referred to the Senate Committee on the
Judiciary.
H.R. 4080, the ``Criminal Justice Reinvestment Act of 2009'' and H.R.
4055, the ``Honest Opportunity Probation with Enforcement
(HOPE) Initiative Act of 2009''
Summary.--This hearing was held on May 11, 2009 and focused
on two pieces of legislation that were introduced in the 111th
Congress by Congressman Adam Schiff, H.R. 4080, the ``Criminal
Justice Reinvestment Act of 2009'' and H.R. 4055, the ``Honest
Opportunity Probation with Enforcement (HOPE) Initiative Act of
2009.'' Both bills seek to address the country's incarceration
crisis by focusing on criminal justice policies that work. The
hearing educated members on these bills and brought attention
to justice reinvestment efforts that have demonstrated results.
``Criminal justice reinvestment'' involves redirecting
corrections monies into policies that keep people safer, while
slowing the growth of the prison and jail populations. The
notion is to reinvest the resulting savings back into the
community, in ways that advance the goals of public safety
through strategies proven to be effective and efficient in
accomplishing that result. At the hearing, the successes of
several states that have engaged in their own justice
reinvestment initiatives were highlighted. Hawaii's HOPE
project, the original project that inspired H.R. 4055, was be
presented as a successful example of what justice reinvestment
can do. There appeared to be bipartisan support for both bills.
Legislative History.--H.R. 4055, the ``Honest Opportunity
Probation with Enforcement (HOPE) Initiative Act of 2009 and
H.R. 4080, the ``Criminal Justice Reinvestment Act of 2009''
were both introduced on November 16, 2009 by Rep. Adam B.
Schiff (D-CA) and referred to the House Committee on the
Judiciary. On January 4, 2010, they were referred to the
Subcommittee on Crime, Terrorism, and Homeland Security. On May
11, 2010, the subcommittee held a hearing on the bills and
heard testimony from the following witnesses: The Honorable
Adam B. Schiff (CA-29th District); Mr. Adam Gelb, Director,
Public Safety Performance Project, Pew Center on the States,
Washington, DC; The Honorable John T. Broderick, Jr., Chief
Justice of the New Hampshire Supreme Court, Concord, New
Hampshire; The Honorable Jerry Madden, Texas House of
Representatives, Plano, Texas; Dr. Nancy G. La Vigne, Director,
Justice Policy Center, The Urban Institute, Washington, DC; and
The Honorable Steven Alm, Judge, Second Division, Circuit Court
of the First Judicial Circuit, Honolulu, Hawaii. (Serial No.
111-114)
H.R. 5566, the ``Prevention of Interstate Commerce in Animal Crush
Videos Act of 2010''
Summary.--H.R. 5566 was introduced to prohibit the creation
and distribution of certain depictions of extreme animal
cruelty, called ``crush videos,'' in response to the Supreme
Court's decision in April of 2010, invalidating the existing
law on First Amendment grounds.
Legislative History.--H.R. 5566 was introduced by on June
22, 2010 by Rep. Elton Gallegly (R-CA) and referred to the
House Judiciary Committee and the Senate Judiciary Committee.
After the Supreme Court's decision in United States v.
Stephens, invalidating the existing law criminalizing the
possession, creation, and sale of certain depictions of animal
cruelty, the Subcommittee on Crime conducted a hearing, on May
26, 2010. Members and the panel of witnesses discussed the law
that was overturned, the Court's rationale for finding the law
in violation of the First Amendment, and ways in which a new
law could be drafted to avoid these constitutional defects. The
Subcommittee on Crime received testimony from Congressman Elton
Gallegly (R-CA); Congressman Gary Peters (D-MI); Professor
Stephen I. Vladeck, American University Washington College of
Law; Professor Nathaniel Persily, Columbia University School of
Law; and J. Scott Ballenger, Partner, Latham and Watkins.
(Serial No. 111-129)
H.R. 5566 was subsequently developed and introduced on June
22, 2010. On July 23, 2010, the Judiciary Committee approved
the bill without amendment and favorably reported it by a vote
of 23-0. On July 21, 2010, the House passed the bill by a vote
of 416-3. Rpt.# 111-549. The Senate passed the bill with an
amendment on September 28, 2010. On November 15, 2010, the
House passed H.Res. 1172, providing that it agreed to the
Senate amendments with an amendment. On November 19, 2010, the
Senate agreed to the House amendments by unanimous consent. The
President Barack Obama signed it into law on December 9, 2010.
Public Law 111-294
H.R. 5575, the ``Domestic Minor Sex Trafficking
Summary.--The Subcommittee held a hearing on September 15,
2010, on Domestic Minor Sex Trafficking to address issues
pertaining to the commercial sexual exploitation of American
children within U.S. borders, and their subsequent rescue and
rehabilitation. The hearing focused on domestic minor sex
trafficking, including H.R. 5575, the ``Domestic Minor Sex
Trafficking, Deterrence and Victims Supports Act of 2010,''
introduced by Representatives Carolyn Maloney and Christopher
Smith. At the hearing, the Subcommittee examined the ways in
which children are trafficked in the U.S., including the role
that the Internet plays, the challenges that these cases pose
to law enforcement, and the unique needs of survivors.
Legislative History.--H.R. 5575 was introduced June 23,
2010 by Rep. Carolyn B. Maloney (D-NY-14) and referred to the
House Judiciary and House Ways and Means Committees. On July
26, 2010, the bill was referred to the Subcommittee on Crime,
Terrorism, and Homeland Security. On September 15, 2010 the
Subcommittee heard testimony from the following witnesses: The
Honorable Carolyn B. Maloney, 14th District of New York; The
Honorable Jackie Speier, 12th District of California; The
Honorable Ted Poe, 2nd District of Texas; The Honorable
Christopher H. Smith, 4th District of New Jersey; The Honorable
Linda Smith (Former Member of Congress); Ms. Francey Hakes,
National Coordinator for Child, Exploitation Prevention and
Interdiction United States Department of Justice, Washington,
DC; Mr. Ernie Allen, President & CEO, National Center for
Missing and Exploited Children; Alexandria, VA; Ms. Tina
Frundt, Executive Director/Founder, Courtney's House,
Washington, DC; Mr. Nicholas Sensley, Chief of Police, Truckee
Police Department, Truckee, CA; Ms. Suzanna Tiapula, Director,
National Center for Prosecution of Child Abuse, National
District Attorneys Association, Alexandria, VA; Ms. Deborah
Richardson, Chief Program Officer, Women's Funding Network, San
Francisco, CA; Mr. William ``Clint'' Powell, Director, Customer
Service and Law Enforcement Relations Craigslist, Inc., San
Francisco, CA; and Elizabeth ``Liz'' McDougall, Partner at
Perkins Coie, LLP, Seattle, WA. (Serial No. 111-146)
H.R. 5932, the ``Organized Retail Theft Investigation and Prosecution
Act of 2010''
Summary.--H.R. 5932 a bill directs the attorney general to
establish the Organized Retail Theft Investigation and
Prosecution Unit to: (1) investigate and prosecute those
instances of organized retail theft over which the Department
of Justice (DOJ) has jurisdiction; (2) assist state and local
law enforcement agencies in investigating and prosecuting
organized retail theft; and (3) consult with key stakeholders,
including retailers and online market places, to obtain
information about instances of and trends in organized retail
theft.
Legislative History.--H.R. 5932, was introduced on July 29,
2010 by Rep. Robert C. ``Bobby'' Scott (D-VA-03). The bill was
referred to the House Judiciary Committee and the Senate
Judiciary Committee. The House passed this bill by voice vote
on September 29, 2010 was the bill was referred to the Senate
Judiciary Committee.
S. 4005, the ``Preserving Foreign Criminal Assets for Forfeiture Act of
2010''
Summary.--S. 4005, this bill provides authority for federal
prosecutors to seek court orders restraining foreign assets
held in the United States pending asset forfeiture proceedings
in foreign courts.
Legislative History.--S. 4005 was introduced on December
12, 2010 by Sen. Sheldon Whitehouse (D-RI) and referred to the
House Judiciary Committee and the Senate Judiciary Committee.
This bill passed by the Senate on December 14, 2010 and then
passed by the House by voice vote on December 16, 2010. On
December 17, 2010, S. 4005 was presented to President Barack
Obama.
Oversight Activities
Hearing on Sex Offender Registration and Notification (SORNA): Barriers
to Timely Compliance by States (Serial No. 111-21)
Summary: This hearing, on the Sex Offender Registration and
Notification Act (SORNA), was held on March 10, 2009. SORNA
became public law on July 27, 2006, as Title I of the Adam
Walsh Act. It created a national registry for all sex
offenders, and required States to participate in and comply
with the requirements of SORNA or lose 10% of Byrne grant
funding. The initial deadline for compliance by States was July
2009. As of the date of this hearing, not a single state had
been found in compliance. SORNA authorizes the AG to give two
one-year extensions upon request. According to the Department
of Justice website, at the time the hearing was held only
twelve states, four Tribes, and Guam had received a one-year
extension. A New York Times article reported that the DOJ
admitted that as of December 2008, only four states, Arizona,
Idaho, Louisiana and Ohio, had tried to fully comply with
SORNA. In January 2009, the DOJ denied Ohio's application. The
Office of the Inspector General concluded in December 2008 that
the States ``will not fulfill their SORNA requirements by July
2009.'' For these reasons, this hearing sought to explore and
gather information about problems with implementation of SORNA,
to consider whether Congress should extend the deadline that
existed at the time, which was July 2009, and to seek
alternatives to the present barriers. After the hearing, the
Attorney General extended the deadline to July 27, 2010. Prior
this extension, the Chairs and Ranking members of the House and
Senate Judiciary Committee and Crime Subcommittee sent a letter
requesting a one-year blanket extension for all states. While
challenges to implementation of SORNA still exist, particularly
tribal jurisdictions, more states have been found in compliance
as of late, and others have received extensions based on
individual applications to the SMART office. The Subcommittee
heard testimony from: Laura Rogers, Previous Director of the
Department of Justice SMART Office, Washington, DC; Emma J.
Devillier, Asst. Attorney General, Criminal Division, Office of
the Attorney General of LA, Chief, Sexual Predator Unit, Baton
Rouge, LA; Madeline Carter, Principal, Center for Sex Offender
Management, Center for Effective Public Policy, Silver Spring,
MD; Ernie Allen, President & Chief Executive Officer, National
Center for Missing & Exploited Children, Alexandria, VA; Mark
Lunsford, Father of Jessica Lunsford, the Victim of a Sex
Offense, Homasassa, FL; Det. Robert Shilling, Seattle Police
Department, Sex and Kidnapping Offender Detail, Sexual Assault
and Child Abuse Unit, Seattle, WA; and Amy Borror, Public
Information Officer, Office of the Ohio Public Defender,
Columbus, OH. (Serial No. 111-21)
Hearing on ``Lost Educational Opportunities in Alternative Settings.''
Summary.--This hearing was held on March 12, 2009 in
conjunction with the Committee on Education and Labor's
Subcommittee on Healthy Families and Communities. It is
estimated that approximately seven million of the 28 million
students enrolled in U.S. middle or junior high schools are at
risk of academic failure, drug and alcohol abuse or delinquent
behavior. Many of these at risk youth enter alternative schools
and ultimately end up in juvenile justice institutions and
later prisons. These settings may include day treatment
programs, residential treatment centers, group homes, foster
care settings, home tutoring, juvenile justice facilities and
private therapeutic programs which are funded by public
schools. Students find their way to these public and private
settings via court mandates, public school referrals for
students with certain disabilities, as an alternative to
expulsion and a placement for children with substance abuse or
other behavioral challenges. This hearing explored the
increasing number of challenges associated with educating
children in alternative settings and successful models that
have overcome obstacles to providing quality education in these
settings. On March 12, 2009, the Subcommittee's heard testimony
from the following witnesses: Dr. Thomas Blomberg, Professor of
Criminology at Florida State University, Tallahassee, FL; Dr.
Cynthia Cave, As Director of the Office of Student Services,
Virginia Department of Education, Richmond, VA; Leonard Dixon,
M.S., Executive Director of the Wayne County Juvenile Detention
Facility, Detroit, MI; Janeen Steel, J.D., founder of the
Learning Rights Law Center, Los Angeles, CA; Dr. Robert
Whitmore, D. Ed., CEO of Manito Incorporated, Chambersburg, PA;
and Ms. Linda Brooke, Director of Government Relations and
Education Services for the Texas Juvenile Probation Commission,
Austin, TX. (Serial No. 111-5)
Hearing on Representation of Indigent Defendants in Criminal Cases: A
Constitutional Crisis in Michigan and Other States?
