Legal Material

THE STATE SECRETS PRIVILEGE

Wikimedia Foundation, et al. v. National Security Agency, et al. is a lawsuit brought by the American Civil Liberties Union (ACLU) on behest of the Wikimedia Foundation and several other organizations against the National Security Agency (NSA), the United States Department of Justice (DOJ), and other named individuals. The argument that the complaint hinged upon was that the NSA engaged in mass surveillance of Wikipedia users.

The complaint asserts that the monitoring technology, dubbed “Upstream” by the NSA, violates the First Amendment of the United States Constitution, which safeguards free speech, and the Fourth Amendment, which forbids unreasonable searches and seizures.

BACKGROUND

The National Security Agency is headquartered at Fort Meade, Maryland. The action itself was brought in the United States District Court for the District of Maryland. The action was rejected in October 2015 by Judge T. S. Ellis III. Four months later, the Wikimedia Foundation appealed the judgment, going to the Fourth Circuit Court of Appeals. The Court of Appeals upheld the dismissal of all plaintiffs with the exception of the Foundation, whose claims were deemed “plausible” enough to warrant remanding the case to the lower court.

Edward Snowden, a former NSA analyst, disclosed upstream surveillance for the first time in May 2013. Clapper v. Amnesty International USA, an earlier ACLU suit, was similarly dismissed for lack of standing. In light of some of Snowden’s revelations, including an above-Top Secret NSA presentation that explicitly identified Wikipedia as a target for HTTP monitoring, the Wikimedia Foundation filed a lawsuit against the NSA for breaching its users’ First and Fourth Amendment rights.

On August 6^th, 2015, the defendants filed a request to dismiss, claiming that the plaintiffs have failed to establish convincingly that they were harmed by Upstream’s data gathering and therefore lack standing to sue. The Electronic Frontier Foundation responded by filing an amicus brief on behalf of a coalition of libraries and retailers. On September 25^th, 2015, both parties delivered oral arguments at a hearing.

The District Court for the District of Maryland rejected the complaint on October 23, 2015, citing a lack of standing. Judge T. S. Ellis III of the United States District Court found that the plaintiffs could not credibly establish that they were exposed to Upstream monitoring, reiterating the 2013 Clapper v. Amnesty International US ruling. The Foundation maintained that its complaint was justified and that there was no doubt that Upstream monitoring intercepted communications between its user community and the Wikimedia Foundation. The Electronic Frontier Foundation, which filed an amicus brief in support of the plaintiffs, stated that it was perverse to dismiss a suit for lack of proof (standing) when the surveillance program at issue was secret and urged federal courts to address the serious constitutional concerns raised by Upstream surveillance. On February 17^th, 2016, the plaintiffs filed an appeal with the United States Court of Appeals for the Fourth Circuit.

On May 23^rd, 2017, the Fourth Circuit Court of Appeals reversed a lower court’s rejection of Wikimedia’s allegations. This appeals court determined that the Foundation’s claims of Fourth Amendment breaches were realistic enough to “survive a facial challenge to standing,” noting that the damage that the NSA’s acquisition of personal data might cause was not hypothetical. After that, the case was returned back to the District Court of Maryland, where it was ordered to continue. The court reversed Ellis’ rejection of the other plaintiffs’ lawsuits, ruling that the non-Wikimedia plaintiffs had not presented a convincing argument that their activities were adversely impacted by Upstream’s breadth.

STATUS OF THE WIKIMEDIA’S CASE

Wikimedia Foundation’s lawsuit was dismissed on December 16^th, 2019 by the District Court. This case was thereinafter appealed by the Wikimedia Foundation to the Court of Appeals for the Fourth Circuit, which heard oral arguments on February 14^th, 2020. The appeal was heard in March 2021 and once again dismissed in September. The appeals court in the United States upheld the rejection of a lawsuit by the Wikimedia Foundation, which operates Wikipedia and challenged the National Security Agency’s bulk surveillance and examination of foreign internet communications by American citizens.

The central argument that the government maintained was the “state secrets privilege.” Essentially, this meant that an in-depth examination of this matter in court might undermine national security, and therefore, the case was to be dismissed. The 4th Circuit Court of Appeals published this divided ruling on 20^th September.

THE REASON FOR DISMISSAL: THE STATE SECRETS PRIVILEGE

United States law precedent established the state secrets privilege as an evidentiary rule. Excluding evidence from a case due to the use of privilege occurs when the government submits affidavits asserting that court proceedings may reveal sensitive information that could put national security at risk. The first case in which the privilege was formally recognized was United States v. Reynolds, a lawsuit involving purported military secrets.

The court seldom undertakes an in-camera review of the material after a claim of “state secrets privilege” to assess whether the application of this concept is warranted. As a consequence, judges issue judgments in which the assertions are unsubstantiated. Due to the protected information being fully withdrawn from the lawsuit, the court must decide whether or not its absence impacts the case.

The state secrets privilege’s intention is to maintain state secrets out of the public eye during civil litigation (in criminal cases, the Classified Information Procedures Act serves the same purpose). When the government is not a party to the lawsuit, it has the same right to intervene and urge the court to exclude evidence relating to state secrets. Even while courts have the authority to scrutinize such information, they often defer to the Executive Branch. Evidence that is protected by the state secrets privilege is not admissible in court. In many cases, the plaintiff is unable to proceed with the lawsuit without the confidential information and decides to abandon it as a result. If the lawsuit involves a state secret, judges have been more likely recently to reject it altogether.

However, it must be known that the claim does not have to be dismissed if the privilege is validly invoked. Instead of dismissing the plaintiffs’ claims, the Supreme Court in Reynolds returned the case for further consideration of whether the claims might continue without the protected evidence.

However, there has been a great deal of debate over how a case should continue if a claim of privilege is accepted. In their readiness to accept government petitions to dismiss a claim entirely or to allow a case to continue with no repercussions except “those arising from the loss of evidence,” courts have differed significantly throughout the years. Some courts have viewed the implications of a legitimate privilege in a more limited manner, ruling that the privilege simply covers particular protected evidentiary components. Another court has adopted a broader interpretation, saying that the privilege’s constitutional foundations frequently compel deference to executive branch claims and eventually leave a party with no alternative legal recourse. Other courts disagree.

WHAT SETS THE STATE SECRETS PRIVILEGE APART

Although some other legal doctrines are associated with the state secrets privilege, the state secrets privilege is highly differentiated. However, some doctrines that are closely related to the state secrets privilege include [A.] the principle of non-justiciability in predefined situations involving state secrets as was established in the so-called “Totten Rule“; [B.] definite restrictions on the publishing of classified information as clarified in the Pentagon Papers case of New York Times Co. v. United States; and [C.] the use of classified information in criminal cases is governed by the Classified Information Procedures Act

The Wikimedia Foundation expressed its displeasure with the decision on Wednesday and said it was looking into possibilities for an appeal.

Some have argued that the executive branch has abused the privilege in recent years to hide its own embarrassing or illegal behavior, especially in the context of the “war on terror.” So, in reaction to this, the Obama Administration has released a new policy on the state secrets privilege in an effort to increase trust in the federal court system that the “U.S. government will use the privilege only if it is essential to protect national security or international affairs.” A State Secrets Review Committee and the Attorney General must both approve any decision by an agency to use the privilege in litigation under Attorney General Eric Holder’s new policy. State secrets privileges can no longer be invoked to hide legal violations or administrative errors, avoid “embarrassment,” or “prevent the release of information… which would not reasonably be expected to cause significant harm to national security,” according to the Department of Justice’s new procedures.

The President is constitutionally charged with protecting information relating to national security. The state secrets privilege is not a mere “common law” privilege and sees some roots in the Constitution. This connection was most commonly showcased in United States v. Nixon, wherein the Supreme Court noted the claim of privilege “relates to the effective discharge of the President’s powers, it is constitutionally based.”

If the privilege is appropriately invoked, it is absolute and the disclosure of the underlying information cannot be compelled by the court. Although a private litigant’s need for the information may be relevant to the amount of deference afforded to the government, “even the most compelling necessity cannot overcome the claim of privilege if the court is ultimately satisfied” that the privilege is appropriate.

Yet, significant controversy has arisen with respect to the question of how a case should proceed in light of the successful claim of privilege. Courts have varied greatly in their willingness to either dismiss a claim in its entirety or allow a case to proceed “with no consequences save those resulting from the loss of evidence.” Some courts have taken a more restrained view of the consequences of a valid privilege, holding that the privilege protects only specific pieces of privileged evidence; while others have taken a more expansive view, arguing that the privilege, with its constitutional underpinnings, often requires deference to executive branch assertions and ultimate dismissal. Whether the assertion of the state secrets privilege is fatal to a particular suit or merely excludes privileged evidence from further litigation, is a question that is highly dependent upon the specific facts of the case.

Pursuant to existing state secrets privilege jurisprudence, the valid invocation of the privilege generally may result in the outright dismissal of the case in three circumstances being [A.] wherein a plaintiff cannot establish a prima facie case without the protected evidence; [B.] where the privilege deprives a litigant of evidence necessary to establish a valid defense; and [C.] outright dismissal pursuant to the state secrets privilege which would be the “very subject matter of the case is a state secret,” and as a result, “litigating the case to a judgment on the merits would present an unacceptable risk of disclosing state secrets.”

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Sources

1. The original plaintiffs besides the Wikimedia Foundation were the National Association of Criminal Defense Lawyers, Human Rights Watch, Amnesty International USA, the PEN American Center, the Global Fund for Women, The Nation magazine,[9] the Rutherford Institute, and the Washington Office on Latin America.[5

2. Cyrus Farivar – Oct 23, 2015 10:23 pm UTC. “Judge Tosses Wikimedia’s Anti-NSA Lawsuit Because Wikipedia Isn’t Big Enough.” Ars Technica, 23 Oct. 2015, https://arstechnica.com/tech-policy/2015/10/judge-tosses-wikimedias-anti-nsa-lawsuit-because-wikipedia-isnt-big-enough/.

3. WIKIMEDIA V. NSA – D. MD. OPINION

4. Brigham, Michelle Paulson, and Geoff. “District Court Grants Government’s Motion to Dismiss WIKIMEDIA v. NSA, Appeal Expected.” Diff, 23 Oct. 2015, https://diff.wikimedia.org/2015/10/23/wikimedia-v-nsa-lawsuit-dismissal/.

5. See Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138,1144 (2013) (involving a facial challenge to Section 702 of the Foreign Intelligence Surveillance Act);

6. Since Clapper, the government itself has confirmed many of the key facts about NSA’s Upstream surveillance, including that it conducts suspicionless searches. ACLU attorney Patrick Toomey noted the lawsuit is particularly relevant as the plaintiffs engage in “hundreds of billions of international communications” annually. Any program of Upstream surveillance must necessarily sweep up a substantial part of these communications.

7. NSA monitoring was determined to be “at full throttle” by a U.S. District Court judge in 2015, and the case was dismissed. It was rejected again in 2019 by the lower court, but the 4th U.S. Circuit Court of Appeals brought it back in 2017 and remanded it there.

8. According to Judge Diana Gribbon Motz, the majority decision “stands for a broad proposition: A lawsuit may be dismissed under the state secrets doctrine, after little judicial scrutiny, even if the government bases its sole defenses on far-fetched hypothetical.”

9. “Although the district court erred in granting summary judgment to the government as to Wikimedia’s standing, we agree that the state secrets privilege requires the termination of this suit,” Judge Albert Diaz wrote in a majority opinion by the court

10. United States v. Reynolds, 345 U.S. 1 (1953), is a landmark legal case in 1953 that saw the formal recognition of the state secrets privilege, a judicially recognized extension of presidential power.

11. Three employees of the Radio Corporation of America, an Air Force contractor, were killed when a B-29 Superfortress crashed in 1948 in Waycross, Georgia. Their widows brought an action in tort seeking damages in federal court, under the Federal Tort Claims Act. As part of this action, they requested the production of accident reports concerning the crash but were told by the Air Force that the release of such details would threaten national security

12. The Classified Information Procedures Act or CIPA is codified as the third appendix to Title 18 of the U.S. Code, the title concerning crimes and criminal procedures. The U.S. Code citation is 18 U.S.C. App. III. Sections 1-16

13. Non-justiciability concerns whether a court can with constitutional propriety adjudicate on the matter before it or whether such an adjudication would be an infringement by the court of the role which the Constitution has conferred

14. Totten v. United States, 92 U.S. 105 (1876), is a United States Supreme Court case in which the court ruled on judicial jurisdiction in espionage cases.

15. New York Times Co. v. United States, 403 U.S. 713 (1971), was a landmark decision of the US Supreme Court on the First Amendment. The ruling made it possible for The New York Times and The Washington Post newspapers to publish the then-classified Pentagon Papers without risk of government censorship or punishment

16. James Buatti, senior legal manager at the Wikimedia Foundation, said: “In the face of substantial public information concerning NSA monitoring, the court’s rationale puts extreme secrecy claims above Internet user rights.”

17. As the Supreme Court has stated, “[t]he authority to protect such information falls upon the President as the head of the Executive Branch and as Commander in Chief.”

18. United States v. Nixon, 418 U.S. 683 (1974)

19. In Molerio v. Federal Bureau of Investigation, a job seeker alleged that the Federal Bureau of Investigation (FBI) had disqualified him based upon his father’s political ties to socialist organizations in violation of the applicant’s and his father’s First Amendment rights. In response, the FBI asserted that it had a lawful reason to disqualify the plaintiff, but claimed that its reason was protected by the state secrets privilege. After reviewing the FBI’s claim in camera, the D.C. Circuit agreed that the evidence of a nondiscriminatory reason was protected and that its

WHO CAN ACCESS PERSONAL VOTER INFORMATION AFTER AN ELECTION

Attorney General Josh Shapiro of Pennsylvania has declared that his office intends to sue Senate Republicans to prevent officials from subpoenaing voter information. The complaint essentially centers around the fact that the subpoena sought to reveal the personal information of nine million Pennsylvania residents and violate the state constitution’s right to informational privacy.

CASE BACKGROUND

After Republicans on a state Senate committee overseeing the review issued a subpoena in the month of September to Veronica Degraffenreid, who is the acting head of Pennsylvania’s Department of State, the Attorney General filed for the suit against the involved parties. Senators Chris Dush, Jake Corman, and the Senate Intergovernmental Operations Committee spurred the subpoena process, having necessitated the name, date of birth, partial Social Security number, and driver’s license number of every Pennsylvanian who voted in the 2020 presidential election as part of a ‘forensic investigation’ of the election. Additionally, they desired to establish how each registered voter voted and whenever every registered voter cast ballots.

The senators justified their appeal by citing worries about the election’s integrity. The Attorney General’s Office responded by filing a complaint in the Commonwealth Court of Pennsylvania on behalf of the Commonwealth of Pennsylvania, the Department of State, and Acting Secretary Veronica Degraffenreid.

The Attorney General’s complaint hinges upon the premier basis that the committee’s worries about potential election integrity violations are founded on misleading, prejudiced claims. Additionally, the complaint asserts that disclosing the personal information of so many voters poses a significant danger, particularly given the committee’s failure to establish necessary security measures to safeguard the data from third-party businesses.

The 2020 presidential election and the state’s voting procedures and standards have been challenged in Pennsylvania. In April, the US Supreme Court threw out Pennsylvania’s last challenge to the validity of the 2020 presidential election. An argument was made in Bognet v. Degraffenreid that voting rules may only be established by states legislatures, and thus, the Pennsylvania Supreme Court’s decision to extend Pennsylvania’s deadline for accepting mail-in votes was invalid. Fourteen Republican state legislators filed a lawsuit at the beginning of September contesting Act 77, which established in Pennsylvania universal mail-in voting in October 2019 as unconstitutional.

Shapiro’s office urged the court to reject the subpoena citing Trump’s attempts to undermine confidence in the outcomes of the 2020 presidential election are underpinning the same and it serves no valid legislative purpose.

HOW PRIVATE IS VOTER INFORMATION?

One thing is universally private: just how people voted. Ballots are also always kept private.

