Capitol View V O L U M E 2 , N U M B E R 8 J U L Y 2 0 0 4 - - PDF document

Capitol View

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Congressional Update Since returning from its Memorial Day Recess on June 1, Congress' mid-summer agenda has been full but disagreements between the two parties and between the Senate and House have resulted in a somewhat short list

• f actual legislative accomplishments.
• Federal Marriage Amendment (S.J.Res. 40). On July 14, the Senate failed to invoke cloture by a vote of 48

yeas to 50 nays on the Motion to Proceed to consideration of a Joint Resolution proposing an amendment to the Constitution defining marriage. Under the proposal, the Constitution would have been amended to include a provision stating that, "Marriage in the United States shall consist only of the union of a man and a

• woman. Neither this Constitution, nor the Constitution of any state, shall be construed to require that

marriage or the legal incidents thereof be conferred upon any union other than the union of a man and a woman." Since amending the Constitution requires a 2/3 vote of both Houses, or 67 Senators, this measure fell far short of the level of support necessary to send the proposed amendment to the states for ratification.

• Department of Defense Authorization Act (H.R.4200 and S.2400) This measure authorizes appropriations

for the Department of Defense, military construction and certain national security programs for Fiscal Year

• 2005. The Senate had this bill under consideration on the floor most of the time between May 17 and June
• 23. It eventually passed by a vote of 97-0. The House version was debated on the floor for two days and

was adopted by a vote of 391-34.

• American Jobs Creation Act (H.R. 4520 and S. 1637). On June 17 the House passed H.R. 4520 by a vote of

251-178. It would repeal some corporate tax provisions which the World Trade Organization had determined to be an unfair subsidy. H.R. 4520 would also create new corporate tax provisions worth about $140 billion over 10 years. It would also allow taxpayers a deduction from federal taxable income for either their state sales or income tax payments in 2004 and 2005. The House bill also includes a federal buyout of tobacco farmers estimated at costing approximately $10 billion. One Senate version of the bill had been adopted in early May and a second was passed on July 15th in order to comply with the constitutional requirement that revenue measures originate in the House. It contains a title devoted to energy tax credits and a slightly different tobacco buy-out provision coupled with a program regulating the manufacturing and sale of tobacco products. The conference to reconcile the Senate and House bills will be held after the Congress returns in September.

• Energy Policy Act of 2004 (H.R. 4503). This comprehensive reform of the nation's energy policy was

passed by the House on June 15 by a vote of 244-178. H.R. 4503 addresses a wide range of issues such as

• il and gas production, energy efficiency, coal, nuclear power, electricity as well as energy research and
• development. It is virtually identical to H.R. 6 which was adopted by the House on April 30, 2003 by a vote

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• f 247-175. The House Republican Leadership decided to pass a second energy policy reform bill as a way
• f increasing pressure on the Senate to take up the matter since the Senate has refused to consider the

previously passed legislation. The likelihood of the Senate taking up the energy bill this year appears to be fading.

• Appropriations. In mid-June the House passed the Defense Appropriation bill (H.R. 4613), the Energy and

Water Development Appropriations bill (H.R. 4614), the Homeland Security Appropriations bill (H.R. 4567), and the Interior Appropriations bill (H.R. 4568). By mid-July the House had also passed the Agriculture Appropriations bill (H.R. 4766), the Commerce, Justice, State Appropriations bill (H.R. 4754) and the Legislative Branch Appropriation bill (H.R. 4755). The only Appropriation measure enacted by the Senate so far has been Defense Appropriations (S. 2559). The House plans to pass more appropriation bills with a tentative schedule to conclude House consideration of 11 of the 13 regular appropriation bills by the July 26 recess. The tentative Senate schedule for the same time period does not include floor time for any appropriation matter.

• Class Action Fairness Act of 2004 (S.2062). On July 8, Senate Majority Leader Bill Frist (R-TN)

suspended further debate on S.2062 which would have allowed for the removal of more large multi-state class action suits from state to federal courts. The Majority Leader's decision followed a failure to invoke cloture on this measure by a vote of 44-43, some 16 short of the required 60 votes. While the bill has the support of 62 or more Senators, many did not vote for the Majority Leader's Motion to Invoke Cloture because they did not agree with his effort to prohibit Members from attaching non-germane amendments to the bill. Senate Democrats, and some Republicans, had planned to offer amendments dealing with the minimum wage, mental health parity in medical insurance, global warming and several other issues Senator Frist considered to be primarily political in nature. Pulling the bill from the Floor this late in the Session greatly diminishes its chances of enactment this year. With the upcoming August recess and party conventions, the window for enacting major legislation in the Second Session of the 108th Congress is closing. Following the recess, there will be some opportunity for legislative action in September and perhaps early October before the Congress leaves for the campaign season. However, as November 2 draws closer, partisan warfare on the floor of the Senate decreases the likelihood of major legislative accomplishments before the elections. Many of the legislative initiatives already passed by the House earlier in the Session will die in the Senate. Just as the threat of non-germane controversial amendments led to the likely demise of the class action bill, similar problems have already contributed to the Majority's decision to cut off debate on welfare reauthorization legislation (H.R. 4) and a bill to limit civil liability for firearm manufacturers (S.1805). The same fate likely awaits other major bills unless both Democrats and Republicans feel a pressing political need to pass particular

