"Council Meeting Agenda and Tabs"
AMERICAN BAR ASSOCIATION SECTION OF ADMINISTRATIVE LAW AND REGULATORY PRACTICE 2006 SPRING MEETING COUNCIL MEETING Saturday, April 29, 2006 Elbow Beach Resort – Ocean Suite Bermuda 8:00 am – 9:00 am Section Breakfast 9:00 am – 9:10 am Call to Order, Tab 1 Approval of 2006 Midyear Meeting Minutes, Introduction of Persons Present 9:10 am – 9:20 am Chair’s Report, Kinney Tab 2, Tab 3, Tab 4 9:20 am – 9:25 am Chair-Elect’s Report, Troy Tab 5 9:25 am – 9:30 am Vice-Chair’s Report, Asimow 9:30 am – 9:45 am Elections Committee Report, Young Tab 12, Tab 13 9:45 am – 10:05 am Proposed Resolution on Tab 6A, Tab 6B Lobbying Disclosure, Luneburg Tab 6C, Tab 6D 10:05 am – 10:15 am Archiving 1996 Policy on Ethical Conduct Tab 7 of Members of Congress, Luneburg 10:15 am – 10:20 am Social Security Courts, Lubbers, Levin Tab 14 10:20 am – 10:25 am Benefits Committee Report, Levine 10:25 am – 10:30 am Nominations Committee Report, Kinney Tab 8 10:30 am – 10:45 am Break 10:45 am – Noon Program: OMB Risk Assessment Guidelines Tab 9 AMERICAN BAR ASSOCIATION SECTION OF ADMINISTRATIVE LAW AND REGULATORY PRACTICE 2006 SPRING MEETING COUNCIL MEETING Sunday, April 30, 2006 Elbow Beach Resort – Ocean Suite Bermuda 8:00 am – 9:00 am Section Breakfast 9:00 am – 9:05 am Call to Order and Introduction of Persons Present, Kinney 9:05 am – 9:30 am Delegates Report Tab 10A, Tab 10B 9:30 am – 9:35 am Pipeline Resolution, Frisby Tab 11 9:35 am – 9:45 am Report on the Second and Third Annual Administrative Law and Regulatory Practice Institutes, Young 9:45 am – 9:50 am Publications Committee Report, Paszkiet 9:50 am – 9:55 am EU Project Status Report, Kinney 9:55 am – 10:00 am New Business 10:00am Adjourn Informational Reports Section Balance Sheet Membership Report Tab 1 MINUTES OF COUNCIL MEETING SECTION OF ADMINISTRATIVE LAW & REGULATORY PRACTICE AMERICAN BAR ASSOCIATION Hyatt Regency Chicago Chicago, Illinois February 11-12, 2006 February 11, 2006 Officers and Council Members in Attendance: Chair Eleanor Kinney; Chair-Elect Dan Troy; Vice-Chair Michael Asimow; Secretary Jamie Conrad; Budget Officer Dan Cohen; Section Delegate Judy Kaleta; Immediate Past Chair Randy May; and Council Members Paul Afonso (State Administrative Law), Nicole Bernabo (Young Lawyers Division), Myles Eastwood, Michael Herz, Kenneth Hurwitz, Katy Kunzer, Sharan Levine, Hon. Lois Oakley (Administrative Judiciary), Richard Parker, Hon. Raymond Randolph (Judiciary), Luke Reynolds (Law Student Division), Ron Smith, Dick Stoll, and Hon. Ann Young; and Board of Governors Liaison Mark Agrast. I. Administrative Chair Kinney called the meeting to order at 9:12. The November 19, 2005 minutes were approved. Persons present introduced themselves. II. Report of the Chair Chair Kinney reported on the success of the first annual Homeland Security Law Institute, thanking Lynne Zusman, Joe Whitley and Michael Greenberger for a “fantastic program.” As a result of the program, the DHS General Counsel’s office has invited the Section to comment formally on rules that DHS proposes. Kinney also noted that: • the Section’s newest edition of The Lobbying Manual is featured on the ABA’s home page and was on the Washington Post best-seller list recently; • the Section has made an important contribution to the work of the ABA’s Hurricane Katrina Task Force; • the Section has submitted blanket authority comments to OPM on ALJ recruitment; • the Section has submitted blanket authority comments to OMB on their proposed guidelines on guidance documents. Kinney reported that the Bermuda Spring Meeting is shaping up, with the Appleby firm hosting us and plans for a wine tasting. Finally, she thanked 2006 Midyear Meeting Co- Chairs Cynthia Drew and Michael Asimow, as well as Vice-Chair Jenny McDowell & Staff Director Kim Knight for their work in producing this meeting. III. Report of the Chair-Elect Chair-Elect Dan Troy announced that the Section’s Fall Conference would be held on October 26 & 27 at the National Press Club. He urged program organizers to start recruiting luminaries now. He confirmed that the Spring 2007 meeting will be held in Austin, and introduced Sabine Romero of Sandler, Reiff & Young’s Austin office, who will chair that meeting. In that connection, he asked participants to similarly recruit their younger colleagues for section responsibilities. He indicated that, unless there was dissent (there wasn’t), Saturday night’s focus would be on the Austin music scene rather than some erudite speaker. He also noted two topics on which members of the Section are developing reports or similar work product: (i) waivers of regulatory requirements in the context of exigent situations; and (ii) standards for proceeding via rulemaking vs. guidance (led by Council Member Dick Stoll). IV. Report of the Board of Governors Liaison Board Liaison Mark Agrast reported that the Board had taken note of the work of the Section, especially the Homeland Security Law Institute. He reported that this is the year of the triennial ABA dues increase. This year budget is $105 million, representing level funding despite growing pension obligations. Membership numbers are growing. The ABA’s membership goal is 500,000 by 2010. With respect to the Section’s request for a general-revenue funded staff attorney as part of the 2006-2007 budgeting process, Agrast said the Board gave the request a “yellow light,” meaning it is something the Board would like to do it if the funding is available. This is actually a positive sign in the current budget climate, but still very much an uphill fight. Agrast urged the Section not to emphasize the current inequities between sections but rather what we could accomplish with the addition of a staff attorney. The Board took no action on the Section’s report and recommendation regarding “sensitive but unclassified”(SBU) information, which was good. Agrast also noted that he is a member of the ABA Task Force on Domestic Surveillance in the Fight Against Terrorism, the report of which will be considered at this House of Delegates meeting (see Delegate’s Report). He also serves on the ABA Commission on the Renaissance of Idealism in the Legal Profession, and invited us to the Commission’s program being held later that day. V. Delegate’s Report, Part I Delegate Kaleta reported on the Section’s Sensitive but Unclassified (SBU) Report & Recommendation, noting that the Sections of Science & Technology and Individual Rights & Responsibilities were both requesting clarification of language. She then discussed resolution #103, regarding health courts. Several sections have asked this Section to cosponsor this report and recommendation, which inter alia takes the position that administrative tribunals should never adjudicate negligence cases. A robust debate followed. The Council was clearly not inclined to take any action. 2 Neil Sonnett, chair of the ABA Task Force on Domestic Surveillance in the Fight Against Terrorism, described the Task Force’s report and recommendation. A relatively restrained discussion followed, focusing on avoiding any implication that the President violated the law. Immediate Past Chair May will suggest language to Neil to that end. Homeland Security Committee Chair Lynne Zusman expressed great anguish at the fact that the Section had not been informed that the Task Force had been formed, and had not been provided adequate time to thoughtfully consider and provide comments on the resolution language. She noted that the Homeland Security Committee members, through their listserv, had been vigorously discussing and debating the resolution language since they received it not more than two days ago. A member from the Commission on Immigration spoke to the Council about ##107A-C regarding immigration reform. Ann Young expressed concern with some of the language and was designated to provide suggestions regarding a sentence in resolution #107C about professionalism of immigration judges. Vice Chair Asimow raised a concern about UPL language in the report language for #107A. The Commission member promised to address Asimow’s concern on the floor of the House. VI. OMB Proposed Risk Assessment Bulletin Sid Shapiro noted that he is organizing a program at the Spring Meeting that will address a tentative draft blanket authority comment letter from the Section. Anyone interested in participating should contact him. VII. Suspension of OMB E-Government Initiative Council Member Richard Parker explained the underlying problems that led to Congress cutting off funding to this initiative, which many had come to see as a centralized, one- size-fits-all, tax-the-agencies approach. He recommended that the Section write OMB and Congressional appropriators urging that they (i) at least work together on a good middle ground system that is funded, and (ii) ideally consult users and produce a system that meets users’ needs, even if that requires doing it over. He will draft something and circulate it by email for vote. VIII. Report of the Nominating Committee Bill Funk, Committee Chair, invited any interested candidates to visit with him and the Committee that afternoon in the Section Office. Chair-Elect Troy invited committee chairs and cochairs to confirm their intent to continue in their positions. IX. Homeland Security Institute Lynne Zusman recounted the highlights of the successful first production of this conference. She especially thanked Kim night for her hard work in bringing it off. Zusman and her fellow organizers plan another Institute next January. Chair Kinney thanked her for a “fantastic” event. 3 X. Second Annual Administrative Law & Regulatory Practice Institute Jack Young outlined plans for this conference, which propitiously will focus on lobbying. The program is scheduled for April 6-7. 2006 in Washington, D.C. The Lobbying Manual will be provided to each registrant as part of the CLE materials. XI. Request to Increase Section Staffing Immediate Past Chair May described the need for the Section to provide funding to allow the Section’s vacant part-time position to become full-time. He noted how difficult it is to get a person for a part-time job that is willing to make a long-term commitment. He also noted that training the person is a significant investment of time and money that is lost with each turnover in that position. Vice Chair Asimow noted that the Section is understaffed compared to other ABA sections, and not likely to get any additional general revenue funds from the ABA based on feedback he has received when raising the issue with the ABA. After discussion, the Council voted to commit a sum of $16,000 per year towards the third staff person. Budget Officer Dan Cohen noted for the record that he was not in favor of spending the additional funds, and that the Section needed to identify new revenue streams. XII. Annual Council Meeting After some discussion regarding how many Council Members would travel to Honolulu, the Council unanimously agreed that it will meet in Washington, DC on July 20-21. Judge Jean Cooper reported that within the Judicial Division they do not foresee diminished attendance in Hawaii, and that they are receiving some type of reimbursement for their travel. It should be noted however that the Judicial Division is not a Section, and a different set of parameters may apply. The issue of travel reimbursement to Hawaii has been discussed at length among Section Directors and ABA Senior Managers over the past 12 months, and the official ABA response has been that no member will be reimbursed for travel to the Annual Meeting. The Council adjourned for the day at 11:45 am. February 12, 2006 Officers and Council Members in Attendance: Chair Eleanor Kinney; Chair-Elect Dan Troy; Vice-Chair Michael Asimow; Secretary Jamie Conrad; Budget Officer Dan Cohen; Section Delegates Judy Kaleta and Tom Susman; and Council Members Paul Afonso (State Administrative Law), Myles Eastwood, Michael Herz, Kenneth Hurwitz, Katy Kunzer, Hon. Lois Oakley (Administrative Judiciary), Richard Parker, Hon. Raymond Randolph (Judiciary), Luke Reynolds (Law Student Division), Ron Smith, and Hon. Ann Young. I. Administrative 4 Chair Kinney called the meeting to order at 10:20 am. Persons present introduced themselves. II. Lobbying Reform Chair Kinney thanked Bill Luneburg for organizing the morning’s program on lobbying reform and Trevor Potter for contributing to the program. Luneburg suggested the Section prepare a letter under blanket authority regarding potential lobbying reform legislation. He offered as possible topics corruption, enforcement, public availability of information that is already disclosed, and the different standards that apply between Congress and agencies. Several Council Members were skeptical of legislation focusing only on corruption. Judge Randolph expressed concern that any legislation not draw the Judicial Branch into the solution. The Council agreed that people with views on the topic should email Luneburg in the next week or so. The question was raised whether the Section can issue a statement under blanket authority given the apparent absence of ABA policy on the subject. ABA Senior Legislative Counsel Larson Frisby opined that the Board of Governors can adopt ABA policy when the House of Delegates is out of session, but usually does so only on topics where it perceives there is consensus. He also thought it would be appropriate for the Section to issue a blanket authority statement where no ABA policy exists so long as no other section objected. He added that cosponsorship by other sections would be beneficial. Trevor Potter said he thought the Section’s views on lobbying disclosure legislation and enforcement would be respected. Luneburg’s draft will be docketed for the Spring Meeting, unless the Section needs to move sooner. III. Report by Standing Committee on Election Law Trevor Potter of the Standing Committee reported on ABA President Greco’s request to review the “Fair Vote Plan,” proposed by former Senator Birch Bayh. Work on this request is a joint effort between the Section’s Election Law Committee, the ABA Standing Committee on Election Law, and the Section on Individual Rights and Responsibilities. Section members offered a variety of perspectives on the constitutionality of the Bayh proposal. Bob Bennett of NWU Law School, author of the leading book on interstate compacts, also spoke to the topic. The groups’ plan is to have a report for the Spring Meeting and to get back to President Greco in advance of the Annual Meeting. Section members should give Potter any reactions. Sabine Romero reported on a group working on redistricting issues, the output of which is due this coming winter. IV. Publications Committee Report Anna Shavers gave the report of the Committee, which met yesterday. The Lobbying Manual, by William Luneburg and Thomas Susman, has sold 1,000 copies in 2005 and is 5 now in its second printing. Jeff Lubbers has finished the manuscript for a fourth edition of his Guide to Federal Agency Rulemaking, to be marketed in conjunction with the Section’s Guides to Judicial Review and Adjudication. The Committee also has a manuscript from Jim O’Reilly on preemption. The Committee is working on a policy on editorializing by authors. V. Budget Report Budget Officer Cohen presented the Section balance sheet for the month ending January 31, 2006. The Fiscal Year revenue to date was $304,649.79 and the Fiscal Year expense to date was $196,665.26. The Section’s investments total $297,064.00 and the Short Term Cash fund totals $85,717.08. The Section has collected $145,470 in dues at this time for the 2006-2007 membership year, compared to a collection of $142,072 at the same time last year. VI. Annual Meeting Meeting chair Janet Belkin reported that plans for the meeting are in limbo in light of the Council’s vote not to hold a Council Meeting in Hawaii. Janet will follow up with members who have proposed programs for the meeting to see if they want to continue even though the Council will not meet. It was suggested that any Annual Meeting programs be broad-based in order to attract the largest possible audience, since our Section Members do not usually attend the ABA Annual Meeting in any great numbers. Lynne Zusman noted her experience at the Chicago Annual Meeting in 2005 of having a disappointing attendance at her program, and the negative impression that it leaves upon the speakers. VII. Delegates’ Report, Part II1 The Council first discussed report #109 on federal consent decrees authored by the Dispute Resolution Section with input from Council Member Bernard Bell. The Council voted to co-sponsor the resolution. The Council next discussed a rapidly evolving report and recommendation from the Section of Intellectual Property Law regarding a recent case involving E-Bay, in which John Duffy opined the Section has an interest. He recommend the Section oppose the resolution it in its current form, but believed that it could be cured with certain adjustments to the language. It was not known as to whether the IP Section would be willing to make adjustments to the language at this time. The Council unanimously agreed to let the Delegates support, be neutral toward, or oppose the resolution as Duffy recommends, pending continuing negotiations on language. Chair Elect Troy abstained from this decision. The delegates reported that the drafting question discussed yesterday regarding #107C (on judicial due process in immigration decisions) had been worked out. 1 Note: Judge Randolph abstained from these votes of the Council. 