Most voter data is generally public. It is gathered for the public, not private, reasons, and does not really have an opt-out provision for disseminating this material. Voter records may contain facts about individuals, which could be [A.] name; [B.] street address [C.] party affiliation; [D.] previous voting history of the individual; [E.] phone number and email address

Voter data from all fifty states will inevitably be accessible for certain purposes, even if the laws vary from state to state. Voter data may be utilized for issue politics, charity solicitation, and commercial marketing in many states since there are no limitations on how they may be used.

Voter data records, on the other hand, are really not readily available to the general public. It takes a certain amount of know-how to approach governments for data, even if it is only to make the request. The GOP Data Center and NGP VAN, both of which provide accessible data for Republican and Democratic campaigns, are examples of these types of organizations. These experts simplify the job of political campaigns. The efficient use of the voter database was crucial to the Obama Administration for America campaigns in 2008 and 2012.

Vendors of voter data do not want their databases to be released to the public. Commercial enterprises use publicly accessible government information about who is registered to vote and who has cast votes in previous elections to build these computerized databases, often referred to as ‘voter files.’ They provide not only a statewide snapshot of voter registration and turnout, but they also often incorporate data from other sources. In order to make the data accessible to their customers rather than hackers, it is thus imperative for these businesses to make an investment in getting it structured. However, data transfer may be difficult to regulate.

STATE VOTING RECORDS AND THE INFORMATION THEY PRESERVE

All states provide political parties and candidates for public office some level of access to voter registration data. For example, voter information may be shared with local and state authorities as well as private companies as well as researchers, and the media in the event of a scandal. Depending on state laws, only some people have access to public documents. Only state residents, registered voters, non-profit organizations and researchers may have access to some information. Most states, on the other hand, let the public see certain information about who is registered to vote. This information typically includes the voter’s present address, which many survivors value for privacy and safety reasons.

Every state provides a mechanism for voters to verify their registration status in addition to sharing or selling voter data. In order to do these status checks, it would be as easy as typing in a name and zip code in the box provided. When a voter’s status is checked, the entire current address is shown. Survivors of abuse, whose safety may be jeopardized if their abuser discovers their current whereabouts and can estimate their zip code, may find these readily available status checks frightening.

Additionally, the mechanism itself does not correlate across state borders. In the first place, vendors differ in terms of how they monitor citizens when they traverse state lines. While federal law (the Help America Vote Act of 2002) mandates that each state maintain a list of its registered voters, election administration in the United States has traditionally been extremely decentralized, making it difficult to harmonize state data.

Data brokers that gather extra personal information from public records, commercial sources, social media sites, apps, and websites to make voter records, even more, identifying exacerbate the problem by compiling ‘Enhanced Voter Records,’ which are even more identifiable. Campaigns are often sold on ‘Enhanced Voter Records,’ which may contain information on a voter’s buying patterns, religious affiliation, recreational interests, and even public social media profiles.

Several states, on the other hand, permit the withholding of personal information if it has been classified as confidential. In order to prohibit the sale and accessibility of surviving addresses in voter lists, several address Confidentiality Programs (ACPs) seek to restrict voter data sharing. To be clear, this is not a guarantee of privacy for all ACPs.

WHAT INFORMATION IS PUBLICALLY AVAILABLE

The name, residence, and party allegiance are all available to the public via the state’s voting records.

Additionally, states have the freedom to collect extra data, and some of that data may be made public. Among the things on the voting record are things like [A.] identifying information, which could be information like the individual’s date of birth and place of birth, gender identity, father’s name or mother’s maiden name, Social Security number, military ID, passport number, drivers’ license, signature; [B.] information pertaining about the address that the individual currently resides at as well as past addresses or the voting district; [C.] contact information of the individual like their telephone number and email address; [D.] their voting information including party affiliation, previous voting, absentee ballot, precincts, registering agency, required assistance; [E.] miscellaneous information like the individual’s criminal record, last date of jury duty, and active or inactive status.

There are state laws that specify who is allowed to obtain a voter list, what information may be disclosed publicly, and with whom. The voting record may be sought by political parties and candidates, law enforcement, government officials, companies, academics, journalists, and even members of the general public depending on the state (and occasionally the county).

HOW TO KEEP VOTING HISTORY PRIVATE

Users may be able to keep parts of their voting history private under state programs. People who qualify for protection include [A.] domestic violence victims; [B.] individuals who have suffered crimes or are under protective orders; [C.] law enforcement officers or their spouses; [D.] California reproductive healthcare medical providers, employees, volunteers, or patients; [E.] retired state and federal judges and attorneys; [F.] Virginia foster parents; [G.] uniformed service members in Oklahoma; [H.] under-eighteen Colorado pre-registered voters; [I.] witnesses and victims in protection and [J.] any voter who requests that their record be classified as private.

Laws differ from one state to the next. Only political parties may access certain lists, while others are open to the public. Some lists require requesters to be scholars or to work in politics, while others do not. A few may be downloaded at any time from a state website. However, a state-by-state count by the National Conference of State Legislatures shows that all fifty states and the District of Columbia have at least one method for making access simple for requesters.

THE LEGAL IMPACT OF THE CASE AGAINST THE SENATORS

At various places, specific information demands in the subpoena have been targeted as unlawful or unconstitutional and unenforceable in the seventy-six-page complaint launched by the Attorney General. The driving force of the complaint centers around the fact that a person’s constitutional privacy rights would be violated if the subpoena requested voter information, such as names, birth dates, driver’s license numbers, and partial Social Security numbers. This is because the subpoena is not founded on the evidence of wrongdoing by itself.

The complaint itself attempts to highlight the present danger of voter data being disclosed in a way that violates the constitutional right to vote because the subpoena is ill-founded. Additionally, it attempts to also resolve a question of precedent: it is a clear endeavor to prevent Republican requests for records of audit and review reports dating back to 2018 on the state’s voter registration system.

According to a letter from Shapiro’s office, the material was considered ‘critical infrastructure information’ by the Department of Homeland Security and cannot be disclosed to the general public under federal law. A copy of the subpoena was sent to top election officials in the office of Democratic Gov. Tom Wolf. Democrats in the state Senate filed a lawsuit to halt the Republican ‘forensic inquiry’ and prevent the subpoena.

How the argument has been structured by the Republican senators in question is that they are using legitimate legislative power in supervising executive branch operations and that what they term a probe’ has nothing to do with Trump or reversing the 2016 election results.

As with Arizona’s highly criticized audit, the subpoena does not seek ballots or voting equipment, and much of the information sought is already public knowledge, according to Shapiro. However, it is against the law in Pennsylvania to disclose a voter’s driver’s license or social security number to the public. The main contractor in the Arizona Senate GOP’s assessment of the election results received this information on Maricopa County voters.

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Sources

1. Pennsylvania Statutes Title 25 Pa.C.S.A. Elections § 1207. Open records and documents

Scope.–The following documents under this part are open to public inspection except as otherwise provided in this section:

(1) Records of a registration commission and district registers.

(2) Street lists.

(3) Official voter registration applications.

(4) Petitions and appeals.

(5) Witness lists.

(6) Accounts and contracts.

(7) Reports.

(b) Use.–Open material under subsection (a) may be inspected during ordinary business hours subject to the efficient operation of a commission. The public inspection shall only be in the presence of a commissioner or authorized commission employee and shall be subject to proper regulation for safekeeping of the material and subject to this part. Upon request, a photocopy of the record or computer-generated data record shall be provided at cost. The material may not be used for commercial or improper purposes.

2. According to official statistics, Democrat Joe Biden defeated Republican Donald Trump in Pennsylvania by a margin of moreover 80,000 votes.

3. Shapiro stated: ‘Giving this data away would compromise the privacy of every Pennsylvania voter—that violates Pennsylvanians’ constitutional rights. By trying to pry into everyone’s driver’s license numbers and social security numbers they have gone too far.’

4. Jim Bognet, et al., Petitioners v. Veronica Degraffenreid, Acting Secretary of Pennsylvania, et al. November 27, 2020, United States Court of Appeals for the Third Circuit Case Numbers: (20-3214)

5.Staff, Ram Eachambadi | JURIST. ‘GOP Lawmakers File Suit CHALLENGING PENNSYLVANIA Mail-in Voting as Unconstitutional.’ Jurist, – JURIST – News – Legal News & Commentary, 4 Sept. 2021, https://www.jurist.org/news/2021/09/gop-lawmakers-file-suit-challenging-pennsylvanias-mail-in-voting-as-unconstitutional/.

The plaintiffs’ primary claim is that the law is unconstitutional because it allows for no-excuse voting by mail whereas the constitution requires lawmakers to provide an alternative way for people to vote only if they are unable to do so for specific reasons such as illness, physical disability, religious observance, or being out of town on business.

6. Issenberg, Sasha. ‘How Obama’s Team Used Big Data to Rally Voters.’ MIT Technology Review, MIT Technology Review, 2 Apr. 2020, https://www.technologyreview.com/2012/12/19/114510/how-obamas-team-used-big-data-to-rally-voters/.

7. Balz, Dan. ‘How the Obama Campaign Won the Race for Voter Data.’ The Washington Post, WP Company, 28 July 2013, https://www.washingtonpost.com/politics/how-the-obama-campaign-won-the-race-for-voter-data/2013/07/28/ad32c7b4-ee4e-11e2-a1f9-ea873b7e0424_story.html.

8. Daley, David. ‘Voters Had Their Say. PARTISANS Ignored Them.’ The New York Times, The New York Times, 29 Sept. 2021, https://www.nytimes.com/2021/09/29/opinion/redistricting-commissions-democracy.html.

9. The Help America Vote Act of 2002 Pub.L. 107–252, or HAVA, is a United States federal law which passed in the House 357-48 and 92-2 in the Senate and was signed into law by President Bush on October 29, 2002. The bill was drafted (at least in part) in reaction to the controversy surrounding the 2000 U.S. presidential election when almost two million ballots were disqualified because they registered multiple votes or none when run through vote-counting machines.

10. Andrew, Scottie. ‘For Abuse Victims, Registering to Vote Brings a Dangerous Tradeoff.’ CNN, Cable News Network, 27 Oct. 2020, https://edition.cnn.com/2020/10/27/us/domestic-violence-voting-election-privacy-trnd/index.html.

11. Unfounded claims that voters were registered as residing in a condemned building need specific details on each voter, according to Senate Republican Committee Chairman Cris Dush, R-Jefferson. Other than that, Dush was unable to provide any information.

12. It’s not about fixing issues from the previous election, they claim. Instead, they’re trying to increase voter trust in elections

13. Neas, — Ralph, et al. ‘How the Arizona Senate Audit in Maricopa County Is an Assault on Voting Rights.’ The Century Foundation, 27 Sept. 2021, https://tcf.org/content/report/arizona-senate-audit-maricopa-county-assault-voting-rights/?agreed=1.

14. Pennsylvania Statutes Title 25 Pa.C.S.A. Elections § 1403. Street lists

(a) Preparation.–Commencing not later than the 15th day prior to each election, each commission shall prepare for each election district a list of the names and addresses of all registered electors as of that date resident in the district. The list may not include the digitized or electronic signature of a registered elector. The list shall be arranged in one of the following manners:

(1) By streets and house numbers.

(2) Alphabetically by last name of each registered elector.

(3) In a manner whereby the location of the elector’s residence can be identified.

(b) Copies.–The commission shall retain two copies of the list under subsection (a) on file at its office and forward one copy of the list under subsection (a) to the department. These copies shall be available for public inspection during business hours, subject to reasonable safeguards and regulations.

(c) Distribution.–The department and each commission shall distribute the list under subsection (a) upon request as follows:

(1) To officials concerned with the conduct of elections.

(2) To political parties and political bodies.

(3) To candidates.

(d) Organizations.–The commission may, for a reasonable fee, distribute the list under subsection (a) to organized bodies of citizens.

GOVERNOR’S EMERGENCY POWERS

In the COVID-19 crisis, governors were seen to evoke unprecedented authority under their posts. In 2020, all fifty governors declared a state of emergency due to the outbreak. Under such pronouncements, companies may be shut down, citizens must stay home, mask use would be mandated and taxes and payments were to be curtailed.

The authority of democratic governors, like Pennsylvania, Louisiana, Kentucky, and North Carolina, is usually limited by republican-controlled legislatures. However, this is not true solely for opposing parties. Republican legislatures have also tried to curtail the Republican governors in Ohio. And democratic legislatures, notably in New York, have sought to restrict democratic governors.

Pennsylvania was the first state to vote and limit government authority when a little over half of the primary electors decided on May 18^th to give legislators greater influence in disaster declarations.

THE SITUATION IN KENTUCKY

The current state of the governor’s powers in Kentucky sees its roots in the COVID-19 crisis. In May 2020, the Kentucky Supreme Court unanimously decided that a temporary injunction preventing new legislation restricting emergency powers by Kentucky Governor Andy Beshear was inappropriate and ordered the case to be dissolved. Essentially, this provided strength to the Governor’s position, insofar as the Supreme Court said KRS 39A stipulates that all emergency orders and administrative regulations issued by the governor ‘shall have the full force of law.’ A prerequisite for the governor’s powers to kick in is that a copy is filed with the Legislative Research Commission. In sum, the case law provides that Beshear proclaimed the state of emergency to be appropriate and used the power that the General Assembly legally delegates to him, ‘consistent with decades of Kentucky precedent, which we will not overturn’ The case law also pointed out that since the Kentucky legislature only meets part-time this would leave a hole in the state’s emergency powers to develop rapidly.

Beshear, in reaction to the COVID-19 pandemic, proclaimed a state of emergency on 6^th March 2020. Following legal arguments filed by the business owners, in November the Kentucky Supreme Court decided in favor of the COVID-19 limitations imposed by Beshear. This reversed a decision of the lower court for businesses that had disputed the limitations.

THE DELINEATION OF GOVERNOR’S POWER IN KENTUCKY

The situation changed in February of 2021, whereinafter the Kentucky General Assembly passed the bills HB1, SB1, and SB2, the ethos of which were to cut into the governor’s ability to take unilateral action in an emergency.

Beshear then filed a complaint claiming that the law contravened his executive authority unconstitutionally. In March, Judge Phillip Shepherd of the Franklin County Circuit issued an order which temporarily suspended the legislation. The Kentucky Supreme Court, however, decided on Saturday that the injunction was incorrect and remitted the case upon which it instructed the lower court to rescind the order.

The court concluded that under the circumstances an interim injunction was not justified. The Court observed that the Governor did not have any implicit or inherent emergency authority beyond the legislative authorities conferred upon him. As the executive branch maintained the ultimate say on administrative rules, the court also ruled that the law does not contradict Sections 27 and 28 of the constitution of the State, which requires the strict separation of powers.

Kentucky’s Supreme Court urged a lower court to approve a spate of legislation to limit executive powers for Gov. Andy Beshear, which may have large, immediate implications for individuals and businesses. Because the legislation was lawfully passed, the governor’s complaint did not present a substantial legal question that required an injunction. The court concluded that the lower court abused its discretion in finding otherwise.

THE NATURE OF A GOVERNOR’S POSITION

The governors of the fifty states and five commonwealth and territories serve as top executive officials, all democratically elected. Governors act as state managers and are in charge of executing state legislation and supervising the functioning of the state executive branch. As the leaders of states, governors seek and explore continuously updated policies and programs using various instruments, including executive orders, management budgets, and legislative bills and vetoes.

Governors carry out their duties and leadership goals with the help of departmental and agency heads, many of whom they are authorized to choose. In most instances, the majority of Governors are entitled to nominate judges to the State Court, based on a list of candidates provided by a Nomination Committee.

THE GOVERNOR’S DUTIES AND RESPONSIBILITIES

Although governors share many duties and responsibilities, the extent of governorship varies from State to State in line with state constitutions, laws, and traditions, and the number and magnitude of government officials are frequently rated by political historians and other observers of state politics. Majorly, this may involve ranking considerations like [A.] qualifications and tenure [B.] legislative concerns including budget and veto power and [C.] appointment sovereignty

Although not necessarily a ranking factor, the power to issue executive orders and take emergency actions is a significant gubernatorial responsibility that varies from state to state. The criteria for gubernatorial candidates and officeholders range from State, commonwealth, and area to minimum eligible age, U.S. citizenship, and state residency. The Governors’ minimum age requirements vary from no explicit provision to thirty-five years old. The U.S. citizenship requirement for government candidates varies from a formal twenty-year period to nothing either. Further, the criteria for state residence vary from no formal provision to seven years.