Summary.--On March 26, 2009, the Subcommittee held a
hearing in which we examined the state of indigent defense in
Michigan and other states. Despite the Supreme Court's rulings
guaranteeing the right to counsel in criminal cases, many
defendants are still denied effective, or sometimes any,
representation. Many studies of national indigent defense
conducted since Gideon v. Wainright have documented these
problems. A 1999 Department of Justice report found that,
despite progress since Gideon, indigent defense remained ``in a
chronic state of crisis,'' and pointed to funding and workload
problems as among the causes of the crisis. The hearing focused
on the situation in Michigan, although problems faced by other
states were addressed generally. Testimony was also received
about a paper released in June 2008, by the National Legal Aid
& Defender Association NLADA, titled ``A Race to the Bottom,
Speed & Savings Over Due Process: A Constitutional Crisis,''
which concluded that ``the [S]tate of Michigan fails to provide
competent representation to those who cannot afford counsel in
its criminal courts.'' The problems can be traced to inadequate
funding for indigent defense, a lack of independence in the
appointments process, and unmanageable case loads, which are
particularly egregious in Michigan. The witnesses conveyed an
urgent need for solutions, and discussed whether the federal
government had an obligation to assist states with the
responsibility imposed upon them by Gideon. The Subcommittee
heard testimony from the following witnesses: Mr. Dennis
Archer, Chairman of Dickinson-Wright, PLLC; Former Michigan
Supreme Court Justice; Past-President, American Bar
Association; Past-President, State Bar of Michigan, Detroit,
MI; Mr. David J. Carroll, Director of Research, National Legal
Aid and Defender Association, Washington, DC; Ms. Nancy J.
Diehl, Past-President of the State Bar of Michigan; Chief of
the Trial Division, Wayne County Prosecutor's Office Detroit,
MI; Mr. Erik Luna, Professor at Washington and Lee University
School of Law, Lexington, VA; Ms. Regina Daniels Thomas, Chief
Counsel, Legal Aid ` Defender Association Juvenile Law Group;
Detroit, MI; and Mr. Robin Dahlberg, Senior Staff Attorney with
the American Civil Liberties Union, New York, NY. (Serial No.
111-20)
Hearing on ``The Escalating Violence in Mexico and the Southwest Border
as a Result of the Illicit Drug Trade.''
Summary.--On May 6, 2009, the Subcommittee held a hearing
to provide members of Congress with information regarding
illicit drug trafficking originating in Mexico and to review
how our law enforcement agencies are responding to its
escalating violence. When Mexican President Felipe Calderon
took office with a pledge to investigate and prosecute illicit
drug organizations. In fulfilling his pledge, President
Calderon has made trafficking drugs in Mexico more difficult
with one unintended result. As the trafficking has become more
difficult, violence among the drug organizations has increased
as they fight to control fewer trafficking routes. According to
Mexican Attorney General Edwardo Merina Mora, violence directly
attributable to the drug organizations was responsible for the
deaths of at least 8,150 people between December 2006 and
December 2008. This hearing also examined how the border
violence affects the security of the U.S. Southwest border and
made recommendations to Congress to determine what response, if
any, may be necessary. The Subcommittee heard testimony from
the following witnesses: Mr. Stuart G. Nash, Associate Deputy
Attorney General, and Director, Organized Crime Drug
Enforcement Task Forces (OCDETF), U.S. Department of Justice,
Salvador Nieto, Deputy Assistant Commissioner, Office of
Intelligence and Operations Coordination, U.S. Customs and
Border Protection, U.S. Department of Homeland Security; Janice
Ayala, Deputy Assistant Director, Office of Investigations,
U.S. Immigration and Customs Enforcement, U.S. Department of
Homeland Security, Anthony Placido, Assistant Administrator for
Intelligence, United States Drug Enforcement Administration,
U.S. Department of Justice; and William J. Hoover, Acting
Deputy Director, Bureau of Alcohol, Tobacco, Firearms and
Explosives, U.S. Department of Justice. (Serial No. 111-25)
Hearing on ``Strengthening Forensic Science in the United States: A
Path Forward''
Summary.--On May 13, 2009, the Subcommittee held a hearing
to examine the state of forensic sciences in the United States,
focusing on the assessments and recommendations made in a
report published by the National Research Council of the
National Academies of Science entitled ``Strengthening Forensic
Science in the United States: A Path Forward.'' The
Subcommittee heard testimony detailing many of the problems
facing forensic science, including vast disparities in
standards, resources, and technology between different
jurisdictions; the need for further research in many forensic
disciplines; and the lack of standards and education
requirements for practitioners. The Subcommittee heard
testimony from the following witnesses: Kenneth Melson, Acting
Director Bureau of Alcohol, Tobacco, Firearms and Explosives,
Former Director, Executive Office for the United States
Attorneys, U.S. Department of Justice, Washington, DC; Peter
Marone, Director, Virginia Department of Forensic Science,
Richmond, VA; John W. Hicks, Director, Northeast Regional
Forensic Institute, The University at Albany, State University
of New York, Albany, NY; Peter Neufeld, Co-Director, The
Innocence Project, New York, NY. (Serial No. 111-28)
Hearing on Indigent Representation: A Growing National Crisis
Summary.--This hearing, held on June 4, 2009, examined the
problems surrounding the right and access to counsel for
indigent defendants throughout the United States. This hearing
continued the discussion of the problem presented in the March
26, 2009 hearing, which focused on the indigent defense crisis
in Michigan. Many of the problems plaguing Michigan, such as
inadequate funding for defense counsel, lack of independence in
the appointment process, lack of representation, and the risk
of wrongful convictions are prevalent in other states
throughout the country. This hearing focused on these problems
and explore the possible role of Congress in helping to solve
them. Possible solutions included expanding DOJ's Byrne-JAG
grants to include funding for indigent defense, creating a
federal office to oversee and assist state indigent defense
systems, and creating a cause of action for DOJ to vindicate
the rights of defendants in states that are systematically
failing to provide effective assistance of counsel. The
Subcommittee heard testimony from the following witnesses:
Robert M.A. Johnson, Co-Chair, National Right to Counsel
Committee and District Attorney, Anoka County, Minnesota; Alan
Crotzer, Probation and Community Intervention Officer, Florida
Department of Juvenile Justice; wrongfully convicted and
sentenced to 130 years in prison Tallahassee, FL; Erik Luna,
Professor at Washington and Lee University School of Law,
Lexington, VA; Malcolm R. ``Tye'' Hunter: former Executive
Director, North Carolina Office of Indigent Defense Services,
Durham, North Carolina; John Wesley Hall, President, National
Association of Criminal Defense Lawyers, Little Rock, Arkansas;
and Rhoda Billings, Co-Chair, National Right to Counsel
Committee, Former Justice and Chief Justice of the North
Carolina Supreme Court, Lewisville, NC. (Serial No. 111-29)
Hearing on the National Prison Rape Elimination Commission Report and
Standards
Summary.--The Subcommittee held a hearing on July 8, 2009
on a report released by the National Prison Rape Elimination
Commission. On June 23, 2009, the National Prison Rape
Elimination Commission (NPREC) released its final report and
proposed standards on prevention, detection, and monitoring of
sexual abuse of incarcerated and detained individuals in the
United States. The report and standards are the culmination of
many years of work by Members of Congress, prison-reform
advocates, corrections and detention officials and sexual
assault victims to bring attention to this serious problem.
During the hearing, the findings of the report and the
standards developed by the Commission were discussed. The
Subcommittee heard testimony from: Melissa Rothstein, East
Coast Program Director, Just Detention International,
Washington, DC; Reggie B. Walton, Judge, United States District
Court of the District of Columbia, Chair, National Prison Rape
Elimination Act Commission; Sean E. Kenyon, Attorney, Hoeppner
Wagner & Evans LLP, Merrillville, Indiana; Jon Ozmint,
Director, South Carolina Department of Corrections, Columbia,
SC; and Lisa Freeman, Prisoner Rights Project, Legal Aid
Society of New York, New York, NY. (Serial No. 111-49)
Hearing on Mandatory Minimums and Unintended Consequences
Summary.--This hearing, held on July 14, 2009, examined the
nature and consequences of the, at the time, 170 existing
mandatory minimum sentencing laws in the federal criminal code.
Various groups, including the federal Judicial Conference, the
ABA--through its Kennedy Commission, the Sentencing Project,
the U.S. Sentencing Commission, Families Against Mandatory
Minimums, and others have long advocated for the elimination of
mandatory minimum sentencing laws. The hearing examined the
consequences of mandatory minimum sentencing laws on the
criminal justice system, including unprecedented rates of
incarceration, disparate impacts on minorities, and irrational
sentencing results. Moreover, the hearing explored whether
mandatory minimum penalties are meeting the goals of increased
uniformity in sentencing, fairness, deterrence and reduction of
crime. Finally, three bills, the ``Common Sense in Sentencing
Act of 2009'' (H.R. 2934); the ``Ramos and Compean Justice Act
of 2009'' (H.R. 834); and the ``Major Drug Trafficking
Prosecution Act of 2009'' (H.R. 1466) were considered. The
Subcommittee heard testimony from: Honorable Julie E. Carnes,
Chair, Criminal Law Committee of the Judicial Conference of the
United States, Washington, DC; Grover G. Norquist, President,
Americans for Tax Reform, Washington, DC; Michael J. Sullivan,
Partner, Ashcroft Sullivan, LLC, Boston, MA; T.J. Bonner,
President, National Border Patrol Council, Campo, CA; and Julie
Stewart, President and Founder Families Against Mandatory
Minimums Foundation, Washington, DC. (Serial No. 111-48)
Hearing on Oversight of the Federal Bureau of Prisons
Summary.--On July 21, 2009, the Subcommittee held a hearing
to conduct general oversight over the Federal Bureau of Prisons
(BOP). BOP was established by an act of Congress in 1930 and is
within the Department of Justice (DOJ). The agency director is
Harley G. Lappin who was appointed in April 2003. The BOP is
charged with the ``management and regulation of all Federal
penal and correctional institutions.'' The mission of the BOP
is ``to protect society by confining offenders in the
controlled environments of prisons and community-based
facilities that are safe, humane, cost-efficient, and
appropriately secure, and that provide work and other self-
improvement opportunities to assist offenders in becoming law-
abiding citizens.'' The BOP is responsible for the
incarceration of over 205,000 inmates. Almost 82% of these
inmates are confined in Bureau-operated facilities, while 18%
are confined primarily in private sector prisons. The average
sentence length for inmates in BOP custody is 9.9 years. The
Subcommittee heard testimony from the following witnesses: The
Honorable Dennis Cardoza (D) Calif. 18th District; Harley G.
Lappin, Director, Federal Bureau of Prisons, U.S. Department of
Justice; Washington, DC; Reginald A. Wilkinson, President &
CEO, Ohio College Access Network, Columbus, Ohio; Philip
Fornaci, Director, DC Prisoners' Project, Washington Lawyers'
Committee for Civil Rights & Urban Affairs, Washington, DC;
Richard A. Lewis, Senior Manager, ICF International, Fairfax,
VA; Stephen R. Sady, Chief Deputy Federal Public Defender,
Portland, Oregon; and Phil Glover, Legislative Coordinator, the
American Federation of Government Employees, Johnstown, PA.
(Serial No. 111-89)
Hearings on ``Over-Criminalization of Conduct/Over-federalization of
Criminal Law''
Summary.--On July 22, 2009, the Subcommittee held a
hearing. We focused on the issue of Over-Criminalization of
Conduct/Over-federalization of Criminal Law. The purpose of the
hearing was to address the mounting concerns about both the
number of new federal crimes being created annually by
Congress, as well as the deterioration in the mens rea
traditionally needed to find a person guilty of a crime. There
was also the question of whether these new laws have any
deterrent effect when they seek to prohibit and punish conduct
that merely involves negligence or bad judgment. Finally, there
was also the question of whether the increase in federal crimes
has, in effect, only duplicated crimes that already (and
rightly) reside within the jurisdiction of the states. The
Subcommittee had been encouraged to conduct this hearing by a
coalition of organizations that includes the National
Association of Criminal Defense Lawyers, The Heritage
Foundation, The Constitution Project, and the Innocence
Project, among others. The coalition has been actively engaged
in the advocacy of reform of federal criminal laws as well as
the process by which federal crime legislation is enacted in
the future. This was a bi-partisan hearing involving the full
participation and support of both Chairman Scott and Ranking
Member Gohmert. Testimony began with a consensus over-
criminalization expert with extensive background in the issues
of over-federalization of crime and over-criminalization. That
expert framed the problems and summarized their depth. Other
experts focused on specific reforms with respect to mens rea,
over-federalization, and sentencing. Victim witnesses'
testimony highlighted the need for the reforms recommended by
our experts. Each of the witnesses was a consensus witness of
the above-referenced coalition.