6 The Delegates reported that a word change had been suggested for our report #112 by the House Committee on Rules and Calendar. The Council unanimously agreed to accept the addition of “ensuring” and “unless exempt” to lines 7 and 8 of the recommendation. The Council discussed the domestic surveillance report and recommendation further but did not reach any decisions. The Council adjourned at 11: 25 am. 7 Tab 2 From: Knight, Kimberly Sent: Tuesday, April 11, 2006 6:24 PM To: 'firstname.lastname@example.org' Subject: Notice of July Council Meeting and Program MEETING NOTICE The Section Council will meet on July 20-21, 2006 in Washington, D.C. at the Crowne Plaza Hotel, 14th and K Streets, NW. This meeting will be held in lieu of a Council Meeting in Hawaii in August (although the Section will have programs and co-sponsor events in Hawaii). The July meeting schedule is as follows: Thursday, July 20, 2006 2pm to 3:30pm Publications Committee Meeting 4pm to 5:30pm CLE Program in collaboration with the DC Bar Agency Law Section and the Federal Bar Association DC Chapter 5:30pm to 7pm Reception with DC Bar Agency Law Section and Federal Bar Association DC Chapter Friday, July 21, 2006 8am to 9am Continental Breakfast 9am to 3pm Council Meeting with working lunch 3pm Adjourn Dan Cohen has volunteered to organize the CLE Program on that Thursday. Each of the collaborating entities have provided a member to sit on the planning committee. The program topic is TBD. If you have ideas or suggestions, please email them to Dan Cohen at email@example.com as soon as possible. Shortly I will send out additional details regarding making hotel reservations. The rate will be $179 per night. Thanks! Kim Tab 3 American Bar Association Section of Administrative Law and Regulatory Practice 2006 Annual Meeting August 3-6, 2006 Waikiki Beach Marriott Honolulu, Hawaii TENTATIVE AGENDA THURSDAY, AUGUST 3, 2006 9:30 am – 11:00 am Military Tribunals Begin: National Security Champions, the International Legal Community, and Individual Rights Advocates Respond Panelists: Jeff Bravin, Washington, DC Thomas Hemmingway, Washington, DC Neal R. Sonnett, Miami, FL Suzanne Spaulding, Washington, DC Moderator: Stephen A. Saltzburg, Washington, DC Primary Sponsor: Criminal Justice Section Requires CLE Ticket or CLE Passport FRIDAY, AUGUST 4, 2006 7:30 am – 9:00 am Federal Land Use and the Environment Under the Roberts Court Primary Sponsor: Section of State and Local Government Requires CLE Ticket or CLE Passport 11:30 am – 1:00 pm Gonzales v. Oregon – Lessons for States, Terminally Ill, and Schiavo Patients Primary Sponsor: Tort Trial and Insurance Practice Section Requires CLE Ticket or CLE Passport 11:30 am – 1:00 pm Birthright Citizenship and the Fourteenth Amendment The American people are frustrated with the lack of enforcement of law at the border, and are increasingly open to new policies, including policies to eliminate the incentives for illegal entry. No one disputes that superior economic opportunity in the United States is a strong magnet. But some policy activists have also begun to contend that birthright citizenship for children born in the United States is another important attraction. Accordingly, numerous proposals have been introduced in Congress to repeal birthright citizenship for the children of undocumented persons, as well as for the children of persons other than U.S. citizens and aliens lawfully admitted for permanent residence. Section 1 of the Fourteenth Amendment, however, provides that "[a]ll persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States and of the State wherein they reside." In light of this provision, are these proposals to repeal birthright citizenship by statute constitutional? And in light of this nation's traditions, customs, and values, are these proposals good policy? Co-Sponsors: Section of Individual Rights and Responsibilities and the Commission on Immigration Panelists: James C. Ho, Washington, DC Edward J. Erler, Gary Endleman, John Eastman, Moderator: Anna Shavers, Lincoln, Nebraska Requires CLE Ticket or CLE Passport 1:30 pm – 3:30 pm Banking Law Committee Program Requires CLE Ticket or CLE Passport 6:00 pm - 8:00 pm Reception at the U.S. Army Museum of Hawaii Joint Reception hosted by the Sections of International Law, Administrative Law, Tax Law, Dispute Resolution, and Individual Rights and Responsibilities Tickets $75 per person. 9:30 pm Chair’s Reception [Chair’s Suite] SATURDAY, AUGUST 5, 2006 8:30 am – 10:00 am Section Annual Meeting and Elections 11:30 am – 1:00 pm Convergence of Wireless and Wireline Telecommunications, Internet and Cable This program will look at legal, regulatory and consumer aspects of wireless and wireline telecommunications, Internet, and cable services; the extent of convergence; barriers to convergence; and prospects for the future. Primary Sponsor: Section of Public Utilities, Communications, and Transportation Law 5:30 pm ABA Annual Meeting Opening Assembly – Honolulu Convention Center ABA Presidential Reception on the Beach Tickets: Registrants and guests age 18 and over are $40. Tickets for registrants under age 18 are $20. 9:30 pm Chair’s Reception [Chair’s Suite] SUNDAY, AUGUST 6, 2006 11:30 am – 1:00 pm It’s Not Elementary My Dear Watson: Undercover Investigations, Attorney/Client Privilege, and Other Legal Ethical Issues Are undercover investigations by lawyers ethically permissible? How does attorney/client privilege apply to fact investigations? Can ex parte communications be used in investigations? Our expert panelists, including a regulatory litigator, Assistant U.S. Attorney, former government regulator and a trial lawyer, will tackle these questions and delve into recent developments in the law and the legal ethics that shape how government, regulatory, and trial lawyers conduct fact investigations. Learn how to effectively respond to investigations from panelists that conduct investigations for their clients and those that represent parties responding to investigations. Panelists: Charles Baker, Fitzpatrick, Cella, Harper & Scinto, PLLC, New York, NY Jeff Thomas, Mitchell, Williams, Selig, Gates & Woodyard Little Rock, AR Susan Stead, Nelson, Levine, de Luca & Horst, Columbus, OH Greg Brooker, Assistant United States Attorney, Minneapolis, MN Moderator: John Knapp, Winthrop & Weinstine, P.A., Minneapolis, MN Primary Sponsor: Tort Trial and Insurance Practice Section 11:30 am – 1:00 pm Silencing the Court: Judicial Impartiality v. Free Speech – A Mock Supreme Court Argument Primary Sponsor: Tort Trial and Insurance Practice Section 11:30 am – 1:00 pm 16th Annual Margaret Brent Women Lawyers of Achievement Awards Luncheon Honoring: • Ellen Godbey Carson, Director, Alston Hunt Floyd & Ing and community activist; in Honolulu, Hawaii. • Constance Slaughter-Harvey, Civil rights attorney and activist, former Assistant Secretary of State of Mississippi, and champion of education of youth; in Forest, Mississippi. • Peggy A. Quince, Justice, Supreme Court of Florida and first African-American woman to serve on the Florida Supreme Court; in Tallahassee, Florida. • Betty Roberts, Former Oregon Supreme Court Justice and first woman on the Oregon Supreme Court; in Salem, Oregon. • Joan C. Williams, Distinguished Professor, Hastings College of the Law, University of California and author of groundbreaking scholarly contributions to the field of work/life studies; in San Francisco, California. Ticketed Event Noon – 2:00 pm The International Rule of Law Luncheon The International Rule of Law Luncheon — a successor to the CEELI Awards Ceremony and Luncheon — will take place at the ABA Annual Meeting in Honolulu, Hawaii, on Saturday, August 5, 2006, in the Kalakaua Ballroom of the Hawaii Convention Center from 12:00 noon to 2:00 p.m. Given the Pacific Rim location of the meeting, the Luncheon program will focus on rule of law reform in Asia. ABA-Asia is taking the lead on organizing this event and will present the ABA-Asia Rule of Law Award to U.S. Supreme Court Justice Anthony Kennedy and to Hilario G. Davide, Jr., recently retired Chief Justice of the Supreme Court of the Philippines. Ticketed Event 6:00 pm – 7:30 pm ABA Award for Distinguished Achievement in Environmental Law and Policy Ceremony and Reception Primary Sponsor: Section of Environment, Energy and Natural Resources REGISTRATION AUGUST 3-8 HAWAII The Premier Educational Forum For Legal Professionals TO REGISTER PLEASE VISIT WWW.ABANET.ORG/ANNUAL/2006 Dear Colleagues: On behalf of the American Bar Association I am pleased to invite you to the 2006 Annual Meeting in Honolulu, Hawaii. The six glorious islands of Aloha provide a paradise setting for you and your family to enjoy, including serene beaches and towering mountains. Located on the beautiful island of Oahu, Honolulu has the legendary white sands of Waikiki Beach, the soaring majesty of Diamond Head, fantastic dining, and Polynesian cultural attractions. Honolulu now also boasts a beautiful, state-of-the-art Convention Center, complete with a magnificent Hawaiian art collection and an attractive rooftop tropical garden. The 2006 Annual Meeting Advisory Committee, co-chaired by Alan Van Etten and James Kawachika of Honolulu, is putting together a very attractive and entertaining Annual Meeting Program. One of the Annual Meeting programs will focus on E ola hou i ka mana`o kupono Michael S. Greco -- the Renaissance of Idealism in our profession. The exciting agenda includes many CLE programs to assist members in furthering their professional development and numerous meetings and social events to bring together old friends and new acquaintances. Our ABA staff is working with the Annual Meeting Advisory Committee, the Hawaii State Bar Association, and several other Hawaiian legal associations and cultural institutions to add a uniquely Hawaiian flavor to the Annual Meeting. My wife Dianne and local cultural leaders are working to incorporate the music and dance of the islands into Annual Meeting events. The meeting schedule has been adjusted to give you more time to enjoy the many attractions of Honolulu and the surrounding environs. Meetings and programs in the Presidential CLE Centre and at the Hawaii Convention Center will be held in the mornings, allowing you to enjoy free time in the afternoons each day of the meeting. I also invite you to attend the President’s Reception, which will be held on Saturday evening, August 5, immediately following the Opening Assembly. This year’s President’s Reception will be held at the beautiful outdoor pool areas of the Royal Hawaiian and Sheraton hotels. The event will feature entertainment that reflects Hawaii’s traditions. You have a wonderful opportunity to take a memorable family vacation and to gather with fellow members at the 2006 American Bar Association Annual Meeting to share ideas and goals for our profession in one of the most beautiful and enchanting locations on earth. I encourage you to register early for what is sure to be one of the most memorable Annual Meetings ever! Dianne and I look forward to seeing you in Honolulu. Aloha, 1 Michael S. Greco WWW.ABANET.ORG/ANNUAL/2006 ENTITY CALENDAR Meeting Location Meeting Dates BENEFITS Registration Board of Governors Hawaii Convention Center Hawaii Convention Center August 2-8 August 3-4 OF ATTENDING THE ABA House of Delegates Hawaii Convention Center August 7-8 ANNUAL MEETING American Bar Foundation Hawaii Convention Center August 4-6 Section/Division Location Meeting Dates • The ABA Annual Meeting is the Administrative Law Waikiki Beach Marriott August 4-6 PREMIER GATHERING of legal Antitrust Law Halekulani August 5-6 professionals in the United States. Business Law Waikiki Beach Marriott August 4-7 Commission on Racial and Ethnic Diversity Hilton Hawaiian Village August 3-6 • Earn an entire year's worth of Criminal Justice Hyatt Regency Waikiki August 3-6 CLE REQUIREMENTS. Dispute Resolution Hyatt Regency Waikiki August 4-6 Environment, Energy, and Resources Hilton Hawaiian Village August 5-6 • NETWORK with leading professionals who share your Family Law Hilton Hawaiian Village August 4-6 interests and concerns. Forum Committees Hawaii Convention Center August 4 General Practice, Solo and Small Firms Section Hilton Hawaiian Village August 3-6 • Stay abreast of RECENT Government & Public Sector Lawyers Hawaii Prince August 4-5 DEVELOPMENTS in the law. Health Law Hilton Hawaiian Village August 5-7 Individual Rights & Responsibilities Hilton Hawaiian Village August 3-7 • Visit the ABA EXPO, with MORE THAN 100 EXHIBITORS Intellectual Property Law Halekulani August 4-6 providing a diverse assortment International Law Hilton Hawaiian Village August 4-6 of legal products and services. Judicial Division Sheraton Waikiki August 3-7 Labor and Employment Law Hyatt Regency Waikiki August 5-8 • The Annual Meeting's FLEXIBLE Law Practice Management Hilton Hawaiian Village August 3-5 FORMAT allows you to customize Law Student Division Ala Moana Hotel / Hawaii Convention Center August 2-6 the meeting to fit your needs. Legal Education and Admissions to the Bar Moana Surfrider August 3-6 Litigation Hilton Hawaiian Village August 3-6 Public Contract Law Hilton Hawaiian Village / Renaissance Ilikai August 4-7 Public Utility, Communications and Transportation Law Royal Hawaiian August 5-6 Real Property, Probate & Trust Law Moana Surfrider August 3-9 Science & Technology Law Renaissance Ilikai August 3-6 Senior Lawyers Division Hilton Hawaiian Village August 3-5 State & Local Government Moana Surfrider August 3-6 Taxation Halekulani August 4-6 Tort Trial and Insurance Practice Sheraton Waikiki August 3-7 Young Lawyers Division Sheraton Waikiki August 3-6 2 WWW.ABANET.ORG/ANNUAL/2006 PRESIDENTIAL CLE CENTRE The Presidential CLE Centre will be located at the Hawaii Convention Center. The Centre will offer accredited CLE programs covering all areas of practice, giving attendees an opportunity to conveniently earn a year’s worth of CLE credits in one central location. Programming in the Centre will begin at 7:30 a.m. and will conclude by 1:00 p.m. each day. PURCHASING CLE AT THE 2006 ANNUAL MEETING Purchasing CLE at the 2006 Annual Meeting is easy! Attendees can register for the meeting and purchase an All-Access CLE Badge for a fee of $440*. This badge can be used for admittance to governance meetings, non-CLE programs and ALL CLE programs at the Annual Meeting, including those in the Presidential CLE Centre and at the satellite hotels. Members whose primary focus at the Annual Meeting is governance, and who may only be able to attend a few CLE programs, can register for the Meeting for a fee of $165*, which includes admittance to all governance and non-CLE programs, and purchase individual program tickets for $75 each. Discounted program tickets will be available to government lawyers and judges for $35. Law Student registrants will be admitted to all CLE programs at no additional charge. Admittance to each CLE program will require one individual program ticket OR the All-Access CLE Badge. Registration for non-ABA members is $775. *increases by $130 after May 31, 2006 ABA EXPO During the 2006 Annual Meeting, the ABA EXPO will be located at the Hawaii Convention Center from Thursday, August 3 through Saturday, August 5. The ABA EXPO features more than 100 providers of dynamic legal products and services. Visit exhibiting companies showcasing the latest in communications, legal publishing, computer hardware and software and financial services, all in one convenient place and with today’s law practice in mind. The times for the ABA EXPO are as follows: Thursday, August 3 7:00 a.m. - 1:00 p.m. Friday, August 4 7:00 a.m. - 1:00 p.m. Saturday, August 5 7:00 a.m. - 1:00 p.m. ABA SOURCE While at the ABA EXPO, be sure to stop by the ABA Source. The ABA Source is your one-stop resource for making the most of your membership. Helpful ABA staff will be on hand to guide you through the ABA programs, products and services you need in your daily practice. Representatives of the ABA Member Advantage Program will present their portfolio of specially priced products and services available only to ABA members. OPENING ASSEMBLY The Opening Assembly will be held on Saturday, August 5 at 4:30 p.m. at the Sheraton Waikiki. The Opening Assembly is free of charge to all registrants. The President’s Reception will immediately follow the Opening Assembly outdoors at the Sheraton and Royal Hawaiian Hotels. PRESIDENT’S RECEPTION The President’s Reception will be held on Saturday evening, August 5, from 6:00 p.m. to 9:00 p.m. immediately following the Opening Assembly. 3 This year’s President’s Reception will be held at the beautiful outdoor pool areas of the Sheraton and Royal Hawaiian Hotels. The event will feature hors d’oeuvres and open bars, as well as entertainment reflective of local Hawaiian traditions. Be sure to register and buy your tickets early for what is sure to be one of the most memorable events of the 2006 Annual Meeting! WWW.ABANET.ORG/ANNUAL/2006 SPECIAL EVENTS AND TOUR PROGRAMS TOUR OVERVIEW WITH PRICING Tour Time Event Code Price Tour Time Event Code Price Thursday, August 3, 2006 Friday, August 4, 2006 (continued) One Day Hawaii/Volcano Tour (Adult Ticket) 4:45 am – 6:45 pm E001 $290.00 Polynesian Cultural Center (Child Ticket Age 5-11) E046 $71.00 One Day Hawaii/Volcano Tour (Child Ticket Age 2-11) E002 $280.00 Paradise Cove Luau (Adult Ticket) 4:00 pm – 9:30 pm E047 $85.00 One Day Kauai Tour (Adult Ticket) 5:30 am – 6:00 pm E003 $290.00 Paradise Cove Luau (Youth Ticket Age 13-18) E048 $75.00 Paradise Cove Luau (Child Ticket Age 3-12) E049 $65.00 One Day Kauai Tour (Child Ticket Age 2-11) E004 $280.00 Star Sunset Dinner Cruise (Adult Ticket) 4:15 pm – 7:30 pm E050 $85.00 One Day Maui Tour (Adult Ticket) 5:30 am – 7:00 pm E005 $290.00 Star Sunset Dinner Cruise (Child Ticket Age 3-11) E051 $55.00 One Day Maui Tour (Child Ticket Age 2-11) E006 $280.00 Arizona Memorial Excursion (Adult Ticket) 6:30 am – 10:30 am E007 $21.00 Saturday, August 5, 2006 Arizona Memorial Excursion (Child Ticket Age 3-11) E008 $15.75 One Day Hawaii/Volcano Tour (Adult Ticket) 4:45 am – 6:45 pm E052 $290.00 Hawaiian Isle Adventure (Adults & Children 6-12) 7:15 am – 3:30 pm E009 $61.50 One Day Hawaii/Volcano Tour (Child Ticket Age 2-11) E053 $280.00 Iolani Palace Tour 8:30 am – 11:00 am E010 $40.00 One Day Kauai Tour (Adult Ticket) 5:30 am – 6:00 pm E054 $290.00 Historic Chinatown Walk 8:30 am – 11:30 am E011 $30.00 One Day Kauai Tour (Child Ticket Age 2-11) E055 $280.00 “A Glimpse Into Hawaii” One Day Maui Tour (Adult Ticket) 5:30 am – 7:00 pm E056 $290.00 Bishop Museum & Aloha Tower Marketplace 8:30 am – 1:15 pm E012 $67.00 One Day Maui Tour (Child Ticket Age 2-11) E057 $280.00 Tropical Ocean Fun Cruise (Adult Ticket) 9:00 am – 12:45 pm E013 $70.00 Hawaiian Isle Adventure (Adults & Children 6-12) 7:15 am – 3:30 pm E058 $61.50 Tropical Ocean Fun Cruise (Child Ticket Age 3-11) E014 $46.00 Grand Circle Island with Dole Plantation (Adult Ticket) 8:15 am – 5:30 pm E059 $54.75 Honolulu’s Arts at Leisure 9:00 am – 2:30 pm E015 $58.00 Grand Circle Island with Dole Plantation Diamond Head Crater Adventure 9:30 am – 12:00 pm E016 $21.00 (Child Ticket Age 4-11) E060 $29.75 Shangri-La The Honolulu Estate of Miss Doris Duke 10:00 am – 2:00 pm E017 $49.00 Iolani Palace Tour 8:30 am – 11:00 am E061 $40.00 Polynesian Cultural Center (Adult Ticket) 12:00 pm – 10:15 pm E018 $95.00 Tropical Ocean Fun Cruise (Adult Ticket) 9:00 am – 12:45 pm E062 $70.00 Polynesian Cultural Center (Child Ticket Age 5-11) E019 $71.00 Tropical Ocean Fun Cruise (Child Ticket Age 3-11) E063 $46.00 Iolani Palace Tour 12:30 pm – 3:00 pm E020 $40.00 Diamond Head Crater Adventure 9:30 am – 12:00 pm E064 $21.00 Paradise Cove Luau (Adult Ticket) 4:00 pm – 9:30 pm E021 $85.00 Iolani Palace Tour 10:00 am – 12:30 pm E065 $40.00 Paradise Cove Luau (Youth Ticket Age 13-18) E022 $75.00 Shangri-La The Honolulu Estate of Miss Doris Duke 10:00 am – 2:00 pm E066 $49.00 Paradise Cove Luau (Child Ticket Age 3-12) E023 $65.00 Hawaiian Cultural Cruise (Adult Ticket) 10:00 am – 2:00 pm E067 $53.00 Star Sunset Dinner Cruise (Adult Ticket) 4:15 pm – 7:30 pm E024 $85.00 Hawaiian Cultural Cruise (Child Ticket Age 3-11) E068 $36.00 Star Sunset Dinner Cruise (Child Ticket Age 3-11) E025 $55.00 International Rule of Law Luncheon 12:00 pm – 2:00 pm E069 $75.00 International Rule of Law Luncheon (Young Lawyer) 12:00 pm – 2:00 pm E169 $50.00 Friday, August 4, 2006 International Rule of Law Luncheon (Student) 12:00 pm – 2:00 pm E269 $40.00 One Day Hawaii/Volcano Tour (Adult Ticket) 4:45 am – 6:45 pm E026 $290.00 Opening Assembly 4:30 pm – 6:00 pm FREE One Day Hawaii/Volcano Tour (Child Ticket Age 2-11) E027 $280.00 President’s Reception (Adult Ticket) 6:00 pm – 9:00 pm PRES $40.00 One Day Kauai Tour (Adult Ticket) 5:30 am – 6:00 pm E028 $290.00 President’s Reception (Child Under Age 18) 6:00 pm – 9:00 pm PRES $20.00 One Day Kauai Tour (Child Ticket Age 2-11) E029 $280.00 President’s Reception & One Day Maui Tour (Adult Ticket) 5:30 am – 7:00 pm E030 $290.00 Thurgood Marshall Award Dinner 6:00 pm – 9:30 pm E070 $150.00 One Day Maui Tour (Child Ticket Age 2-11) E031 $280.00 Thurgood Marshall Award Dinner ONLY 7:30 pm – 9:30 pm E071 $125.00 Arizona Memorial/City Motorcoach Excursion (Adult Ticket) 6:45 am – 12:00 pm E032 $27.50 Sunday, August 6, 2006 