In the United States, a governor acts as Chief Executive Officer and Commander-in-Chief, serving as Head of Government within each of the fifty states and in the five permanently inhabited territories. Governors are thus accountable for implementing State legislation and supervising the functioning of the executive arm of the state. As state leaders, governors are advancing and pursuing new and updated policies and legislation using various instruments such as executive regulations, executive budgets, and legislative bills and vetoes. Governors carry out their management duties and leadership goals with the help and support of department and agency executives, many of whom have the authority to appoint. Most of the governors are also authorized to select state judges from a list of candidates provided by a nominating committee in most instances.

There is a lieutenant governor in all but five states (Arizona, Maine, New Hampshire, Oregon, and Wyoming). The Lieutenant Governor shall take over the position of the governor (in Massachusetts and Western Virginia, the powers and responsibilities but not the office) by vacating the preceding Governor’s prosecution, death, or resignation. In case the current governors are unable to perform their responsibilities and frequently function as presiding officers of the top chambers of the state legislatures, lieutenant governors are also formal governors of the state. However, they cannot engage in political discussions in such circumstances, and they have no voting when these chambers are not split evenly.

THE GOVERNOR’S TERM

In every state, community, and territory, except New Hampshire and Vermont, four years are gubernatorial terms with two years. All governors may replace themselves barring Virginia, but they may be restricted to a certain number of consecutive or total terms. Virginia has uniquely forbidden its Governors from sitting in succession, but previous Governors are eligible after a certain (now four) times of service as Governors again. Many others formerly had the ‘no succession’ provision (which was part of the original Constitution of Virginia in 1776), but they all removed the ban by 2000 except for Virginia (including Mississippi, which repealed it in 1986, and Kentucky, which repealed it in 1992).

When the position is vacant, the Lieutenant-Governor is the appointed officer who succeeds the governor in forty-nine states and territories. The other five states and the Commonwealth of Puerto Rico include Secretary of State and Senate leader, individuals selected to replace the Governor.

IMPEACHMENT

All Jurisdictions other than Oregon are responsible for the impeachment of governors. As with the federal government, the prosecution procedure begins with the lower parliamentary group and the trial takes place in any state except Alaska, where the process is over, and in Nebraska, which has a unicameral legislature tasked with the whole prosecutorial process. In most instances, a majority of members is required, while conviction usually needs a two-thirds majority.

With respect to state legislatures, governors perform two main responsibilities. First, they may be allowed to convene extraordinary legislative sessions, assuming that the aim and the schedule for the sessions have been laid out in advance as in most instances. Governors also integrate and interact more aptly with state legislators in a closer situation [A.] approval of state budgets and appropriations; [B.] enactment of state legislation; [C.] confirmation of executive and judicial appointments; and [D.] legislative oversight of executive branch functions.

THE GOVERNOR’S POWERS OF APPROVAL: STATE BUDGETS AND APPROPRIATIONS

Governors must complete and deliver yearly or biannual plans for legislative examination and approval. The Governors also have in some States, the Commonwealths and Territories a ‘reduction’ authority – most often called a ‘line-item – which may be used to remove the appropriations they disagree to. These instruments enable governors and their budgetary personnel to have a significant role in setting policies for the utilization of state resources.

Governors frequently use State of the State messages to describe their legislative positions and several develop particular legislative proposals for their sake. The State of the State Address is a discourse that the governors of each of the United States usually deliver once annually. The speech is usually given before both chambers of the State legislature in a joint meeting, with the exception of a unicameral body, the Nebraska Legislature. This speech is intended to fulfill a constitutional requirement that a Governor must report on the state or status of a U.S. state yearly or ‘from time to time’ under earlier constitutions.

State departments and agencies may also seek legislation with the consent of the governor. Executive officials are frequently called upon to provide witness to legislative proposals and governors and other leaders of the executive branch are mobilized in support of, or against, particular legislative initiatives by government and interest organizations. Governors will utilize their position as authorities in fostering the endorsement of legislative proposals and, via frequent meetings with lawmakers and legislative officials, together with department heads and staff, may attempt to influence legislation’s development.

VETO POWER

All fifty Governors of State have the authority to veto entire legislative initiatives. A measure will become law in a vast majority of countries unless it is vetoed by the governor within a certain number of days that varies across States. In smaller states, legislation will expire, unless the governor signs them officially, also within a certain number of days (pocket veto).

The ‘line-item (this may be used to strike a general item out of a piece of legislation), ‘reduction’ (by which a governor might remove a budget item), and ‘amendatory’ are other kinds of Vetoes available to certain states’ governors (by which a governor can revise legislation). Legislatures may overturn vetoes, typically by voting for a supermajority.) Many gubernatorial appointments require legislative confirmation

LEGISLATIVE OVERSIGHT

The governors converse with their legislatures to guarantee that their aims, objectives, and achievements are appropriately introduced and favorably received all through oversight hearings and other legislative activities that deal with and facilitate the performance of legislative programs and services dictated by the executive branch.

EXECUTIVE BRANCH POSITIONS INDEPENDENTLY SELECTED

A significant number of States choose some executive branches independently. The Lieutenant Governor, Secretary of State, attorney general, and treasurer are the most notable of these posts.

Lieutenant Governor’s post occurs in the vast majority of states, where the position most frequently comes through democratic state elections and the governor, but in a few instances, the function of lieutenant governor is given by state law to another position in the executive or legislative branches (e.g., secretary of state or leader of the senate). All the posts of the State Secretary, Attorney General, and treasurer are subject to national popular elections in the majority of states and, in most of the other states, at least one of the three is chosen.

State cabinets, which act as advisory councils of the governors of the country, consist usually of individuals chosen by the governor of the head of state departments and agencies, and in certain instances of senior employees in the direct office of the governor. In most states, the cabinet [A.] advises the governor on the development of policy, and [B.] serves as a vehicle for the governor or senior staff to convey priorities to gubernatorial appointees and address cross-agency issues or concerns.

Governors are expected to issue executive orders under State constitutions and laws and in jurisprudence or are subject to the authorities given to the heads of state. Governors use executive orders that may or may not fall under legislative review and would trigger emergency powers during natural disasters, energy crises, and other situations requiring immediate attention. They may also create advisory, coordinating, study, or investigative committees or commissions; and address management and administrative issues such as regulatory reform, environmental impact, hiring freezes, discrimination, and intergovernmental coordination.

As Chief Executive, Governors must ensure that their state is prepared for all kinds and dimensions of crises and catastrophes. Over the course of the coronavirus’ trajectory on the united states, this power has become highly relevant. In the event of an emergency, the Governor also plays an important role in giving guidance and instruction and in keeping calm and public order.

State emergency management laws generally specify how the governor may declare a state of emergency and terminate it. In certain instances, the required catastrophe response is beyond the ability of central and local governments. The President may be asked by a State to proclaim a disaster statement. A significant disaster statement activates a number of government programs, depending on the extent of the catastrophe and the kind of damage.

FOR ASSISTANCE IN SERVING LEGAL PAPERS

Sources

1. The vote limited the Pennsylvania governor’s disaster declaration to 21 days. Beyond that, legislative approval is required. Pennsylvanians also voted to empower state lawmakers to remove the governor’s disaster declarations with a majority vote.

2. Cassie Maas | U. Pittsburgh School of Law, US. ‘Kentucky Supreme Court Backs Laws Limiting Governor’s Emergency Powers.’ Jurist, – JURIST – News – Legal News & Commentary, 24 Aug. 2021, www.jurist.org/news/2021/08/kentucky-supreme-court-backs-laws-limiting-governors-emergency-powers/

3. The COVID-19 pandemic arose this year during the latter part of the regular session, after the deadline for introducing a new bill, the high court noted. But five amendments eventually passed, most notably a measure that acknowledged the governor’s declared emergency, it said ‘generally leaves our General Assembly without the ability to legislate quickly in the event of emergency unless the emergency arises during a regular legislative session.’

4. The Boone County Circuit Court in July 2020 issued an injunction citing ‘irreparable harm’ to businesses by the executive orders.

In its 103-page opinion, the Kentucky Supreme Court concluded that the governor properly invoked his emergency powers and that no violation of the separation of powers had occurred. The Court found that ‘because the law and equities favor the Governor … it was an abuse of discretion of the trial court to issue the temporary injunction.’ The court, in weighing the interests of the plaintiffs and the public health of Kentuckians as a whole, upheld Beshear’s orders.

5. 21 RS HB 1/VO5

AN ACT relating to reopening the economy in the Commonwealth of Kentucky in response to the state of emergency declared by the Governor of Kentucky beginning in March 2020 and continuing throughout the year of 2021 and declaring an emergency.

Be it enacted by the General Assembly of the Commonwealth of Kentucky…

6. Krauth, Olivia. ‘How Will the Kentucky Supreme Court Ruling on Gov. Beshear’s Authority IMPACT SCHOOLS?’ Journal, Louisville Courier-Journal, 22 Aug. 2021, www.courier-journal.com/story/news/education/2021/08/21/kentucky-supreme-court-how-beshear-ruling-could-impact-schools/8212331002/.

7. ON TRANSFER FROM COURT OF APPEALSV.NO. 2021-CA-0328FRANKLIN CIRCUIT COURT NO. 2021-CI-00089

8. In a unanimous opinion issued Saturday, Kentucky’s top court didn’t weigh in on the constitutionality of the laws themselves. The Franklin Circuit Court may ultimately find them unconstitutional as the larger lawsuit continues.

9. The longest-serving governor of all time was Terry Branstad of Iowa, who was elected to his sixth (non-consecutive) term in 2014. Governor Branstad resigned on May 24, 2017, to become the United States Ambassador to China. He held the title of Governor of Iowa for 22 years. On December 14, 2015, he became the longest-serving governor in US history, breaking the record held by George Clinton of New York, who served 21 years from 1777 to 1795 and from 1801 to 1804.

10. Phillip O’Neill, ‘Virginia’s ‘No Succession’ Rule: Democratic Pillar or Constitutional Relic?, 23 Richmond Public Interest Law Review 1

11. in two of which the president/speaker, Tennessee, and West Virginia is one and one

12. although the terminology for this speech differs for some states: in Iowa, the speech is called the Condition of the State Address; in Kentucky, Massachusetts, Pennsylvania, and Virginia it is called the State of the Commonwealth Address.

13. Snell, Ron. Gubernatorial Veto Authority with Respect to Major Budget Bill(s), www.ncsl.org/research/fiscal-policy/gubernatorial-veto-authority-with-respect-to-major.aspx.

14. Governors are usually authorized to designate State comptrollers and heads of pre-and post-audit departments. The appointment authority of governors for heads of state education and higher education agencies is similarly restricted.

15. Greenberg, Pam. Legislative Oversight of Emergency Executive Powers, www.ncsl.org/research/about-state-legislatures/legislative-oversight-of-executive-orders.aspx.

CAN NON-LAWYERS OWN LAW FIRMS

Most jurisdictions are preparing for major legal reforms, particularly rules about who may and cannot have an interest in law firms. Ownership of law firms by non-lawyers saw its first foothold in Arizona in 2020 when the state allowed non-attorneys to acquire a financial interest in law businesses. Following suit, Utah authorized a “regulatory sandbox” for a two-year trial program in which non-lawyer investors or owners may dabble in the uncharted legal territory.

On the heels of recent initiatives by nations to make civil legal services more accessible and cheaper for low-income people and families, a push for more access and affordability has been clamored for. In order to increase access to legal services, advocates say opening up ownership of law firms to non-lawyers would provide more options and make services more affordable because tech companies like Legal Zoom and Rocket Lawyer are permitted to market affordable legal services in contrast to traditional law firms.

However, as the price of operations, personnel, and administrative expenses continue to decline with the assistance of newer technology, coupled with continuing trends in the reduction of office space and work-from-home rules, costs continue on their forced decrease. Will preparation, leasing agreements, and family law are examples of legal requirements that combine in a drive for state governments to cut costs throughout the sector.

BACKGROUND

The current status of the legal scenario stems from American Bar Association Rule 5.4. Though unofficial, the majority of states have based ownership rules as per the documentation under the rule, seemingly done so in an effort to vouchsafe the “Professional Independence of a Lawyer.” Rule 5.4(b) states that: “A lawyer shall not form a partnership with a nonlawyer if any of the activities of the partnership consist of the practice of law.”

Right now, New York is actively considering changes to the ownership rules. It should be noted that a major reason why the rules may be changed would be to accommodate the ubiquity of internet businesses and Big Four accountancy firms as well as to provide easier access to the legal sector. It is accepted as truth that the regulation changes would help the Big Four, which in turn will generate a return on the fees that so-called “white shoe companies” demand.

To note the stand of the ABA, the staunch refusal to accommodate non-legal ownership by the entity should be referred to. Previous to the bubbling changes, the ABA had been very against any such reforms. However, in an apparent change of heart, the ABA recently approved the alterations, urging “US jurisdictions to go outside the box on the issue of justice access.”

STATUS OF COMPETING NON-LAWYER FIRMS

As alternative legal service providers have entered the market, competition has grown in the legal sector. More and more law firms and businesses are using these alternative legal service providers to reduce expenses, increase efficiency, and utilize new technologies. In other words, not only are legal firms losing income to alternative legal service providers, but they are also suffering more expenses as a result. For instance, if ownership regulations change, it may be possible to make use of those services (and related income) that are now outside of the firm, and more effectively compete with alternative legal service providers.

Changes in ownership regulations have been proposed as a way to break down an obstacle to innovation that has existed for decades. At the present, firms are unable to offer partnership stakes to exceptional individuals with non-legal backgrounds in order to get them to work in IT or on the business side. For the purposes of this discussion, only licensed attorneys may be ownership stakeholders in law firms. If the laws change, the incentives will also shift, which implies that companies in the legal and software industries could become appealing to bright MBAs and computer programmers. A long-standing method of recruiting high-quality personnel has been the attraction of equity pay, which helps to unlock the hidden potential of law firms.

To be able to explore creative methods to acquire and manage money from other sources, such as hedge funds, adjustments to regulations seem to be the most favorable option. As a business gains more money, this may result in investment in technology, which helps companies adjust to different pricing arrangements, and concurrently increases firm attractiveness. The end result is the drawing of top personnel that views the company as a secure long-term career home.

The second advantage of linking attorneys with other professions is that companies may harness convergence between them to offer more comprehensive services. Trust and estate management, as well as appraisals and tax services, are just a few of the many services offered. More “product lines” may allow law firms to serve customers that have varied requirements who are interested in extra services. This is possible since all these additional services may be provided from the same location.

REQUIREMENT FOR OWNERSHIP RULES

Nevertheless, American jurisprudence maintains ownership rules serve an essential function. The prevailing ideology is that a legal practitioner should be responsible to make legal choices; and if a law company opens up its decision-making process to non-lawyers, then its counsel may be compromised. When there is a possibility that other factors may compromise the interests of the client, this becomes all the more important.

The recent growth in alternative legal service providers has provided more competition for legal firms. Enabling non-lawyer ownership may offer new market possibilities for law firms, such as technology and consulting companies, as well as opening the door to the competition including information technology and consulting organizations and the four largest Big Four accountancy companies. Additionally, legal companies have expressed concerns that law would become a commodity, resulting in a “Walmart” phenomenon. In many instances, fundamental legal requirements may be supplied by a larger and more diverse business, pushing out smaller companies and enabling them to operate at cheaper rates. Because of this, small businesses will be forced to specialize and provide services they may not be able to provide to a generalist company.

Additionally, the question of privilege must be considered. Non-attorneys have now entered the mix, but the status quo concerning attorney-client privilege remains unanswered. In occupations other than creative ones, there is a degree of secrecy, but legal privileged speak is not one of them.

HOW DOES RULE 5.4 MAINTAIN ATTORNEY AUTONOMY

ABA Model Rule 5.4 bars lawyers from sharing legal fees with nonlawyers and forbids law firms from having nonlawyer owners or officers. ABA Model Rule 5.4 also provides for exceptions within this ambit. The regulation is instituted to protect attorneys’ autonomy by shielding them from non-lawyer oversight, which may place profitability above their obligation to their clients. For this rule to have any practical impact, law firms do not offer any non-legal services since any non-attorneys who supply such services will never get to a partnership or be put in charge of managing the lawyers in a company. Nonlawyer ownership is also prohibited, as well as other things, such as law firms using stock as a lure for nonlawyer personnel and funding expansions and developments with outside financing.