The hearing explored whether Congress should: authorize a
review of existing Federal laws with specific emphasis on those
laws that have been enacted but are not being enforced;
reconsider how best to fight crime within the Federal system;
reconsider the true Federal interests in crime control versus
the risks of Federalizing local crime; articulate general
principles which should guide it (Congress) in determining
whether to create new crimes--implement mechanisms to foster
restraint on further Federalization--(such as through a
federalization assessment by a select joint committee);
implement/enact ``Sunset'' provisions with respect to both
existing laws that are not being enforced and those enacted in
the future; and whether the proper response to public safety
concerns is enactment of new federal crime legislation or
increased federal support for state and local crime control
efforts. The Subcommittee heard testimony from the following
witnesses: The Honorable Richard Thornburgh, former U.S.
Attorney General, presently with K`L Gates LLP, Washington, DC;
Timothy Lynch, Cato Institute, Washington, DC; Kathy Norris,
Victim/Personal Impact; Krister Evertson, Victim/Personal
Impact, Professor Stephen Saltzburg, George Washington
University Law School, Washington, DC; and James Strazzella,
Temple University Beasley School of Law, Philadelphia, PA.
(Serial No. 111-67)
Hearing on ``Reauthorization of the Innocence Protection Act of 2004''
Summary.--This hearing was held on September 22, 2009, and
focused on the Reauthorization of the Innocence Protection Act
of 2004, a part of the Justice for All Act of 2004 (P.L. 108-
406, Title IV) (IPA) which was set to expire on September 30,
2009. A the time, there was no pending legislation for
reauthorization of the IPA. The Subcommittee heard testimony
about the implementation of the two grant programs authorized
by the IPA: the Kirk Bloodsworth Post-Conviction DNA Testing
Grants Program (Subtitle A, Sections 412 and 413) and the
Capital Representation Improvement Grants (Subtitle B, Sections
421 and 422). Testimony described initial problems with the
Bloodsworth program that were remedied by a temporary
adjustment of statutory language during the appropriations
process for FY 2008. Witnesses addressed the issue of whether
the temporary adjustment should become permanent, and whether
additional changes are needed to improve the Bloodsworth
program. The hearing also focused on continuing issues
surrounding the efficacy of improving competent legal
representation of indigent defendants in State capital cases
through Capital Representation Improvement Grants. The
Department of Justice (DOJ) witness explained how Capital
Representation Improvement Grants have worked in practice under
the IPA. Advocate witnesses described general problems with
indigent defense representation in State Capital cases, and
possibly suggest improvements that can be made to the IPA to
spur the creation of more effective systems for providing legal
representation in State capital cases. The Subcommittee heard
testimony from the following witnesses: Lynn Overmann, Senior
Advisor, Office of Justice Programs, U.S. Department of
Justice, Washington, DC; Barry C. Scheck, Co-Director and Co-
Founder, The Innocence Project, Benjamin N. Cardozo School of
Law, New York, NY; Karen A. Goodrow, Esq., Director, Division
of Public Defender Services; c/o McCarter ` English, Hartford,
CT; Pete Marone, Director, Virginia Department of Forensic
Science, Richmond, VA; and Stephen B. Bright, President `
Senior Counsel, Southern Center for Human Rights, Atlanta, GA.
(Serial No. 111-74)
Hearing on The Crime Victims Rights Act of 2004
Summary.--The Subcommittee held a hearing on the Crime
Victims Rights Act of 2004 on September 29, 2009. The purpose
of the hearing was to conduct oversight of the implementation
of the statutory rights for victims of federal crimes and the
grant programs established under the Act. As of September 2008,
according to the Department of Justice, over 750,000 crime
victims with active cases were registered with the Victim
Notification System. The most common types of cases prosecuted
in the federal criminal justice system during March 2006 and
March 2007 that involve victims included: fraud; burglary,
larceny and theft; sex offenses; and robberies. Almost half of
the federal criminal cases that were initiated during the same
time period in the federal criminal justice system were related
to immigration and narcotics violations, which generally do not
involve any victims. There have been several attempts to amend
the U.S. Constitution to establish a constitutionally
recognized role for crime victims in the criminal justice
process. After several failed attempts to pass a Constitutional
Amendment, Congress enacted statutes that established certain
rights for federal crime victims and made funding available to
provide services to crime victims including the Crime Victims
Rights Act of 2004. The Subcommittee heard testimony from the
following witnesses: Eileen Larence, Director, Homeland
Security and Justice Issues, U.S. Government Accountability
Office, Washington, DC; Laurence E. Rothenberg, Deputy
Assistant Attorney General, Department of Justice, Office of
Legal Policy, Washington, DC; Mary Lou Leary, Acting Assistant
Attorney General, Department of Justice, Office of Justice
Programs, Washington, DC; Douglas E. Beloof, Professor of Law,
Lewis ` Clark Law School, Portland, OR; Susan Howley, Director,
Public Policy, National Center for Victims of Crime,
Washington, DC. (Serial No. 111-78)
Hearing on Strategies to Help Girls Achieve Their Full Potential
Summary.--On October 20, 2009, the Subcommittee on Crime,
Terrorism and Homeland Security held a hearing entitled Girls
in the Juvenile Justice System: Strategies to Help Girls
Achieve Their Full Potential. The increasing number of girls'
in the juvenile delinquency system has attracted the attention
of federal, state, and local officials for more than a decade.
While the majority of juvenile arrests and cases involve boys,
for the past twenty years girls have increasingly become
involved in the juvenile justice system. In 1980, 20 percent of
all juvenile arrests were girls; by the mid-1990s about one
quarter of these arrests were girls; and by 2007, girls
accounted for 29 percent of all juvenile arrests. Although
arrests for some violent crimes, such as assaults, have
decreased for males, they have decreased less, or in some cases
have increased, for females. This hearing examined prevention
and intervention programs that have been successful at keeping
girls safe and helping them successfully transition out of the
juvenile justice system. The Subcommittee heard testimony from
the following witnesses: Eileen Larence, Director, Homeland
Security and Justice Issues, United States Government
Accountability Office, Washington, DC; Dr. Lawanda Ravoira,
Director, NCCD Center for Girls and Young Women, Jacksonville,
FL; Ms. Tiffany Rivera, GEMS, New York, NY; Ms. Nadiyah
Shereff, San Francisco, CA; C. Jackie Jackson, Ph.D., Executive
Director, Girls, Inc. of the Greater Peninsula, Hampton, VA;
and Mr. Thomas Stickrath, Director, Ohio Department of Youth
Services, Columbus, OH. (Serial No. 111-77)
Hearing on Racial Disparities in the Criminal Justice System
Summary.--The Subcommittee held a hearing October 29, 2009
on ``Racial Disparities in the Criminal Justice System.''
During this hearing the witnesses discussed recent reports
about the growing racial disparities in the criminal justice
system. Every person in this country is guaranteed to be
treated fairly by the justice system under the U.S.
Constitution. When people are treated differently in the
criminal justice system based on their race or ethnicity it
undermines the important Constitutional principle of equal
rights under law. Our criminal justice system is rife with
evidence of racial disparities. Racial disparities in the
criminal justice system exist when the proportion of a racial
or ethnic group involved in the system is greater than the
proportion of such group in the general population. In the
United States, African Americans make up 13% of the general
U.S. population, yet they constitute 28% of all arrests, 40% of
all inmates held in prisons and jails, and 42% of the
population on death row. Whites make up 67% of the total U.S.
population and 70% of all arrests, yet only 40% of all inmates
held in state prisons or local jails and 56% of the population
on death row. The following witnesses appeared and submit a
statement for the record. The Honorable Steve Cohen, United
States House of Representatives, 9th District of Tennessee:
Barry Krisberg, President, National Council on Crime and
Delinquency, Jacksonville, FL; The Honorable James Reams,
President-Elect, National District Attorneys Association,
Alexandria, VA; Wayne McKenzie, Director, Program on
Prosecution and Racial Justice, New York, NY; and Marc Mauer,
Executive Director, The Sentencing Project, Washington, DC.
(Serial No. 111-78)
Hearing on ``Combating Organized Retail Crime--The Role of Federal Law
Enforcement''
Summary.--This hearing was conducted on November 5, 2009.
The hearing examined the roles of the several federal law
enforcement agencies that investigate instances of organized
retail crime. This type of crime is perpetrated by
sophisticated, multi-level criminal organizations, often
operating across state and even international boundaries, to
steal and resell high-value retail goods. The Subcommittee
received testimony from David Johnson, Section Chief, Criminal
Investigations Division, Federal Bureau of Investigation;
Special Agent in Charge John R. Large, Criminal Investigative
Division, U.S. Secret Service; Janice Ayala, Deputy Assistant
Director, Office of Investigations, ICE; and Deputy Chief
Postal Inspector Zane Hill, U.S. Postal Inspection Service.
(Serial No. 111-96)
Hearing on ``FBI Oversight Regarding Recent DOJ Inspector General
Reports''
Summary.--This hearing was held February 24, 2010. The
Department of Justice's Office of the Inspector General which
had released several reports that focused on the Federal Bureau
of Investigation's track record with respect to handling
information and effective cooperation with other federal, state
and local law enforcement agencies: Explosives Investigation
Coordination between the Federal Bureau of Investigation and
the Bureau of Alcohol, Tobacco, Firearms, and Explosives (Audit
Report 10-01); the Federal Bureau of Investigation's Foreign
Language Translation Program (Audit Report 10-02); and a Review
of the Department's Anti-Gang Intelligence and Coordination
Centers (I-2010-01). During the hearings, the findings of the
reports and the recommendations of the OIG were discussed as
well as the FBI's Responses to the Reports. The Subcommittee
received testimony from representatives from the Office of the
Inspector General, the Office of the Deputy Attorney General,
and the FBI: the Honorable Glenn A. Fine, Office of the
Inspector General, U.S. Department of Justice; Margaret
Gulotta, Section Chief, Language Services Section, Directorate
of Intelligence, Federal Bureau of Investigation; and Jennifer
Shasky Calvery, Senior Counsel to the Deputy Attorney General,
Office of the Deputy Attorney General, U.S. Department of
Justice. (Serial No. 111-102)
Hearing on ``Keeping Youth Safe While in Custody: Sexual Assault in
Adult and Juvenile Facilities''
Summary.--On February 23, 2010, the Subcommittee held a
hearing titled ``Keeping Youth Safe While in Custody: Sexual
Assault in Adult and Juvenile Facilities.'' On January 7, 2010,
the U.S. Department of Justice's Bureau of Justice Statistics
released a report titled ``Sexual Victimization in Juvenile
Facilities Reported by Youth, 2008-09'' (hereinafter ``BJS
report''). During the hearing, witnesses discussed the findings
of the report and the problem of sexual assault of youth in
adult and juvenile facilities. The Prison Rape Elimination Act
of 2003 (P.L. 108-79) (PREA) required the Bureau of Justice
Statistics (BJS) to conduct a comprehensive statistical review
and analysis of the incidents of sexual assault in juvenile
correctional facilities for at least 90 days. PREA also
required the BJS report to provide a list of juvenile
correctional facilities according to the prevalence of sexual
victimization. The January BJS report findings shed light on
the dangerous conditions under which many youth in juvenile
correctional facilities live. The report focused on larger
juvenile institutions that typically detain adjudicated youth
for longer periods of time. The Subcommittee heard testimony
from the following witnesses: Brenda Smith, Professor, American
University, Washington, DC; Troy Erik Isaac, North Hollywood,
CA; Bernard Warner, Chief Deputy Secretary for Juvenile
Justice; Department of Corrections and Rehabilitation, Division
of Juvenile Justice, Sacramento, CA; Gabriel Morgan, Sheriff,
Newport News, VA; and Grace Bauer, Campaign for Youth Justice,
Washington, DC. (Serial No. 111-100)
Hearing on ``United States v. Stevens--The Supreme Court's Decision
Invalidating the Crush Video Statute''
Summary.--This hearing was conducted on May 26, 2010. The
hearing examined the Supreme Court's decision which invalidated
the federal law enacted in 1999 to criminalize the creation,
sale, and possession of certain depictions of animal cruelty.
Members and the panel of witnesses discussed the law that was
overturned, the Court's rationale for finding the law in
violation of the First Amendment, and ways in which a new law
could be drafted to avoid these constitutional defects. The
Subcommittee on Crime received testimony from Congressman Elton
Gallegly (R-CA); Congressman Gary Peters (D-MI); Professor
Stephen I. Vladeck, American University Washington College of
Law; Professor Nathaniel Persily, Columbia University School of
Law; and J. Scott Ballenger, Partner, Latham and Watkins.