Arizona Memorial/City Motorcoach Excursion (Child Ticket Age 2-11) E033 $13.50 One Day Hawaii/Volcano Tour (Adult Ticket) 4:45 am – 6:45 pm E072 $290.00 Kualoa Ranch Secret Island & Activity Club One Day Hawaii/Volcano Tour (Child Ticket Age 2-11) E073 $280.00 (Adult Ticket) 7:30 am – 2:00 pm E034 $94.00 One Day Kauai Tour (Adult Ticket) 5:30 am – 6:00 pm E074 $290.00 Kualoa Ranch Secret Island & Activity Club One Day Kauai Tour (Child Ticket Age 2-11) E075 $280.00 (Child Ticket Age 3-11) E035 $59.00 One Day Maui Tour (Adult Ticket) 5:30 am – 7:00 pm E076 $290.00 “A Glimpse Into Hawaii” One Day Maui Tour (Child Ticket Age 2-11) E077 $280.00 Bishop Museum & Aloha Tower Marketplace 8:30 am – 1:15 pm E036 $67.00 Grand Circle Island with Dole Plantation (Adult Ticket) 8:15 am – 5:30 pm E078 $54.75 Volcanic Coastal Adventure 9:00 am – 12:30 pm E037 $38.75 Grand Circle Island with Dole Plantation Honolulu’s Arts at Leisure 9:00 am – 2:30 pm E038 $58.00 (Child Ticket Age 4-11) E079 $29.75 A Day On The Bay (Adult Ticket) 9:00 am – 3:00 pm E039 $113.00 A Day On The Bay (Child Ticket Age 5-12) E040 $102.00 Volcanic Coastal Adventure 9:00 am – 12:30 pm E080 $38.75 Iolani Palace Tour 10:00 am – 12:30 pm E041 $40.00 A Day On The Bay (Adult Ticket) 9:00 am – 3:00 pm E081 $113.00 Shangri-La The Honolulu Estate of Miss Doris Duke 10:00 am – 2:00 pm E042 $49.00 A Day On The Bay (Child Ticket Age 5-12) E082 $102.00 Hawaiian Cultural Cruise (Adult Ticket) Hawaiian Cultural Cruise (Child Ticket Age 3-11) 10:00 am – 2:00 pm E043 E044 $53.00 $36.00 Diamond Head Crater Adventure 9:30 am – 12:00 pm E083 $21.00 4 Polynesian Cultural Center (Adult Ticket) 12:00 pm – 10:15 pm E045 $95.00 WWW.ABANET.ORG/ANNUAL/2006 CONTINUED ON NEXT PAGE SPECIAL EVENTS AND TOUR PROGRAMS (CONT.) T O U R O V E R V I E W W I T H P R I C I N G ( C O N T. ) Tour Time Event Code Price Tour Time Event Code Price Sunday, August 6, 2006 (continued) Monday, August 7, 2006 (continued) Margaret Brent Women Lawyers of Tropical Ocean Fun Cruise (Child Ticket Age 3-11) E104 $46.00 Achievement Luncheon 11:30 am – 1:30 pm E084 $100.00** Honolulu’s Arts at Leisure 9:00 am – 2:30 pm E105 $58.00 Paradise Cove Luau (Adult Ticket) 4:00 pm – 9:30 pm E085 $85.00 Hawaiian Cultural Cruise (Adult Ticket) 10:00 am – 2:00 pm E106 $53.00 Paradise Cove Luau (Youth Ticket Age 13-18) E086 $75.00 Hawaiian Cultural Cruise (Child Ticket Age 3-11) E107 $36.00 Paradise Cove Luau (Child Ticket Age 3-12) E087 $65.00 Pro Bono Publico Awards Luncheon 12:00 pm – 2:00 pm E108 $55.00 Star Sunset Dinner Cruise (Adult Ticket) 4:15 pm – 7:30 pm E088 $85.00 Polynesian Cultural Center (Adult Ticket) 12:00 pm – 10:15 pm E109 $95.00 Star Sunset Dinner Cruise (Child Ticket Age 3-11) E089 $55.00 Polynesian Cultural Center (Child Ticket Age 5-11) E110 $71.00 Annual Dinner in Honor of the Judiciary 6:30 pm – 10:00 pm E090 $100.00 Paradise Cove Luau (Adult Ticket) 4:00 pm – 9:30 pm E111 $85.00 Paradise Cove Luau (Youth Ticket Age 13-18) E112 $75.00 Monday, August 7, 2006 Paradise Cove Luau (Child Ticket Age 3-12) E113 $65.00 One Day Hawaii/Volcano Tour (Adult Ticket) 4:45 am – 6:45 pm E091 $290.00 Star Sunset Dinner Cruise (Adult Ticket) 4:15 pm – 7:30 pm E114 $85.00 One Day Hawaii/Volcano Tour (Child Ticket Age 2-11) E092 $280.00 Star Sunset Dinner Cruise (Child Ticket Age 3-11) E115 $55.00 One Day Kauai Tour (Adult Ticket) 5:30 am – 6:00 pm E093 $290.00 One Day Kauai Tour (Child Ticket Age 2-11) E094 $280.00 Tuesday, August 8, 2006 One Day Maui Tour (Adult Ticket) 5:30 am – 7:00 pm E095 $290.00 One Day Hawaii/Volcano Tour (Adult Ticket) 4:45 am – 6:45 pm E116 $290.00 One Day Maui Tour (Child Ticket Age 2-11) E096 $280.00 One Day Hawaii/Volcano Tour (Child Ticket Age 2-11) E117 $280.00 Arizona Memorial Excursion (Adult Ticket) 6:30 am – 10:30 am E097 $21.00 One Day Kauai Tour (Adult Ticket) 5:30 am – 6:00 pm E118 $290.00 Arizona Memorial Excursion (Child Ticket Age 3-11) E098 $15.75 One Day Kauai Tour (Child Ticket Age 2-11) E119 $280.00 Kualoa Ranch Secret Island & Activity Club (Adult Ticket) 7:30 am – 2:00 pm E099 $94.00 One Day Maui Tour (Adult Ticket) 5:30 am – 7:00 pm E120 $290.00 Kualoa Ranch Secret Island & Activity Club One Day Maui Tour (Child Ticket Age 2-11) E121 $280.00 (Child Ticket Age 3-11) E100 $59.00 Iolani Palace Tour 8:30 am – 11:00 am E122 $40.00 Home and Garden Tour of Oahu 8:30 am – 11:30 am E101 $69.50 Volcanic Coastal Adventure 9:00 am – 12:30 pm E123 $38.75 “A Glimpse Into Hawaii” Tropical Ocean Fun Cruise (Adult Ticket) 9:00 am – 12:45 pm E124 $70.00 Bishop Museum & Aloha Tower Marketplace 8:30 am – 1:15 pm E102 $67.00 Tropical Ocean Fun Cruise (Child Ticket Age 3-11) E125 $46.00 Tropical Ocean Fun Cruise (Adult Ticket) 9:00 am – 12:45 pm E103 $70.00 Diamond Head Crater Adventure 9:30 am – 12:00 pm E126 $21.00 **Margaret Brent Women Lawyers of Achievement Luncheon ticket price increases The ABA reserves the right to cancel any tour due to lack of attendance. Full to $125.00 after June 29, 2006. refunds will be issued for any tours cancelled by the ABA after the Annual Meeting. To purchase tickets to any of these tours, please visit our website at Tickets must be cancelled 72 hours prior to the date of the event for a refund. www.abanet.org/annual/2006 to register online or to print a faxable registration There will be no refunds for cancellations made less than 72 hours prior to the ac- form. Please note that you must be registered for the Annual Meeting to purchase tivity. Please contact ITS at 800-421-0450 or at firstname.lastname@example.org to request Tours and Special Events Tickets. a cancellation and refund. Capacities for some tours listed above are strictly limited. Reservations will be Dates, times and inclusions are correct at time of printing. filled on a first-come, first-served basis until full capacities are reached. To ensure adequate time or processing, forms for advance purchase must be received by Thursday, June 29, 2006. 5 WWW.ABANET.ORG/ANNUAL/2006 ANNUAL MEETING HOTELS 1. Ala Moana Hotel 7. Hilton Hawaiian Village Beach Resort * 13. Radisson Waikiki Prince Kuhio 410 Atkinson Drive 2005 Kalia Road 2500 Kuhio Avenue Honolulu, Hawaii 96814 Honolulu, Hawaii 96815 Honolulu, Hawaii 96815 Phone: 808-955-4811 Phone: 808-949-4321 Phone: 808-922-0811 Fax: 808-944-2974 Fax: 808-951-5458 Fax: 808-921-5507 A. Run of Waikiki Tower $134 A. Village / Garden View $179 A. City View $129 B. Deluxe Waikiki Tower $147 B. Run of Ocean View $249 Amenities: œ b 8 q Ω T Z. 2-BR Ocean View Suites $520 C. Kalia Tower Executive Level – Mountain View $245 Amenities: œ b q Ω T D. Kalia Tower Executive Level – Ocean View $290 14. Renaissance Ilikai Waikiki Amenities Key: E. Rainbow Tower Deluxe Ocean View $290 1777 Ala Moana Boulevard 2. ResortQuest at the Waikiki Banyan F. Alii Tower Partial Ocean View $329 Honolulu, Hawaii 96815 œ = In-Room Safe 201 Ohua Avenue G. Alii Tower Ocean View $389 Phone: 808-949-3811 Honolulu, Hawaii 96815 Amenities: œ b 8 q T Ñ Fax: 808-947-4523 b= Fitness Center Phone: 808-922-0555 A. City / Mountain View $159 Fax: 808-922-0906 8. Hyatt Regency Waikiki B. Deluxe Ocean View Kitchen $199 8 = High-Speed Internet Access A. Superior / City View $160 2424 Kalakaua Avenue S. 1-BR Ocean View Suites $325 B. Ocean View $185 Honolulu, Hawaii 96815 U. 2-BR Ocean View Suites $575 ‰= 24-Hour Room Service Amenities: œ Ω T Phone: 808-923-1234 Amenities: œ b 8 q Ω T Fax: 808-923-7839 q = Valet Service 3. ResortQuest Waikiki Sunset A. City View $179 15. Royal Hawaiian Hotel 229 Paoakalani Avenue B. Mountain View $189 2259 Kalakaua Avenue Ω = Laundry Service (Washer and Dryer) Honolulu, Hawaii 96815 C. Ocean View $242 Honolulu, Hawaii 96815 Phone: 808-922-0511 D. Deluxe Ocean View $260 Phone: 808-923-7311 T = In Room Refrigerator Fax: 808-923-8580 E. Regency Club Mountain View $250 Fax: 808-931-7098 A. Superior / Mountain View $171 F. Regency Club Ocean View $436 A. Garden View $180 Ñ = Child Care B. Ocean View $205 Amenities: œ b 8 q Ω Ñ B. Tower Ocean View $310 Amenities: œ Ω T U. 1-BR Garden View Suite $439 * Headquarter Hotel 9. Waikiki Beach Marriott W. 1-BR Island Suite $499 4. DoubleTree Alana Waikiki 2552 Kalakaua Avenue Z. 1-BR Tower Ocean Suite $739 1956 Ala Moana Boulevard Honolulu, Hawaii 96815 Amenities: œ b 8 ‰ q Ω T Ñ Honolulu, Hawaii 96815 Phone: 808-922-6611 Phone: 808-941-7275 Fax: 808-921-5255 16. Sheraton Moana Surfrider Fax: 808-949-0996 A. Partial Ocean View $195 2365 Kalakaua Avenue A. City / Mountain View $119 B. Ocean View $230 Honolulu, Hawaii 96815 B. Ocean View $129 C. Deluxe Ocean View $265 Phone: 808-922-3111 C. 1-BR Alana Suite – City/Mountain View $159 Amenities: œ b 8 q Ω T Fax: 808-924-4799 D. 1-BR Alana Suite – Ocean View $169 A. Run of City View $159 Amenities: œ b 8 q T 10. OHANA East B. Run of Ocean View $259 150 Kaiulani Avenue C. Tower Ocean View $299 5. Halekulani Honolulu, Hawaii 96815 U. 1-BR Banyan Ocean View Suite $539 2199 Kalia Road Phone: 808-922-5353 W. 1-BR Tower Ocean Suite $739 Honolulu, Hawaii 96815 Fax: 808-926-4344 Amenities: œ b 8 ‰ q Ω T Ñ Phone: 808-923-2311 A. Deluxe $119 Fax: 808-926-8004 Amenities: œ b ‰ q Ω T 17. Sheraton Princess Kaiulani A. Run of Ocean $395 120 Kaiulani Avenue Amenities: œ b 8 ‰ q T Ñ 11. Outrigger Reef Honolulu, Hawaii 96815 2169 Kalia Road Phone: 808-922-5811 6. Hawaii Prince Hotel Waikiki Honolulu, Hawaii 96815 Fax: 808-931-4577 100 Holomoana Street Phone: 808-923-3111 A. City View $119 Honolulu, Hawaii 96815 Fax: 808-924-4957 B. Run of Ocean $159 Phone: 808-956-1111 A. Partial Ocean View $200 Amenities: œ b ‰ q Ω T Ñ Fax: 808-944-4491 Amenities: œ b 8 q Ω T A. Run of Ocean $189 18. Sheraton Waikiki U. 1-BR Suite $375 12. Outrigger Waikiki 2255 Kalakaua Avenue W. 2-BR Suite $550 2335 Kalakaua Avenue Honolulu, Hawaii 96815 Amenities: œ b 8 q T Ñ Honolulu, Hawaii 96815 Phone: 808-922-4422 Phone: 808-923-0711 Fax: 808-923-8785 Fax: 808-921-9798 A. Run of City / Mountain View $169 A. City View $215 B. Run of Ocean View $239 B. Partial Ocean View $230 C. Deluxe Ocean $279 Amenities: œ b 8 q Ω T Ñ W. 1-BR Medium Suite (with Murphy Bed) $489 U. 1-BR Large Suite $589 6 Amenities: œ b 8 ‰ q Ω T Ñ WWW.ABANET.ORG/ANNUAL/2006 ANNUAL MEETING HOTELS (CONT.) 1. Ala Moana Hotel 7. Hilton Hawaiian Village Beach Resort * 13. Radisson Waikiki Prince Kuhio 2. ResortQuest at the Waikiki Banyan 8. Hyatt Regency Waikiki 14. Renaissance Ilikai Waikiki 3. ResortQuest Waikiki Sunset 9. Waikiki Beach Marriott 15 Royal Hawaiian Hotel 4. DoubleTree Alana Waikiki 10. Ohana East 16. Sheraton Moana Surfrider 5. Halekulani 11. Outrigger Reef 17. Sheraton Princess Kaiulani 6. Hawaii Prince Hotel Waikiki 12. Outrigger Waikiki 18. Sheraton Waikiki 7 * Headquarter Hotel WWW.ABANET.ORG/ANNUAL/2006 PRE-ANNUAL MEETING AND POST-ANNUAL MEETING HOTELS In order to book a room at any of the Pre-Annual Meeting and Post-Annual Meeting hotels, you will need to register for the Annual Meeting. HAWAII 7. Grand Hyatt Kauai www.kauai.hyatt.com 1. Fairmont Orchid 1571 Poipu Road www.fairmont.com/orchid Koloa, Hawaii 96756 One North Kaniku Drive Phone: 808-742-1234 Kohala Coast, Hawaii 96743 Fax: 808-742-1557 Phone: 808-885-2000 A. Run of Ocean $325 Fax: 808-885-5778 Amenities: œ b 8 ‰ q Ω T Ñ A. Partial Ocean View $229 B. Ocean View $249 Amenities: œ b 8 q Ñ 8. Sheraton Kauai Resort www.sheratonkauai.com 2440 Hoonani Road 2. Hapuna Beach Prince Hotel Poipu Beach, Koloa, Hawaii 96756 www.hapunabeachhotel.com Phone: 808-742-1661 62-100 Kauna’oa Drive Fax: 808-742-9777 Kahala Coast, Hawaii 96743 A. Deluxe Ocean Front $295 Phone: 808-880-1111 Amenities: œ b 8 ‰ q Ω T Ñ Fax: 808-944-4491 A. Ocean View $210 Amenities: œ b 8 ‰ q T Ñ MAUI 9. Hyatt Regency Maui Resort & Spa 3. Hilton Waikoloa Village www.maui.hyatt.com www.hiltonwaikoloavillage.com 200 Nohea Kai Drive 425 Waikoloa Beach Drive Lahaina, Hawaii 96761-1985 Waikoloa, Hawaii 96738 Phone: 808-661-1234 Phone: 808-886-1234 Fax: 808-667-4497 Fax: 808-886-2900 A. Run of Ocean $320 A. Run of Ocean $260 Amenities: œ b 8 ‰ q Ω Ñ Amenities: œ b 8 q Ω T Ñ 10. Sheraton Maui Resort 4. Mauna Kea Beach Hotel www.sheraton-maui.com www.maunakeabeachhotel.com 2605 Kaanapali Parkway Amenities Key: 62-100 Mauna Kea Beach Drive Lahaina, Hawaii 96761 Kohala Coast, Hawaii 96743 Phone: 808-661-0031 œ = In-Room Safe Phone: 808-882-7222 Fax: 808-661-0458 Fax: 808-944-4491 A. Ocean View $375 A. Run of Ocean $350 Amenities: œ b 8 ‰ q Ω T Ñ b= Fitness Center Amenities: œ b 8 ‰ q Ω T Ñ 8 = High-Speed Internet Access 11. Maui Prince Hotel 5. Mauna Lani Bay Hotel www.mauiprince.com ‰= 24-Hour Room Service www.maunalani.com 5400 Makena Alanui 68-1400 Mauna Lani Drive Makena, Hawaii 96753 q = Valet Service Kohala Coast, Hawaii 96743 Phone: 808-874-1111 Phone: 808-885-6622 Fax: 808-944-4491 Ω = Laundry Service (Washer and Dryer) Fax: 808-881-7000 A. Ocean View $220 A. Ocean View $255 Amenities: œ b 8 q Ω T Ñ T = In Room Refrigerator B. Ocean Front $365 Amenities: œ b 8 ‰ q T Ñ Ñ = Child Care OAHU 12. Turtle Bay Resort KAUAI www.turtlebayresort.com 6. Princeville Resort 57-091 Kamehameha Highway www.princeville.com Kahuku, Oahu, Hawaii 96731 5520 Ka Haku Road Phone: 808-293-6000 Princeville, Hawaii 96722 Fax: 808-293-9147 Phone: 808-826-9644 A. Deluxe Rooms $225 Fax: 808-826-1166 Amenities: œ b 8 ‰ q Ω T Ñ 8 A. Run of Ocean $295 B. Prince Junior Suite $450 Amenities: œ b ‰ q Ω T Ñ WWW.ABANET.ORG/ANNUAL/2006 REGISTRATION AND HOTEL RESERVATIONS EARLY REGISTRATION HOTEL RESERVATIONS You must register for the 2006 ABA Annual Meeting to receive housing. A list of To take advantage of the Early Bird Registration discount price of $440 or $165, official ABA hotels, rates, amenities and locations can be found at www.abanet. registration forms must be received by ITS by Wednesday, May 31, 2006. Any org/annual/2006. Reservation requests should be directed only to ITS, using the registration forms received after Wednesday, May 31 will be processed at the attached ABA Registration Form or by registering online. A standard deposit of regular registration fee of $570 or $295. $200 per room must accompany the form. Please indicate your first, second, third, fourth and fifth choice of hotel and TERMS AND CONDITIONS room category. If your preferred hotel choices are unavailable, ITS will be happy to place you on a waiting list for one of your first two choices. Please The ABA has appointed International Travel Service (ITS), a professional call ITS at 800-421-0450 or send an e-mail message to aba@itsmeetings. convention management company, as registrar for the 2006 Annual Meeting in com stating your wish to be wait-listed. Wait-listed reservations will be Hawaii. ITS will be the only source for ABA Meeting Registration and Official ABA confirmed as cancellations are received. Please include your ITS ID number in all Housing. To secure registration and hotel accommodations, all participants are correspondence. required to submit the ABA registration form and payments to: ITS will acknowledge your reservation request in writing within one week of ABA/I.T.S Group Hawaii 2006 receipt of your ABA registration form. Hotels will be confirmed on a first-come, 108 Wilmot Road first-served basis. Choice of accommodations will become more limited as the P.O. Box 825 deadline for registration approaches. For housing and hotel specific questions, Deerfield, IL 60015-0825 please call ITS at 800-421-0450 or send an e-mail to email@example.com. 800-521-6017 (Fax) Checks and money orders must be drawn on a U.S. bank and in U.S. dollars, made payable to ABA/ITS Group. For housing, registration and event ticket information, call ITS at 800-421-0450. Registration, hotel reservations and DEADLINES requests for event tickets cannot be accepted by phone. Please visit the Annual Meeting website www.abanet.org/annual/2006 or send an e-mail message The deadline for advance registration and housing is Thursday, to firstname.lastname@example.org to make changes to or to add additional items to an June 29, 2006, 5:00 p.m. Central Daylight Time. This is the absolute existing registration. Please include your ITS ID number on all correspondence. deadline that ITS can receive and process a registration form requesting housing. The registration form must be accompanied by a form of payment for the registration fee and housing deposit, in the form of a check, money order or credit card. (Credit cards will be charged at the time of booking.) This is also the absolute deadline that you can register for the Annual Meeting and appear in the Advance Registration List. After June 29, registrations will be accepted on-site at the Hawaii Convention Center. Registration forms received by ITS after June 29 will be held and processed on-site after August 1, and will not appear in the Advance Registration List. Hotel requests received at ITS after June 29 will not be accommodated. After the housing deadline, you must wait until July 14 to make your reservation directly with the official ABA hotels or to change any reservations made through ITS. Ticket requests received 7 9 after June 29 will be held and processed, to the extent that tickets remain available, on-site. w w w . a b a WWW.ABANET.ORG/ANNUAL/2006 n e t . o r g / a n n u a l / 2 0 0 5 REGISTRATION AND HOTEL RESERVATIONS (CONT.) HOUSING REFUND POLICY Hotel deposits are fully refundable if the reservation is cancelled more than 72 hours prior to the scheduled arrival date. To cancel prior to June 29, contact ITS by phone at 800-421-0450; by fax at 800-521-6017; or by e- mail at email@example.com. A complete refund of the hotel deposit will be made by ITS if a written request is received by June 29. Cancellations SPECIAL RATES FROM HERTZ after this date must be directed to the hotel beginning July 14. At that point, the hotel will send your deposit back to ITS and ITS will forward it back to Special car rental rates are available for the ABA Annual Meeting in Hawaii. The special you. If you are canceling your reservation directly with the hotel, remember daily, weekly and weekend rates are available in Honolulu from one week before to contact the hotel at least 72 hours prior to your scheduled arrival date to through one week after the meeting. Advance reservations are suggested and can be avoid penalties. easily made by calling the Hertz toll-free Convention Desk at 800-654-2240. Tell the reservationist you will be attending the ABA Annual Meeting in Hawaii. The identification number for this meeting is 03CG0002. With Hertz you not only get a low rate, you also get the great services that make Hertz #1, including Computerized Driving Directions, REGISTRATION CANCELLATION AND Emergency Road Service, Express Return, the Hertz #1 Club and an opportunity to join REFUND POLICY Hertz #1 Club Gold Service. All requests for cancellations must be submitted in writing according to the procedures outlined below. Registration fees will be refunded, minus a $50 processing fee for cancellations, substitutions or transfers. AIR TRAVEL INFORMATION Prior to June 29, cancellations must be sent in writing by mail to ABA/ITS Group, 108 Wilmot Road, P.O. Box 825, Deerfield, Illinois 60015-0825; by fax By using ABA Online Travel, you can automatically obtain ABA negotiated airfare to 800-521-6017; or by e-mail to firstname.lastname@example.org. discounts for travel to the Annual Meeting. After June 29, all cancellation requests must be accompanied by an ABA Online Travel also provides you with the ability to search for, compare and purchase explanation for cancellation. These requests must be sent in writing by mail airline reservations from airline and other travel websites, enabling you to get the best to the ABA Meetings and Travel Department, 321 North Clark Street, Chicago, airfare at the time of your reservation. Illinois 60610; by fax to 312-988-6338; or by e-mail to abamtgs@staff. abanet.org. All requests for registration cancellations must be received by To book your airfare, visit www.abanet.org/annual/2006 and select “Airline Discounts”. August 31, 2006 to receive a refund. There is no fee for cancelled guest ABA airfare discounts can also be obtained by purchasing your tickets under the registration(s). President’s Reception tickets are refundable up to 72 hours in discount codes listed below directly from the airlines or by calling Travelocity Business, advance of the event. toll-free, at 866-321-8403 or from your local travel agency. For pre and post Annual Meeting convention travel between Hawaiian Islands, Aloha Airlines and Hawaiian Unused CLE tickets are fully refundable until October 6, 2006. Unused CLE Airlines offer discounts on inter-island trips. tickets, along with a request for a refund, must be sent to the ABA Meetings and Travel Department at the above address. 