HOW HAVE STATES ADOPTED RULE 5.4

Limitations on growth have the effect of making it difficult for law firms to innovate and develop, especially to cater to a bigger part of the market. Alternatively, supporters of Multidisciplinary Practices have proposed that the introduction of Multidisciplinary Practices would further improve the quality and affordability of legal advice to customers by offering integrated services alongside legal assistance. In the professional services sector, specifically in the field of law, limits on nonlawyer ownership have had the effect of holding legal companies smaller than those in the other professional services sectors, such as accountancy and consulting.

For the longest time, all fifty states have adhered to Rule 5.4, with the exception of D.C. While D.C.’s rules allow non-lawyer ownership since 1991, and a small minority of D.C. firms have one or more partners who are lobbyists or public relations professionals, these types of firms (those with lobbying or public relations professionals rather than lawyers) comprise a much smaller minority of D.C. businesses. Although ABA Formal Opinion 360 prohibits these companies from growing into jurisdictions that follow Model Rule 5.4, they are permitted to expand into places that do not follow this rule.

The concept of modifying Rule 5.4 has been previously discussed. Before the Model Rules were created, the Kutak Commission was developing its proposal for the rules in the early 1980s. In that proposal, Rule 5.4 suggested that fees may be shared with nonlawyers. While following the recommendation, the Model Rules instead adopted the restrictions on fee-splitting that had been in place for years. Attempts to modify the regulation after the first proposal failed to gather sufficient support.

International changes have happened in the last fifteen years, particularly. The first publicly traded law company was founded in Australia in 2007, while the UK granted the first permits for law firms to become “Alternative Business Structures” in 2012.

Access to justice seems to be a driving factor in current lighter regulations initiatives in certain U.S. jurisdictions. The more liberal policies that have been implemented or are currently being considered have generally been seen as attempts to spark legal innovation in the form of new legal models and technology that would result in the reduction of the expensive barrier to legal counsel. It’s also true that some authorities also appear to accept that Rule 5.4 alterations may result in big companies gaining control of and investing in law firms.

CASE STUDIES UTAH AND ARIZONA

Utah launched a time-limited trial program in August 2020 that allows businesses, as well as those controlled by nonlawyers, to apply for authorization to offer legal services via the newly established Office of Legal Services Innovation. Originally scheduled to continue for two years, the program was subsequently increased until seven.

Arizona’s Supreme Court’s task force on the procurement of legal services issued a sweeping decision on January 1, 2021, completely voiding Arizona’s Rule 5.4, ever since Utah’s program had begun in August of 2020. In order to apply for a license to operate as an Alternative Business Structure (ABS), companies and their nonlawyer owners may now do so.

Although the changes that have occurred in Arizona are substantial, only three licensed ABSs have been discovered so far. Despite the application’s initial sluggishness, additional applications are now under development, notably Rocket Lawyer’s. These new rules make it obvious that multinational companies will gravitate to the ABS licensing system since the most costly option in the ABS license price schedule is designed especially for these types of businesses.

STATES IN TRANSIT

The goal of California’s Bar’s Justice Gap Working Group as setting up in May of 2020 is to create a regulatory sandbox program like Utah’s current pilot. The plan that excluded relaxation of the prohibition on nonlawyer ownership was expressly rejected by the Bar’s Board of Trustees, which instead selected a more comprehensive one that was widely accepted. Pilot programs are controversial, however, since they have raised questions about whether participation should be restricted to groups focused on making justice more accessible. There’s a good chance significant changes may occur in the state’s judicial system over the next several years, as the committee expects to present its findings to the board of trustees in September of 2022.

In July of this year, the Florida Bar’s Special Committee was to submit a report to the Florida Supreme Court. The committee is highly likely to propose that companies be allowed to have nonlawyer owners, pending certain oversight (but not passive investors). According to recent meeting minutes, the committee is considering Utah’s pilot program as a potential model.

The North Carolina state bar has likewise formed a committee on the subject. According to the videotaped meeting uploaded on the bar’s YouTube account, the Subcommittee to Study Regulatory Change seems to be in the information-gathering stage. However, the committee has shown interest in Utah’s program.

The ABA is one area where modifications to Rule 5.4 are still fiercely resisted. In February 2020, the benefits of deregulation aimed at improving access to justice were extensively discussed, and the resulting decision explicitly abstained from proposing changes to Rule 5.4. Additionally, the report accompanying the resolution was substantially altered, with an entire section omitted and all references to Rule 5.4 eliminated to expedite the resolution’s approval.

Countries such as Australia and the United Kingdom have already adopted an “alternative business structure” (ABS), which allows partnership with non-legal ownership. In June 2020, litigation funding powerhouse, Burford Capital took a 32% equity interest in a London-based litigation firm. While there are clear challenges, the amendment of Rule 5.4 may allow law firms to broaden horizons and gain exposure to other markets. In the United States, there has traditionally only been one location to get legal advice: a law firm that is owned and operated by one or more attorneys. However, change is clearly possible. In a few states, regulations that attempt to enforce this standard have been removed, and other states are exploring this. This move is scarcely a tectonic shift, since at least some jurisdictions will be following the same course, and if other bigger jurisdictions make the same adjustments, these legal market reforms may transform the nationwide environment.

According to its most recent quarterly report, the committee is very likely to recommend that, subject to some regulation, firms should be permitted to have nonlawyer owners (but not passive investors).

The report accompanying the resolution was also significantly revised, with an entire section being deleted and all references to Rule 5.4 being removed to facilitate the resolution’s passage.

FOR ASSISTANCE IN SERVING LEGAL PAPERS

Sources

1. Rule 5.4(d) then goes on to disallow a lawyer to practice law…

…with or in the form of a professional corporation or association authorized to practice law for a profit, if:

(1) a nonlawyer owns any interest therein, except that a fiduciary representative of the estate of a lawyer may hold the stock or interest of the lawyer for a reasonable time during administration;

(2) a nonlawyer is a corporate director or officer thereof or occupies the position of similar responsibility in any form of association other than a corporation; or

(3) a nonlawyer has the right to direct or control the professional judgment of a lawyer

2. New York Chief Judge Janet DiFiore has convened the Commission to Reimagine the Future of New York’s Courts which will consider such changes.

3. The ABA Commission on the Independence of the Profession made the following assertion in 2016: “The core value of the independence of the profession would be severely challenged by the dual allegiances owed to clients and demanded by investors, shareholders, and managers. No man (or) woman can serve two masters.”

4. As the technologist and lawyer Jon Tobin recently observed, “Innovation is not slow in the legal sector because of some inbuilt characteristic of lawyers to reject technology. Nor because of some cultural bias against innovation.” No: In Tobin’s view, the rules on ownership are the main barrier.

5. American Bar Association, www.americanbar.org/products/ecd/chapter/219925/.

PROHIBITION OF PARTNERSHIPS WITH NONLAWYERS: EXTRAJURISDICTIONAL EFFECT (July 11, 1991) A lawyer who is licensed both in a jurisdiction that prohibits partnerships with nonlawyers, as in Model Rule 5.4(b), and in a jurisdiction that permits lawyers to form partnerships with nonlawyers, but who practices only in the latter jurisdiction, should not be subject to the prohibition of the jurisdiction where the lawyer does not practice. On the other hand, if a lawyer licensed in two such jurisdictions is engaged in practice in the jurisdiction that prohibits such partnerships, the lawyer must adhere to the restrictions of that jurisdiction.

6. “Special Committee to Improve the Delivery of Legal Services.” The Florida Bar, www.floridabar.org/about/cmtes/cmtes-me/special-committee-to-improve-the-delivery-of-legal-services/#reports.

7. Ambrogi, Bob. “Revised ABA Report on Innovation Stripped out All Mention of Rule 5.4.” LawSites, 18 Feb. 2020, www.lawsitesblog.com/2020/02/revised-aba-report-on-innovation-stripped-out-all-mention-of-rule-5-4.html.

UNITED STATES SPORTS: CHANGES AND STRUCTURE TO DOMESTIC SPORTS AFTER COVID-19

Sport has a key role in the growth of the economy and society. In fact, the sport has a widely accepted function in governments, as can be seen in the 2030 Agenda Political Declaration, which highlights the importance sports play in women’s empowerment, as well as youth, individual, and community empowerment.

As of now, almost all nations across the globe have been affected by the COVID-19 pandemic. In addition to lockdowns of companies, schools, and other forms of social life to control the spread of the illness, many normal elements of living, such as sport and physical exercise, have been adversely affected.

OVERALL IMPACT OF COVID-19 ON SPORTING EVENTS

Many high-profile sports events have been postponed or canceled, ranging from marathons to football tournaments, to track and field meets, to the Olympic Games, to basketball games, to handball, to ice hockey, to rugby, to cricket, to sailing, to skiing, to weightlifting, and many more. For the very first period in the recorded history of the modern Olympic Games, the Olympics and Paralympics have been postponed and took place this year in 2021.

Sport has a worldwide worth of about USD756 billion USD per year. Based on the results of COVID-19, over two million jobs worldwide are furnished by the sports sector. These jobs do not include merely athletes but also include the individuals who work in associated retail and sports services sectors that are tied to leagues and tournaments, which will be threatened.

SPORTS ORGANISATIONS AND COVID-PASS

Many of the world’s leading sporting organizations have engaged in advertising and campaigns that were intended to be public service announcements against the virus. FIFA and the World Health Organization (WHO) have teamed up to launch a ‘Pass the message to stop the spread of coronavirus‘ campaign. There are also worldwide organizations dedicated to using sport as a tool for international development and peace, such as groups that have created open online forums where members may provide one other assistance through difficult times. Individuals in online discussions have also looked for creative answers to broader societal concerns, such as how sports organizations may help people who are disadvantaged because of limited mobility.

Many education institutions around the world, including schools, universities, and other institutions, have been closed due to COVID-19. It is this closure that has also had an impact on the sports education sector, which is comprised of many stakeholders, including national ministries, local authorities, public and private education institutions, sports organizations, athletes, NGOs, and businesses, including teachers, scholars, and coaches. It is also crucial that this community plays a large role in responding to and combating the present crisis, as well as promoting social equity and personal values in times of social disassociation.

THE IMPACT OF COVID-19 ON VARIOUS SPORTS ORGANISATIONS AND FEDERATIONS

The Federal Government of the United States and intergovernmental organizations across the globe may assist sports federations, clubs, and organizations in setting international norms and procedures pertaining to worker safety, health, and labor during future sporting events. By removing barriers, everyone is able to work as a team to solve present issues while planning for future sporting events that are pleasant for all stakeholders.

The effect of the International Olympic Committee’s decision to postpone the 2020 games has impacted the United States’ different components governing organizations. The Olympics’ cancellation, combined with economic losses from COVID-19, saw the immediate forecasted result of USD 800 million in losses for the United States Olympic and Paralympic Committee (‘USOPC’) and the fifty national governing bodies (‘NGBs’) that comprise the Olympic system in this country. This prompted the USOPC to petition Congress for funding, which involved a handout of USD 200 million. This request was denied.

The sports ecosystem, comprising producers, broadcasters, fans, businesses, owners, and players among others, needs to find new and innovative solutions to mitigate the negative effects of COVID-19 on the world of sport. This includes finding ways to engage with fans in order to ensure safe sports events in the future while maintaining the workforce, creating new operating models and venue strategies.

The pandemic has seen a major increase in the legal profession for sports, especially for solicitors to determine whether or not the force majeure clause has been invoked. Due to the high degree of frustration and the strict laws governing contractual obligations, attention has been refocussed as to whether contract termination breaches the law of frustration.

CHANGES IN RECENT LAWS FOR US PROFESSIONAL SPORTS LEAGUES

2021 was actually a seminal year for revamped drug policies to take center stage in the light of US professional sports leagues changing their regulations due to COVID-19. The Tokyo Olympics have seen major controversy brought to light during its time. One of the major issues that centered around the United States was the issue of cannabinoids being utilized during the games. The legalization of cannabis in almost one-third of the states in the USA has resulted in the main US professional sports leagues taking a new approach and choosing to provide therapy for athletes who use recreational drugs rather than impose suspensions.

From this year forward, usage of cannabinoids such as marijuana or other cannabinoids will no longer result in disqualification from professional sports competitions in the United States. As opposed, if a player tests positive for marijuana, they are treated and evaluated for any addictions, such as addiction to opioids, and sent to a rehabilitation facility. Almost all leagues now utilize a treatment program rather than punishment for using recreational drugs, including cocaine.

The exception is the NBA and WNBA, where a player who uses cannabinoids may still be banned. This is especially noticeable under Major League Baseball, wherein the MLB Joint Drug Prevention and Treatment Program is responsible for inculcating a player rehabilitation program as a result of the use, or suspected use, of cannabinoids or another recreational drug. MLB’s Joint Drug Prevention and Treatment Program is the most comprehensive of the sporting authorities. However, under Major League Soccer (MLS,) a using player is subject to a drug-centric as well as an emotional and behavioral condition and healthcare program. National Basketball Association (NBA) is not as lenient. However, testing for marijuana has been discontinued, although the ban is still in place. for cocaine and other drugs of abuse.

Players who are involved in drugs abuse should be helped by the new National Football League (NFL) policy. Resources are devoted to the study and therapy of athletes, rather than retribution. Additionally, under the National Hockey League’s substance abuse policy, a player who takes a drug of abuse is required to complete a treatment program rather than be suspended from games.

THE OLYMPIC MOVEMENT (GOVERNED BY THE 2021 WORLD ANTI-DOPING CODE)

The World Anti-Doping Code, which entered into effect on January 1^st of the year 2021, distinguishes between drug misuse and the usage of other prohibited substances. While the UFC Anti-Doping Policy prohibits the use of drugs of abuse, including cannabis, even under the World Anti-Doping Code the use of substances of abuse would result in an automatic suspension from competition. There would be a different duration of suspension applied to each instance of prohibited use, based on when the prohibited use happened and if it had any connection to sports performance.

Athletes whose use of a drug of abuse happened outside of competing and was unconnected to their athletic performance will immediately be suspended for three months. The three-month suspension may be lowered to one month if the athlete finishes a therapy session in an authorized manner.

Under the World Anti-Doping Code, an athlete whose use of a drug of abuse took place during a competitive environment (generally defined as the period beginning at 11.59 pm on the day before a competitive environment in which the sportsperson competes and ending at the conclusion of that competition) does not automatically receive diminution to three months or less. Rather, athletes in this situation are eligible for a decrease only if they can demonstrate that their usage was unrelated to athletic performance. Even yet, the shortened term of disqualification is anticipated to be in the 12–24-month bracket (depending on the athlete’s degree of culpability), which is much lengthier than the three-month automatic ban for out-of-competition usage.

Athletes who use a drug of abuse during rivalry and in connection with sports participation are regarded the same as athletes who use a performance-enhancing medication. Players in this situation risk a two-year ban on cannabis, heroin, or ecstasy use, or a four-year ban on cocaine usage.

CHANGES IN COMPENSATION FOR COLLEGE ATHLETES

With the changes in the doping laws that govern athletes, a landmark change in sports law also comes from the pioneering compensation program offered to amateur athletes. There are approximately a thousand schools and institutions under the jurisdiction of the NCAA. They have split into three divisions; [A.] Division I, [B.] Division II and [C.] Division III. NCAA regulations treat student-athletes as amateurs, and they do not get compensation for their athletic efforts. The NCAA derives billions of dollars in income by marketing and promoting ‘amateur’ intercollegiate sports, which is why student-athletes have increasingly come into the spotlight for the treatment they’re getting inside college athletics.

It must be noted that the NCAA retains a COVID-19 Medical Advisory Group which specifically includes medical professionals from all three divisions and each of the Autonomy 5 conferences. It includes representatives from organizations and medical groups that have been working collaboratively with the original advisory panel and NCAA membership. The Group is responsible for [A.] understanding emerging COVID-19 research and data to adequately provide direction to the NCAA membership in the context of training, practice, and competition, and is responsible for testing paradigms and mitigating infection spread; [B.] creation of COVID-19 protocols applicable to training, practice and competition in winter and spring sports; [C.] providing protocols for all sports competitions and championships, including on-site management of student-athletes and essential personnel, non-essential personnel and fans.