(Serial No. 111-129)
Hearing on ``Collateral Consequences of Criminal Convictions: Barriers
to Reentry for the Formerly Incarcerated''
Summary.--On June 9, 2010, the Subcommittee held a hearing
titled ``Collateral Consequences of Criminal Convictions:
Barriers to Reentry for the Formerly Incarcerated.'' On April
9, 2008, the Second Chance Act (P.L. 110-199) was signed into
law. This law authorizes federal grants to government agencies
and nonprofit organizations to provide employment assistance,
substance abuse treatment, housing, family programming,
mentoring, victims support, and other services that can help
reduce recidivism and better address the needs of the growing
population of ex-offenders returning to their communities. The
two year authorization for the Second Chance Act expired on
September 30, 2010. As the Committee evaluates the successes
and challenges of implementing Second Chance Act programs, this
hearing examined the continuing barriers that ex-offenders in
this country face as they reenter society after being released
from jails and prisons. In addition, this hearing explored
whether any of these obstacles to successful reintegration
should be addressed in Second Chance Act reauthorization
legislation. On June 9, 2010, the Subcommittee held a hearing
on Collateral Consequences of Criminal Convictions: Barriers to
Reentry for the Formerly Incarcerated. The Subcommittee heard
testimony from the following witnesses: Marc Mauer, Executive
Director, The Sentencing Project, Washington, DC; Maurice
Emsellem, Policy Co-Director, National Employment Law Project,
Oakland, CA; Calvin Moore, DC Employment Justice Center,
Washington, DC; Richard A. Lewis, Fellow ICF International,
Fairfax, VA; Pamela K. Lattimore, Ph.D., Principal Scientist,
RTI International, Research Triangle Park, NC; and Richard
Cassidy, Hoff Curtis, Burlington, VT. (Serial No. 111-139)
Hearing on Hearing on the Role and Operations of the United States
Secret Service
Summary.--This hearing was held by the Subcommittee on
Crime on June 29, 2010, and examined the dual role (protection
and investigation) and operations of the United States Secret
Service. The Members and witness discussed current challenges
with the protective function, including concerns about security
breaches. The hearing also focused on the Service's evolving
and growing investigative role, particularly with respect to
financial and computer crimes. The Crime Subcommittee received
testimony from Mark Sullivan, Director of the United States
Secret Service. (Serial No. 111-140)
Hearing on Hearing on Internet Privacy, Social Networking, and Crime
Victimization
Summary.--On July 28, 2010, the Subcommittee on Crime
conducted a hearing examining the intersection between Internet
privacy and crime victimization of Internet users, with a focus
on the particular risks raised by participation on social
networking sites. The Members and witnesses discussed means by
which criminals spread malware to social networking
participants, obtain private information of social networkers,
and the need for enhanced privacy protection. The Subcommittee
on Crime received testimony from Mr. Gordon M. Snow, Assistant
Director, Federal Bureau of Investigation, United States
Department of Justice, Washington, DC; Mr. Michael P. Merritt,
Assistant Director, United States Secret Service, United States
Department of Homeland Security, Washington, DC; Mr. Joe
Sullivan, Chief Security Officer (CSO), Facebook Inc., Palo
Alto, CA; Mr. Marc Rotenberg, Executive Director, Electronic
Privacy Information Center (EPIC), Washington, DC; and Mr. Joe
Pasqua, Vice President for Research, Symantec Inc., Washington,
DC. (Serial No. 111-144)
Hearing on ``The Reauthorization of the Second Chance Act''
Summary.--A hearing was held on September 29, 2010 by the
Subcommittee titled ``the Reauthorization of the Second Chance
Act.'' On April 9, 2008, the Second Chance Act (P.L. 110-199)
was signed into law. The Second Chance Act authorizes federal
grants to government agencies and nonprofit organizations to
provide employment assistance, substance abuse treatment,
housing, family programming, mentoring, victims support, and
other services that can help reduce recidivism and better
address the needs of the growing population of ex-offenders
returning to their communities. The two year authorization for
the Second Chance Act expired on September 30, 2010. This
hearing examined some of the programs that have been funded
under the Second Chance Act. In addition, witnesses discussed
the Department of Justice's Office of Inspector General (OIG)
audit released in July, 2010 reviewing OJP's design and
management of its three prisoner reentry grant programs. Also,
witnesses discussed changes that could be made in a
reauthorization bill to facilitate the work of government
agencies and non-profit organizations in their efforts to
address the needs of former offenders reintegrating back into
their communities. The Subcommittee heard testimony from the
following witnesses: Le'Ann Duran, Director, National Reentry
Resources Center, Council of State Governments, New York, NY;
Michele Banks, Richmond Second Chance Reentry Program Manager,
Richmond City Sheriff's Office, Richmond, VA; Nancy La Vigne,
Director, Justice Policy Center, The Urban Institute,
Washington, DC; David B. Muhlhausen, Ph.D., The Heritage
Foundation, Washington, DC; and Gladyse Taylor, Acting
Director, Illinois Department of Correction, Chicago, Ill.
(Serial No. 111-154)
Hearing on ``Reining in Over-Criminalization: Assessing the Problems,
Proposing Solutions''
Summary.--This hearing was held on September 28, 2010, and
was a follow up to an earlier hearing held on July 22, 2009, on
the same issue. The earlier hearing addressed mounting concerns
about the number of new federal crimes being created annually
by Congress. These concerns specifically revolve around
questions of the laws' effectiveness, the dilution of the mens
rea element, whether the increase in federal crimes duplicated
crimes that already (and appropriately) reside within the
jurisdiction of the states, and whether many of these newly
enacted laws have had any deterrent effect when they seek to
prohibit and punish conduct that merely involves negligence or
bad judgment (and should therefore be regarded as
administrative rather than criminal infractions). Following
that earlier hearing, a coalition comprised of the Heritage
Foundation, the Washington Legal Foundation, the National
Association of Criminal Defense Lawyers, the American Bar
Association (ABA), the Cato Institute, the Federalist Society,
and the American Civil Liberties Union (ACLU) reconvened to
address the issue of over-criminalization. A non-partisan,
joint study, ``Without Intent'', prepared by two of the
organizations, the Heritage Foundation and the National
Association of Criminal Defense Lawyers, was also released
following that first hearing. In the report, Heritage and the
defense lawyers suggested that lawmakers take a few steps to
improve matters, including requiring the House and Senate
judiciary committees to review all proposed criminal laws and
writing into law that defendants should get the benefit of the
doubt when laws are not written clearly. It was the
recommendation of the coalition that, in order to avoid adding
to the problems of over-criminalization, Congress should ask
the hard questions before enacting new criminal laws. Do we
need to enact more laws at the federal level for a particular
type of conduct? Is there a valid purpose to be served by
creating criminal law at the federal level when it duplicates
an existing state level law? Would it be a better use of
resources for the federal government to supplement state
enforcement of criminal laws rather than replicating their
efforts? It was the position of the coalition that Congress
should be asking these same questions about the thousands of
laws already in the federal criminal code. The Subcommittee
heard testimony from the following witnesses: Jim Lavine,
President, National Association of Criminal Defense Lawyers,
Washington, DC; Bobby Unser, Personal Impact Victim,
Albuquerque, NM; Abner Schoenwetter, Personal Impact Victim,
Pinecrest, FL; Brian Walsh, Senior Legal Research Fellow, The
Heritage Foundation, Washington, DC; Stephen Smith, Professor
of Law, University of Notre Dame Law School, Notre Dame, IN;
Ellen Podgor, LeRoy Highbaugh, Sr. Research Chair and Professor
of Law, Stetson University College of Law, Gulfport, FL; and
Andrew Weissmann, Partner, Jenner & Block, LLP, New York, New
York. (Serial No. 111-151)
SUBCOMMITTEE ON IMMIGRATION, CITIZENSHIP, REFUGEES, BORDER SECURITY,
AND INTERNATIONAL LAW\1\
ZOE LOFGREN, California, Chairman
STEVE KING, Iowa HOWARD L. BERMAN, California
GREGG HARPER, Mississippi SHEILA JACKSON LEE, Texas
ELTON GALLEGLY, California MAXINE WATERS, California
DANIEL E. LUNGREN, California PEDRO PIERLUISI, Puerto Rico
TED POE, Texas LUIS V. GUTIERREZ, Illinois
JASON CHAFFETZ, Utah LINDA T. SANCHEZ, California
ANTHONY D. WEINER, New York
CHARLES A. GONZALEZ, Texas
JUDY CHU, California
--------------------
\1\Subcommittee chairmanship and assignments approved January 22, 2009.
Tabulation of subcommittee legislation and activity
Public:
Legislation referred to the Subcommittee..................... 258
Legislation on which hearings were held...................... 1
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................ 0
Legislation reported to the House............................ 4
Legislation discharged from the Committee.................... 0
Legislation pending in the House............................. 3
Legislation passed by the House.............................. 8
Legislation pending in the Senate............................ 1
Legislation vetoed by the President (not overridden)......... 0
Legislation enacted into Public Law.......................... 5
Legislation enacted into Public Law as part of other
legislation................................................ 19
Days of legislative hearings................................. 1
Days of oversight hearings................................... 6
Private:
Claims:
Legislation referred to the Subcommittee..................... 1
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..................... 62
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......................... 3
Legislative Activity
H.R. 42/S. 69, the ``Commission on Wartime Relocation and Internment of
Latin Americans of Japanese Descent Act''
Summary.--H.R. 42 addresses the mistreatment of Japanese
Latin Americans during World War II and creates a fact-finding
commission to extend the study of the Commission on Wartime
Relocation and Internment of Civilians. The commission would
investigate and determine facts and circumstances surrounding
the relocation, internment, and deportation to Axis countries
of Latin Americans of Japanese descent from December 1941
through February 1948. The commission would also assess the
impact of those actions by the United States, and recommend
appropriate remedies, if any.
Legislative History.--On January 6, 2009, Representative
Xavier Becerra (D-CA) introduced H.R. 42, which on the same day
was referred to the Committee on the Judiciary. Also on the
same day, Senator Daniel Inouye (D-HI) introduced a companion
bill, S. 69. On February 9, 2009, H.R. 42 was referred to the
Immigration Subcommittee, which reported the bill to the full
Judiciary Committee on July 23, 2009 by a vote of 7 to 2. The
Judiciary Committee marked up the bill on October 21, 2009 and
ordered it to be reported favorably by a vote of 22-10. On
February 11, 2009, the Senate Committee on Homeland Security
and Governmental Affairs ordered S. 69 to be reported favorably
without amendment. No further action was taken on H.R. 42 or S.
69.
H.R. 847/S. 1334, the ``James Zadroga 9/11 Health and Compensation
Act''
Summary.--H.R. 847 establishes the World Trade Center
Health Program to provide medical monitoring and treatment
benefits to emergency responders, recovery and cleanup workers,
area residents, and others who were directly impacted by the
attacks of September 11, 2001. The bill also reopens the
September 11 Victim Compensation Fund of 2001 to provide
compensation to anyone who was injured in the aftermath of the
attacks, including persons who were injured during debris
removal at the September 11 crash sites. The bill extends the
deadline for making claims under the fund, and it provides
certain liability protections for the City of New York and
other entities that engaged in recovery efforts and debris
removal following the September 11 attacks.
Legislative History.--On February 4, 2009, Representative
Carolyn Maloney (D-NY) introduced H.R. 847, which was referred
that same day to the Committees on Energy and Commerce and
Judiciary. On February 9, 2009, the Committee on Energy and
Commerce referred H.R. 847 to its Subcommittee on Health. On
March 16, 2009, the Judiciary Committee referred H.R. 847 to
its Crime and Immigration Subcommittees, and the Full Committee
further referred the bill to its Constitution Subcommittee on
March 27, 2009. The Immigration and Constitution Subcommittees
held a joint hearing on H.R. 847 on March 31, 2009. A hearing
on H.R. 847 was also held by the Health Subcommittee of the
Energy and Commerce Subcommittee on April 22, 2009. On June 24,
2009, Senator Kirsten Gillibrand (D-NY) introduced a companion
bill, S. 1334, which saw no further action in the Senate. On
July 29, 2009, the House Judiciary Committee marked up H.R. 847
and ordered it to be reported with amendments by a vote of 22
to 9. On March 16, 2010, the Subcommittee on Health of the
Energy and Commerce Committee marked up H.R. 847 and ordered it
to be reported with amendments by a vote of 25 to 8. The Energy
and Commerce Committee marked up H.R. 847 on May 25, 2010, when
it was ordered to be reported with amendments by a vote of 33
to 12. On July 22, 2010, the Judiciary and Energy and Commerce
Committees each reported H.R. 847 out of committee. On July 29,
2010, H.R. 847 was considered under suspension of the rules,
where it failed to be passed by the House by a vote of 255 to
159. On September 29, 2010, the House passed H.R. 847 under a
rule by a vote of 268 to 160. H.R. 847 was received in the
Senate on that same day. On December 9, 2010, the Senate
considered a motion to invoke cloture on a motion to proceed to
consideration of H.R. 847 in the Senate, but the cloture motion
failed by a vote of 57 to 42. On December 22, 2010, the Senate
reconsidered H.R. 847 and passed the bill with an amendment by
unanimous consent. Later that same day, the House concurred in
the Senate amendment to H.R. 847 by a vote of 206 to 60. H.R.