• legislation. Although the schedule now calls for final adjournment of the 108th in October, talk of a lame duck

session has already begun. Kevin Faley is the Editor of Capitol View and a partner in Venable's Legislative Practice Group. Mr. Faley can be reached at 202-344-4706.

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__________________________________________________________________________________________ The Broadcast Decency Enforcement Act In the wake of Janet Jackson's Super Bowl “wardrobe malfunction,” Congress has been considering the Broadcast Decency Enforcement Act of 2004, which would dramatically increase (from the current $27,500 to $275,000) the Federal Communications Commission’s ability to fine television and radio broadcast stations for indecency violations. Additionally, the version of the bill that passed the House (in record time and with only 22 opposition votes) and unanimously cleared the Senate Commerce Committee, would allow the FCC to fine an individual $500,000 for a single indecency violation—a fifty-fold increase from the current $11,000 penalty. Representing The Creative Coalition (TCC), the leading nonprofit, nonpartisan social and public advocacy

• rganization of the arts and entertainment communities, and the American Federation of Television and Radio

Artists (AFTRA), a national professional guild representing nearly 80,000 performers, journalists and other artists working in the entertainment and news media, the Venable Legislative Group was instrumental in the decision to, ultimately, not include stepped-up individual performer fines in the Senate bill. Due to the potentially perilous impact on free speech posed by these increases—particularly those on individuals—Venable worked tirelessly with Senators and their staff to mitigate the more onerous provisions of the legislation. In the immediate wake of the House’s vote, the Venable team joined TCC Co-President Tony Goldwyn in canvassing Capitol Hill to discuss the disproportionate impact of such fines on individual

• performers. Additionally, Erik Huey of Venable's Legislative Group gave numerous press interviews and

briefings, including briefings for TCC Executive Director Robin Bronk in preparation for her interviews on various nationwide radio programs. These appearances helped to educate listeners and decision-makers, prompting concerned voters to respond to each appearance by flooding Capitol switchboards with calls to elected officials. After a flurry of legislative activity regarding this issue in the spring, the bill had stalled in the Senate. On June 17th, Senator Brownback (R-KS) announced his intention to attach the bill as an amendment to the Department

• f Defense authorization bill. In an effort to avoid any controversy stemming from many aspects of the version
• f the bill that passed the Commerce Committee, Senator Brownback planned to offer a stripped-down

alternative that would restrict increases to broadcast fines. When several other senators re-offered their respective controversial amendments, however, Senator Allen (R-VA, original sponsor of the $500,000 performer fine amendment in the Commerce Committee) expressed his interest in offering a second-degree amendment that would increase fines on individuals as well as broadcast licensees. Building upon its advocacy efforts of the past several months, the Venable team immediately sprung into action and returned to Capitol Hill for a series of meetings with key Senate staff on both sides of the aisle to defeat or at least mitigate the Allen amendment. By presenting statistics showing the median salaries of singers, DJs, and musicians, the Venable Legislative Group was able to convince key staffers that the exorbitant performer fines would be disproportionately unfair and could bankrupt performers—the specter of which would send an unnecessary chilling effect over free expression over the airwaves. Fearing a floor debate on the controversial performer fine issue (in the context of a bill funding the ongoing war effort) and seeking an overwhelming vote margin to ensure that the indecency provisions were not stripped in a House-Senate conference committee (which will reconcile differences in the larger defense authorization bill), Senator Brownback introduced a bill that did not include the performer provisions.

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Though it is unclear whether the Brownback indecency amendments will survive the conference process, the removal of performer fine increases represents a significant victory for the arts and entertainment communities, as well as the First Amendment. Erik Huey is of counsel to Venable's Legislative Practice Group. Mr. Huey can be reached at 202-344-4655. __________________________________________________________________________________________ ### Capitol View is published by the Legislative Practice Group of the law firm Venable LLP, 575 7th Street, N.W. Washington, DC 20004-1601. Internet address: http://www.venable.com. It is not intended to provide legal advice or opinion. Such advice may only be given when related to specific fact situations. Editor: Kevin O. Faley Associate Editor: Kyle Miller Questions and comments concerning materials in the newsletter should be directed to Kevin Faley at kofaley@venable.com. Please direct address changes to Kyle Miller at kpmiller@venable.com.