Currently, there are state laws pending that would allow college athletes to monetize their name, image, and likeness (NIL) as well as multiple bills awaiting approval in Congress that would enable college athletes to claim payment for the very first time; and there is a case pending before the United States Supreme Court (SCOTUS) that might could enable college athletes to earn while availing restricted education-related benefits.

CHANGES IN ENDORSEMENTS FOR COLLEGE ATHLETES

Following the historic O’Bannon v NCAA case, which established that players had the right to share in NIL, the drive for collegiate athletes to get individual endorsement money started in earnest. After the O’Bannon case, many states tried to pass legislation that would have enabled collegiate athletes to receive compensation for their unused no-trade rights. To avert the potential undercutting of the NCAA’s unified approach to college ‘amateur’ sports, a committee was established to propose alternative solutions to the NIL issue. At the beginning of 2019, the NCAA Working Group presented its recommendations, but the NCAA divisions have not yet responded. Concerns were raised that the NCAA may not have sufficiently accounted for the socio-economic disparity in its analysis of the additional limitations on student-athletes. This decision was made to postpone a vote on the proposed set of NIL rules.

THE USOC AND THE BACKGROUND TO UNITED STATES SPORTS LAW

It is imperative herein to understand the background to the sports industry that was established. The Sports Act set up a cohesive structure in a variety of different ways, coming truly into power in 1978. Over everything relating to the USOC’s involvement in the Olympic Games, including representation of the United States, the USOC received ‘exclusive jurisdiction over all Olympic Games matters.’ By establishing national objectives for amateur sports, and developing good connections with different athletic groups, the National Olympics Task Force aimed to provide Olympic participants and U.S. athletes in general with an additional purpose and role. Dispute resolution processes were also standardized, while efforts were made to support women, minorities, and handicapped athletes in developing their programs.

Prior to being authorized to decide which American athletes may participate in the USOPC-mandated sport, the now-USOPC is obliged to choose a separate governing body to set athlete qualification standards in that sport. These selected National Governing Bodies govern their sport or set of sports and create rules for competition and sanctions competition on a regional and national level. As well, it enables the 50 national governing bodies to finance their own activities, thanks to sponsorship deals. One major issue is that U.S. Olympic Committee regulations mandate that CEOs be paid and appointed while board seats are optional.

In 1998, the Sports Act was modified to incorporate provisions relating to Paralympic athletes, who had previously been independent of the USOC’s authority. This duplicated the same structure for Paralympic athletes that had been previously in place. It had the effect of increasing involvement in decision-making decisions in sport, especially in the USOC and NGBs, via the creation of ‘athletes advisory councils.’

The board compromise was needed in order for 20% of the USOPC to be made up of amateur athletes. As well, the USOC was now obliged to employ an ‘athlete ombudsman’ to serve as an advocate for athletes’ rights. Additionally, a new law gave the USOC authority to remove suits brought against the USOC in federal court for violations of the Sports Act, and a clause was added that prevents courts from entering injunctive relief against the USOC during an Olympic competition where the claim is made within 21 days of the event. The main point of discussion is the private rights of action were entirely abolished, against the USOC and NGBs. This new legislative strategy confers an odd status on the USOPC. It is not a governmental body, and there are very limited rights for those who have been adversely affected to take legal action. To a limited extent, it must answer to the public and to Congress. The USOPC is an essential government role, serving the interests of the United States by acting as a spokesman for the United States to the world and managing the United States Olympic Movement sports.

CONGRESS AND JUDICIAL CONTROL OVER UNITED STATES SPORTS

Although the USOC is federally authorized under the Sports Act, Congress has very little control over it. While a Federal Charter doesn’t have any real connection with the federal government, it does provide a state a title of distinction. The USAOPC is required to provide a four-year report to Congress, and during the course of the controversy that surrounded the Larry Nasser sex abuse scandal, the Senate and House committees delved into the matter as well. However, in spite of recent efforts, supervision of the USOPC has often been inconsistent.

Ordinarily, courts uphold national governing bodies’ norms and judgments. Individual athletes have had a difficult time finding both explicit and implied claims against national governing organizations and IFs. Because of this, they have usually chosen to resolve conflicts through private mechanisms. Public agencies are especially reluctant to interfere in private-body disciplinary proceedings. The likelihood of legal challenges seems to hasten attempts to reach consensus among the various international sports organizations and federations.

for assistance serving legal papers

Sources

1. Ludvigsen, Jan Andre Lee, and John W. Hayton. ‘Toward COVID-19 secure events: Considerations for organizing the safe resumption of major sporting events.’ Managing Sport and Leisure (2020): 1-11.

2. Parnell, Daniel, et al. ‘COVID-19, networks and sport.’ Managing Sport and Leisure (2020): 1-7.

3. ‘Pass the Message: Five Steps to Kicking Out Coronavirus.’ World Health Organization, World Health Organization, www.who.int/news/item/23-03-2020-pass-the-message-five-steps-to-kicking-out-coronavirus.

4. Well-known football players from different countries have been participating in the campaign. They encourage people to follow five important steps: wash hands, coughing etiquette, maintaining physical distance, and staying home if they are sick.

5. Ehrlich, Justin Andrew, et al. ‘COVID-19 countermeasures, sporting events, and the financial impacts to the North American leagues.’ Managerial Finance (2020).

6. Ludvigsen, Jan Andre Lee, and John W. Hayton. ‘Toward COVID-19 secure events: Considerations for organizing the safe resumption of major sporting events.’ Managing Sport and Leisure (2020): 1-11.

7. Wong, Ashley Ying-Ying, et al. ‘Impact of the COVID-19 pandemic on sports and exercise.’ Asia-Pacific journal of sports medicine, arthroscopy, rehabilitation, and technology 22 (2020): 39-44.

8. Carmody, Sean, et al. ‘When can professional sport recommence safely during the COVID-19 pandemic? Risk assessment and factors to consider.’ (2020): 946-948.

9. Hart, Anne. ‘Torching Athlete Rights: Examining the Fiduciary Duties of the United States Olympic and Paralympic Committee Board of Directors.’ BCL Rev. 61 (2020): 2695.

10. Legg, David, et al. ‘The International Olympic Committee–International Paralympic Committee Relationship: Past, Present, and Future.’ Journal of Sport and Social Issues 39.5 (2015): 371-395.

11. Hansen, Seng. ‘Does the COVID-19 outbreak constitute a force majeure event? A pandemic impact on construction contracts.’ Journal of the Civil Engineering Forum. Vol. 6. No. 1. 2020.

12. Levinson-King, Robin. ‘Why Cannabis Is Still a Banned Olympics Substance.’ BBC News, BBC, 28 July 2021, www.bbc.com/news/world-us-canada-58003743.

13. Draper, Kevin, and Juliet Macur. ‘Sha’Carri Richardson, a Track Sensation, Tests Positive for Marijuana.’ The New York Times, The New York Times, 2 July 2021, www.nytimes.com/2021/07/01/sports/olympics/shacarri-richardson-suspended-marijuana.html.

14. Drug, Major League Baseball’S. Joint. ‘Prevention and Treatment Program (2011).’ Effective Date, December 12 (2011).

15. David, Paul. A guide to the world anti-doping code. Cambridge University Press, 2017.

16.‘Compensating College Athletes: Moving the Ball Forward.’ Bloomberg Law, news.bloomberglaw.com/us-law-week/compensating-college-athletes-moving-the-ball-forward.

17. Seeburger, Michael T. ‘What’s in a Name, Image, and Likeness for Student-Athletes?’ New Jersey Law Journal, 12 Aug. 2021, www.law.com/njlawjournal/2021/08/12/name-image-and-likeness-in-college-sports/.

18. National Collegiate Athletic Association v. Board of Regents of the University of Oklahoma, 468 U.S. 85 (1984) was overturned

19. In re National Collegiate Athletic Association Athletic Grant-in-Aid Cap Antitrust Litigation, 375 F. Supp. 3d 1058 (N.D. Cal. 2019).

20. In re National Collegiate Athletic Association Athletic Grant-in-Aid Cap Antitrust Litigation, 958 F.3d 1239 (9th Cir. 2020)

21. Several bills have been introduced in Congress that seek to provide a federal uniform solution to the chaos looming on the horizon over the NCAA ‘amateurism’ issue. The leading bill, called The College Athletes’ Bill of Rights, was introduced by Senator Cory Booker, a former American football player at Stanford University.

The College Athletes’ Bill of Rights has the potential to drastically alter the current intercollegiate sports landscape since it would grant college athletes a federal right to monetize their NIL rights and mandate that ‘fair and equitable compensation’ be paid to college athletes. The compensation would take the form of revenue shared with the athletes, calculated on a sport-by-sport basis. The College Athletes’ Bill of Rights would also increase access to healthcare for college athletes, expand rights to scholarship money, and eliminate penalties that exist for athletes who transfer schools.

22. EDWARD O’BANNON, et al. v. NATIONAL COLLEGIATE ATHLETIC ASSOCIATION; ELECTRONIC ARTS INC.; and COLLEGIATE LICENSING COMPANY

23. NCAA v. Alston, 594 U.S. ___ (2021), unanimously striking down an NCAA restriction on the education-related benefits a college can offer student-athletes.

24. ‘A Picture Is Worth a Thousand Words-and Maybe a Thousand Bucks Too, According to the NCAA.’ JD Supra, www.jdsupra.com/legalnews/a-picture-is-worth-a-thousand-words-and-8057043/.

25. Koller, Dionne L. ‘A Twenty-First-Century Olympic and Amateur Sports Act.’ Vand. J. Ent. & Tech. L. 20 (2017): 1027.

26. Nafziger, James AR. ‘The amateur sports act of 1978.’ BYU L. Rev. (1983): 47.

27. The Ted Stevens Olympic and Amateur Sports Act is a United States law (codified at 36 U.S.C. Sec. 220501 et seq. of the United States Code) that charters and grants monopoly status to the United States Olympic Committee, and specifies requirements for its member national governing bodies for individual sports.

28. Chalip, Laurence. ‘The future past of the amateur sports act: Developing American sport.’ Journal of coaching education 4.2 (2011): 4-29.

WHAT IS THE GENERAL DATA PROTECTION REGULATION

The General Data Protection Regulation (GDPR) is the world’s most stringent privacy and security legislation. Although it was drafted and adopted by the European Union (EU), it imposes requirements on organizations worldwide that target or gathers data from EU citizens. On May 25, 2018, the regulation became effective. The GDPR will impose severe sanctions on anyone that disregards its privacy and protection requirements, with fines potentially exceeding millions of euros.

The GDPR was created to ostensibly reflect Europe’s commitment to data protection and privacy at a period when more individuals willingly give their personal details to cloud providers. With this willingness to provide their personal data, it is simultaneously observed that data breaches occur on a regular basis. GDPR enforcement is an intimidating prospect, especially for small and medium-sized businesses, due to the regulation’s scale, breadth, and relative vagueness, since the GDPR was intended to be more of a framework policy rather than an administrative guide.

The provisions are consistent in all twenty-seven EU member states, which ensures that businesses in the EU must adhere to single legislation. It must be noted herein that EU GDPR is an EU Regulation and it no longer applies to the UK which would mean entities functioning inside the UK need to comply with UK data protection law.

HISTORY OF THE GENERAL DATA PROTECTION REGULATION

The right to privacy is enshrined in the 1950 European Convention on Human Rights, which specifies that ‘everyone has the right to protection for his or her private and personal life, his or her residence, and his or her correspondence.’ The European Union has tried to preserve this freedom by regulation on this principle.

The EU acknowledged the need for new security as technologies advanced and the Internet expanded in its breadth. Thus, in 1995, it enacted the European Data Protection Directive, which established minimum data privacy and security requirements on which member states focused their own implementation legislation. The turning point wherein the EU recognized a need for an extensive regulation for internet privacy came in 2011 after a Google client filed a lawsuit against the corporation over collecting information on her emails. Two months later, Europe’s data protection authority announced that the EU needed a ‘comprehensive approach to personal data protection,’ and progress on updating the 1995 directive started.

The GDPR became effective in 2016 after being approved by the European Parliament, and all organizations were obliged to comply by May 25, 2018. The GDPR mandates that EU visitors must be provided with the requisite disclosures, with the website itself required to take steps to ensure consumer rights are protected in the event of personal data being breached. These requirements are far-ranging in scope, though they might be initiated as a notification done within the requisite timeline of the breach.

HOW DOES THE GENERAL DATA PROTECTION REGULATION ENFORCE SECURITY REGULATIONS

A foremost requirement to remember for entities that are processing the personal data of EU citizens or residents, or that sell products or services to those individuals is that the GDPR is applicable regardless of location. Additionally, the GDPR’s penalties are very heavy. There are two levels of fines, the maximum of which is EUR twenty million or 4% of global sales, whichever is greater, plus data subjects have the ability to claim damages.

Personal data is at the core of GDPR. In broad terms, this is data that enables the actual or indirect identification of a living individual through publicly accessible data. This may be something instantly noticeable, such as a person’s identity, position info, or a readily identifiable online username, or it could be something less immediate like IP addresses and cookie identifiers. Personal data is any material that corresponds to an identifiable person, either explicitly or indirectly. Naturally, names and email addresses are considered to be personal records. Personal data can also include location details, racial origin, gender, biometric data, religious views, web cookies, and political opinions. Pseudonymous data can also be used as it is fairly simple to identify a person from said data as well.

How this defines personal data is via the accessibility to name an individual – pseudonymized data may also be considered personal data. Personal data is critical under GDPR since it covers people, organizations, and businesses who are either ‘controllers’ or ‘processors’ of it. The person whose data is processed is called the subject, who would be the customers or site visitors.

DATA PROTECTION PRINCIPLES

At the heart of GDPR are seven fundamental principles outlined in Article 5 of the law that serve as a template for how individuals’ data may be treated. They are not rigid guidelines, but rather an overarching structure for laying out the GDPR’s broad objectives. The standards are virtually identical to those used in previous data security legislation.

The GDPR enumerates seven protection and accountability principles being [A.] lawfulness, fairness and transparency, [B.] purpose limitation in order to ensure data is processed for legitimate purposes that have been explicitly outlined to the data subject [C.] data minimization ensuring that data is collected and processed only if absolutely necessary for the specified purposes, [D.] accuracy of personal data kept up to date, [E.] storage limitation in order to store personally identifying data for as long as necessary for the specified purpose [F.] integrity and confidentiality and security and [G.] accountability of the data controller in order to be able to demonstrate GDPR compliance with all of these principles.

Data storage limitation has fast grown to be an important aspect of data protection. Organizations should not collect more personal information than they need from their users and thus need to be kept in check in order to maintain security with the type of data that may be obtained from people.

It is necessary to ensure that personal data is protected from ‘unauthorized or unlawful processing,’ as well as accidental loss, destruction, or damage. Essentially, it is exceedingly important for the organization to set adequate security protections. This means that appropriate information security protections must be put in place to make sure information isn’t accessed by hackers or accidentally leaked as part of a data breach.

The GDPR does not say what good security practices look like since they would be different for every organization. Although GDPR imposes the most severe penalties on data controllers and processors, the law is intended to better preserve individuals’ rights. As such, GDPR guarantees its protections. This means that it is imperative to grant individuals easier access to the data that businesses keep regarding them and also require that this data be erased under some circumstances.

Individuals have the following GDPR rights in full: the right to be informed, the right to access, the right to rectification, the right to erasure, the right to restrict processing, the right to data portability, and the right to object, and also rights around automated decision making and profiling.

ACCOUNTABILITY IN THE GENERAL DATA PROTECTION REGULATION

Per the GDPR, data controllers must be willing to show compliance with the regulation. This is not something an entity should do retrospectively: if the entities believe that they are GDPR compliant but cannot demonstrate it, they cannot be considered to be GDPR compliant. Consequently, firms have come up with many ways to demonstrate compliance, including [A.] signing responsibility for data protection to members of the staff [B.] keeping accurate records of the data they receive, how it is utilized, where it is kept, and which individual is accountable for it, [C.] securing the company by training employees and implementing strategic and internal protection steps.