847 became Public Law 111-347 on January 2, 2011.
H.R. 1029, the ``Alien Smuggling and Terrorism Prevention Act of 2009''
Summary.--H.R. 1029 provides 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 subjects
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. 1029 directs 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 also tightens 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 February 12, 2009, Representative
Baron Hill (D-IN) introduced H.R. 1029. On March 31, 2009, the
House passed H.R. 1029 under suspension of the rules by voice
vote. The bill was received in the Senate and referred to the
Senate Committee on Judiciary on April 1, 2009 and no further
action was taken on the bill. Certain portions of H.R. 1029
that dealt with alien smuggling and human trafficking by sea
were added to H.R. 3619, the Coast Guard Authorization Act for
Fiscal Years 2010 and 2011. H.R. 3619 became Public Law 111-281
on October 15, 2010.
H.R. 1127--To extend certain immigration programs
Summary.--H.R. 1127 extends two expiring immigration
programs until September 30, 2009. The bill amends the
Immigration and Nationality Act to extend the R visa special
immigrant program for non-minister religious workers, which
expired on March 6, 2009. The bill also amends the Immigration
and Nationality Technical Corrections Act of 1994 to extend the
Conrad 30 J-1 visa waiver program for doctors serving rural
areas, which also expired on March 6, 2009.
Legislative History.--On February 23, 2009, Representative
Zoe Lofgren (D-CA) introduced H.R. 1127. On March 4, 2009, the
House passed the bill under suspension of the rules by voice
vote. On March 11, 2009, the Senate passed the bill by
unanimous consent. H.R. 1127 became Public Law 111-9 on March
20, 2009.
H.R. 1425/S. 564, the ``Wartime Treatment Study Act''
Summary.--H.R. 1425 creates a fact-finding commission that
would review the U.S. Government's wartime treatment of
European Americans and European Latin Americans during World
War II. The bill also creates a second commission to review the
U.S. Government's refusal to allow Jewish and other refugees
fleeing persecution or genocide in Europe entry to the United
States between January 1, 1933 and December 31, 1945.
Legislative History.--On March 10, 2009, Representative
Robert Wexler (D-FL) introduced H.R. 1425, which on the same
day was referred to the Committee on the Judiciary. Also on the
same day, Senator Russell Feingold (D-WI) introduced a
companion bill, S. 564. On April 27, 2009, H.R. 1425 was
referred to the Immigration Subcommittee, which reported the
bill to the full Judiciary Committee on July 31, 2009 by a vote
of 9 to 1. The Judiciary Committee marked up the bill on
October 21, 2009 and ordered it to be reported by a vote of 19-
7. No further action was taken on H.R. 1425 or S. 564.
H.R. 2892, Extension of E-Verify and other expiring immigration
programs (religious workers, EB-5 investor visas, and J-1
waiver for doctors serving in under-served areas) and
elimination of widow penalty
Summary.--H.R. 2892, the Department of Homeland Security
Appropriations Act for 2010, extends several expiring
immigration programs until September 30, 2012. Section 547
extends the E-Verify pilot program to electronically check the
employment eligibility of job applicants; section 548 extends
the EB-5 investor visa immigration program; and section 568
extends the R visa special immigrant program for non-minister
religious workers and the Conrad 30 J-1 visa waiver program for
doctors serving rural areas. The bill, in section 568, also
amends the Immigration and Nationality Act to allow spouses and
other close relatives of U.S. citizens or lawful permanent
residents to complete the permanent resident process if the
petitioning U.S. citizen or lawful permanent resident passes
away before the process is completed.
Legislative History.--The immigration provisions in H.R.
2892 were added by the Senate and amended in a conference
between the Houses. The House agreed to the conference report
on October 15, 2009 by a vote of 307 to 114. The Senate agreed
to the conference report on October 20, 2009 by a vote of 79 to
19. H.R. 2892 became Public Law 111-83 on October 28, 2009.
H.R. 3290/S. 1736, the ``September 11 Family Humanitarian Relief and
Patriotism Act of 2009''
Summary.--H.R. 3290 permits a defined set of surviving
dependents of undocumented workers killed during the terrorist
attacks of September 11, 2001, to apply for lawful permanent
residence in the United States.
Legislative History.--On July 22, 2009, Representative
Carolyn Maloney (D-NY) introduced H.R. 3290, which on the same
day was referred to the Committee on the Judiciary. On October
1, 2009, Senator Frank Lautenberg (D-NJ) introduced a companion
bill, S. 1736. Also on July 22, 2009, H.R. 3290 was referred to
the Immigration Subcommittee, which reported the bill to the
full Judiciary Committee on July 23, 2009 by a vote of 7 to 5.
The Judiciary Committee marked up the bill on September 16,
2009 and ordered it to be reported by voice vote. No further
action was taken on H.R. 3290 or S. 1736.
H.R. 4748/S. 3467, the ``Northern Border Counternarcotics Strategy Act
of 2010''
Summary.--H.R. 4748 requires the Director of National Drug
Control Policy to submit to Congress a Northern Border
Counternarcotics Strategy. The Strategy must set forth the
Government's strategy for preventing the illegal trafficking of
drugs across the international border between the United States
and Canada, state the specific roles and responsibilities of
relevant federal agencies to implement that Strategy, and
identify the resources required for implementation.
Legislative History.--On March 3, 2010, Representative
William Owens (D-NY) introduced H.R. 4748, which on the same
day was referred to the Committees on the Judiciary and
Homeland Security. On May 5, 2010, H.R. 4748 was referred by
the Committee on Homeland Security to the Subcommittee on
Border, Maritime, and Global Counterterrorism, but no further
committee action was taken on the bill. On June 9, 2010,
Senator Charles Schumer (D-NY) introduced a companion bill, S.
3467. On July 27, 2010, the House passed H.R. 4748 under
suspension of the rules by a vote of 413 to 0. On December 20,
2010, the Senate passed H.R. 4748 with an amendment by
unanimous consent. On December 21, 2010, the House concurred in
the Senate amendment under suspension of the rules by voice
vote. H.R. 4748 became Public Law 111-356 on January 4, 2011.
H.R. 4862, To permit Members of Congress to administer the oath of
allegiance to applicants for naturalization, and for other
purposes
Summary.--H.R. 4862 amends the Immigration and Nationality
Act to permit each applicant for naturalization to choose to
have the oath of allegiance for naturalization administered by
a Member of Congress, Delegate, or Resident Commissioner
(Member). The bill limits the administration of the oath (1) by
a Member of the Senate to individuals who reside in the
Senator's state; and (2) by a Member of the House to
individuals who reside in the respective congressional
district. The bill also: prohibits a Member from administering
the oath during the 90-day period before any election in which
the Member is a candidate; requires a Member to administer the
oath only at times and places designated by the Secretary of
Homeland Security; and prohibits a Member from administering
the oath during any period in which exclusive authority to
administer it may be exercised by an eligible court for the
person concerned, unless the court has waived such exclusive
authority.
Legislative History.--On March 16, 2010, Representative
Jose Serrano (D-NY) introduced H.R. 4862, which was referred to
the Committee on the Judiciary that same day. On April 26,
2010, H.R. 4862 was referred to the Immigration Subcommittee,
but no further Committee action was taken on the bill. On
September 15, 2010, the House passed the bill under suspension
of the rules by voice vote. The bill was received in the Senate
on September 16, 2010, but no further action was taken on the
bill.
H.R. 5138/H.R. 1623, the ``International Megan's Law of 2010''
Summary.--H.R. 5138 contains provisions designed to protect
children from sexual exploitation by restricting or monitoring
the international travel of certain sex offenders who pose a
risk of committing a sex offense against a minor while
traveling. The bill introduces new reporting requirements for
registered sex offenders who wish to depart from or return to
the United States. The knowing failure to report such travel is
punishable by a fine and/or prison term of up to 10 years. The
bill also requires diplomatic or consular missions in each
foreign country to establish and maintain a countrywide sex
offender registry for sex offenders from the U.S. who
temporarily or permanently reside in such country. H.R. 5138
directs the President to establish the International Sex
Offender Travel Center, headed by U.S. Immigration and Customs
Enforcement, to coordinate the travel notification requirement.
The Travel Center is authorized to determine whether a sex
offender who has provided advance notice of travel is a ``high
interest registered sex offender'' and to provide advance
notice of such travel to destination countries. The traveler
must be informed whether the destination country will be
notified and must be provided an opportunity to appeal the high
interest registered sex offender determination. The bill
additionally authorizes the Secretary of State to revoke the
passport or passport card of a person who has been convicted in
a foreign jurisdiction of a sex offense and to limit to one
year the period of validity for passports issued to persons
designated as high interest registered sex offenders. The bill
amends the minimum standards in the Trafficking Victims
Protection Act of 2000 to include consideration of whether a
particular government cooperates with other governments in the
investigation and prosecution of severe forms of trafficking in
persons, including cases involving nationals of that country
who are suspected of engaging in severe forms of trafficking in
persons in another country.
Legislative History.--On March 19, 2009, Representative
Christopher Smith (R-NJ) introduced H.R. 1623, the
International Megan's Law of 2009, which was on the same day
referred to the Committees on the Judiciary and Foreign
Affairs. On April 27, 2009, the bill was referred to the
Judiciary Committee's Immigration and Crime Subcommittees, but
no further committee action was taken on the bill. On April 26,
2010, Representative Christopher Smith introduced H.R. 5138,
the International Megan's Law of 2010, which was on the same
day referred to the Committees on the Judiciary and Foreign
Affairs. The Committee on Foreign Affairs marked up the bill on
April 28, 2010 and ordered it to be reported by voice vote. On
June 15, 2010, the bill was referred to the Judiciary
Committee's Crime Subcommittee, but the Committee discharged
the bill on July 27, 2010. Also on July 27, 2010, the House
passed H.R. 5138, as amended, under suspension of the rules by
voice vote. The bill was received in the Senate on July 28,
2010 but no further action was taken on the bill.
H.R. 5281/H.R. 1751/H.R. 6497/S. 729/S. 3827/S. 3962/S. 3963/S. 3992,
the ``Development, Relief, and Education for Alien Minors
(DREAM) Act of 2010''
Summary.--The DREAM Act authorizes the Secretary of DHS to
cancel the removal of, and adjust to conditional nonimmigrant
status, an alien who: entered the U.S. before his or her 16th
birthday; has been present in the U.S. for at least five years
on the date of enactment; is under age 30 on the date of
enactment; is a person of good moral character; is not
inadmissible or deportable under specified grounds of the
Immigration and Nationality Act; and has been admitted to an
institution of higher education or has earned a high school
diploma or general education development certificate in the
United States. An alien is also required to: submit biometric
and biographic data and pass security and law enforcement
background checks; register for Selective Service; undergo a
medical examination; and meet other specific requirements. For
an alien who meets all of the above requirements, the bill
establishes an initial five-year period of conditional
nonimmigrant status, which can be revoked if the alien violates
any requirement for such status. The alien can extend the
status for an additional five-year period if the alien
continues to meet the above requirements and has either
completed at least two years of higher education (or received a
degree from an Institution of Higher Education) or has
completed at least two years in the Armed Forces. The bill
further allows an alien who has been on conditional
nonimmigrant status for 10 years, without violating such
status, to adjust his or her status to that of an alien
lawfully admitted for permanent residence. To obtain permanent
residency, the alien would need to satisfy citizenship and
federal tax requirements and again pass security and law
enforcement background checks. The bill further allows an alien
who has adjusted status to permanent residency and has been in
such status for three years to apply for naturalization.
Legislative History.--On March 26, 2009, Representative
Howard Berman (D-CA) introduced H.R. 1751, which was referred
to the Committee on the Judiciary and the Committee on
Education and Labor on the same day. Also on the same day,
Senator Richard Durbin (D-IL) introduced a companion bill, S.
729. Senator Durbin subsequently filed four different versions
of the bill: S. 3827 on September 22, 2010; S. 3962 and S. 3963
on November 17, 2010; and S. 3992 on November 30, 2010. On
December 6, 2010, a motion to proceed was filed on S. 3992,
along with a motion to invoke cloture on the motion to proceed.
On December 7, 2010, Representative Berman filed a new version
of the DREAM Act, H.R. 6497, in the House. On December 8, 2010,
the House voted to add the provisions contained in H.R. 6497 to
an unrelated bill, H.R. 5281, which had already passed the
House and been returned by the Senate with an amendment. The
House voted to concur in the Senate amendment with an
amendment--the DREAM Act provisions in H.R. 6497--by a vote of
216 to 198. On December 9, 2010, the Senate received H.R. 5281
as amended. That same day, the Senate voted to table the motion
to proceed on S. 3992 by a vote of 59 to 40. On December 18,
2010, the Senate failed to invoke cloture on a motion to agree
to the House amendment to H.R. 5281 by a vote of 55 to 41. No
further action was taken on the bill.