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WWW.ABANET.ORG/ANNUAL/2006 CONTINUED ON NEXT PAGE 2006 ABA ANNUAL MEETING REGISTRATION FORM STEP 4 – MEETING REGISTRATION (CONT.) Check All That Apply: Section/Division Chair (1VPC)* House of Delegates (1VPH) Board of Governors (1VPB) Section/Division Officer (1VPO)* *List Section/Division Name __________________________________________________________________________________________ I am a Government Lawyer (1GOV) I am a Judge (1JUD) I am a Young Lawyer (1YOU) I plan to attend the EXPO: Thursday Friday Saturday As a registered attendee you will receive the ABA Journal Annual Meeting Daily Report. This newspaper covering the news and events of the Annual Meeting will be delivered via e-mail. 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Box 825 | Deerfield, IL 60015-0825 For registration questions, please call 312-988-5870 or visit www.abanet.org/annual/2006. WWW.ABANET.ORG/ANNUAL/2006 SECTION CHAIR AMERICAN BAR ASSOCIATION Section of Administrative Law & Professor Eleanor D. Kinney Regulatory Practice Indiana University 740 15th Street, NW School of Law Washington, DC 20005 (317) 274-4091 FAX: (317) 274-3955 Email email@example.com Tab 4 CALL FOR NOMINATIONS MARY C. LAWTON AWARD FOR OUTSTANDING GOVERNMENT SERVICE 2006 The Mary C. Lawton Award for Outstanding Government Service is presented annually by the American Bar Association’s Section of Administrative Law and Regulatory Practice. The nomination should be based on outstanding contributions to the development, implementation, or improvement of administrative law and regulatory practice that reflects sustained excellence in performance. Mary Lawton was a distinguished career government lawyer who played an active role in the Administrative Law Section. A graduate of Georgetown Law School where she was first in her class and on the Board of Editors of the Law Journal, Mary began her career in the Office of the Legal Counsel in the Department of Justice. At DOJ, she rose through the ranks to become a Deputy Assistant Attorney General. She received numerous awards from the Department of Justice. After a brief stint as General Counsel of the Corporation for Public Broadcasting and service as Administrative Law Officer at the White House, Mary returned to the Justice Department as Counsel for Intelligence Policy. Another important component of Mary's professional life was her service to the Administrative Law Section. She served on the Council of the Section from 1983 to 1986, and as Chair of the Judicial Review Committee from 1986 to 1988. This is an extremely prestigious award, and we hope that you will take the time to give thoughtful consideration to this request for nominees. There are relatively few honors for government attorneys that recognize them for the “body of their work.” Past recipients of the Award have underscored the importance and meaningfulness of the Award to them. (We are attaching a list of the past Awardees and their positions for your reference.) We are confident that this year’s recipient will also view the Award as a career capstone. All government lawyers active in the fields of administrative law and regulatory practice are eligible. While career officials generally will be favored, exceptional political appointees also will be considered. Nominations are being solicited from federal government agency general counsels, state attorneys general, and other officials, as well as from members of our Section and the ABA Government and Public Lawyers Division. Nomination Format All nominations should be typewritten. They should provide the name and period of government service of the nominee, the departments or agencies in which he or she has served and is currently serving, and the specific contributions of the nominee that you think warrant his or her selection. Among the factors that the Committee will consider in evaluating nominations are: mentoring activities in the administrative law and regulatory practice area; length of professional service; level of responsibility in positions held; discrete, significant accomplishments; teaching experience; scholarship; participation in professional activities; and other awards or recognition. The Committee would find it helpful if your nomination addresses these and any other factors you believe illuminate the nominee's qualifications. Please submit your nomination package to Kimberly Knight, Director, ABA Section of Administrative Law and Regulatory Practice, 740 15th Street, N.W., Washington, D.C. 20005 or via email to: firstname.lastname@example.org. All nominations must be received by June 16 , 2006. The award will be presented at the 2006 Administrative Law Conference Awards Luncheon, October 26, 2006 at the National Press Club in Washington, D.C. Lawton Award Committee Co-Chairs Fred Emery The Regulatory Group, Inc. Phone: 202-466-3205 Professor Cynthia Farina Cornell University School of Law Phone: 607-255-5879 Joan Z. “Jodi” Bernstein Bryan Cave LLP Phone: 202-508-6000 Attachment: Previous Award Winners American Bar Association Section of Administrative Law and Regulatory Practice Past Recipients of the Mary Lawton Award 1989 Lawrence G. Wallace, Deputy Solicitor General U.S. Department of Justice 1990 Robert A. Shapiro, Deputy Associate Solicitor for Legislation and Legal Counsel, Office of the Solicitor Department of Labor 1991 Daniel M. Armstrong, Chief of the Litigation Division Federal Communications Commission 1992 William C. Parler, General Counsel U.S. Nuclear Regulatory Commission 1993 Karl Engeman, Office of Administrative Hearings 1994 Jeffrey S. Lubbers, Research Director Administrative Conference of the United States 1995 Ellen D. Hanson, Deputy General Counsel Interstate Commerce Commission 1996 John H. Ferguson, Assistant General Counsel of the Appellate Court Branch National Labor Relations Board 1997 Neil R. Eisner, Assistant General Counsel for Regulation and Enforcement U.S. Department of Transportation 1998 Catherine O. Murphy, Deputy Regional Solicitor - Region III U.S. Department of Labor 1999 Joyce M. Martin, Executive Director of Environment/Energy Office of the Governor of Indiana 2000 Joan Z. Bernstein, Director of the Bureau of Consumer Protection Federal Trade Commission 2001 Stanley Pruss, Assistant Attorney General in Charge of the Consumer Protection Division, State of Michigan 2002 Alan Schoem, Director, Office of Compliance, Consumer Product Safety Commission 2003 Michael Messitte, Settlement and Compliance Director, Appellate Court Branch National Labor Relations Board 2004 Thomas Spahr, Chief Legal Counsel, Child Support Enforcement Division, State of New Mexico 2005 Morton Rosenberg, American Law Division, Congressional Research Service Tab 5 Section of Administrative Law and Regulatory Practice 2006-2007 Meeting Schedule Committee Chair Orientation and Meet the Officers Reception Washington, DC Tentative for September 14, 2006 Meeting followed by Reception 2006 Administrative Law Conference October 2006 Washington, D.C. Second Annual Homeland Security Law Institute January 2007 Washington, D.C. 2007 Midyear Meeting February 9-11. 2007 Miami, Florida Third Annual Administrative Law and Regulatory Practice Institute April 2007 Washington, D.C. 2007 Spring Meeting April 2007 Austin, Texas 2007 Annual Meeting August 11-13, 2007 San Francisco, California Tab 6A DISCLOSURE OF GRASSROOTS LOBBYING AND MEMBERSHIP IN LOBBYING COALITIONS UNDER THE LOBBYING DISCLOSURE ACT When Congress has considered reform of lobbying disclosure over the last thirty years, two areas have generated significant controversy: coverage of grassroots lobbying and identification of members of lobbying coalitions. Hundreds of millions of dollars are spent by lobbyists each year for indirect lobbying activities, yet the First Amendment has consistently been invoked by opponents of broad, and even limited, disclosure. As enacted in 1995, Congress expressly excluded grassroots lobbying from the LDA: it neither triggers registration (except in those circumstances where certain self- lobbying organizations elect to use Internal Revenue Code definitions of lobbying to calculate lobbying expenses), nor requires disclosure of those efforts (except, again, in expense reporting by electing businesses and public charities and, even then, without the need to disaggregate grassroots expenses from others). Under the LDA, there is limited disclosure of coalition membership; the “client” of the lobbyist is generally deemed to be the coalition itself and the information provided relates only to that entity. There are two exceptions to this treatment: 1) in the case of an organization (not an individual) (known as an “affiliated organization”) that contributes more than $10,000 during a semiannual period to support the lobbying activities of a registrant for a particular client and, in major part, plans, controls or supervises those lobbying activities and 2) in the case of foreign entities within the meaning of the Foreign Agents Registration Act (which does include individual persons) 1 that bear close relationships to the client or an affiliated organization regardless of their contribution level. In the case of affiliated organizations, there is no requirement that the amount of the contribution be disclosed; with foreign entities, the amount of any contribution in excess of $10,000 must be provided.1 Coalitions and grassroots efforts are crucial elements of today’s lobbying strategies. Yet, given the lack of disclosure requirements, estimates with regard to the amount of grassroots lobbying have to be gleaned from other sources. For example, a study by the Annenberg Public Policy Center with respect to issue advocacy during various election cycles concluded that $135-150 million was spent during the 1996 cycle, $250-341 million during the 1997-98 cycle, and over $500 million during the 1999-2000 cycle.2 It is impossible, therefore, to evaluate the adequacy of lobbying disclosure law without at least considering the need for broader disclosure obligations with regard to lobbying coalitions and grassroots efforts. In view of the confusion that sometimes arises, it should be emphasized at the outset that none of the approaches examined (or suggested) in this memorandum would require that recipients of grassroots solicitations (the electorate or specific parts thereof) be identified or themselves make disclosures under the LDA. Rather, with regard to grassroots lobbying, the focus is on lobbying firms and self-lobbying organizations, specifically their efforts to mobilize support for their (i.e. the clients’) positions on issues of federal policy and its implementation. Similarly, proposals for coalition disclosure are not aimed at membership lists as such, but rather 1 2 U.S.C. §1603(b)(3), (4). 2 Annenberg Public Policy Center, Issue Advertising in the 1999-2000 Election Cycle, Feb. 1, 2001, at 1. 2 those large contributors to lobbying efforts whose contribution level suggests more (generally much more) than the “ordinary” person’s interest in legislative and administrative matters. With regard to coalitions, 3 the following basic issues are presented, 1. what level of contribution to lobbying activities should trigger disclosure of the contributor; 2. should the amount of the contribution be disclosed; 3. should control of lobbying activities by the contributor be an additional requirement that must be satisfied before disclosure is required; 4. should disclosure extend to individual persons who contribute; 5. should tax-exempt (nonprofit) groups be exempt from disclosure; 6. how, if at all, should groups whose members might face reprisals as a result of disclosure be protected; and 7. should “look through” rules be employed to prevent calculated attempts to avoid disclosure (and if so, what should those rules look like)? With regard to grassroots lobbying, the following fundamental questions should be addressed, 1. what should be the definition of covered grassroots lobbying (e.g. should it extend only to attempts to generate public opposition to or support of a specific proposal or, rather, extend to attempts to influence the public or particular sectors thereof on more general topics); 3 For the purposes of this memorandum, the term “coalition” includes both coalitions and associations. 3 2. what mechanisms for cultivating the grassroots should be covered (e.g. only paid advertisements, in-person canvassing, phone solicitations, e-mail campaigns); 3. should lobbying directed to members, stockholders and other persons and entities bearing “close” relationships to the registrant (or prospective registrant) be included; 4. should remunerated work performed with regard to grassroots efforts be counted in determining if LDA registration is required (i.e. the 20% of time threshold necessary to consider an individual a lobbyist and/or the income and expense thresholds for registration by lobbying firms and self-lobbying organizations) and, if it is counted, should the existing thresholds be modified in any way; 5. if registration is required, how much information should be disclosed (e.g. the names of lobbying firm and self-lobbying organization employees who exercise significant control over paid grassroots efforts, the general and/or specific issue areas to which the efforts are directed , amounts of money distributed to other persons for grassroots efforts, disaggregated expense/income figures related to all or only some types of grassroots efforts, names of recipients of funds to conduct grassroots lobbying, and/or the federal entities lobbied)? In considering these issues, what follows are brief discussions of cases decided by the Supreme Court involving the First Amendment that appear particularly in point with regard to the issues presented, along with the relevant portions of the legislative history of the 1995 LDA that should be taken into account as necessary context for considering possible changes today. Then follow descriptions (with some commentary) of the major legislative proposals for LDA amendment that have been put forth during 4 2005-6 that offer at least a starting point for discussions regarding the contours of possible statutory changes that the Section might be willing to endorse.4 Finally, three options for Council consideration are set forth, followed by a tentative draft of a recommendation, with the understanding that they clearly do not exhaust the possible recommendations that might be forthcoming following Council discussion of the need to require public disclosure of coalition membership and grassroots lobbying efforts. It should be noted that the letter sent under blanket authority from the Section Chair in March to various congressional leaders regarding LDA reform (Attachment I hereto) did not address amendments with regard to either of these areas. Those paragraphs in the draft letter circulated to the Council that dealt with coalition and grassroots disclosure were deleted in response to the objections from the Standing Committee on Election Law which indicated that, at a minimum, more concentrated attention directed to these areas was required on account of First Amendment restrictions. I. CONSTITUTIONAL BACKGROUND In United States v. Harriss,5 decided in 1954, the Supreme Court confronted three facial challenges to the 1946 Federal Regulation of Lobbying Act (FRLA): that it was too vague to meet the requirements of the Due Process Clause of the Fifth Amendment; that the disclosure provisions violated the First Amendment’s guarantees of freedom of speech, press and the right to petition the Government; and, finally, that the 4 The bills discussed below reflect the type of changes typical of the recent rash of proposals for reform; not all of the pending bills are examined in this memorandum. 5 347 U.S. 612 (1954). 5 penalty provision imposing a three year ban on lobbying by anyone convicted of violating the FRLA unlawfully interfered with the right to petition. The Court did not resolve the third challenge since the sanction had yet to be invoked. It disposed of the first two by, for example, construing the statute as extending only to persons who 1) “directly” communicated with members of Congress on pending or proposed federal legislation 2) where influencing the passage or defeat of federal legislation was one of the “main purposes” of such persons or the money solicited or received by them.6 In reading out of the Act its explicit coverage of “indirect” communications with Congress, the Court implied that lobbying disclosure raised serious constitutional problems if it applied to attempts to “propagandize the general public.”7 At the same time, however, the Court construed the FRLA to apply to “artificially stimulated letter campaign[s].”8 While thus suggesting that public “education” programs might be off-limits in terms of disclosure requirements, the Court’s approval of coverage with regard to at least some letter campaigns means that disclosure of grassroots efforts is acceptable in certain circumstances. Finally, in turning to the justification for the FRLA that, in the end, overcame the First Amendment objections to the statute, the Court noted: Present-day legislative complexities are such that individual members of Congress cannot be expected to explore the myriad pressures to which they are regularly subjected. Yet full realization of the American ideal of 6 Id. at 620-23. 7 Id. at 620-21. Interestingly, this reference occurred in the context of the Court’s discussion of the Due Process, not the First Amendment, challenge to the FRLA. 8 Id. at 620. The Court referred to the legislative history of the FRLA which indicated that Congress intended to cover “[t]hose who do not visit the Capitol but initiate propaganda from all over the county in the form of letters and telegrams, many of which have been based entirely upon misinformation as to the facts.” Id. (quoting from S. Rep. No. 1400, 79th Cong., 2d Sess., at 27; Committee Print, July 22, 1946, statement by Representative Monroney on Legislative Reorganization Act of 1946, 79th Cong., 2d Sess., at 32-33). 