This protection may also manifest by having Data Processing Agreements in effect for third parties associated with the entity who work to handle data on the corporation’s behalf or even to designate a Data Protection Officer.

DATA SECURITY

The organization is expected to protect data by enforcing adequate technological and organizational safeguards. Technical safeguards will range from encouraging staff to implement two-factor authentication on accounts that hold personal data to partnering with cloud service companies that use end-to-end encryption.

Organizational steps include conducting employee training, including a data protection policy in the employee handbook, and restricting access to sensitive data to only those workers who need it. If a data leak occurs, companies have seventy-two hours to notify affected individuals or risk fines. Some entities may be exempt from this notice provision if they use technical protections, such as encryption, to make data worthless to an attacker.

WHEN CAN DATA BE PROCESSED

Article 6 details the circumstances in which it is permissible to process personal data. A major circumstance would be when the data recipient expressly and unambiguously consented to the processing of their data or when processing is required for the performance of a contract to which the data subject is a party or for the preparation of a contract to which the data subject is a party. Data may also be processed if the processing is required in order to comply with a legal duty placed on the entity or to preserve an individual’s safety. Essentially, acceptable data processing is used to carry out a mission that is in the public interest or to conduct an official role with a fair reason for processing another person’s personal details.

CONSENT

Consent should be expressed in a direct affirmative act establishing a freely granted, precise, aware, and unambiguous indication of the data subject’s consent to the processing of their personal data. This indication can come from a written document, including electronic means, or an oral statement. This could involve checking a box while using an internet database, selecting technical settings for information society facilities, or engaging in any statement or act that demonstrates the data subject’s explicit approval of the proposed processing of his or her personal data in this sense. Therefore, silence, pre-ticked boxes, or inactivity cannot be interpreted as consent

Consent should apply to any processing activities undertaken for the same or similar reasons. When processing is carried out for various uses, approval should be obtained for each of them. If permission is to be granted electronically in response to a submission, the request must be simple, succinct, and not overly intrusive to the data subject’s usage of the service. Consent must be ‘freely given, specific, informed and unambiguous.’ Data subjects can withdraw previously given consent whenever they want.

DATA PROTECTION OFFICERS

It must be known that not every data controller or processor needs to appoint a Data Protection Officer (DPO.) The appointment of a DPO would be pursuant to three conditions wherein the entity needs to be either [A.] a public authority other than a court acting in a judicial capacity, [B.] the core activities require them to monitor people systematically and regularly on a large scale or [C.] their core activities are large-scale processing of special categories of data listed under Article 9 of the GDPR or data relating to criminal convictions and offenses mentioned in Article 10. However, an entity could voluntarily choose to designate a DPO when they are not obliged to.

WHO IS RESPONSIBLE FOR COMPLIANCE

The GDPR establishes three positions accountable for compliance: data controller, data processor, and data protection officer (DPO). The data controller determines the manner in which personal data is collected and for what reasons it is processed. Additionally, the controller is liable for ensuring that outside vendors adhere to the rules.

Data processors may be organizational groups responsible for maintaining and processing personal data information, or they could be some third-party firm that executes all or part of such functions. Processors are held responsible for data breaches or non-compliance under the GDPR. Thus, it is likely that both the business and a processing party, such as a cloud service, would be responsible for damages, even though the processing partner is solely at fault.

The GDPR needs both the controller and processor to appoint a data protection officer (DPO) to monitor their data management strategies and GDPR enforcement. A DPO is expected whether a business processes or stores a significant volume of EU citizen data, processes or stores particular categories of personal data, monitors data subjects on a regular basis, or is a public authority. Certain government agencies like law enforcement could be excluded from the DPO provision.

THE GENERAL DATA PROTECTION REGULATION AND THIRD-PARTY AND CUSTOMER CONTRACTS

The GDPR holds data controllers (the company that controls the data) and data processors equally liable (outside organizations that help manage that data). A non-compliant third-party processor implies that the company itself is noncompliant. Additionally, the current law has stringent monitoring requirements that must be adhered to by all in the chain, wherein organizations must remind consumers of their GDPR privileges.

This ensures that all current arrangements with processors like cloud suppliers or payroll service providers and consumers must clearly define roles and obligations. Additionally, the new contracts would specify transparent procedures for data management and protection, as well as how violations are reported.

There are a large number of providers that have access to this personal data which comprises the third-party suppliers and purchasing partnerships that handle data on the entity’s behalf and the GDPR makes it very plain that they must guarantee that all of those external parties comply with GDPR and process the data appropriately.

Client contracts must also incorporate legislative adjustments specific to the contract since they may take a variety of types, from internet click-throughs to structured arrangements in which they consent to certain ways of viewing, accessing, and processing data.

Prior to revising such contracts, the organization must consider how data is handled and handled and settle to a compliant monitoring mechanism. The technology keepers undertake a significant exercise to determine what data belongs within the organization, where it is retained or processed, and where it is exported beyond the organization. If they grasp the data flows and their effect on the enterprise, the entity will begin identifying the suppliers on which they can place the greatest emphasis, both from an information management standpoint and in terms of how they handle such partnerships as well as how they memorialize it in the contract itself.

The GDPR has altered the way the company and protection teams view information. Given the GDPR’s formal approval requirement and companies’ increased granularity in their interpretation of data and data flows, there is also a whole new class of liabilities associated with data accumulation. Consent should be legitimate, freely provided, precise, aware, and involved, as described by the GDPR. However, securing legal consent has proven difficult due to a lack of enforceability. Facebook and its branches WhatsApp and Instagram, as well as Google LLC (targeting Android), were sued instantly for their usage of ‘forced approval.’ It is a somewhat different mindset for legal enforcement, but especially for the way the company views the accumulation and use of the data, as well as for computer technology groups and their approach to data management.

for assistance serving legal papers

Sources

1. ‘What Is Personal Data?’. Ico.Org.Uk, 2021, https://ico.org.uk/for-organisations/guide-to-data-protection/guide-to-the-general-data-protection-regulation-gdpr/key-definitions/what-is-personal-data/.

2. Council of Europe, European Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocols Nos. 11 and 14, 4 November 1950, ETS 5 Article 8 – Right to respect for private and family life

1. Everyone has the right to respect his private and family life, his home, and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary for a democratic society in the interests of national security, public safety, or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

3. Directive 95/46/EC L281, 23 November 1995, p. 31–50

4. ‘The Principles’. Ico.Org.Uk, 2021, https://ico.org.uk/for-organisations/guide-to-data-protection/guide-to-the-general-data-protection-regulation-gdpr/principles/.

5. ‘Privacy notices under the EU General Data Protection Regulation’. ico.org.uk. 20^th May 2021

6. Art. 6 GDPR Lawfulness of processing

Processing shall be lawful only if and to the extent that at least one of the following applies:

1. 1. the data subject has given consent to the processing of his or her personal data for one or more specific purposes;
  2. processing is necessary for the performance of a contract to which the data subject is party or in order to take steps at the request of the data subject prior to entering into a contract;
  3. processing is necessary for compliance with a legal obligation to which the controller is subject;
  4. processing is necessary in order to protect the vital interests of the data subject or of another natural person;
  5. processing is necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller;
  6. processing is necessary for the purposes of the legitimate interests pursued by the controller or by a third party, except where such interests are overridden by the interests or fundamental rights and freedoms of the data subject which require protection of personal data, in particular where the data subject is a child.

²Point (f) of the first subparagraph shall not apply to processing carried out by public authorities in the performance of their tasks.

7. ‘Exemptions’. Ico.Org.Uk, 2021, https://ico.org.uk/for-organisations/guide-to-data-protection/guide-to-the-general-data-protection-regulation-gdpr/exemptions/.

8. Art. 10 GDPR Processing of personal data relating to criminal convictions and offenses

Processing of personal data relating to criminal convictions and offenses or related security measures based on Article 6(1) shall be carried out only under the control of official authority or when the processing is authorized by Union or Member State law providing for appropriate safeguards for the rights and freedoms of data subjects. 2Any comprehensive register of criminal convictions shall be kept only under the control of official authority

9. Hours after midnight on 25 May 2018 by Max Schrems’s non-profit NOYB

WHAT IS RECONCILIATION IN THE UNITED STATES CONGRESS

The journey for a bill to become law is difficult and arduous. Between endless debates and regulations, it can seem impossible to enact a law quickly. However, with majorities in the House and Senate, leaders may well use a special legislative process called ‘reconciliation to advance high-priority fiscal legislation quickly. In the Senate, reconciliation bills are among the very few instances of legislation not being subject to filibuster. Additionally, the scope of amendments is also limited, which renders this process a real advantage for enacting controversial budget and tax measures.

Reconciliation legislation on expenditures, taxes, and the federal debt ceiling should be enacted, and the Senate can pass one bill each year on each issue. Congress will therefore approve a limit of three reconciliation bills each year, but in reality, a single reconciliation bill involving both expenditure and revenue can sometimes be enacted. Extraneous policy amendments are prohibited by the ‘Byrd Rule,’ which often forbids reconciliation legislation from raising the federal debt or deficit after ten years or incorporating adjustments to Social Security.

The Senate Parliamentarian is the in-house rules specialist. In April 2021, it was decided that the Senate would approve multiple budget reconciliation bills in 2021: one for the fiscal year 2021 and one for the fiscal year 2022. Furthermore, the Senate could approve new budget reconciliation measures by referring to them as an updated budget resolution with budget reconciliation guidance included.

The reconciliation process was created by the Congressional Budget Act of 1974 and was first used in 1980.

THE RECONCILIATION FRAMEWORK IN CONGRESS

Reconciliation is a legislative mechanism used by the United States Congress as a parliamentary procedure to speed up budgetary bills through the United States Senate. The Senate filibuster ultimately takes a sixty-vote supermajority for the approval of any bills in the Senate. Still, reconciliation includes a mechanism to prohibit filibuster usage and, in doing so, encourage the Senate to enact a bill through simple majority support. The reconciliation process remains in the United States House of Representatives; however, due to the lack of a supermajority threshold for House bills, reconciliation has had less of an effect on that political body.

Reconciliation is an alternative component of the yearly spending mechanism of Congress. The reconciliation phase usually starts as the president submits a proposal to Congress sometime early in the fiscal year. As a result, each chamber of Congress initiates a concurrent budget mechanism, beginning with the Senate Budget Committee and the House Budget Committee. Every budget committee recommends a budget resolution that establishes funding priorities for the coming fiscal year; to trigger the reconciliation phase, each house of Congress may adopt similar budget resolutions that provide reconciliation guidance. Such committees then pass bills that exceed the funding goals set by their own budget committees, and all separate bills are merged into a single omnibus bill. Thus, through their respective discussion rules, each house of Congress starts debating their corresponding omnibus bills.

The reconciliation mechanism has a limited effect in the House of Representatives, but it has far-reaching consequences in the Senate. Senators could not indeed use the filibuster to block approval of a reconciliation bill endlessly, unlike under most laws, since Senate discussion on reconciliation measures is restricted to twenty hours. As a result, reconciliation measures need just a mere simple majority of Senate votes to succeed, rather than the sixty-vote supermajority needed to trigger cloture to overcome a filibuster. Senators could potentially block the approval of a reconciliation bill by proposing an unrelenting list of changes through a procedure regarded as a ‘Vote-a-Rama,’ however, unlike the current filibuster, senators presenting these amendments would have to get up and deliver the amendments orally.

Although this reconciliation framework requires a bill to circumvent the filibuster in the Senate, it has little effect on the other fundamental provisions for proposal adoption outlined in the Constitution’s Presentment Clause. The House and Senate would still approve an identical bill and send it to the president. The president may sign or veto the measure, and Congress can overturn the president’s veto by a two-thirds majority vote of both chambers.

THE BYRD RULE AS A RESTRICTION

The Byrd Rule, named after Senator Robert Byrd, was implemented in 1985 and revised in 1990. The Byrd Rule grants senators the opportunity to object to any amendment that does not affect the amount of expenditure or revenues or anything under which the change of spending or revenues is ‘merely incidental,’ to prohibit ‘extraneous’ laws from benefiting from the expedited reconciliation phase.

The Byrd Rule distinguishes a clause as ‘extraneous,’ and therefore unavailable for reconciliation, in the following six cases when it [A.] may not result in a change in outlays or revenues; [B.] results in an upward movement of outlays or a decline in revenues while the instructed committee is not following the directives, [C.] it is beyond the jurisdiction of the committee that sent the title or provision for implementation in the reconciliation measure; [D.] it results in a change in outlays or revenues that is only incidental; [E.] it would increase the deficit for a fiscal year beyond those covered by the reconciliation measure (usually a period of ten years); or [F.] it recommends changes in Social Security.

The Byrd Rule would not ignore the insertion of extraneous clauses and objected to senators to delete provisions through formal opposition. Any senator can present a procedural objection to an extraneous clause, which the Presiding Officer would then rule on, usually on the recommendation of the Senate Parliamentarian: a majority of sixty senators is necessary to reverse their ruling. Although the Vice President (as President of the Senate) has the authority to overrule the parliamentarian, this has not occurred since 1975.

The Byrd Rule binds only if a senator specifically raises a ‘point of order.’ If one does, it takes the consent of sixty senators to overturn a point of order. Items removed from a reconciliation bill following this rule are dubbed as ‘Byrd droppings’ in a tongue-in-cheek instance of Congressional humor and often are dropped before a bill comes to the floor. The process of deleting those provisions is similarly known as a ‘Byrd bath.’

Congress has the authority to approve three reconciliation measures annually, with every bill tackling the three main aspects of reconciliation: taxes, expenditures, and the federal debt ceiling. However, once Congress passes a reconciliation bill that addresses more than one of those issues, it cannot pass another reconciliation bill later in the year that addresses one of the prior reconciliation bill’s topics of revenue, spending, or debt. In fact, reconciliation measures are normally passed just once a year.

HOW RECONCILIATION WOULD WORK

Reconciliation is basically a means for Congress to pass bills on taxation, budgets, and the debt ceiling by just a simple majority in the Senate (fifty-one votes, or fifty if the vice president breaks a tie) while eliminating the possibility of a filibuster, which takes sixty votes to defeat.

The budget reconciliation mechanism is a discretionary apparatus under the Congressional Budget Act of 1974 that works in conjunction with the periodic budget resolution system. The primary goal of the reconciliation phase is to strengthen Congress’ power to amend existing legislation aiming to retain tax and expenditure amounts in line with the budget resolution’s initiatives. As a result, for a significant majority of the budget, reconciliation could be the most powerful budget control mechanism open to Congress.

Reconciliation is a dual-stage configuration in which directives are contained in the budget agreement, authorizing the relevant committees to produce legislation implementing the intended fiscal results. The resulting legislation (usually inserted into an omnibus spending bill) is debated in the House and Senate under augmented protocols for the expedition.

THE DUAL STEP MEASURES FOR RECONCILIATION

The Congressional Budget and Impoundment Control Act requires the House and Senate to pass a minimum of one budget bill annually. The budget proposal is in the format of a concurrent resolution and is therefore not submitted to the President for approval or veto. It acts as a general legislative declaration on effective income, expenditures, and debt strategies and a reference to subsequent review of legislation incorporating those policies at the organizational and programmatic levels. Budget settlement policies are applied using several methods, including points of control. The 1974 act established the House and Senate Budget Committees, which have sole authority over budget proposals and are responsible for overseeing their implementation.

The House and Senate Budget Committees depend on baseline budget estimates compiled by the Congressional Budget Office in preparing a budget resolution. A budget resolution normally reflects several predictions about policy activity that are likely to occur throughout a session that could allow revenue and expenditure levels to vary from baseline rates. However, by permanent legislation, the majority of taxes and direct investment happens immediately next year. As a result, if the committees with authority over revenue and direct spending services do not report legislation amending current law to carry out the budget resolution policies, income and direct expenditures for these activities will possibly remain unaffected.

The budget reconciliation protocol is an optional procedure that works in tandem with the budget resolution procedure. The primary goal of the reconciliation phase is to strengthen Congress’ power to amend existing legislation to keep tax and expenditure amounts in line with the budget resolution’s policies. As a result, with a considerable majority of the budget, compromise is likely the most powerful budget control mechanism open to Congress.