H.R. 5283/S. 3411, the ``Help HAITI Act of 2010''
Summary.--H.R. 5283 authorizes the Secretary of the
Department of Homeland Security (DHS) to provide permanent
resident status to Haitian orphans who were granted admission
into the United States pursuant to the humanitarian parole
policy for such orphans announced on January 18, 2010. These
orphans were in the process of being adopted by U.S. citizens
when an earthquake hit Haiti on January 12, 2010. DHS used
emergency parole procedures to bring those orphans to the U.S.
and expedite their reunification with their prospective-
adoptive families. The bill provides these children with
permanent immigration status.
Legislative History.--On May 12, 2010, Representative Jeff
Fortenberry (R-NE) introduced H.R. 5283, which was referred to
the Committee on the Judiciary on the same day. On May 25,
2010, Senator Kirsten Gillibrand (D-NY) introduced a companion
bill, S. 3411. S. 3411 was referred to the Senate Judiciary
Committee but no further action was taken on the bill. On June
15, 2010, H.R. 5283 was referred to the Immigration
Subcommittee, but no further Committee action was taken on the
bill. On July 20, 2010, the House passed H.R. 5283 under
suspension of the rules by voice vote. On August 4, 2010, the
Senate passed H.R. 5283 with an amendment by unanimous consent.
On December 1, 2010, the House concurred in the Senate
amendment to H.R. 5283 under suspension of the rules by voice
vote. H.R. 5283 became Public Law 111-293 on December 9, 2010.
H.R. 5532, the ``International Adoption Harmonization Act of 2010''
Summary.--H.R. 5532 amends the Immigration and
Naturalization Act (INA) to harmonize its international
adoption provisions. Currently, the INA contains two age
requirements related to the adoption of foreign children. The
general rule is that an adoption must be finalized before a
child turns 16 in order for the child to qualify for legal
status. For any siblings of such a child, the adoption must be
finalized before the sibling's 18th birthday, but only if the
sibling comes from a country that has not signed the Convention
on Protection of Children and Cooperation in Respect of
Intercountry Adoption (Hague Convention). The age cut-off for
siblings from signatory countries is the child's 16th birthday.
H.R. 5532 harmonizes these provisions by applying the more
generous 18-year-old age cut-off to all foreign children
adopted by U.S. citizens, irrespective of whether they are a
sibling of another adopted child or whether their home country
is a signatory to the Hague Convention. Similarly, H.R. 5532
also harmonizes vaccination requirements for adopted children
by expanding a documentation exemption, which was previously
available only to children from countries that had failed to
sign the Hague Convention, to children from signatory countries
as well.
Legislative History.--On June 15, 2010, Representative Zoe
Lofgren (D-CA) introduced H.R. 5532, which was referred to the
Committee on the Judiciary that same day. On July 20, 2010, the
House passed the bill under suspension of the rules by voice
vote. The bill was received in the Senate on July 21, 2010, but
no further action was taken on the bill.
H.R. 6397, the ``Marine Sergeant Michael H. Ferschke, Jr. Memorial
Act''
Summary.--Under current immigration law, when a marriage
takes place between two persons who cannot both be physically
present during the ceremony, the marriage is not valid unless
and until it is consummated. H.R. 6397 amends the Immigration
and Nationality Act to create a narrow exception in cases where
the failure to consummate the marriage is caused by physical
separation due to the active-duty military service abroad of
one of the parties to the marriage.
Legislative History.--On November 15, 2010, Representative
John J. Duncan, Jr. (R-TN) introduced H.R. 6397, which was
referred to the Committees on the Judiciary and Budget that
same day. Also on the same day, the House passed the bill under
suspension of the rules by voice vote. The bill was received in
the Senate on November 17, 2010, but no further action was
taken on the bill.
S. 1023/H.R. 2935, the ``Travel Promotion Act of 2009''
Summary.--S. 1023 establishes a nonprofit corporation, the
``Corporation for Travel Promotion,'' to promote the United
States as a tourist destination for foreign tourists. The bill
authorizes up to $10 million in seed money in fiscal year 2010,
and allows in following fiscal years federal matching funds of
up to $100 million per year if matched with corporate
contributions. The federal share would come from fees assessed
by the Secretary of Homeland Security on users of the Visa
Waiver Program, which allows citizens of specified countries
(including many European countries, Japan, South Korea, and
Australia) to travel to the United States for up to 90 days
without obtaining visas.
Legislative History.--Senator Byron Dorgan (D-ND)
introduced S. 1023 on May 12, 2009. On June 18, 2009,
Representative Bill Delahunt introduced a companion bill, H.R.
2935, which on the same day was referred to the Committees on
Energy and Commerce, the Judiciary, and Homeland Security. H.R.
2935 was referred to subcommittees in each committee of
jurisdiction, but no further action was taken on the bill. On
September 9, 2009, the Senate passed S. 1023 by a vote of 79 to
19. On September 23, 2009, the House returned S. 1023 to the
Senate via H. Res. 1653, which stated that the bill contravened
Art. 1, Sec. 7 of the U.S. Constitution. Similar provisions to
those in S. 1023/H.R. 2935 were thereafter added by the House
as section 9 of H.R. 1299, the United States Capitol Police
Administrative Technical Corrections Act of 2009. H.R. 1299
became Public Law 111-145 on March 4, 2010.
S. 1376, the ``International Adoption Simplification Act''
Summary.--S. 1376 restores two international adoption
exemptions to the Immigration and Nationality Act (INA) that
were inadvertently eliminated when the United States became a
signatory to the Convention on Protection of Children and
Cooperation in Respect of Intercountry Adoption (Hague
Convention). Prior to the enactment of this bill, the law
generally made U.S. permanent residency available to foreign
children adopted by U.S. citizens while such children were less
than 16 years of age. An exemption to this 16-year age cut-off
existed for siblings of such adopted children, but this
exemption was available only in relation to countries that had
failed to sign the Hague Convention. S. 1376 harmonizes the
international adoption provisions in the INA by expanding the
sibling-adoption exemption to children adopted from signatories
to the Hague Convention. Similarly, S. 1376 also expands a
vaccination documentation exemption, which was previously
available only to children from non-signatory countries, to
children from signatory countries as well.
Legislative History.--Senator Amy Klobuchar (D-MN)
introduced S. 1376 on June 25, 2009. On July 21, 2010, the
Senate passed the bill by unanimous consent. On November 15,
2010, the House passed the bill under suspension of the rules
by voice vote. S. 1376 became Public Law 111-287 on November
30, 2010.
S. 1472, the ``Human Rights Enforcement Act of 2009''
Summary.--S. 1472 establishes a new section within the
Department of Justice's Criminal Division to enforce human
rights laws. The bill also strengthened the provision in the
Immigration and Nationality Act that makes the commission of
acts of genocide a ground of inadmissibility by clarifying that
the provision applies to acts of genocide wherever and by
whomever committed.
Legislative History.--Senator Richard Durbin (D-IL)
introduced S. 1472 on July 20, 2009. On November 21, 2009, the
Senate passed the bill by unanimous consent. On December 15,
2009, the House passed the bill under suspension of the rules
by a vote of 416 to 3. S. 1472 became Public Law 111-122 on
December 22, 2009.
S. 1599, the ``Reserve Officers Association Modernization Act of 2009''
Summary.--S. 1599 amends title 36, United States Code, to
revise the federal charter of the Reserve Officers Association
of the United States. The bill revises the federal charter by:
making the president-elect of the Association an officer and
including such person on the national executive committee as a
non-voting member; amending the number of national executive
committee members who may be officers of the Association and
who may serve on the national executive committee; amending
provisions that regulate who may serve as officers of the
Association; declaring that the officers shall take office at
the Association's national convention; requiring the
Association's judge advocate to be appointed by the national
executive committee; allowing for appointment by the national
executive committee of any other national officers specified in
the Association's constitution; revising the requirement that
minutes be kept of the proceedings of the national council; and
eliminating specification of the national council and replacing
it with other national entities of the Association.
Legislative History.--Senator Patrick Leahy (D-VT)
introduced S. 1599 on August 6, 2009. On September 24, 2009,
the Senate passed the bill by unanimous consent. On September
25, 2009, S. 1599 was referred to the Committee on the
Judiciary. On October 19, 2009, the bill was referred to the
Immigration Subcommittee, but no further action was taken on
the bill by the Judiciary Committee. On November 19, 2009, the
House passed the bill under suspension of the rules by a vote
of 425 to 0. S. 1599 became Public Law 111-113 on December 14,
2009.
S. 1774/H.R. 3182, For the relief of Hotaru Nakama Ferschke
Summary.--S. 1774/H.R. 3182 provides lawful permanent
residency to beneficiary Hotaru Nakama Ferschke.
Legislative History.--On July 10, 2009, Representative John
J. Duncan, Jr. (R-TN) introduced H.R. 3182, which on the same
day was referred to Committee on the Judiciary. On July 20,
2009, H.R. 3182 was referred to the Immigration Subcommittee,
but no further action was taken on the bill. On October 13,
2009, Senator Jim Webb (D-VA) introduced a companion bill, S.
1774, which was referred to the Senate Judiciary Committee on
the same day. On December 3, 2010, the Senate passed S. 1774
with an amendment by unanimous consent. The House received S.
1774 on December 7, 2010 and passed the bill on December 15,
2010 under suspension of the rules by voice vote. S. 1774
became Private Law 111-2 on December 22, 2010.
S. 4010/H.R. 698/S. 124--For the relief of Shigeru Yamada
Summary.--S. 4010 /H.R. 698/S. 124 provides lawful
permanent residency to beneficiary Shigeru Yamada.
Legislative History.--On January 6, 2009, Senator Dianne
Feinstein (D-CA) introduced S. 124, which was referred to the
Senate Committee on the Judiciary on the same day. On January
26, 2009, Representative Bob Filner (D-CA) introduced a
companion bill, H.R. 698, which on the same day was referred to
the Committee on the Judiciary. On March 10, 2009, H.R. 698 was
referred to the Immigration Subcommittee, but no further
committee action was taken on the bill. On December 3, 2010,
the Senate passed S. 124 without amendment by unanimous
consent. S. 124 was received in the House on December 7, 2010,
but no further action was taken on the bill. On December 6,
2010, Senator Feinstein introduced S. 4010, which was similar
in substance to S. 124. On that same day, the Senate passed S.
4010 without amendment by unanimous consent. The House received
S. 4010 on December 7, 2010 and passed the bill on December 15,
2010 under suspension of the rules by voice vote. S. 4010
became Private Law 111-1 on December 22, 2010.
H.J. Res. 26/S.J. Res. 12--Proclaiming Casimir Pulaski to be an
honorary citizen of the United States posthumously
Summary.--Casimir Pulaski was a citizen of Poland who
fought alongside American colonists during the American
Revolution. He quickly rose to the rank of brigadier general of
the American cavalry and led a courageous charge at the Battle
of Brandywine that averted defeat and saved the life of George
Washington. Pulaski is often referred to as the ``Father of the
American Cavalry.'' He died in battle fighting for the nation's
independence before he was able to become a U.S. citizen. H.J.
Res. 26 posthumously provides Pulaski with honorary
citizenship.
Legislative History.--On March 2, 2009, Representative
Dennis Kucinich (D-OH) introduced H.J. Res. 26, which on the
same day was referred to the Committee on the Judiciary. Also
on the same day, Senator Richard Durbin (D-IL) introduced a
companion bill, S.J. Res. 26. On March 16, 2009, H.J. Res. 26
was referred to the Immigration Subcommittee, which reported
the bill to the full Judiciary Committee on July 23, 2009 by a
vote of 10 to 1. The Judiciary Committee took no further action
on the bill. On October 8, 2009, the House passed H.J. Res. 26
under suspension of the rules by a vote of 422 to 0. H.J. Res.
26 was received in the Senate on that same day. On October 22,
2009, the Senate passed H.J. Res. 26 by unanimous consent. H.J.
Res. 26 became Public Law 111-94 on November 6, 2009.
Oversight Activities
Oversight Hearing on the ``Treatment of Latin Americans of Japanese
Descent, European Americans, and Jewish Refugees During World
War II''
Summary.--This March 19, 2009, hearing examined the
mistreatment of Latin Americans of Japanese descent, European
Americans, and Jewish refugees during World War II by the U.S.
Government. The purpose of the hearing was to explore the facts
and listen to the history in order to determine whether it
would be appropriate to move legislation authorizing the
creation of commissions to further report on this issue.