6 government by elected representatives depends to no small extent on their ability to properly evaluate such pressures. Otherwise the voice of the people may all too easily be drowned out by the voice of special interest groups seeking favored treatment while masquerading as proponents of the public weal. 9 The Harriss case established that Congress could craft a statute requiring lobbying disclosure without violating the First Amendment to the extent that mandated disclosure facilitated Congress’s ability to determine who was in fact advancing the cause of or attempting to defeat proposed legislation. At the same time, the constitutional boundaries for federal lobbying law remained unclear. Over the next forty years, while Congress labored to amend or replace the FRLA, the Supreme Court handed down various decisions outside the lobbying context that importantly impacted on the validity of lobbying regulation and provided the backdrop for congressional debates over lobbying reform. In 1958, the Court struck down the attempt by a state court to order disclosure of membership lists of a private association without a showing of a “controlling justification” for such disclosure. That case, NAACP v. Alabama ex rel. Patterson,10 involved “an uncontroverted showing that on past occasions revelation of the identity of [the NAACP’s] rank-and-file members [had] exposed these members to economic reprisal, loss of employment, threat of physical coercion, and other manifestations of public hostility.”11 Justice Harlan’s opinion for the Court noted that advocacy of public and private beliefs, particularly controversial ones, was enhanced by a person’s 9 347 U.S. at 625. 10 357 U.S. 449 (1958). 11 Id. at 462. 7 association with others.12 In that sense, the freedoms of speech and assembly were inextricably related;13 and compelled disclosure could deter the willingness of some or many people to associate together for advancement of their beliefs because of the personal consequences of that exposure.14 In short, privacy of association was necessary to insure the ability to associate for the advancement of beliefs. As the debates developed on lobbying reform, mandated disclosure of the names of the clients of lobbyists, particularly if the client was a coalition or membership association, triggered resistance on the basis of this case.15 In 1976, the Court considered First Amendment challenges to federal election finance law requiring disclosure of the identities of persons and entities contributing money to help elect candidates for federal office. In Buckley v. Valeo16 (whose analysis was reaffirmed in 2003 by McConnell v. Federal Election Commission17), the Court held that disclosure was justified by three interests, two of which are directly relevant to lobbying disclosure laws: The strict test established by NAACP v. Alabama [to justify disclosure] is necessary because compelled disclosure has the potential for substantially infringing the exercise of First Amendment rights. . . . The governmental interests sought to be vindicated by the disclosure requirements [in this case] are of this magnitude [sufficient to outweigh the possibility of infringement]. . . . First, disclosure provides the electorate with information "as to where political campaign money comes from and how it is 12 Id. at 460. 13 Id. 14 Id. at 462-63. 15 See text infra notes 27-42. 16 424 U.S. 1 (1976) (per curiam). 17 540 U.S. 93 (2003). 8 spent by the candidate" in order to aid the voters in evaluating those who seek federal office. It allows voters to place each candidate in the political spectrum more precisely than is often possible solely on the basis of party labels and campaign speeches. The sources of a candidate's financial support also alert the voter to the interests to which a candidate is most likely to be responsive and thus facilitate predictions of future performance in office. Second, disclosure requirements deter actual corruption and avoid the appearance of corruption by exposing large contributions and expenditures to the light of publicity. This exposure may discourage those who would use money for improper purposes either before or after the election. A public armed with information about a candidate's most generous supporters is better able to detect any post-election special favors that may be given in return.18 In upholding a ban on national political parties’ involvement with “soft money,” the Court later noted in McConnell that its understanding of “corruption” and its “appearance” extended beyond the obvious case of bribery to situations where the officeholder was simply “too complaint” to the wishes of those who contributed large sums to his or her election.19 In the years intervening between Buckley and McConnell, the Court in McIntyre v. Ohio Elections Commission20 struck down on First Amendment grounds an Ohio law prohibiting the distribution of anonymous campaign literature. The leaflet in question opposed a local ballot measure for a school tax levy. In distinguishing the disclosure requirements involved in Buckley, the Court noted: Though such mandatory reporting [in Buckley] undeniably impedes protected First Amendment activity, the intrusion is a far cry from compelled self- identification on all election-related writings. A written election-related document--particularly a leaflet--is often a personally crafted statement of a 18 424 U.S. at 66-67. 19 McConnell, 540 U.S. at 143 (quoting Nixon v. Shrink Missouri Gov’t PAC, 528 U.S. 377, 389 (2000)). 20 514 U.S. 334 (1995). 9 political viewpoint. Mrs. McIntyre's handbills surely fit that description. As such, identification of the author against her will is particularly intrusive; it reveals unmistakably the content of her thoughts on a controversial issue. Disclosure of an expenditure and its use, without more, reveals far less information. It may be information that a person prefers to keep secret, and undoubtedly it often gives away something about the spender's political views. Nonetheless, even though money may "talk," its speech is less specific, less personal, and less provocative than a handbill--and as a result, when money supports an unpopular viewpoint it is less likely to precipitate retaliation.21 Not only was the state requirement more intrusive than the disclosure requirements upheld in Buckley, but the governmental interest implicated in the latter case was different: to avoid corruption and the appearance of corruption, in the McConnell sense of public officials’ being overly responsive to the wishes of large contributors.22 At this point in the opinion, the Court retrospectively explained its decision upholding the FRLA in United States v. Harriss as based on the same rationale: “The activities of lobbyists who have direct access to elected representatives, if undisclosed, may well present the appearance of corruption.”23 In short, outside the lobbying context, the Supreme Court has justified mandated disclosure of private activities involving a “speech” component on two bases: 1) providing relevant information to the public at large for their use in evaluating public officials and 2) deterring official corruption and the appearance of such corruption.24 At the same time, it has repeatedly expressed concerns for those whose views, if publicly 21 Id. at 355. 22 Id. at 356. 23 Id. at 356 n. 20. 24 Analogous justifications are offered for restrictions on “ex parte” communications to federal agency adjudicators. See, e.g., Professional Air Traffic Controllers Organization v. FLRA, 685 F. 2d 547, 563 (D.C. Cir. 1982)(“to prevent the appearance of impropriety” and to allow a party to the proceeding to “respond effectively and ensure that its position is fairly considered”). 10 known, could trigger serious retaliation against them. This concern was first voiced in NAACP v. Alabama, but then reiterated in Buckley,25 which, however, limited the protection of NAACP to cases where evidence showed a “reasonable probability that the compelled disclosure of a party’s contributors will subject them to threats, harassment, or reprisals from either Government officials or private parties.”26 II. THE LEGISLATIVE HISTORY OF THE 1995 LDA RELATING TO DISCLOSURE OF GRASSROOTS LOBBYING AND COALITION MEMBERSHIP In 1993, the Senate Committee on Governmental Affairs reported a version of what was, ultimately, to become the LDA. The Senate then passed the bill with amendments by a vote of 95-2. Prior to the passage of the bill, Senator Stevens of Alaska objected to the limitation on disclosure of contributors to lobbying activities; the bill as proposed restricted it to those who gave $5,000 or more in a semi-annual period, controlled the lobbying effort, and had a direct interest in its success.27 He believed that contributors of $500 or more during a semiannual period to lobbying activities on behalf of a client should be disclosed regardless of their formal control over lobbying efforts. In his view, such disclosure would not run afoul of NAACP v. Alabama in light of Buckley v. Valeo.28 Senator Levin successfully objected to Stevens’ proposed amendment on the 25 Buckley, 424 U.S. at 74. 26 Buckley, 424 U.S. at 74. That showing was made in Brown v. Socialist Workers’ 74 Campaign Committee (Ohio), 459 U.S. 87 (1982), where the Court found that disclosures required by Ohio’s campaign finance law could not constitutionally be applied to the Socialist Workers Party. McConnell later reiterated that limitation on NAACP. 540 U.S. at 197-99. 27 139 Cong. Rec. S5561. 28 Id. S5561-62, 5564 (“The [contributor] is not going to be fooling around with supervising and controlling lobbying activity. He wants the client to do that. They are 11 basis that it effectively required disclosure of membership lists, represented “a grave constitutional problem”29 and, in any event, did not result in the production of valuable information.30 He noted that prior efforts to enact a revised lobbying disclosure scheme had foundered on proposals that opened up membership and contributor lists.31 Meanwhile in the House, Representative John Bryant (D-Tex.) introduced a companion bill. A bipartisan task force, consisting of four Democrats and four Republicans, considered the legislation during the summer and fall of 1993. The resulting bill passed the House (315-110), and a conference committee eventually reported a compromise bill which, among other things-- 1. defined the client, whose identity had to be revealed in registration statements, to include individual members of an association or coalition “when the lobbying activities [of the association or coalition were] conducted on behalf of, and financed separately by, 1 or more individual members and not by the coalition’s or association’s dues and assessments”; 2. required registrants to identify persons and organizations retained to conduct grassroots lobbying, issues as to which such lobbying was conducted, and the expenses of that lobbying effort; 3. defined “grassroots lobbying” expansively to include a) communications to influence the formulation or administration of federal law by affecting the opinions of the general public and b) communications to members of organizations encouraging them going to put up the money. They want the results. They are not going to manage the activity.”) 29 Id. S5562. 30 Id. S5564. 31 Id. 12 either to contact legislative or executive branch officials or to contact non-members to encourage them to take such action; and 4. required registrants to identity any person other than the client that paid the registrant to lobby on behalf of the client.32 The conference report was approved by the House (306-112). Prior to the vote, then Minority Whip Newt Gingrich warned that those individuals doing grassroots lobbying on behalf of religious organizations with regard to issues of abortion and pornography would have to register under the bill and that the powers created could be used by a President to limit grassroots advocacy.33 Others also viewed the legislation as a “gag rule” imposed on religious organizations34 and objected to requirements that grassroots lobbying groups, particularly religious organizations, divulge their contributors,35 expenses, and the names of their lobbyists, including volunteers.36 Supporters of the legislation suggested that these objections had been concocted at the last minute not as genuine concerns, but rather to derail the legislation.37 In the Senate, the conference bill was filibustered to death. The opponents raised many of the same concerns voiced by House Members, including the allegedly unconstitutional burdens the bill would impose on grassroots advocacy.38 They argued 32 H.R. CONF. REP. 103-750 (1994). 33 140 Cong. Rec. H9907-01. 34 Id. H10276, H10291 35 Id. H10290. 36 Id. H10291. 37 Id. H10290-91. 38 Id. S14208, 13 that the bill regulated communications between a grassroots organization and its members39 and contained too broad a definition of grassroots lobbying.40 They also focused on potential disclosure of the names of members of lobbying organizations and contributors to lobbying campaigns, including grassroots efforts.41 In attempting, unsuccessfully, to defend the provisions dealing with grassroots lobbying, Senator Levin referred to a variety of articles featuring stories about “rent-a-firestorm lobbying campaigns” conducted by paid professional lobbyists.42 As noted earlier, when the LDA was finally enacted in 1995, all coverage of grassroots lobbying had been removed and disclosure of coalition membership restricted by contribution and control requirements (except in the case of certain foreign entities). These were among the costs of a successful reform effort a decade ago. III. DISCLOSURE OF THE MEMBERSHIP OF LOBBYING COALITIONS It was clear in 1995, and remains the case today, that organizing coalitions, both formal and informal, of various individuals and groups to support or oppose federal legislation and other official action comprises a crucial component of many, perhaps most, lobbying campaigns. Coalition formation has in fact been a persistent characteristic of lobbying since the early days of government under the Constitution.43 39 Id. S14145. 40 Id. S14293. 41 Id.S14208, 14144-45, 14289, 14295 42 140 Cong. Rec. S13946. 13948-956. 43 See, e.g., Robert C. Byrd, THE SENATE, 1789-1989: ADDRESSES ON THE HISTORY OF THE UNITED STATES SENATE, Volume II (Washington, DC: GPO, 1989-1994), available at http://www.senate.gov/legislative/common/briefing/Byrd_History_Lobbying.htm (last visited 4/18/06). 14 Public information regarding the funding and nature of these efforts is often minimal— and sometimes misleading, as is the case when a coalition’s name belies its true purposes.44 Indeed, it was the perceived need to reveal both to the public and Congress itself who is really behind lobbying efforts that prompted Senator Stevens in 1993 to propose, unsuccessfully as it turns out, a disclosure threshold for coalition members of $500 contributed semiannually without any further “trigger,” such as the need for “control” of the lobbying campaign.45 Senator Levin’s opposition was based, in part, on constitutional concerns rooted in privacy of association,46 that is, NAACP v. Alabama.47 As a result of Senator Levin’s resistance, the LDA generally treats the coalition as the client of the lobbyist, thereby avoiding the need in many cases to disclose the identity and stake in the coalition of its individual members.48 However, the Supreme Court cases applying NAACP v. Alabama (e.g. Buckley v. Valeo) have emphasized the need to show a “reasonable probability that the compelled disclosure of a party’s contributors will subject them to threats, harassment, or reprisals from either Government officials or private parties”49 in order to invoke First Amendment protection against membership disclosure. This limitation on the privacy of 44 See, e.g., Loophole Lets Lobbyists Hide Clients’ Identity, NEW YORK TIMES, July 5, 2002, A2, National Desk, at 1. 45 139 Cong. Rec. S5561 (May 6, 1993). See text supra at notes 27-28. 46 139 Cong. Rec. S5562 (May 6, 1993). 47 See text supra at notes 10-15. 48 See 2 U.S.C. § 1602(2). See 139 Cong. Rec. S5562 (May 6, 1993)(citing in support of this position the testimony of Thomas M. Susman who testified on behalf of the American Bar Association during the hearings on Senator Levin’s lobbying disclosure bill). 49 Buckley, 424 U.S. at 74. 15 association principle would appear to give Congress significant leeway to require disclosure of coalition members. With regard to the monetary threshold for disclosure of a coalition member, lowering the threshold to as low as $100 would appear to be consistent with, for example, the Supreme Court’s decision in Buckley which upheld disclosure of annual political contributions at that level.50 But, as Senator Levin pointed out in his 1993 colloquy with Senator Stevens, disclosure of such small amounts produces information of marginal, if any, value for anyone.51 At the time he spoke, the proposed contribution limit in his bill was $5,000 for a semiannual period, an amount that might fit what non-millionaires would consider a significant investment deserving disclosure. Strategies to avoid disclosure of coalition members must be anticipated. For example, a coalition of five members might funnel hundreds of thousands of dollars to a third party that would hire a lobbyist to work on behalf of the purported interests of the third party, but effectively to advance the interests of the coalition. Under the LDA as currently written, the third party would be considered the client, which would have to be disclosed, and the coalition itself (but not its individual members) would be considered an “affiliated organization”52 whose formal name would have to be disclosed if it met the contribution limitation and existing “control” requirements. The difficulty, however, with “see through” rules is determining where to stop. If, for example, one of the coalition 50 424 U.S. at 82-84. 51 139 Cong. Rec. S5563 (May 6, 1993). 52 2 U.S.C. §1603(b)(3) requires disclosure of the contributing “organization,” which term encompasses associations and “groups of organizations” (but not individuals). Id. §1602(13), (14). 16 members is itself a membership organization, should its members (and the members of each member, if any) also be disclosed if the contribution limits are met? The need to expand disclosure of coalition membership has not been lost on Congress, or at least some members who apparently do not share Senator Levin’s seemingly expansive interpretation of the protections offered by NAACP v. Alabama. The main proposals to amend the LDA made in the House and the Senate during 2005-6 would provide for broader disclosure of coalition members than currently exists. Generally, they do so by redefining the statutory term “client.”53 On May 17, 2005, Representative Meehan introduced H.R. 2412, The Special Interest Lobbying and Ethics Accountability Act of 2005.54 Then, on July 14, Senator Feingold introduced S. 1398, The Lobbying and Ethics Reform Act of 2005.55 While there are important differences between these two proposals as they affect the LDA, many of the proposed amendments of the statute found in each are identical and, in fact, embrace LDA amendments proposed in the House of Representatives in past years. 