The method of reconciliation is multi-staged. Initially, the budget agreement includes reconciliation directives that guide the relevant committees to produce legislation that achieves the required budgetary results. The instructed committees send their policy proposals to their corresponding Budget Committees by the timeline specified in the budget resolution. The Committees further merge them without major changes into an omnibus budget reconciliation package.

The second phase is for the House and Senate to examine the resulting reconciliation bills under expedited procedures. The Senate’s discussion on every reconciliation bill is restricted to twenty hours (and ten hours on a conference report), and changes should be salient. During the review of reconciliation proposals in the House, the House Rules Committee usually limits discussion and the offering of amendments.

When only one committee is briefed, the procedure requires the committee to present the reconciliation legislation effectively to its parent chamber, without the Budget Committee. In certain years, budget proposals contained reconciliation guidelines that enabled the House and Senate to discuss multiple reconciliation bills. The procedure is completed until the reconciliation provisions requested in the budget agreement are signed or vetoed by the President. In the aftermath of a veto, Congress may establish another reconciliation bill only after passing another budget resolution comprising reconciliation guidelines.

Most recently, President Joe Biden proposed the American Rescue Plan, a USD 1.9 trillion economic stimulus bill, to hasten the United States’ rebound from the economic and health consequences of the COVID-19 pandemic and the ensuing downturn. It was intended to be one of the first bills introduced in the 117th Congress. The package, which was first proposed on January 14, 2021, drew on several of the provisions used in the CARES Act from March 2020 and the Consolidated Appropriations Act, 2021. According to the Byrd Law, the United States Senate Parliamentarian decided on February 21^st that a clause of the American Rescue Plan asking for a USD 15 minimum wage raise should not be included under Reconciliation. On March 11^th, 2021, the bill was signed into law.

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Sources

1. Bills passed using the reconciliation process include the Consolidated Omnibus Budget Reconciliation Act of 1985, the Personal Responsibility and Work Opportunity Act of 1996, the Economic Growth and Tax Relief Reconciliation Act of 2001, the Health Care and Education Reconciliation Act of 2010, the Tax Cuts and Jobs Act of 2017 and the American Rescue Plan Act of 2021.

2. The Congressional Budget and Impoundment Control Act of 1974 (Pub.L. 93–344, 88 Stat. 297, 2 U.S.C. §§ 601–688) is a United States federal law that governs the role of the Congress in the United States budget process.

3. What’s in a Vote-a-Rama? The New York Times, https://www.nytimes.com/2021/03/05/us/politics/vote-a rama.html (last visited Apr 17, 2021)

4. ‘Vote-aromas (1977 to Present) U.S. Senate: ‘Vote-aromas (1977 to Present), https://www.senate.gov/legislative/Votearama1977present.htm (last visited Apr 17, 2021)

5. The Presentment Clause, which is contained in Article I, Section 7, Clauses 2 and 3 of the Constitution, provides:

‘Every Bill which shall have passed the House of Representatives and the Senate, shall, before it becomes a law, be presented to the President of the United States: If he approves he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such Reconsideration two-thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two-thirds of that House, it shall become a Law. But in all such cases, the Votes of both Houses shall be determined by Yeas and Nays, and the Names of the Persons voting for and against the Bill shall be entered on the Journal of each House, respectively. If the President does not return any Bill within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like manner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which case it shall not be a Law. Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary (except on a question of Adjournment) shall be presented to the President of the United States; and before the Same shall take Effect, shall be approved by him, or being disapproved by him, shall be repassed by two-thirds of the Senate and House of Representatives, according to the Rules and Limitations prescribed in the case of a Bill.’

6. Section 313 of the Congressional Budget and Impoundment Control Act of 1974 Pub.L. 93–344

7. Byrd Brains GovExec.com, https://web.archive.org/web/20120119095000/http://www.govexec.com/dailyfed/0405/041805ol.htm (last visited Apr 17, 2021)

8. What Is ‘Reconciliation’? Democrats Face Hurdles To Use It For COVID Relief NPR, https://www.npr.org/2021/02/02/962812082/what-is-reconciliation-democrats-face-hurdles-to-use-it-for-covid-relief (last visited Apr 17, 2021)

9. The United States Senate voted 50–49 to open debate on the resolution, which would allow Democrats to pass the relief package without support from Republicans through the process of reconciliation. The House voted 218–212 to approve the budget resolution. On February 4, a vote-a-Rama session began. The Senate introduced amendments to the relief package, including an amendment in a 90–10 vote that would provide direct relief to the restaurant industry. Vice President Kamala Harris cast a tie-breaking vote as President of the Senate for final Senate passage of the reconciliation bill, sending it to the House approval of the change

10. Coronavirus Aid, Relief, and Economic Security Act, Pub.L. 116–136

11. Consolidated Appropriations Act, 2021 H.R. 133. December.

THE KU KLUX KLAN ACT OF 1871

The Enforcement Act of 1871, known as the Ku Klux Klan Act, is an Act of the United States Congress that motivated the President to suspend the writ of habeas corpus to counter the Ku Klux Klan (KKK) as well as other white supremacy associations. The legislation was passed by the 42nd United States Congress and was ratified by the 18th United States President Ulysses S. Grant. The Compliance act was the second of three enforcement acts enacted by the United States Congress from 1870 to 1871 to tackle attacks on African Americans’ suffrage rights and protections during the American Civil War. Since then, the law has only been changed marginally but has been subject to wide interpretation by the courts after initiation.

This Act was ordered by President Grant and was approved soon after he released the request for its passage. Based on the news he was getting of systematic racist threats in the Deep South, Grant tried to preserve African-Americans’ rights. However, he believed that he was required to acquire more control before instilling impact sufficiently to eliminate overt discrimination. For the first time, the president was free to eliminate state disorders on his own initiative and temporarily stop the right of habeas corpus. Grant did not falter in utilizing this power on several occasions during his administration. Consequently, the KKK was entirely disbanded (ending the “first Klan” era) and did not resurface in any significant way until the beginning of the 20th century.

Several of the act’s guidelines continue even as public policy. The most significant of these protections is 42 U.S.C. § 1983, the statute banning human rights deprivation.

BACKGROUND IN THE FIRST ENFORCEMENT ACT

The Enforcement Act of 1870, also known as the Civil Rights Act of 1870, allowed the President to implement the Fifteenth Amendment’s first part across the United States. The Act was the first of three Enforcement Acts created by Congress in 1870 and 1871 to confront challenges to African Americans’ voting rights from state officials or rampant groups like the Ku Klux Klan.

The Enforcement Act of 1870 banned voter registration discrimination on ethnicity, color, and prior servitude. The law created sanctions against individuals restricting elections and granted federal courts the authority to implement the law.

The Act also allowed the President to deploy and sanction the army’s use to guarantee the Act’s compliance and the use of federal marshals to bring proceedings against criminals for electoral abuse, the bribery or coercion of electors, and conspiracies to discourage people from practicing their constitutional rights.

The bill was enacted to secure people’s ability to vote depending on their race.

OBJECTIVE OF THE ENFORCEMENT ACT

The Ku Klux Klan Act was the third in the set of Enforcement Acts intended to secure the civil and political rights of four million former slaves then freed. The 14th Amendment, passed in 1868, granted citizenship and fair rights under the law to everyone. However, racial vigilantes like the Ku Klux Klan disrupted the South’s Restoration and even undermined the Republican Party.

Thus, the President was authorized to intervene in the former rebel states that wanted to deprive ‘every individual or any class of people of the laws’ fair treatment.’

By penalizing the newly identified federal offense, the President could revoke habeas corpus, impose martial action, or use military force. Opponents to the bill rallied outcry against the law, citing the grounds that it encroached on states’ privileges and breached private freedoms. All the federal government’s control has one individual also emerged as a major concern.

However, support for the doctrine was also widespread. Supporters quoted the maintenance of fair treatment promise under the law by fostering equality in the law as ensured by the 14th Amendment. After both the Senate and the House approved the measure, President Ulysses S. Grant signed it into law. Six months later, in October 1871, Grant exercised these forces in many South Carolina counties showing the Republican-led federal government’s ability to use drastic measures to secure the civil and political rights of the freed citizens.

HISTORY OF THE THIRD KLAN ACT

Many states disapproved of the KKK to practice through other channels. Laws were set into motion to outlaw the KKK completely. Numerous members of the KKK were convicted and charged in federal court. The Klan was militant in its public stance after the federal charges report and later somewhat withdrew from the public eye.

In January 1871, a legislative hearing was convened in Congress for KKK witnesses to provide their testimonies. In February, a bill was proposed by Republican Congress Representative Benjamin Franklin Butler of Massachusetts aimed to uphold both the Fourteenth Amendment and the Civil Rights Act of 1866 in a novel anti-Klan bill.

However, Butler’s bill was narrowly thwarted in the Senate, whereupon a replacement bill was proposed that marginally modified the scope to be not as comprehensive as Butler’s bill. This bill forced a few holdout Republicans into line, and the bill’s passage in the House, Senate, and the signing off by President Grant signified its popularity.

HOW THE LEGISLATION WORKED

SECTION 1 OF THE ENFORCEMENT ACT

Section 1 of the Act, which has since been amended and codified at 42 U.S.C. § 1983 and is now known as ‘Section 1983’, authorized monetary and injunctive relief against anyone acting under the authority of state law, deprived a person of their constitutional rights. Section 1983 is the most prominent and commonly litigated civil rights statute.

Under Section 1983, monetary damages could be awarded to those individuals for whom a State actor had violated the constitutional rights. Ordinarily, violations of constitutional protections are rectified through injunctions by court orders.

Owing to this precedence, if a person’s right to due process was violated by a correctional officer acting under the state’s authority, this person could sue the guard in civil court for monetary damages. Without the basis in § 1983, such an individual would need to seek a civil suit for the constitutional violation. The major issue with such an operation by the tribunal would be that injunctions, which instruct a party on penalty of contempt if a party does not perform or refrain from performing some action, cannot be used to alter events from the past, only wrongs in the future. Thus, it leaves the individual in a position where the plaintiff has brought an actionable claim with no adequate remedy. A lawsuit may be brought by anyone seeking the legal cause of action right.

Circumstances changed in 1961 when the Supreme Court articulated the statute’s three important purposes were [A. ]to over-rule particular kinds of state laws [B.] to provide a remedy where state law was inadequate; and [C.] to provide a federal remedy where the state remedy, though adequate in theory, was not available in practice.

Section 1983 enables citizens to file suit to remedy some of their federally protected rights, like the First Amendment and the Due Process Clause, and the Equal Protection Clause of the Fourteenth Amendment. Section 1983 can be used to enforce violated constitutional rights, such as to protect against discrimination based on race, color, national origin, sex, and religion.

SECTION 2 OF THE ENFORCEMENT ACT

Interestingly, this Section of the Act was so long that it was addressed separately, and it received more attention from Congress during the debates. The law prohibited conspiracies against the U.S. government, actions that would put the nation at war, and various other violations.

Section 2 originally provided for both criminal and civil liability. However, the criminal aspect of the provision was found to be unconstitutional, and therefore, was eventually overturned by the Supreme Court.

The federal civil liability portion of the law was codified at Title 42, United States Code (U.S.C.) § 1985. Section 1985 allows for lawsuits against people who conspire to interfere with the government, obstruct justice, or deprive someone of equal protection under the law.

Section 1985(1) encompasses conspiracies to expel a public official or a legislator from office violently or even prevent them from taking office in the first place or “molest, interrupt, hinder, or impede” officials’ duties.

Section 1985(2) addresses conspiracies to harm and/or threaten witnesses and jurors in federal courts or to interfere with court proceedings “with intent to deny equal protection of the laws.”

In response to the Klan’s practice of wearing masks and hoods that cover their faces, the legislation prohibits two or more people from wearing disguises or otherwise conspiring to deprive a person or class of people of equal protection of the law or legal rights. Furthermore, Section 1985(3) contains the “support-or-advocacy clauses,” which cover conspiracies to prevent citizens from expressing their beliefs and their support for candidates.

SECTION 6 OF THE ENFORCEMENT ACT

Section 6 of the Act imposes civil liability upon persons who know of a violation of Section 1985 or a planned violation of Section 1985 and who are in a position to prevent it but who fail to prevent it. Section 1986 deals with conspirators who deny people their rights, but Section 1983 deals with people who allow such conspiracies to exist. Legislators recognized that the Klan’s political violence could not continue without the tacit approval from local community leaders, who, in turn, were held financially responsible for failure to prevent such acts. This segment of the law is used to prevent terrorism in contemporary days by providing a disincentive for those who would protect or foster a conspiratorial terrorist act.

ERAS OF USE OF THE KU KLUX KLAN ACT

RESTORATION ERA

During Restoration, federal soldiers were used to imposing the nation’s rule rather than individual state militias, and Klan members were tried in federal court, where the juries were predominantly African-American. Hundreds of Klansmen were convicted, and habeas corpus was suspended in South Carolina. These actions were so successful that the Klan was defeated in South Carolina and decimated in the majority of the former Confederacy, where it had already been in decline for many years.

The Klan would not reappear until its recreation in 1915. At their height, though, the ‘first age’ Klan did accomplish much of its targets, such as disenfranchising Southern African-Americans. In its creation, the Grant Administration saw the legislation being utilized with the Force Act to provide justice against those abusing the Civil Liberties of newly freed African Americans. At the Grant Administration’s conclusion in 1877, regulation of the Act dropped into disuse, and few prosecutions were brought under the law for nearly a century.

USE IN MODERN TIMES: PRESIDENCY OF DONALD TRUMP

Rep. Bennie Thompson, D-Miss, and the NAACP initiated prosecution against former President Trump and former Secretary of State and former New York City Mayor Rudy Giuliani for purportedly collaborating with white nationalist organizations and hate groups to occupy the Capitol and keep electoral votes from being counted in the Electoral College. The plaintiffs used the 150-year-old Enforcement Act statute to justify their assertion.

Thompson and the NAACP allege in the case that Trump, Giuliani, the Proud Boys, and the Oath Keepers used “intimidation, harassment, and threats” to halt the vote count and that the Jan. 6 Capitol riot was the result he was the basis for the breach that triggered the 1871 Ku Klux Klan Act.

In December 2020, the NAACP and Michigan Welfare Rights Association, along with a coalition of Detroit residents, sued President Donald Trump and the Republican National Committee under the Voting Rights Act.

The complaint claims that President Trump and the Republican Party orchestrated a concerted plot to manipulate the 2020 presidential election in Michigan, Georgia, and Pennsylvania by threatening election officials and volunteers.

In February 2021, the NAACP and the law firm Cohen Milstein Sellers & Toll lodged another case listing Congressman Bennie Thompson as the defendant. Other congresspersons who were already victims joined up to suit. The lawsuit charges breaches of the State Election Campaign Act relating to the 2021 polls. It further alleges a plot to incite unrest contributing to the 2021 storming of the U.S. Capitol.

HOW DOES THE ENFORCEMENT ACT HOLD UP TODAY

While some clauses were deemed unconstitutional in 1883, the 1870 Force Act and the 1871 Civil Rights Act have indeed been invoked in subsequent civil rights confrontations.

The 1871 Civil Rights Act can protect individuals from state action whenever a federal right is violated. Today’s most common use is to demand that the Fourth Amendment be upheld in unreasonable search and seizure.

The Enforcement Act was intended to give African Americans and those who supported the freedom efforts a federal cause of action, a right to a lawsuit for the deprivation of rights protected by the statute. Consequently, African-American rights activists and jurists have asserted the Enforcement Act’s applicability in the context of current issues, particularly after the insurrection at the Capitol. While the statute itself is rarely used, it is a powerful sanction against white supremacist groups.

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Sources

1. Third Ku Klux Klan Act, Civil Rights Act of 1871, or Force Act of 1871,

2. First Ku Klux Klan Act, or Ku Klux Klan Act (41st Congress, Sess. 2, ch. 114, 16 Stat. 140

3. The act developed from separate legislative actions in the House and Senate. H.R. 1293 was introduced by House Republican John Bingham from Ohio on February 21, 1870, and discussed on May 16, 1870.[5] S. 810 grew from several bills from several Senators. United States Senator George F. Edmunds from Vermont submitted the first bill, followed by United States Senator Oliver P. Morton from Indiana, United States Senator Charles Sumner from Massachusetts, and United States Senator William Stewart Nevada. After three months of debate in the Committee on the Judiciary, the final Senate version of the bill was introduced to the Senate on April 19, 1870. The act was passed by Congress in May 1870 and signed into law by United States President Ulysses S. Grant on May 31, 1870.