Witnesses at this hearing were: Daniel Masterson, Professor
of Latin American History, U.S. Naval Academy; Grace Shimizu,
Director, Japanese Peruvian Oral History Project; Libia
Yamamoto, Former Japanese of Latin American Descent Internee;
John Christgau, Author of ``Enemies: World War II Alien
Internment''; Karen Ebel, President, German American Internee
Coalition; Heidi Gurcke Donald, Board and Founding Member,
German American Internee Coalition; John Fonte, Director of
Center for American Common Culture and Senior Fellow at Hudson
Institute; Valery Bazarov, Director of Location and Family
History Service, Hebrew Immigrant Aid Society; David A. Harris,
Executive Director, American Jewish Committee; Leo Bretholz,
Author of ``Leap Into Darkness''; Michael Horowitz, Senior
Fellow, Hudson Institute.
Joint Hearing on H.R. 847, the ``James Zadroga 9/11 Health and
Compensation Act of 2009''
Summary.--This March 21, 2009, hearing focused on the
experience of the Victim Compensation Fund (VCF) established by
Congress to provide compensation to survivors of persons
killed, or to those who were injured, in the immediate
aftermath of the attacks of September 11, 2001. The hearing
also looked at the current problems arising from injuries
sustained by first responders, construction workers, local
residents, and other individuals who sustained injuries that
did not become manifest until after the deadline for seeking
compensation from the VCF. This hearing highlighted the need to
reopen the VCF and consider H.R. 847's approach to this end.
The witnesses were: Kenneth Feinberg, Former Special
Master, Victim Compensation Fund; Barbara Burnette, Detective,
New York Police Department; Christine LaSala, Chief Executive
Officer, World Trade Center Captive Insurance Fund; James
Melius, M.D., Administrator, N.Y.S. Laborers' Health and Safety
Trust Fund; Michael Cardozo, Corporation Counsel, City of New
York; Ted Frank, American Enterprise Institute; Rich Wood,
President, Plaza Construction Corporation.
Oversight Hearing on the ``United States Citizenship and Immigration
Services''
Summary.--This March 23, 2010, hearing examined the funding
structure for the U.S. Citizenship and Immigration Services
(USCIS) and the impact that it has on immigration policies, as
well as the status of USCIS's efforts to transform its business
and technology processes.
The witnesses were: Hon. Alejandro Mayorkas, Director, U.S.
Citizenship and Immigration Services; Frank W. Deffer,
Assistant Inspector General for IT Audits, Office of the
Inspector General, Department of Homeland Security; Susan J.
Irving, Ph.D., Director, Federal Budget Analysis, U.S.
Government Accountability Office.
Joint Oversight Hearing on ``The Public Safety and Civil Rights
Implications of State and Local Enforcement of Federal
Immigration Laws''
Summary.--This April 2, 2009, hearing focused on the public
safety and civil rights concerns that arise when state and
local law enforcement get involved in immigration enforcement,
most commonly through an agreement with the U.S. Immigration
and Customs Enforcement under Sec. 287(g) of the Immigration
and Nationality Act. In particular, this hearing examined the
risk of racial profiling and the erosion of trust between the
police and local communities that can occur when states and
localities attempt to enforce immigration laws without
appropriate and necessary safeguards.
The witnesses were: Julio Cesar Mora, victim of racial
profiling, Avondale, AZ; Antonio Ramirez, Frederick, Maryland
Community Advocate; Deborah Weissman, Reef C. Ivey II
Distinguished Professor of Law, Director of Clinical Programs,
University of North Carolina at Chapel Hill School of Law; Ray
Tranchant, Operations Director, Advanced Technology Center,
Virginia Beach, VA and Adjunct Professor at Cambridge College,
Cambridge, MA, Chesapeake Campus and Bryant and Stratton
College in Virginia Beach, VA; David Harris, Professor of Law,
University of Pittsburgh School of Law; Hubert Williams,
President, Police Foundation; George Gascon, Chief, Mesa Police
Department, Mesa, AZ; Kris Kobach, Professor of Law, University
of Missouri--Kansas City School of Law.
Oversight Hearing on The Executive Office for Immigration Review
Summary.--This June 17, 2010, hearing examined the
Executive Office for Immigration Review's efforts to improve
the Immigration Courts and Board of Immigration Appeals, as
well as the challenges that the agency faces as immigration
enforcement continues to rise.
The witnesses were: Juan P. Osuna, Associate Deputy
Attorney General, Office of Immigration Litigation, U.S.
Department of Justice; Karen T. Grisez, Chair, Commission on
Immigration, American Bar Association; Russell R. Wheeler,
Ph.D., President, The Governance Institute and Visiting Fellow,
The Brookings Institution; Hon. Dana Leigh Marks, President,
National Association of Immigration Judges; Hon. Mark H.
Metcalf, Former Immigration Judge.
Oversight Hearing on The Ethical Imperative for Reform of our
Immigration System
Summary.--This July 14, 2010, hearing brought together
prominent leaders from three traditionally conservative
religious denominations to present the moral argument for a
just and humane overhaul of our country's immigration laws.
The witnesses were: Richard D. Land, Ph.D., President,
Ethics and Religious Liberty Committee of the Southern Baptist
Convention; Gerald F. Kicanas, D.D., Bishop, Archdiocese of
Tucson, Arizona and Vice-President of the U.S. Conference of
Catholic Bishops; Mathew D. Staver, J.D., Founder and Chairman,
Liberty Counsel and Dean and Professor of Law, Liberty
University School of Law; James R. Edwards, Jr., Ph.D., Fellow,
Center for Immigration Studies.
Oversight Hearing on Protecting America's Harvest
Summary.--This September 24, 2010, hearing explored labor
needs in the agricultural sector, attempts to recruit U.S.
workers for agricultural labor, the lack of reliable and
efficient avenues to legally hire foreign workers, and
potential solutions.
The witnesses were: This hearing explored labor needs in
the agricultural sector, attempts to recruit U.S. workers for
agricultural labor, the lack of reliable and efficient avenues
to legally hire foreign workers, and potential solutions.
Oversight Hearing on Role of Immigration in Strengthening America's
Economy
Summary.--This September 30, 2010, hearing brought together
prominent political and business leaders to explore the
rationale and framework for comprehensive immigration reform
presented by the ``Partnership for a New American Economy.''
The witnesses were: Hon. Michael R. Bloomberg, Mayor, City
of New York; Rupert Murdoch, Chairman and CEO, News
Corporation; Jeff Moseley, President and CEO, The Greater
Houston Partnership; Steven A. Camarota, Director of Research,
Center for Immigration Studies.
Oversight Letters
Request for Investigation into Civil Rights Violations in Maricopa
County, Arizona
On February 12, 2009, Chairman John Conyers, Immigration
Subcommittee Chairwoman Zoe Lofgren, Constitution Subcommittee
Chairman Jerrold Nadler, and Crime Subcommittee Chairman Bobby
Scott, wrote to Attorney General Eric Holder, Jr. and Secretary
of Homeland Security Janet Napolitano concerning allegations of
misconduct on the part of Maricopa County, Arizona, Sheriff Joe
Arpaio. The letter requested that the Special Litigation and
Criminal Sections of the Department of Justice Civil Rights
Division undertake an investigation into actions taken by the
Maricopa County Sheriff's Office and urged the Secretary of
Homeland Security to review the agency's 287(g) agreement with
Maricopa County.
H-2A Regulations
On May 5, 2009, Chairman John Conyers, Immigration
Subcommittee Chairwoman Zoe Lofgren, Foreign Affairs Chairman
Howard Berman, Education and Labor Chairman George Miller, and
Representative Luis Gutierrez, wrote to Secretary of Labor
Hilda Solis concerning H-2A regulations that weaken enforcement
and government oversight in the program and suppress wages and
weaken other worker protections. The letter urged the Secretary
to immediately suspend the existing regulations.
On October 20, 2009, Immigration Subcommittee Chairwoman
Zoe Lofgren and Foreign Affairs Chairman Howard Berman, wrote
to Secretary of Labor Hilda Solis and the Office of Policy
Development and Research Administrator Thomas Down, largely in
support of proposed modifications to the H-2A temporary foreign
agricultural worker regulations.
Prosecution of Undocumented Workers Arrested in the Postville, Iowa
Immigration Raid
On May 12, 2009, Immigration Subcommittee Chairwoman Zoe
Lofgren wrote to Attorney General Eric Holder, urging the
agency to review and reconsider the cases of 270 undocumented
workers arrested in the May 2008 immigration raid in Postville,
Iowa.
Vigorous Enforcement of Anti-Trafficking Legislation to Combat Modern-
Day Slavery
On May 14, 2009, Chairman John Conyers and Immigration
Subcommittee Chairwoman Zoe Lofgren, together with
Representatives Howard Berman, George Miller, Jerrold Nadler,
Yvetta D. Clarke, Neil Abercrombie, Donald Payne, Luis
Gutierrez, Jeff Fortenberry, Daniel E. Lungren, Ileana Ros-
Lehtinen, Michael Simpson, Carolyn Maloney, Robert C. ``Bobby''
Scott, Debbie Wasserman Schultz, Albio Sires, Jim Moran, and
Sheila Jackson Lee, wrote to Director Robert M. Mueller, III,
of the Federal Bureau of Investigations to urge the Bureau to
continue and intensify its efforts to combat modern slavery in
America and abroad. The letter highlighted and clarified key
provisions of the William Wilberforce Trafficking Victims
Reauthorization Act of 2008, enacted into law with bipartisan
support in December 2008.
Budgeting for U.S. Citizenship and Immigration Services
On June 5, 2009, Immigration Subcommittee Chairwoman Zoe
Lofgren wrote Appropriations Chairman David Obey and
Appropriations Subcommittee on Homeland Security Chairman David
Price to express support for the President's budgetary request
for $206 million in direct appropriations to U.S. Citizenship
and Immigration Services.
Views on Department of Homeland Security Appropriations Provisions
On June 11, 2009, Chairman John Conyers and Immigration
Subcommittee Chairwoman Zoe Lofgren, wrote to Appropriations
Chairman David Obey to express concerns about expanding or
mandating the current E-Verify program prematurely or through
the appropriations process. The letter expressed support for a
short term extension of the current voluntary E-Verify program
while work proceeds on more comprehensive efforts.
On September 11, 2009, Chairman John Conyers and
Immigration Subcommittee Chairwoman Zoe Lofgren wrote
Appropriations Chairman David Obey and Appropriations
Subcommittee on Homeland Security Chairman David Price
regarding provisions in the Senate version of the Department of
Homeland Security Appropriations Act for Fiscal Year 2010 that
fall within the jurisdiction of the Judiciary Committee. The
letter expressed opposition to Senate amendments pertaining to
a mandatory expansion of the E-Verify pilot program, a
prohibition on funds being used to implement changes to the
``no match'' rule, and an expansion of the current statutory
mandate to complete fencing on our international land borders.
The letter also expressed support for several provisions,
including extended authorization for the Special Immigrant Non-
Minister Religious Worker and the Conrad State 30 J-1 Visa
Waiver Programs for doctors who serve in medically underserved
areas, a fix to the so-called ``widow penalty'', and a
permanent reauthorization of the EB-5 Immigrant Investor
regional center pilot program.
On June 24, 2010, Chairman John Conyers and Immigration
Subcommittee Chairwoman Zoe Lofgren, wrote to Appropriations
Subcommittee on Homeland Security Chairman David Price to
express concerns about expanding or mandating the current E-
Verify program prematurely or through the appropriations
process. The letter advised that E-Verify remain in its current
form until further comprehensive efforts and changes can be
made to the program.
Conditions of Confinement for Immigration Detainees and Efforts at
Reforms
On September 25, 2009, Immigration Subcommittee Chairwoman
Zoe Lofgren wrote to Secretary of Homeland Security Janet
Napolitano and Assistant Secretary John Morton to request a
copy of the report submitted to the agency by Dora Schriro
prior to her departure in order to become Commissioner of the
New York City Department of Corrections.
On April 9, 2010, Chairman John Conyers wrote to Assistant
Secretary of Homeland Security John Morton to request copies of
investigative reports prepared in connection with allegations
that U.S. Immigration and Customs Enforcement employees hid the
truth of immigrant detainee custodial deaths.
On May 5, 2010, Immigration Subcommittee Chairwoman Zoe
Lofgren wrote to Homeland Security Inspector General Richard
Skinner to request copies of investigative reports pertaining
to the in-custody deaths of Arnulfo Rodriguez-Solis and Evelyn
Obey.
On May 5, 2010, Immigration Subcommittee Chairwoman Zoe
Lofgren wrote to Assistant Secretary of Homeland Security John
Morton to request a copy of an investigative report pertaining
to the in-custody death of Ernesto Gomez-Vasquez.