53 The Meehan bill, H.R. 2412, by express provision, does not apply this revised definition to LDA registration threshold calculation. Neither the Feingold (S. 1398) nor the McCain-Shays (S. 2128, H.R. 4575) proposals contain a similar provision. It is not clear whether this difference in the bills is very important. Both the Feingold and Mc- Cain-Shays proposals make it clear that both the individual coalition member and the coalition itself are considered the “client,” presumably thereby eliminating any argument that threshold calculation, and therefore registration obligations, must be determined on a member-by-member basis. All of these bills would seem to apply whether the coalition hires a lobbying firm or is considered to be a self-lobbying organization. If the latter has its own “in house” staff of lobbyists, presumably none of these provisions would change what is the current approach of considering those lobbyists the “employees” of the registered entity (the coalition) and disclosed as such. 54 H.R. 2412, 109th Cong. (2005). 55 S. 1398, 109th Cong. (2005). 17 The Meehan bill requires a “member” (an undefined term)56 of a coalition or association to be disclosed, regardless of its part in planning, supervising or controlling lobbying activities for the coalition or association, as long as the member contributes $500 or more in a reporting period toward the lobbying of the coalition or association.57 The Feingold bill does not require disclosure of individual persons who are coalition members and requires a contribution in excess of $10,000 for a reporting period by a coalition member to trigger disclosure.58 Simply stated, the effect of the Feingold bill is basically to remove the current requirement of planning, supervising or controlling for disclosure of large contributors to lobbying campaigns. The McCain-Shays companion proposals (S. 2128 and H.R. 4575, both introduced late in 2005) differ from the Meehan and Feingold bills by requiring disclosure where two or more “groups” compose the coalition, in which case each “group” is considered the “client” (along with the coalition) if it contributes more than $10,000 during the reporting period for lobbying activities.59 Since these bills offer no definition of the term “group,” it is not entirely clear how this provision would apply. If, for example, General Motors, Ford, and DaimlerChrysler form a coalition, each contributing $100,000 for a lobbying campaign, does the coalition have one “group”—or 56 The term may—or may not—be intended to be as expansive as the definition of “person or entity” as now used in the LDA, See 2 U.S.C. §1602 (“any individual, corporation, company, foundation, association, labor organization, firm, partnership, society, joint stock company, group of organizations, or State or local government”). 57 H.R. 2412 § 107(a). Under the bill as originally drafted, disclosure of a member is not required if it contributes less than $500 during the reporting period to “influencing legislation.” It is not clear why the bill distinguishes “influencing legislation” (an IRC term) from lobbying generally for these purposes. 58 S. 1398 § 107(a). 59 S. 2128, 109th Cong., §108(a); H.R. 4575, 109th Cong., §108(a). 18 more? If two automotive parts manufacturers also joined, would there then be two groups—manufacturers and parts suppliers—or more? It is hard to see how introducing the indefinite term “group” into the LDA is much of an improvement since the normal understanding of the term suggests that disclosure will not attach to the individual persons and entities that comprise a coalition and that, arguably, should be disclosed if their individual stakes are large enough.60 All four bills provide that associations that qualify for tax exempt treatment under Section 501(a) and (c) of the Internal Revenue Code will not be subject to these special rules,61 though such entities would still be subject to the existing LDA disclosure requirements for “affiliated organizations.”62 . Finally, both the Meehan and Feingold, but not the McCain-Shays, bills contain “look-thru rules” to prevent avoidance.63 For example, the Feingold bill provides that a coalition and its members cannot avoid disclosure by employing another coalition to conduct lobbying activities for it. As noted previously,64 some such provisions are necessary, though it is not clear that the Meehan or Feingold provisions go far enough. What if, for instance, the coalition employs not another coalition, but a non-coalition third party, a situation not apparently covered by the Feingold proposal?65 60 The McCain-Shays proposal expressly provides that “[n]othing in this paragraph shall be construed to require the disclosure of any information about the members of, or donors to, a group which is treated as a client by this provision.” 61 S. 1398, §107(a); H.R. 2124, §107(a); S. 2128, §108(a); H.R. 4575, §108(a). 62 See text supra at note 1. 63 H.R. 2412 § 107(a); S. 1398 § 107(a). 64 See text supra at note 52. 65 It should be noted that the redefinition of “client” in these bills has ramifications (whether or not intended is not clear) other than disclosure of coalition and association 19 The bill adopted by the Senate on March 29, 2006, S. 2349 (the Legislative Transparency and Accountability Act of 2006) did little, if anything, to broaden coalition disclosure. It changes the qualification for disclosure as an “affiliated organization” from “in whole or in major part plans, supervises, or controls such lobbying activities” to “participates in a substantial way in the planning, supervision or control of such lobbying activities.”66 Moreover, an express exception to disclosure is added to emphasize that disclosure of information regarding individuals who are members or donors is not required.67 IV. GRASSROOTS DISCLOSURE The history of lobbying disclosure legislation would suggest that extending the LDA to encompass grassroots advocacy is likely to encounter stiff resistance. It almost prevented enactment of the LDA itself a decade ago. However, given the staunch opposition in the Senate in 1994-95 to any coverage of grassroots lobbying, the Senate passage on March 29, 2006 of the Legislative Transparency and Accountability Act of 2006 (S.2349), which includes some coverage of grassroots lobbying, may represent a watershed event. As noted above, the House approved a conference report in 1994 that included some grassroots coverage. With regard to the question of the definition of grassroots lobbying, First Amendment concerns may be at their peak where the covered efforts merely attempt to members. For example, foreign entities related to individual coalition members may have to be disclosed where previously they would not be identified. See 2 U.S.C. § 1603(b)(4) (registration must disclose “foreign entities” having certain relationships to the “client”). 66 S. 2349, 109th Cong., §217(a). 67 Id. §217(b). 20 create a general public “attitude” in favor of certain policies without mentioning what those policies are or what actions should be taken in terms of contacting federal officials. (Harriss referred to attempts to “propagandize the general public.”68) It may be true, therefore, that the more “specifically directed” a campaign is, the less stringent the First Amendment limits on disclosure obligations are. For instance, the campaign may be directed at specific individuals, with regard to an identified legislative or administrative proposal, and with a specific request that the contacted individuals communicate his or her support or opposition to responsible officials. If the specific focus of a grassroots campaign is crucial to avoid serious First Amendment problems, then door-to-door canvassing and internet campaigns would appear to fall within the ambit of permissible disclosure. Indeed, S.2349 seems to adopt this general approach. It extends LDA disclosure to “paid efforts to stimulate grassroots lobbying” to include “any paid attempt in support of lobbying contacts on behalf of a client to influence the general public or segments thereof to contact one or more covered legislative or executive branch officials (or Congress as a whole) to urge such officials (or Congress) to take specific action.”69 There is no stated limitation on the mode of conducting the lobbying, whether paid advertising in newspapers, TV or radio ads, door-to-door efforts, or e-mail campaigns. 68 See text supra note 7. 69 S.2349, 109th Cong., Sec. 220(a). Exempt are efforts directed at less than 500 members of the general public. Id. 21 S.2349 excludes from disclosure grassroots efforts directed at an entity’s own members, employees, officers, or shareholders.70 It is not clear that First Amendment concerns constitute the rationale for this exception. After all, the focus of concern of the Supreme Court in NAACA v. Alabama was to protect the ability of the individual members to express their views via the associational format. What was not involved was the ability of the association as an entity to express its views to its members who would, in turn, individually express their views to federal officials and, thereby, subject themselves to the possible intimidation from which the associational format was supposed to protect them. Moreover, as noted above,71 the scope of protection of associational privacy afforded by that case is subject to significant limitations in the face of the governmental interests served by public disclosure. If some disclosure of grassroots campaigns is required, what level of income earned for conducting grassroots campaigns or money spent on them should trigger registration and disclosure? In this regard, should lobbying firms be treated differently than organizations that lobby on their own behalf? S.2349 establishes a $25,000 threshold (of income or expense) (over a four month period) for registration by a lobbying firm doing paid grassroots work.72 On the other hand, expenses for grassroots efforts are not to be included in the expenditure estimates that self-lobbying organizations must make to determine if they must register in the first place.73 Why this should be so is not self- 70 Id. The bill defines “member” of a registrant in five alternative ways, including paying dues or making contributions of more than a nominal amount or participating in the governance of the entity. Id. 71 See text supra notes 25-26. 72 S. 2349, §220(a). 73 Id. § 220(b). 22 evident. It is difficult to see any First Amendment restrictions lurking in the background here. With regard to registered entities, however, S. 2349 requires self-lobbying organizations to include the expenses of their paid grassroots efforts in their expenditure totals for the reporting period and separately state the amounts paid specifically for 1) grassroots lobbying and 2) grassroots advertising. An analogous requirement applies to income earned by lobbying firms engaged in paid grassroots efforts.74 It appears--not without some ambiguity, however--that disclosure is required of specific issues lobbied, but not with regard to entities lobbied or the names of those employees in charge of grassroots lobbying efforts.75 The failure to mandate further disclosure contrasts with S. 2128 (Senator McCain’s bill) that would require grassroots lobbying firms (but not self- lobbying organizations) to disclose the specific issues lobbied, disbursements of funds for grassroots efforts, names of the persons or entities receiving a disbursement of funds for grassroots lobbying of $10,000 or more, and the names of any “conduits” funneling money for grassroots efforts from the firm to third parties.76 Also under S.2128, large ($250,000) infusions of income to or expenses by a lobbying firm for grassroots lobbying would require additional reports within 20 days of the receipt or expenditure.77 74 Id. § 220(c). Other provisions of S.2349 deal with rounding conventions for income and expenditures and the use of IRC definitions of grassroots lobbying for those businesses and tax exempt entities making the Section 15 election to use IRC definitions. Id. § 220(d) 75 Section 220(c) expressly excuses the need to disclose Houses of Congress and federal agencies contacted as well as the names of lobbyists active during the reporting period. 76 S.2128, §105(c). 77 Id. Sec. 105(d). 23 Under the LDA as it stands now, periodic reporting of lobbying activities requires (other than estimates of income received or expenses incurred) a listing of the general issue area(s) and specific issues within those area(s) lobbied, the names of the persons in charge of the lobbying (i.e. lobbyists), and the Houses of Congress and federal agencies contacted. In view of the basic nature of these disclosures, extending at least those or analogous disclosure requirements to paid grassroots efforts would not appear to create constitutional problems or impose reporting burdens different in kind from those that exist under current law. Indeed, organizations that today opt under Section 15 of the LDA to use Internal Revenue Code definitions of lobbying for determining their LDA registration and reporting obligations must keep records of their grassroots lobbying efforts (and not just at the federal, but also the state, levels).78 V. OPTIONS FOR POSSIBLE RECOMMENDATIONS If the Council considers it appropriate to adopt specific recommendations with regard to disclosure of lobbying coalition membership and paid grassroots lobbying, a variety of options are available including: Option A: recommending no change in existing law. Option B: recommending adoption of the approach of S.2349 (adopted by the Senate).79 Option C: recommending statutory changes that go beyond those required by S.2349, for example, that Congress should-- 1. with regard to disclosure of coalition membership: 78 Indeed, businesses and nonprofit entities must keep tract of grassroots expenditures for IRC purposes regardless of any registration or reporting obligations under the LDA. 79 See text supra accompanying notes 66-67, 69-75. A copy of the relevant portions of this bill is Attachment III to this memorandum. 24 · reduce the threshold contribution to lobbying activities that triggers disclosure from more than $10,000 in a reporting period to more than $5,000 in a reporting period and require the amount of the contribution to be disclosed; · eliminate entirely (and not merely water down) the existing requirement that the coalition member making the contribution have a direct role in planning, supervising or controlling the lobbying activities of the registrant for the coalition; · require disclosure even in the case of individuals and tax exempt entities who make the requisite contribution; and · adopt “look through” rules to prevent avoidance of disclosure through, for example, the device of forming coalitions “within” coalitions. 2. with regard to disclosure of grassroots lobbying: · define “grassroots lobbying” to include attempts to encourage members of the public or specific sectors thereof, including persons who may bear close relationships to the registrant such as members, employees and stockholders, to contact covered officials with regard to specific legislation or Executive Branch action, whether the encouragement takes the form of paid advertisements, e-mail or other internet campaigns, door-to-door canvassing, or phone solicitations; · include income earned from grassroots lobbying and expenditures for said lobbying that exceed or are reasonably expected to exceed designated amounts (e.g. $20,000 per reporting period) in income and expense calculations for LDA registration purposes; · require disclosure in reports filed under the LDA by registered entities of grassroots lobbying efforts conducted by both lobbying firms and self-lobbying 25 organizations with regard to the income from or expenditures for such lobbying where they exceed or are reasonably expected to exceed designated amounts (e.g. $20,000 per reporting period); and · require that periodic reports with regard to grassroots lobbying efforts contain at least the same types of information required with regard to other types of covered lobbying activities (persons employed to conduct activities, issues lobbied, federal entities contacted, and the interest of foreign entities in the issues lobbied). Relevant sections of the LDA, the provisions of S. 2349 as they relate to grassroots and coalition disclosure, and draft language of a tentative recommendation along the lines of Option 3 supra follow as Attachments II, III, and IV respectively. 26 SECTION CHAIR AMERICAN BAR ASSOCIATION Section of Administrative Law & Professor Eleanor D. Kinney Regulatory Practice Indiana University 740 15th Street, NW School of Law Washington, DC 20005 (317) 274-4091 FAX: (317) 274-3955 Email email@example.com Tab 6B Via Facsimile: 202-224-2262 ATTACHMENT I March 27, 2006 The Honorable Trent Lott Chairman U.S. Senate Committee on Rules 305 Russell Senate Office Building Washington, DC 20510 Re: Amendment of the Lobbying Disclosure Act of 1995 Dear Senator Lott: The views expressed herein are presented on behalf of the ABA Section of Administrative Law and Regulatory Practice. They have not been approved by the House of Delegates or the Board of Governors of the American Bar Association and, accordingly, should not be construed as representing the policy of the American Bar Association. Our Section consists of attorneys in private practice, government service, and legal education, as well as judges. The Section’s governing Council and the pertinent committees each have members representing these segments to ensure that all points of view are considered. By presenting these consensus views, the Section seeks to insure adequate public disclosure of influences brought to bear on the congressional and administrative processes. While the committees of the Section have members with practical experience with regard to the full range of federal programs and some often develop recommendations and offer views on topics of substantive regulatory policy, the Section as a whole prides itself on its expertise on issues of government organization and procedure. In that regard, over the years we have, as a general rule, supported recommendations and ABA positions in favor of transparency in governmental decision-making. Indeed, during the congressional hearings leading to the enactment of the Lobbying Disclosure Act of 1995 (LDA), a member of our Section, testifying on behalf of the American Bar Association, supported replacement of the Federal Regulation of Lobbying Act with legislation that would offer the public at large a clearer sense of the amount and nature of lobbying activity directed at the Legislative and Executive Branches of the federal government. We believe that the LDA, as enacted in 1995 and amended in 1998, represented a significant improvement with regard to lobbying disclosure, and we support revisions to this statute that will further improve both the quality and public availability of significant information relating to federal lobbying. We do not, however, think that more disclosure is, in all circumstances, necessarily better disclosure, nor do we believe that increasing the quantity of disclosure will by itself substantially improve the public’s ability to understand the nature and scope of lobbying efforts. At some point, the volume of information available may become so extensive that it becomes difficult or impossible for the public, as well as the media and other organizations, to make meaningful use of the data generated. Furthermore, expanded disclosure is not without costs. Small, modestly funded entities may limit their lobbying efforts or entirely abandon them if the costs of