4. Administration supporter William E. Lansing of New York dismissed the “mischievous doctrine of State sovereignty” and cited the occurrence of “acts of outrage and violence . . . where the States where they arise have either no capacity or will to prevent.”

5. “Let all groups, divisions, and races of our societies feel that the wellbeing of the one is the welfare of the other.”.

6. Called by Republican Senator John Scott of Pennsylvania

7. This replacement bill was signed in by Republican Representative Samuel Shellabarger from Ohio

8. 42 U.S.C. § 1983 now reads:

Every person who under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in action at law, suit in equity, or another proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For this section’s purposes, any Act of Congress applicable exclusively to the District of Columbia shall be considered a statute of the District of Columbia.

9. The overturning of Section 2 was done in the 1883 case United States v. Harris

10. now codified at 42 U.S.C. § 1986

11. Famously seen in the 1964 murders of Chaney, Goodman, and Schwerner; the 1965 murder of Viola Liuzzo; and in Bray v. Alexandria Women’s Health Clinic, 506 U.S. 263 (1993), wherein the court ruled that “The first clause of 1985(3) does not provide a federal cause of action against persons obstructing access to abortion clinics.”

DECONSTRUCTING THE FILIBUSTER

A filibuster is a parliamentary procedure that essentially blocks a measure from being brought to a vote, most commonly being used in an attempt to delay a bill or even stop it altogether by prolonging debate on it. The filibuster method is used in the U.S. Senate to keep an account from having a vote. The Senate filibuster is a traditional legislative pause method where one or more senators try to block a bill from voting by extending the proposal’s discussion. The Senate rules authorize a senator, or a sequence of senators, to talk for as long as required or desired, on just about any issue they prefer, until ‘three-fifths of the Senators duly chosen and sworn’ (currently sixty out of 100) agree to end the debate by triggering cloture under Senate Rule XXII(22).

The Senate cloture rule, which needs sixty votes to approve most bills, is a formidable challenge for any new president’s legislative agenda. Opinions from both sides have lobbied for changes in the midst of partisan gridlock, and the filibuster has often been central in this battle.

BACKGROUND ON THE FILIBUSTER

The opportunity to discuss a bill indefinitely and thereby stop a measure from progress was a by-product of a rule reform in 1806 and was seldom used until the 20th century. In 1970, the Senate modified the previous ‘two-track method to prevent indiscriminate use of the filibuster from impeding Senate business. The minority felt safer threatening filibusters more often, and as a result, sixty votes rather than forty-one became the standard needed to avoid discourse on virtually any contentious topic. As a result, the contemporary Senate has been a sixty-vote legislature, a surprising extant standard for authorizing legislation or matters.

Efforts to restrict the tradition include legislation that renders it disallowed to discuss the Senate for more than a given amount of time, such as the Congressional Budget and Impoundment Control Act of 1974. In 2013 and 2017, the Senate reduced the threshold of achievement for triggering cloture to a simple majority, but most legislature requires sixty votes.

One or more senators may occasionally hold the floor for an extended period, sometimes without the Senate leadership’s advance knowledge. However, these ‘filibusters’ usually result only in brief delays. They do not determine outcomes since the Senate’s ability to act ultimately depends upon whether there are sufficient votes to invoke cloture and proceed to a final vote on passage. However, such brief delays can be politically relevant when exercised shortly before a major deadline (such as avoiding a government shutdown) or before a Senate recess.

HISTORY OF THE FILIBUSTER

Using the filibuster to delay or block legislative action has a long history. The term filibuster originated from a Dutch word for pirate. The name rose to popularity in the 1850s when applied to efforts to hold the Senate floor to prevent a vote on a bill.

It was only recently that the filibuster became an option for Senators alone. In the formative days of the Congress, both delegates and senators could become involved in a filibuster. However, when the House of Representatives included more members, the revision of the House’s laws contributed to the restricting of debate. The Senate continued discussing whether the tiny Senate should allow unrestricted discussion on any topic and whether any senator should also have the freedom to talk as long as possible on every issue.

By 1917, the Senate introduced legislation (Rule 22) relying upon President Woodrow Wilson’s support to bring an end to the debate with a two-thirds majority vote. Thus, this legislation birthed the cloture rule, the use of which was at its most historically significant when the Senate called for cloture to end the filibuster against the Treaty of Versailles. Even with the revised cloture law, filibusters remained an important way of blocking bills, as it is arduous to achieve a two-thirds majority in Senate voting. For the next five decades, the Senate has periodically attempted to use cloture but has typically struggled to win the requisite two-thirds of the vote. Filibusters became especially beneficial to Southern senators who tried to block equal rights measures, including anti-lynching legislation, until, after a sixty-day filibuster against the Civil Rights Act of 1964, the closure was invoked. In 1975, the Senate lowered the number of votes needed to be closed from two-thirds to three-fifths, or sixty of the existing hundred senators. In 1979 and 1986, the Senate further limited debate once the Senate had imposed cloture on the pending business.

Consequentially, the discussion will only be suspended on specific Senate topics if at least sixty senators accept it. This rule is not uniformly accurate, however. Although the Senate laws now need only a simple majority to enact the law ultimately, some procedural measures along the way require a supermajority of sixty votes to conclude the discussion on the legislation.

PROCEDURE FOR THE FILIBUSTER

Senators possess two alternatives when the time comes to cast a vote on a measure or resolution. Quite commonly, the majority leader (or another senator) requests ‘unanimous consent,’ addressing a hundred senators to identify if any one of the objects to the debate’s conclusion and a vote. If no objection has been raised, the Senate shall proceed to an option. When the majority leader cannot gain all hundred senators’ consent, the Senator who brought forth the motion for conclusion typically considers a cloture motion, which then allows Sixty votes to be taken. If less than sixty senators, the chamber’s supermajority, favor cloture, that’s when the filibuster is said to have occurred.

The extended debate is only one technique for delaying legislative action. A filibuster could also allow for [A.]anonymous holds that would allow senators to block bills or nominations that require unanimous consent of senators to be voted on [B.] continual introduction of amendments with filibustering senators reading each amendment in full, rather than waiving the right to do so, as is customary to take up time, [C. ] lengthy roll-call votes on each amendment and other issues, using up time, [D.] quorum calls, which ascertain the number of senators present, are used to delay and force senators to return to chamber and [E.] delay of the bill’s final passage for up to two weeks even after cloture is passed.

EXCEPTIONS TO THE FILIBUSTER

The function of the Senate currently entails the submission of cloture motions; there are few significant exceptions. The most notable among these include promotions to executive offices and federal judgeships. Due to two constitutional amendments introduced in 2013 2017, only a simple majority is needed to complete the discussion. The second covers specific policy categories on which Congress has hitherto adopted special procedures penned in the statute itself that restrict the time for discussion. There is no real reason to invoke cloture to circumvent the debate as there is a set period of time for discussion in these situations. Special budget laws, known as the budget reconciliation process, are most commonly thought of when considering this self-timed legislation debated. These budget processes mandate a clear majority to pass such bills concerning entitlement expenditure and revenue requirements, thus preventing the filibuster from occurring in the first instance.

Additionally, Congress has periodically provided a supposed ‘fast track authority for the President to negotiate international trade agreements. After the President submits a deal, Congress can then approve or deny the agreement but cannot amend it or filibuster.

CONSEQUENCES AND PROCEDURE IN THE EVENT OF ELIMINATING THE FILIBUSTER

Indeed, the most direct approach to abolishing the filibuster would be to officially modify the text of Rule 22 of the Senate since it exists as the sanctioning cloture rule responsible for the mandate of sixty votes to conclude the parliamentary debate. However, a major issue with amending Rule 22 is that shelving the debate on a motion to amend the Senate’s standing rules cannot move forward without the approval of two-thirds of the Senate members in their full legislature capacity ( being present and voting). In the absence of a broad, bipartisan Senate majority favoring a restriction in the right to debate, a formal amendment to Rule 22 is exceedingly dubious, although the most comfortable way forward on paper.

The development of a new Senate precedent to ban the filibuster will likely be a more grueling journey. In addition to its formal guidelines, the Chamber’s precedents give further insight into how and why the rules have been implemented in different ways. Crucially, in certain cases, that solution to eliminating the filibuster- colloquially recognized as the ‘nuclear option’ but more formally classified as the ‘reform by the ruling’- can only be deployed by using the help of a simple majority of senators.

The nuclear choice integrates the premise that a new precedent may be set by a senator introducing a point of order or arguing that a Senate law is being abrogated in its effect. Upon approval by the president officer (usually a member of the Senate), the vote sets a new precedent. If the president officer disagrees, their decision may also be d challenged. If the majority of the Senate votes to revoke the Chair’s decision, the reverse of the Chair’s decision will become a new precedent.

In a procedural twist, the Senate used this approach in 2013 and 2017 to reduce the number of votes needed to debate nominations. Through an ingenious use of the point of order system, the majority leader put forth the nominations via non-debatable motions. However, they thereinafter vocalized the point of order, citing that the cloture vote needed the majority vote that violated the principle of the non-debatable movements. The presiding officer ruled against the end of the charge, but the ruling was overturned on appeal. Interestingly, the request that overturned the ruling also required only a majority in support. The parliamentary procedure can thereinafter be used in a manner to phase out the filibuster procedure.

REDUCING THE EFFECTIVENESS OF THE FILIBUSTER

The Senate could still try to undermine the filibuster before wholly banning it. A Senate majority may trigger a less-radical version of the nuclear plan that prohibits filibusters on individual motions but otherwise retains the sixty-voting law unaffected. A majority in the Senate might prohibit senators from filibustering a motion responsible for a bill to commence (known as the motion to proceed). Hence, senators’ ability to filibuster the new account or amendment will be retained while essentially shutting out the supermajority hurdle for beginning a vote on a statutory proposal.

The principle of supermajority has made it extremely difficult, frequently inconceivable, for Congress to implement anything but the least contentious bills in recent years. The quantum of bills approved by the Senate has significantly plummeted. Meanwhile, voter acceptance of Congress as an entity has nosedived, with major components of the community viewing the institution as ineffective. Changing majorities of both parties and their supporters have also been unsuccessful in achieving core legislative goals expressed in electoral campaigns since these goals cannot be realized after the election. An example that most clearly highlights the situation was when the Democratic Party, despite their substantial majority in the 111th Congress, still had to withdraw the Affordable Care Act’s ‘public option’ clause because senator-Joe Lieberman of Connecticut had threatened to filibuster the bill if it stayed.

There is also no objective formula to quantify the extent to which the filibuster is still employed through the years. Senators are not allowed to officially register their opposition to the conclusion of the debate until a cloture resolution is finally put to the ballot. If Senate leaders recognize that at least 41 senators expect to reject a cloture vote on a particular bill or motion, they frequently opt not to schedule it for debate on the floor. But the number of cloture movements filed is a convenient metric for the calculation of filibusters. The number of such activities has risen dramatically in the 20th and 21st centuries after the popularisation of the filibuster’s second life.

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Sources

1. At times, the ‘nuclear option’ has been proposed to eliminate the sixty vote threshold for certain matters before the Senate. The nuclear option is a parliamentary procedure that allows the Senate to override one of its standing rules, including the sixty-vote rule to close debate, by a simple majority (51 votes if all 100 senators are present) than the two-thirds supermajority typically required to amend the controls.

2. On November 21, 2013, by overturning a ruling of the chair on appeal, the Senate set a precedent that lowered the vote threshold required by Senate Standing Rule XXII for invoking cloture on most presidential nominations. The precedent did not change the text of Rule XXII of the Standing Rules; instead, the Senate established a precedent reinterpreting the provisions of Rule XXII to require only a simple majority of those voting, rather than three-fifths of the full Senate, to invoke cloture on all presidential nominations except those to the U.S. Supreme Court.

3. “Vote on S. Con. Res. 3, 115th Congress”. U.S. Senate.

The Senate passed the FY17 budget resolution that included reconciliation instructions for health care reform by a 51–48 vote on January 12, 2017, and by the House on a 227–198 option the following day. The House later passed the American Health Care Act of 2017 as the FY17 budget reconciliation bill by a vote of 217–213 on May 4, 2017

4. Budget reconciliation is a procedure created in 1974 as part of the congressional budget process. In brief, the annual budget process begins with adopting a budget resolution (passed by a simple majority in each house, not signed by the President, does not carry the force of law) that sets overall funding levels for the government. The Senate may then consider a budget reconciliation bill, not subject to filibuster, that reconciles funding amounts in any annual appropriations bills with the amounts specified in the budget resolution. However, under the Byrd rule, no non-budgetary ‘extraneous matter’ may be considered in a reconciliation bill. The presiding officer, always relying (as of 2017) on the Senate parliamentarian’s opinion, determines whether an item is extraneous, and a sixty-vote majority is required to include such material in a reconciliation bill.

5. Beginning in 1975 with the Trade Act of 1974, and later through the Trade Act of 2002 and the Trade Preferences Extension Act of 2015,

6. The Senate’s Standing Rules are the parliamentary procedures adopted by the United States Senate that govern its operation. The Senate’s power to establish rules derives from Article One, Section 5 of the United States Constitution: ‘Each House may determine the management of its proceedings…

7. At the 85th Congress in 1957-59, more than 25 percent of all bills proposed by the Senate were eventually enacted; by 2005, the number had fallen to 12.5 percent, and by 2010, only 2.8 percent of the bills introduced became law—a 90 percent decline from the previous 50 years

How to Sue Government Agencies: Essential Steps for Filing Claims

This article will provide guidance on How to Sue Government Agencies: Essential Steps for Filing Claims. Suing a government agency allows victims of negligence to seek compensation. However, this process requires solid legal backing, as the law seldom entertains baseless claims. In the U.S., sovereign immunity protects the federal government from lawsuits unless it consents to be sued. This principle also applies to states and cities like New York, which can only face lawsuits with their consent. Click here to watch our introduction video.

Breaking Down Sovereign Immunity

Sovereign immunity shields the federal government and subdivisions like New York from lawsuits without express consent. Overcoming this barrier is crucial for initiating legal action against government entities. Consent, while necessary, is obtainable through a case-specific process. Click Here for Frequently Asked Questions About Process Servers!

Filing a Notice of Claim

The first step in suing a government agency in New York involves filing a Notice of Claim within 90 days of the incident. This notice alerts the agency about the lawsuit and provides an opportunity for settlement. Click here for information on How Rush Process Service Can Expedite Your Case.

How to Serve Legal Papers on New York City

Initiating a lawsuit against New York City requires understanding sovereign immunity and filing a Notice of Claim within a 90-day window. The New York City Comptroller’s Office will review the claim, potentially leading to mediation or a settlement. Click here for information on How Process Servers Protect Your Rights: Myths Debunked.

Notice of Claim Requirements

A Notice of Claim should include the claimant’s and their attorney’s name and address, the claim’s details, the injury nature, and the damages sought. Properly serving this notice on the Comptroller’s Office is essential for moving forward with the lawsuit.

Suing the State of New York

You must bring the lawsuit to the New York State Court of Claims to sue the state. While the court hears claims against the state, it does not cover lawsuits against individual employees. Municipal governments and some public authorities fall under different legal frameworks.

Serving Legal Papers on New York State

Suing in the Court of Claims involves filing a claim with the court clerk and serving the New York State Attorney General. Personal delivery is preferred, but certified mail is also valid. A $50 filing fee applies, with the claim officially filed once the Clerk of the Court receives it.

Understanding the Federal Tort Claims Act (FTCA)

The FTCA permits suing the federal government for negligence by federal employees. It represents a limited waiver of sovereign immunity for certain tort claims against the government.

Filing a Notice of Claim Under the FTCA

Before suing the federal government, file a Notice of Claim with the responsible agency. Use Standard Form 95 to detail the claim and the damages sought. This form helps streamline the submission process, though it is not mandatory.

Conclusion

Suing government agencies is more complex than suing a private citizen, but follows a structured process defined by statutes. By meeting filing requirements and understanding sovereign immunity, individuals can initiate legal actions against government entities to seek redress for their injuries.