Legislative Update

Blair Tinkle, Association General Counsel and Congressional Liaison

Blair Tinkle, General Counsel to the Association and Congressional Liaison

Several issues important to state Attorneys General are likely to see action on the Hill as Congress heats up in the summer months heading into the August break and a hotly contested presidential election looms in the fall. Although many believe that Congress will continue to be busy addressing and moving legislation, few in the nation’s Capitol believe that bipartisan compromise can be achieved in the coming months and much will be left to the incoming 111th Congress and a new President. Nonetheless, state Attorneys General are working to address important issues affecting the states and their citizens.

Since March, when NAAG held its national conference in Washington, D.C., Congress has continued to address the issue of lead tainted toys. Both the House and Senate have moved to expand the authority of the Consumer Product Safety Commission (CPSC) to oversee goods, particularly imports, to address concerns about lead contained in children’s products. While both the House and Senate passed versions of the bill that lowered lead concentration limits on all parts of children’s products, required testing of children’s products before sale and increased the authority and resources of the CPSC, there remain important differences.

The bill passed in the House gave state Attorneys General a right of action to enforce a consumer product safety rule or order and the ability to obtain appropriate injunctive relief. However, with the backing of consumer advocates and state Attorneys General, the Senate passed its own version of the CPSC bill. The Senate version gives state Attorneys General enforcement authority, but also gave stronger penalties, contained whistleblower protections and offered whistleblowers a portion of civil penalties collected as a result of information that they have provided.

As the House and Senate have both acted, the bill is now in conference and another letter signed by 50 state Attorneys General was sent to the Hill on May 29, 2008 in support of strong enforcement language in the bill. Conference Committee members are expected to wrap up negotiations in the next several weeks and the bill should hit full floor consideration in the Senate on June 24, 2008.

As the price of housing continues to plunge and the number of foreclosures soars, Congress is looking to act in the short term, with more action likely to occur before the August break.

In early May of this year, the House passed the “The American Housing Rescue and Foreclosure Prevention Act.” Among other issues, the bill provides for mortgage refinancing assistance for primary residences, expands affordable mortgage opportunities, strengthens regulation of Fannie Mae, Freddie Mac and the Federal Home Loan Bank System and gives first-time homebuyers a refundable tax credit. In addition, with the strong backing of NAAG and other consumer groups, the bill was amended to clarify that the bill would not preempt state foreclosure laws for national banks or federally chartered thrifts, protecting the long-standing role of states in governing foreclosure laws. At this time, the bill remains in the Senate for potential action.

There was also action in the Senate recently to address the foreclosure crisis. In late May of this year, the Senate Banking Committee passed “The Federal Housing Finance Regulatory Reform Act of 2008.” The bill, similar to the House bill, is designed to address the rising number of foreclosures by assisting borrowers in refinancing their mortgages, establishing a fund that would help create more affordable housing and give greater regulatory authority to Fannie Mae and Freddie Mac.

The Senate bill would move next to floor action. There is skepticism amongst stakeholders that House and Senate agreement on the two bills could be reached before the August break, or even in the 110th Congress.

On the criminal law front, all 56 Attorneys General signed a letter on March 3 of this year urging Congress, through the supplemental appropriations package, to restore funding for the Byrne Justice Assistance Grant (JAG) program, cut dramatically by 67 percent from FY 2007 levels. Byrne/Justice Assistance Grants fund multi-jurisdictional drug enforcement, treatment interventions, police training, technology improvements, crime prevention programs and crime victims’ assistance programs at the state level. The supplemental appropriations package under consideration in both chambers in Congress is tied to Iraq war spending and a presidential veto has been threatened if domestic spending issues are included. The Senate passed a version of the supplemental bill restoring the Byrne grant funding and the House passed a supplemental without restoration of JAG programs with an eye to avoiding presidential veto. Negotiations continue on the supplemental and some action is expected before Congress takes its August break.

Also, “The Free Flow of Information Act” is an initiative currently pending in Congress that would recognize a news reporter’s qualified privilege in federal-court proceedings, a right that is not currently perfected in the U.S. Code. A new law, if enacted to recognize the privilege, would bring federal law in line with the laws of 49 states and the District of Columbia in which reporter shield laws have been adopted by legislative or judicial fiat. The underlying policy consideration is that an informed citizenry and the preservation of news information are vital to a free society and the incongruity between federal and state laws has a chilling effect. This initiative has seen both House and Senate action and state Attorneys general are looking to weigh in on the issue before the August break.

A renewed effort to revive the “Prevent All Cigarette Trafficking Act (PACT Act)” is underway in the House. Representative Anthony Weiner (D-NY) led a Crime Subcommittee of the House Judiciary Committee hearing in May 2008 on this initiative that would effectively curtail the sale of cigarettes over the Internet, skirting federal law that preserves and generates state taxes on such sales. The PACT Act would also halt the unregulated practice of selling tobacco products to minors and potentially prevent the sale of cigarettes over the Internet by terrorists to fund terrorist activity. Representative Weiner is expected to hold another hearing and is negotiating with stakeholders on the issue to move a bill in the House. NAAG has consistently supported the measure and is preparing to support this action in the House as well as any potential activity in the Senate this summer.

Lawmakers on Capitol Hill are also grappling with the issue of fighting “Spyware,” the practice of computer software that is installed surreptitiously on personal computers to intercept or take partial control over a user’s computer without informed consent. Members of the Senate Commerce Committee met on June 11, 2008 to discuss the issue.

Spyware often collects various types of personal information, such as an individual’s Internet surfing habits and tracking web sites visited. However, spyware can also interfere with user control of the computer, such as installing additional software, redirecting activity of a web browser, forcing access to websites that could cause harmful viruses or diverting advertising revenue to a third party. In addition, spyware can change computer settings, resulting in slow connection speeds, different home pages and loss of programs, including Internet access itself.

At the June 11 hearing, senators Mark Pryor (D-Ark), Bill Nelson (D-Fla), Barbara Boxer (D-Calif), Daniel K. Inouye (D-HI), Byron L. Dorgan (D-ND) and David Vitter (R-La) discussed the need for congressional action that would provide for sanctions to the practice, with an appropriate definition that is not limiting for future changes in technology. More action on the issue is expected in coming months.

Finally, both the House and Senate recently agreed on a budget. Congressional budgets are blueprints on spending, not law; not every Congress can agree on a budget and congressional budgets are not required to be signed by the President. Congressional budgets are not funded, rather, they are simply guidelines on spending that need further, actual appropriations. Nonetheless, like any budget, it is better to be included in one than not. On a positive note, the recent budget agreement by Congress created a fund and essentially restored the child support enforcement incentive grants that were cut by the Deficit Reduction Act of 2005. The task ahead remains to obtain an appropriation for this measure.

Clearly, there is much ahead for the final months of the 110th Congress. However, it remains to be seen whether the flurry of congressional activity is just that, or whether bills will land on the President’s desk and become law. In either case, state Attorneys General remain engaged in shaping policy on Capitol Hill.

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