preparing and filing registration statements and periodic reports significantly increase. In addition, the costs of disclosure must be measured in more than purely economic terms. As the Supreme Court held in United States v. Harriss, 347 U.S. 612 (1945), First Amendment interests are implicated in lobbying disclosure legislation. As subsequent cases have indicated, those interests extend to privacy of association. See, e.g., NAACP v. Alabama, 357 U.S. 449 (1958). Overly intrusive disclosure can, in some cases, effectively deter entirely appropriate and constitutionally protected lobbying efforts. In sum, crafting effective lobbying disclosure legislation requires a careful balancing of important interests, including, on the one hand, the public’s ability to know the influences bought to bear on public policymaking and implementation and, on the other, the constitutional and other important interests furthered by vigorous and forthright advocacy before Congress and the Executive Branch. The Lobbying Disclosure Act is now a decade old. Much experience has been gained in the administration of that Act by the Secretary of the Senate and the Clerk of the House, by the Department of Justice in enforcing the Act’s provisions, and by lobbyists and lobbying organizations in attempting to comply with the law. Unfortunately, available evidence suggests that some of the perceived inadequacies in lobbying disclosure that plagued the Federal Lobbying Disclosure Act of 1946 have persisted despite the enactment of the LDA. Those problems include substantial noncompliance with registration and reporting obligations and inadequate administrative oversight and enforcement efforts. The Section believes that congressional inquiry and focus by both the House and Senate should be on three main areas as they pertain to the LDA: (1) the need for more disclosure of lobbying efforts, (2) public accessibility of information contained in registration and reports, and (3) compliance oversight and enforcement efforts. In terms of possible amendments to the LDA, the Section believes that Congress should give serious consideration to the following areas of possible reform: The Lobbyist-Candidate Linkage: The linkage between lobbyists and electoral candidates should be disclosed to some degree. In that regard, disclosure should be required of the amount and recipient of campaign contributions, positions held by lobbyists in campaign organizations aimed at the election to federal office, and the participation of lobbyists and registrants in fundraising efforts for federal candidates. Disclosure of Gifts and Travel Reimbursement: Congress appears poised to revisit and change its rules related to gifts and travel. The outcome of that effort may suggest that the LDA itself should require some disclosure of gifts and other funds provided by the lobbying community to legislative officials. Broadened Disclosure of the Nature of Lobbying Efforts: Under the LDA as it now stands, reports of lobbying activities by registrants contain only minimal information with regard to the nature of lobbying efforts, to wit “specific” issues lobbied, House(s) of Congress or federal agency contacted, and names of active lobbyists during the reporting period. Lumping all of this information under “general topic areas”, as the current LDA requires, conveys only a vague sense of the lobbying activity; there is no clear linkage of a particular lobbyist with a specific issue and with a specific governmental entity regarding that issue, let alone with an identified federal official. Congress should require more detailed disclosures of the issues being lobbied and of the committee or agency targeted. Whether it is wise to require disclosure of the identities of individual legislators or officials lobbied is a more difficult issue. It has some surface appeal, but it is also intrusive, and Congress should consider the ramifications and potential unintended consequences of such a requirement. Consolidation of Lobbying Reports for Self-Lobbying Organizations: Under the LDA, a self-lobbying organization that also hires a lobbying firm to represent it must file a report that focuses solely on the activities of the organization’s own employee- lobbyists. To obtain a full picture of the lobbying efforts on behalf of the organization, the public must find and review not only the reports filed by the organization, but also those filed separately by the lobbying firms that represent it. It would make much more sense to require a consolidated report filed by both the organization and its retained lobbying firms. Moreover, since the self-lobbying organization must include in its reported expenses the fees paid to lobbying firms, the current system creates serious potential for confusion given possible double counting by outside observers. (The registrant lobbying firm will report its fees from the self-lobbying organization and the latter will include those fees in its expenses, but not identified as such.) Review of the Section 15 Election to Use IRS Definitions of Lobbying: The LDA offers businesses and certain tax exempt entities the option of using Internal Revenue Code (IRC) definitions of lobbying for some (but not all) purposes in determining their registration and reporting obligations. The complexity of this approach is compounded by the complexity (and, in some cases, ambiguity) of the various IRC definitions of lobbying and lobbying activities. While the purported reason for the option to use IRC definitions was to permit businesses and tax exempt entities to avoid maintaining two sets of records (one for LDA purposes and one for IRC purposes), the option can be used, and may in fact be used in many cases, purposely to avoid registration and to limit reporting, a result entirely at odds with the purposes of the LDA. In 1995 Congress directed the GAO to review this option. The GAO filed its report in 1999, Federal Lobbying/Differences in Lobbying Definitions and Their Impact, GAO/GGD- 99-38 (April 1999), discussing in detail (without a specific recommendation) how the option to use the IRC is inconsistent with the disclosure purposes of the LDA. Congress has not, to our knowledge, formally considered this report and its implications. Now is the perfect time to commence that investigation and to reconsider this option. Broadened Disclosure of Prior Covered Positions Held by Lobbyists: In examining the bills introduced in 2005-2006 to amend the LDA, the Section was impressed with the near unanimity among them in proposing to expand the required disclosure of lobbyists’ prior executive and legislative branch LDA-covered positions to eliminate the two year “look back” limitation. The Section supports such a change. Disclosure of Contingency Fee Agreements: Contingency fee lobbying is not uncommon today. It raises a variety of ethical and other issues. The House and Senate should require the registration statement to indicate if lobbying fees are paid on a contingency basis and the nature of the contingency agreed to. Improved Public Availability of Lobbying Information: Examination of the bills introduced so far to amend the LDA indicates the near unanimity of the sponsors in their desire to improve the public availability of information contained in lobbying registrations and reports. The Section wholeheartedly supports this initiative, including proposals for quarterly reporting, linking LDA and Federal Election Commission reports, and required electronic filing. (With regard to the latter, while the bills focus on filing the periodic reports, the same requirements should be applied to the filing of registrations in order to facilitate their early posting on the Internet.) Steps must also be taken substantially to upgrade the searchability and Internet accessibility of registrations and reports. Fortunately, most of the proposed bills also include provisions to insure that improvement over current practice, which the Section supports. Compliance Oversight: It is questionable whether the Secretary of the Senate and the Clerk of the House have the resources effectively to ensure that filed registrations and reports comply with the LDA. Thousands of filings occur now every six months; with quarterly filing, the number will double. Moreover, requiring additional disclosures on registrations and reports will further stretch limited resources. And a searchable database can realistically improve public knowledge of lobbying efforts only if there is some assurance that registrations and reports contain the detail of information and in the correct form that can be picked out by the search engine or engines available to the public. That in turn requires careful administrative review of filings. Accordingly, if administration of the LDA remains with the Secretary and Clerk, Congress must provide sufficient resources to allow those offices adequately to carry out their compliance review and other responsibilities under the statute. There appears to be some concern whether LDA administration, compliance review, and enforcement would be improved if the functions of the Secretary and Clerk under the LDA were transferred to a special office within the Legislative Branch. The Section supports that option and, at the same time, giving that office audit authority to insure that the registration and reporting obligations of lobbying firms and self-lobbying organizations are being met. Department of Justice Enforcement Efforts: Finally Congress should closely review the Department of Justice’s enforcement of the LDA and should require greater transparency of DOJ’s enforcement activities. While proposals have been made to increase penalties for LDA violations, before this is done Congress should explore whether the DOJ’s actions to date have created sufficient incentives for compliance irrespective of the level of penalties. In sum, the Section believes that, while the LDA represented a significant improvement in federal lobbying disclosure law, now is the appropriate time for Congress to broaden disclosure obligations, improve public availability of disclosed information, and strengthen compliance oversight and enforcement. The Section would welcome the opportunity to work with you in your consideration of possible amendments to the Lobbying Disclosure Act. Sincerely, Eleanor D. Kinney Section Chair cc: ABA Government Affairs Office ABA Policy Administration Office Tab 6C ATTACHMENT II LOBBYING DISCLOSURE ACT OF 1995 (codified) 2 U.S.C §§1601 et seq. (Pub. L. No. 104-65, 109 Stat. 691, as amended by Pub. L. No. 105-166, 112 Stat. 38) [Original Section Numbers in brackets.] § 1601 [Sec. 2]. Findings The Congress finds that— (1) responsible representative Government requires public awareness of the efforts of paid lobbyists to influence the public decisionmaking process in both the legislative and executive branches of the Federal Government; (2) existing lobbying disclosure statutes have been ineffective because of unclear statutory language, weak administrative and enforcement provisions, and an absence of clear guidance as to who is required to register and what they are required to disclose; and (3) the effective public disclosure of the identity and extent of the efforts of paid lobbyists to influence Federal officials in the conduct of Government actions will increase public confidence in the integrity of Government. § 1602 [Sec. 3]. Definitions As used in this chapter: (1) Agency The term “agency” has the meaning given that term in section 551(1) of Title 5. (2) Client The term “client” means any person or entity that employs or retains another person for financial or other compensation to conduct lobbying activities on behalf of that person or entity. A person or entity whose employees act as lobbyists on its own behalf is both a client and an employer of such employees. In the case of a coalition or association that employs or retains other persons to conduct lobbying activities, the client is the coalition or association and not its individual members. (3) Covered executive branch official The term “covered executive branch official” means— (A) the President; (B) the Vice President; (C) any officer or employee, or any other individual functioning in the capacity of such an officer or employee, in the Executive Office of the President; (D) any officer or employee serving in a position in level I, II, III, IV, or V of the Executive Schedule, as designated by statute or Executive order; (E) any member of the uniformed services whose pay grade is at or above O-7 under section 201 of Title 37; and (F) any officer or employee serving in a position of a confidential, policy-determining, policymaking, or policy-advocating character described in section 7511(b)(2)(B) of Title 5. (4) Covered legislative branch official The term “covered legislative branch official” means— (A) a Member of Congress; (B) an elected officer of either House of Congress; (C) any employee of, or any other individual functioning in the capacity of an employee of— (i) a Member of Congress; (ii) a committee of either House of Congress; (iii) the leadership staff of the House of Representatives or the leadership staff of the Senate; (iv) a joint committee of Congress; and (v) a working group or caucus organized to provide legislative services or other assistance to Members of Congress; and (D) any other legislative branch employee serving in a position described under section 109(13) of the Ethics in Government Act of 1978 [5 U.S.C.A. App. 4]. (5) Employee The term “employee” means any individual who is an officer, employee, partner, director, or proprietor of a person or entity, but does not include— (A) independent contractors; or (B) volunteers who receive no financial or other compensation from the person or entity for their services. (6) Foreign entity The term “foreign entity” means a foreign principal (as defined in section 1(b) of the Foreign Agents Registration Act of 1938 (22 U.S.C. 611(b)). (7) Lobbying activities The term “lobbying activities” means lobbying contacts and efforts in support of such contacts, including preparation and planning activities, research and other background work that is intended, at the time it is performed, for use in contacts, and coordination with the lobbying activities of others. (8) Lobbying contact (A) Definition The term “lobbying contact” means any oral or written communication (including an electronic communication) to a covered executive branch official or a covered legislative branch official that is made on behalf of a client with regard to— (i) the formulation, modification, or adoption of Federal legislation (including legislative proposals); (ii) the formulation, modification, or adoption of a Federal rule, regulation, Executive order, or any other program, policy, or position of the United States Government; (iii) the administration or execution of a Federal program or policy (including the negotiation, award, or administration of a Federal contract, grant, loan, permit, or license); or (iv) the nomination or confirmation of a person for a position subject to confirmation by the Senate. (B) Exceptions The term “lobbying contact” does not include a communication that is— (i) made by a public official acting in the public official’s official capacity; (ii) made by a representative of a media organization if the purpose of the communication is gathering and disseminating news and information to the public; (iii) made in a speech, article, publication or other material that is distributed and made available to the public, or through radio, television, cable television, or other medium of mass communication; (iv) made on behalf of a government of a foreign country or a foreign political party and disclosed under the Foreign Agents Registration Act of 1938 (22 U.S.C. 611 et seq.); (v) a request for a meeting, a request for the status of an action, or any other similar administrative request, if the request does not include an attempt to influence a covered executive branch official or a covered legislative branch official; (vi) made in the course of participation in an advisory committee subject to the Federal Advisory Committee Act; (vii) testimony given before a committee, subcommittee, or task force of the Congress, or submitted for inclusion in the public record of a hearing conducted by such committee, subcommittee, or task force; (viii) information provided in writing in response to an oral or written request by a covered executive branch official or a covered legislative branch official for specific information; (ix) required by subpoena, civil investigative demand, or otherwise compelled by statute, regulation, or other action of the Congress or an agency, including any communication compelled by a Federal contract, grant, loan, permit, or license; (x) made in response to a notice in the Federal Register, Commerce Business Daily, or other similar publication soliciting communications from the public and directed to the agency official specifically designated in the notice to receive such communications; (xi) not possible to report without disclosing information, the unauthorized disclosure of which is prohibited by law; (xii) made to an official in an agency with regard to— (I) a judicial proceeding or a criminal or civil law enforcement inquiry, investigation, or proceeding; or (II) a filing or proceeding that the Government is specifically required by statute or regulation to maintain or conduct on a confidential basis, if that agency is charged with responsibility for such proceeding, inquiry, investigation, or filing; (xiii) made in compliance with written agency procedures regarding an adjudication conducted by the agency under section 554 of Title 5 or substantially similar provisions; (xiv) a written comment filed in the course of a public proceeding or any other communication that is made on the record in a public proceeding; (xv) a petition for agency action made in writing and required to be a matter of public record pursuant to established agency procedures; (xvi) made on behalf of an individual with regard to that individual’s benefits, employment, or other personal matters involving only that individual, except that this clause does not apply to any communication with— (I) a covered executive branch official, or (II) a covered legislative branch official (other than the individual’s elected Members of Congress or employees who work under such Members’ direct supervision), with respect to the formulation, modification, or adoption of private legislation for the relief of that individual; (xvii) a disclosure by an individual that is protected under the amendments made by the Whistleblower Protection Act of 1989 under the Inspector General Act of 1978 or under another provision of law; (xviii) made by— (I) a church, its integrated auxiliary, or a convention or association of churches that is exempt from filing a Federal income tax return under paragraph 2(A)(i) of section 6033(a) of Title 26, or (II) a religious order that is exempt from filing a Federal income tax return under paragraph (2)(A)(iii) of such section 6033(a); and (xix) between— (I) officials of a self-regulatory organization (as defined in section 3(a)(26) of the Securities Exchange Act [15 U.S.C.A. § 78c(a)(26)]) that is registered with or established by the Securities and Exchange Commission as required by that Act [15 U.S.C.A. § 78a et seq.] or a similar organization that is designated by or