On July 2, 2010, Immigration Subcommittee Chairwoman Zoe
Lofgren wrote to Assistant Secretary of Homeland Security John
Morton regarding allegations of sexual abuse of women detainees
at the T. Don Hutto Detention Center, operated by the
Corrections Corporation of America (CCA). The letter expressed
support for reforms that CCA had agreed to make to all of its
immigration detention facilities, in order to make them more
appropriate for a civilly-detained population. The letter
expressed continuing concern regarding the conditions of
confinement within many of our detention facilities and urged
the Department to implement these reforms throughout the
detention system, where appropriate.
USCIS Fee Increases
On October 7, 2009, Immigration Subcommittee Chairwoman Zoe
Lofgren wrote to Director of U.S. Citizenship and Immigration
Services Alejandro Mayorkas to express concern that the agency
was considering another fee increase for immigration and
naturalization applications. The letter requested that USCIS
consult with the Committee before considering another fee
increase and expressed the view that any further fee increases
be justified by both financial need and a demonstrated ability
by USCIS to fulfill its promises to improve the provision of
services.
Refugee Consultation Follow-up
On October 13, 2009, Chairman John Conyers and Immigration
Subcommittee Chairwoman Zoe Lofgren wrote to Secretary of State
Hillary Rodham Clinton to thank her for participating in the
refugee consultation and to highlight the Administration's
commendable actions to systemically improve our refugee
admissions program. The letter also reiterated views expressed
during the consultation about various refugee concerns,
including continued shortfalls in domestic funding for
resettled refugees, delays in exercising waiver or exemption
authority for material support and related bars to admission,
serious unmet refugee resettlement needs in Africa, and
particular populations of concern with respect to international
protection in countries of first asylum or resettlement.
Alleged Terrorist Activity
On October 20, 2009, Chairman John Conyers and Ranking
Member Lamar Smith wrote to Attorney General Eric Holder and
Secretary of Homeland Security Janet Napolitano to request the
immigration files of five persons recently arrested in
connection with alleged terrorist activities in the United
States.
Abuses and Violations in the H-1B Visa Program
On November 12, 2009, Chairman John Conyers and Immigration
Subcommittee Chairwoman Zoe Lofgren wrote to Attorney General
Eric Holder, Secretary of Homeland Security Janet Napolitano,
and Secretary of Labor Hilda Solis, regarding abuses and
violations in the H-1B visa program, as detailed in media
reports pertaining to hundreds of Filipino nationals brought to
the United States on H-1B visa to work as public school
teachers in Louisiana. The letter urged all three Departments
to review the reports of abuse, as appropriate.
USCIS Policy Guidance on Implementing the So-Called ``Widow Penalty''
Fix
On June 1, 2010, Immigration Subcommittee Chairwoman Zoe
Lofgren wrote to Director of U.S. Citizenship and Immigration
Services Alejandro Mayorkas commenting on a recent policy
guidance pertaining to the so-called ``Widow Penalty'' fix. The
letter requested that the policy clarify additional areas of
concern.
The Humanitarian Crisis Left Behind by the Haitian Earthquake
On January 13, 2010, Chairman John Conyers, Immigration
Subcommittee Chairwoman Zoe Lofgren, and Representatives Alcee
Hastings, Ileana Ros-Lehtinen, Lincoln Diaz-Balart, and Mario
Diaz-Balart, wrote to President Barack Obama to express
gratitude for the emergency response efforts undertaken by the
Department of Homeland Security in light of the devastating
earthquake that struck Haiti's capital city of Port-au-Prince.
The letter requested that the Administration exercise its
authority to designate Haiti for Temporary Protected Status
pursuant to section 244 of the Immigration and Nationality Act.
On January 28, 2010, Chairman John Conyers, Ranking Member
Lamar Smith, Foreign Affairs Chairman Howard Berman, Foreign
Affairs Ranking Member Ileana Ros-Lehtinen, and Immigration
Subcommittee Chairwoman Zoe Lofgren, wrote to Secretary of
State Hillary Rodham Clinton pertaining to the ongoing
protection needs of Haitian children who were adopted, or who
were in the process of being adopted, by U.S. citizens prior to
the January 12, 2010, earthquake. The letter urged the State
Department to develop a plan to provide for the security and
humanitarian needs of these children until such time as they
are safely with their U.S. citizen parents in the United
States.
On March 8, 2010, Chairman John Conyers, Foreign Affairs
Chairman Howard Berman, Foreign Affairs Ranking Member Ileana
Ros-Lehtinen, Immigration Subcommittee Chairwoman Zoe Lofgren,
and Representatives Yvette Clarke, Lincoln Diaz-Balart, Mario
Diaz-Balart, and Anh ``Joseph'' Cao, wrote to Secretary of
Homeland Security Janet Napolitano to commend the significant
humanitarian actions already taken by the Department of
Homeland Security since the January 12, 2010, earthquake in
Haiti. The letter additionally requested that the Department
use its parole authority to allow Haitians with an already
approved, legal method of entering the United States to be
reunited with close family members in the United States while
awaiting visa availability. Expediting reunification in this
manner would bring families together without risking a
dangerous maritime migration, and would increase the flow of
remittances back to Haiti to assist in that country's
rebuilding effort.
On July 26, 2010, Chairman John Conyers and Immigration
Subcommittee Chairwoman Zoe Lofgren wrote to Director of U.S.
Citizenship and Immigration Services Alejandro Mayorkas to
commend the agency's implementation of Temporary Protected
Status for Haitians already in the United States. The letter
encouraged USCIS, when drafting the final rule adjusting
applications fees, to include the humanitarian parole
application form among the list of forms eligible for an
application fee waiver.
Administrative Actions to Maximize Efficiencies
On June 8, 2010, Immigration Subcommittee Chairwoman Zoe
Lofgren wrote to Director of U.S. Citizenship and Immigration
Services Alejandro Mayorkas urging the agency to take
administrative actions to maximize efficiencies. The letter
requested that the agency consider actions including extending
employment authorization to spouses of certain employment-based
visa holders, expanding the use of premium processing for
various applications and petitions, and expanding the use of
multi-year employment authorization documents.
Lethal Use of Force Along the Southwest Border
On July 2, 2010, Immigration Subcommittee Chairwoman Zoe
Lofgren wrote to Assistant Secretary of Homeland Security Janet
Napolitano regarding the recent deaths of two Mexican nationals
along our southwest border following the use of force by
Department of Homeland Security personnel. The letter expressed
support for ongoing investigations into the deaths by federal
and local authorities. The letter also encouraged the
Department to review policies, procedures, and training
protocols pertaining to the use of forces along our land
borders, and to utilize the expertise of the Department's Civil
Rights and Civil Liberties Officer and Office of Health Affairs
in such a review.
Confusion Surrounding the Ability of Local Law Enforcement Agencies to
``Opt Out'' of Secure Communities
On July 27, 2010, Immigration Subcommittee Chairwoman Zoe
Lofgren wrote to Assistant Secretary of Homeland Security Janet
Napolitano and Attorney General Eric Holder pertaining to the
current deployment of ICE's Secure Communities program. The
letter requested a clear explanation of how local law
enforcement agencies may ``opt out'' of Secure Communities by
having fingerprints they collect and submit to the State
Identification Bureaus checked against criminal, but not
immigration, databases.
TASK FORCE ON JUDICIAL IMPEACHMENT
ADAM B. SCHIFF, California,
Chairman
SHEILA JACKSON LEE, Texas
WILLIAM D. DELAHUNT, Massachusetts
STEVE COHEN, Tennessee
HENRY C. ``HANK'' JOHNSON, Jr.,
Georgia
PEDRO PIERLUISI, Puerto Rico
CHARLES A. GONZALEZ, Texas
BOB GOODLATTE, Virginia
F. JAMES SENSENBRENNER, Jr.,
Wisconsin
DANIEL E. LUNGREN, California
J. RANDY FORBES, Virginia
LOUIE GOHMERT, Texas
H. Res. 1031, Impeaching G. Thomas Porteous, Jr., judge of the
United States District Court for the Eastern District of
Louisiana, for high crimes and misdemeanors..................
On January 6, 2009, Chairman Conyers introduced H. Res. 15, which
continued the authority of H. Res. 1448 (from the 110th
Congress) and provided that the Committee on the Judiciary
inquire into whether Judge Porteous should be impeached. H.
Res. 15 passed the full House on January 13, 2009, by a voice
vote. At its organizational meeting January 22, 2009, the
Committee voted to refer the impeachment inquiry to a ``Task
Force on Judicial Impeachment,'' comprised of 13 Committee
Members, to conduct the factual investigation. Members of the
Task Force were Chairman Adam B. Schiff, Ranking Member Bob
Goodlatte, William D. Delahunt, Sheila Jackson Lee, Steve
Cohen, Henry C. ``Hank'' Johnson, Pedro Pierluisi, Charles
Gonzalez, F. James Sensenbrenner, Daniel E. Lungren, J. Randy
Forbes, and Louis Gohmert......................................
On July 29, 2009, the full Committee voted 30-0 to request the
House General Counsel to seek immunity orders to compel the
testimony of 8 witnesses.......................................
The Task Force held fact-finding hearings on November 17-18,
2009, December 8, 2009, December 10, 2009 and December 15,
2009. On January 21, 2010, the Task Force voted 8-0 to
recommend four articles of impeachment to the full Committee.
On that day, Chairman Conyers, with 13 original co-sponsors,
introduced H. Res. 1031, which set forth the four articles that
had been approved by the Task Force. On January 27, 2010, the
Committee met and approved the four articles by separate votes
as follows: Article 1--29-0; Article II--28-0; Article III--23-
0; and Article IV--25-0, with one Member passing. Thereafter,
H. Res. 1031 was favorably reported without amendment by a roll
call vote of 24-0. On March 11, 2010, H. Res. 1031 passed the
House by unanimous votes on each of the four Articles as
follows: Article I--412-0; Article II--410-0; Article III--416-
0; and Article IV 423-0. In addition, on March 11, 2010, the
House passed by unanimous consent H. Res. 1165, which
designated 5 Members of the Judiciary Committee--Reps. Schiff,
Goodlatte, Lofgren, Jonson, and Sensenbrenner--to be the House
Managers for the purposes of conducting the Impeachment trial
before the Senate. The Articles were presented to the Senate on
March 17, 2010. After pre-trial proceedings, an evidentiary
hearing was held in front of the Senate Impeachment Trial
Committee commencing September 13, 2010. On December 7, 2010,
Mr. Schiff and Mr. Goodlatte argued the House's case before the
Full Senate. On December 8, 2010, the Senate found Judge
Porteous guilty on each of the four Articles by the following
votes (two-thirds being required to convict): Article I--96-0;
Article II--69-27; Article III--88-8; and Article IV--90-6.
Upon his conviction by the Senate, Judge Porteous was removed
from his position as United States District Court Judge. The
Senate thereafter voted 94-2 to disqualify Judge Porteous from
holding further office.........................................
H. Res. 520--Impeaching Samuel B. Kent, judge of the United
States District Court for the Southern District of Texas, for
high crimes and misdemeanors.................................
On May 12, 2009, Chairman Conyers introduced H. Res. 424, which
authorized the Committee on the Judiciary to inquire into
whether Judge Samuel B. Kent (S.D. Tx.) should be impeached.
The House passed that Resolution by unanimous consent. The next
day, May 13, 2009, the Committee on the Judiciary passed a
resolution to provide that the Impeachment Task Force (which
had been previously established to investigate Judge Porteous)
conduct an inquiry into whether Judge Kent should be impeached.
The Task Force held and evidentiary hearing on June 3, 2009. On
June 9, 2009, the Task Force met and approved a proposed
resolution recommending four articles of impeachment to the
full Committee. Later that day, H. Res. 520 was introduced by
Chairman Conyers. On June 10, 2010, the Committee considered
and approved the four Articles by separate votes as follows:
Article I--30-0; Article II--28-0; Article III--30-0; Article
IV--28-0 (with one Member passing). Thereafter, by a vote of
29-0, the Committee voted to report H. Res. 520 favorably. On
June 19, 2009, the House approved the Articles by separate
votes as follows: Article I--289-0; Article II--385-0; Article
III--381-0; and Article IV--372-0 (with one Member voting
present). Also on June 17, 2009, the House passed H. Res. 565,
appointing Mr. Schiff, Mr. Goodlatte, Ms. Lofgren, Mr. Johnson
and Mr. Sensenbrenner to be the House Managers for purpose of
conducting the impeachment trial before the Senate. On June 24,
2010, the House Managers presented the Articles of Impeachment
to the Senate. Judge Kent thereafter submitted his resignation,
effective June 30, 2009. On July 20, 2009, the House passed by
unanimous consent H. Res. 661, instructing the House Managers
to advise the Senate that the House did not desire further to
urge the articles of impeachment against Judge Kent. On July
22, 2009, the Senate dismissed the Articles against Judge Kent.