registered with the Commodities Future Trading Commission as provided under the Commodity Exchange Act [7 U.S.C.A. § 1 et seq.]; and (II) the Securities and Exchange Commission or the Commodities Future Trading Commission, respectively; relating to the regulatory responsibilities of such organization under that Act. (9) Lobbying firm The term “lobbying firm” means a person or entity that has 1 or more employees who are lobbyists on behalf of a client other than that person or entity. The term also includes a selfemployed individual who is a lobbyist. (10) Lobbyist The term “lobbyist” means any individual who is employed or retained by a client for financial or other compensation for services that include more than one lobbying contact, other than an individual whose lobbying activities constitute less than 20 percent of the time engaged in the services provided by such individual to that client over a six month period. (11) Media organization The term “media organization” means a person or entity engaged in disseminating information to the general public through a newspaper, magazine, other publication, radio, television, cable television, or other medium of mass communication. (12) Member of Congress The term “Member of Congress” means a Senator or a Representative in, or Delegate or Resident Commissioner to, the Congress. (13) Organization The term “organization” means a person or entity other than an individual. (14) Person or entity The term “person or entity” means any individual, corporation, company, foundation, association, labor organization, firm, partnership, society, joint stock company, group of organizations, or State or local government. (15) Public official The term “public official” means any elected official, appointed official, or employee of— (A) a Federal, State, or local unit of government in the United States other than— (i) a college or university; (ii) a government-sponsored enterprise (as defined in section 622(8) of this title); (iii) a public utility that provides gas, electricity, water, or communications; (iv) a guaranty agency (as defined in section 1085(j) of Title 20), including any affiliate of such an agency; or (v) an agency of any State functioning as a student loan secondary market pursuant to section 1085(d)(1)(F) of Title 20; (B) a Government corporation (as defined in section 9101 of Title 31); (C) an organization of State or local elected or appointed officials other than officials of an entity described in clause (i), (ii), (iii), (iv), or (v) of subparagraph (A); (D) an Indian tribe (as defined in section 450b(e) of Title 25 [FN1]; (E) a national or State political party or any organizational unit thereof; or (F) a national, regional, or local unit of any foreign government, or a group of governments acting together as an international organization. (16) State The term “State” means each of the several States, the District of Columbia, and any commonwealth, territory, or possession of the United States. § 1603 [Sec. 4]. Registration of lobbyists (a) Registration (1) General rule No later than 45 days after a lobbyist first makes a lobbying contact or is employed or retained to make a lobbying contact, whichever is earlier, such lobbyist (or, as provided under paragraph (2), the organization employing such lobbyist), shall register with the Secretary of the Senate and the Clerk of the House of Representatives. (2) Employer filing Any organization that has 1 or more employees who are lobbyists shall file a single registration under this section on behalf of such employees for each client on whose behalf the employees act as lobbyists. (3) Exemption (A) General rule Notwithstanding paragraphs (1) and (2), a person or entity whose— (i) total income for matters related to lobbying activities on behalf of a particular client (in the case of a lobbying firm) does not exceed and is not expected to exceed $5,000; or (ii) total expenses in connection with lobbying activities (in the case of an organization whose employees engage in lobbying activities on its own behalf) do not exceed or are not expected to exceed $20,000, (as estimated under section 1604 of this title) in the semiannual period described in section 1604(a) of this title during which the registration would be made is not required to register under this subsection with respect to such client. (B) Adjustment The dollar amounts in subparagraph (A) shall be adjusted— (i) on January 1, 1997, to reflect changes in the Consumer Price Index (as determined by the Secretary of Labor) since December 19, 1995; and (ii) on January 1 of each fourth year occurring after January 1, 1997, to reflect changes in the Consumer Price Index (as determined by the Secretary of Labor) during the preceding 4-year period, rounded to the nearest $500. (b) Contents of registration Each registration under this section shall contain— (1) the name, address, business telephone number, and principal place of business of the registrant, and a general description of its business or activities; (2) the name, address, and principal place of business of the registrant’s client, and a general description of its business or activities (if different from paragraph (1)); (3) the name, address, and principal place of business of any organization, other than the client, that— (A) contributes more than $10,000 toward the lobbying activities of the registrant in a semiannual period described in section 1604(a) of this title; and (B) in whole or in major part plans, supervises, or controls such lobbying activities. (4) the name, address, principal place of business, amount of any contribution of more than $10,000 to the lobbying activities of the registrant, and approximate percentage of equitable ownership in the client (if any) of any foreign entity that— (A) holds at least 20 percent equitable ownership in the client or any organization identified under paragraph (3); (B) directly or indirectly, in whole or in major part, plans, supervises, controls, directs, finances, or subsidizes the activities of the client or any organization identified under paragraph (3); or (C) is an affiliate of the client or any organization identified under paragraph (3) and has a direct interest in the outcome of the lobbying activity; (5) a statement of— (A) the general issue areas in which the registrant expects to engage in lobbying activities on behalf of the client; and (B) to the extent practicable, specific issues that have (as of the date of the registration) already been addressed or are likely to be addressed in lobbying activities; and (6) the name of each employee of the registrant who has acted or whom the registrant expects to act as a lobbyist on behalf of the client and, if any such employee has served as a covered executive branch official or a covered legislative branch official in the 2 years before the date on which such employee first acted (after December 19, 1995) as a lobbyist on behalf of the client, the position in which such employee served. (c) Guidelines for registration (1) Multiple clients In the case of a registrant making lobbying contacts on behalf of more than 1 client, a separate registration under this section shall be filed for each such client. (2) Multiple contacts A registrant who makes more than 1 lobbying contact for the same client shall file a single registration covering all such lobbying contacts. (d) Termination of registration A registrant who after registration— (1) is no longer employed or retained by a client to conduct lobbying activities, and (2) does not anticipate any additional lobbying activities for such client, may so notify the Secretary of the Senate and the Clerk of the House of Representatives and terminate its registration. § 1604 [Sec. 5]. Reports by registered lobbyists (a) Semiannual report No later than 45 days after the end of the semiannual period beginning on the first day of each January and the first day of July of each year in which a registrant is registered under section 1603 of this title, each registrant shall file a report with the Secretary of the Senate and the Clerk of the House of Representatives on its lobbying activities during such semiannual period. A separate report shall be filed for each client of the registrant. (b) Contents of report Each semiannual report filed under subsection (a) of this section shall contain— (1) the name of the registrant, the name of the client, and any changes or updates to the information provided in the initial registration; (2) for each general issue area in which the registrant engaged in lobbying activities on behalf of the client during the semiannual filing period— (A) a list of the specific issues upon which a lobbyist employed by the registrant engaged in lobbying activities, including, to the maximum extent practicable, a list of bill numbers and references to specific executive branch actions; (B) a statement of the Houses of Congress and the Federal agencies contacted by lobbyists employed by the registrant on behalf of the client; (C) a list of the employees of the registrant who acted as lobbyists on behalf of the client; and (D) a description of the interest, if any, of any foreign entity identified under section 1603(b)(4) of this title in the specific issues listed under subparagraph (A); (3) in the case of a lobbying firm, a good faith estimate of the total amount of all income from the client (including any payments to the registrant by any other person for lobbying activities on behalf of the client) during the semiannual period, other than income for matters that are unrelated to lobbying activities; and (4) in the case of a registrant engaged in lobbying activities on its own behalf, a good faith estimate of the total expenses that the registrant and its employees incurred in connection with lobbying activities during the semiannual filing period. (c) Estimates of income or expenses For purposes of this section, estimates of income or expenses shall be made as follows: (1) Estimates of amounts in excess of $10,000 shall be rounded to the nearest $20,000. (2) In the event income or expenses do not exceed $10,000, the registrant shall include a statement that income or expenses totaled less than $10,000 for the reporting period. Tab 6D ATTACHMENT IV RECOMMENDATION* RESOLVED, That the American Bar Association urges Congress to amend the Lobbying Disclosure Act of 1995 (“the Act”) to extend its registration and reporting obligations to lobbying coalition membership and grassroots lobbying efforts as follows: 1.) That the name of a member of a lobbying coalition1 registered under the Act that individually contributes more than $5,000 during an LDA reporting period to the lobbying activities of the coalition should be disclosed in registration statements and updates thereto, along with the amount of its contribution, regardless of that member’s ability to plan, control or supervise those lobbying activities. “Members” within the meaning of this Recommendation include any individual, corporation, company, foundation, association, labor organization, firm, partnership, society, and joint stock company.2 “Look through” rules should be adopted to prevent avoidance of this disclosure obligation. 2.) That efforts by a lobbying firm or a self-lobbying organization (as defined by the Act) to contact the public at large or segments thereof through the mass media, including paid advertisements or the Internet, or via telephone or person-to-person canvassing, urging them to communicate their support or opposition to Congress (or Members or staff thereof) or to LDA-covered * This is only a tentative draft of a possible recommendation. Its purpose is to allow the Council to focus on the issues presented in the context of the form and language of a possible Recommendation. 1 This term also includes associations. 2 State and local governments would not be included because of the “public official” exemption from the LDA. See 2 U.S.C. §1602(8)(B)(i). 1 officials in the Executive Branch with regard to specifically identified federal action (as defined in Section 3(8)(A) of the LDA) should be included within the statutory definition of “lobbying activities” for the purposes of LDA registration and reporting where the income earned by the lobbying firm or the expenditures made by the self-lobbying organization for such efforts exceed or are reasonably expected to exceed $20,000 in a reporting period. Disclosure with regard to these grassroots efforts should extend, at a minimum, to income and expense reporting (with income and expense amounts for covered grassroots efforts identified separately), along with the issues addressed by the lobbying, the name(s) of person(s) employed by the registrant who are in charge of the lobbying, and the interest of foreign entities in the issues lobbied. 2 Tab 7 See previous pages for text of the recommendations. See below for text of the report. Tab 8 MEMO To: Administrative Law and Regulatory Practice Section From: William Funk, Chair Jean Cooper Sidney Shapiro Subject: Report of the Nominating Committee Date: March 16, 2006 Your Committee has received suggestions regarding and expressions of interest from a number of highly qualified candidates for various Section positions subject to election at the Annual Meeting. Your Committee has communicated with each of the candidates and has surveyed the opinions of large numbers of Section members. On the basis of those communications and opinions, your Committee nominates the following for election to the indicated positions. Section Chair (automatic succession by operation of the bylaws) – Daniel Troy. Dan is a partner in the firm of Sidley Austin Brown & Wood in Washington, D.C. He is former Chief Counsel of the Food and Drug Administration. Dan has been a co- chair of the Constitutional Law and Separation of Powers Committee and a Member of the Section’s Council. Section Chair-Elect (automatic succession by operation of the bylaws) – Michael Asimow. Michael is a professor emeritus at the University of California at Los Angeles and co-author of a leading textbook on administrative law. He is a former liaison to the Section’s Council for State Administrative Law and a former Council Member. He is the editor and a co-author of the Section’s A Guide to Federal Agency Adjudication, the drafter of the 2005 ABA resolution on adjudication, a past chair of the Adjudication Committee, and a co-reporter for the EU administrative law project. Vice Chair – H. Russell Frisby, Jr. Russell, a graduate of Swarthmore and Yale Law School, is a partner in Kirkpatrick & Lockhart Nicholson Graham in Washington, D.C. Before joining K&LNG, Russell was the President and CEO of CompTel/ASCENT, the leading telecommunications trade association. Russell also served as Chairman of the Maryland Public Service Commission. Russell is a longstanding member of the Section, a former Budget Officer, who formerly has been the Budget Officer of the Section and currently is a Vice Chair of both Regulatory Policy Committee and the Communications Committee, as well as the Section’s representative to the ABA Commission on Racial and Ethnic Diversity in the Profession. Last Retiring Chair (succession by operation of the bylaws) – Eleanor D. Kinney. Eleanor is the Hall Render Professor of Law and Co-Director of the Center for Law and Health at Indiana University School of Law in Indianapolis. She has been a Council Member as well as chair of both the Section’s Health and Human Services Committee and its Publications Committee. Section Delegate (renomination of incumbent for a second 3-year term) – Thomas Susman. Tom, a partner at Ropes & Gray in Washington, D.C., served as Section Chair from 1991-92 and has also been a member of the ABA Board of Governors. His numerous other past Section activities include chairing its committees on Government Information and Privacy and on Legislative Process and Lobbying. Budget Officer – William Morrow. Bill is the Executive Director and General Counsel of the Washington Metropolitan Area Transit Commission. He is currently Editor-in- Chief of the Section’s Administrative and Regulatory Law News as well as a co- chair of the Section’s Interstate Compacts Project and a former chair of the Transportation Law Committee. For the past year, Bill has served as the Assistant Budget Officer. Secretary (renomination for a second one-year term) – James Conrad. Jamie is an Assistant General Counsel at the American Chemistry Council. He currently serves as co- chair of the Section’s Regulatory Policy Committee and has organized numerous educational programs for the Section. Council Members – Lisl Dunlop. Lisl is Counsel to Shearman & Stearling in New York City, where she practices in the antitrust group. Lisl received an LL.M. from Cornell University in 1997, and an LL.B. and B.Sc. from the University of Sydney in 1991. She is a co-reporter for adjudication in the EU administrative law project. Kenneth Hurwitz. Ken is a partner at Haynes and Boone in Washington, D.C. He is currently serving on the Council to fill a vacancy and is a co-chair of the Energy Committee. William Jordan. Bill is a professor of law at the University of Akron Law School. He is chair of the Judicial Review Committee and the Associate Editor for News from the Circuits in the Administrative & Regulatory Law News. Richard Parker. Richard is a professor of law at the University of Connecticut School of Law. He currently is serving on the Council to fill a vacancy and is co- chair of the Regulatory Policy Committee. AMENDED DRAFT: 4/21/2006 Tab 9 [date] Dr. Nancy Beck Office of Information and Regulatory Affairs Office of Management and Budget 725 17th Street, N.W. New Executive Office Bldg., Room 10201 Washington, D.C. Submitted via email: OMB_RAbulletin.omb.eop.gov Dear Dr. Beck: The Section of Administrative Law and Regulatory Practice of the American Bar Association is pleased to submit comments on OMB’s proposed draft “Risk Assessment Bulletin.”1 The views expressed herein are presented on behalf of the Section of Administrative Law and Regulatory Practice. They have not been approved by the House of Delegates or the Board of Governors of the American Bar Association and, accordingly, should not be construed as representing the position of the Association. In August 1999, the House of Delegate adopted a recommendation sponsored by this section proposing principles for the conduct of formal risk assessments in advance of regulatory action concerning health and safety issues.2 Since OMB’s draft risk assessment standards are generally consistent with the ABA recommendation, we support OMB’s efforts in this area. [Note: the committee is split concerning whether to retain this sentence] The following comments seek to indicate the significant and numerous points of agreement between OMB’s draft standards and the ABA recommendation and those areas where the ABA recommendation calls for a revision in OMB’s approach. Justification The legitimacy of the large and growing administrative state is based in significant part on two factors: (i) the high level of expertise of possessed by agencies, and (ii) their respect for the limits of their power imposed by statutory and executive directives. In view of the first factor, the Section believes it would behoove OMB to explain whether it believes problems are occurring within the agencies that warrant the creation of new federal risk assessment guidelines. If so, OMB should describe those problems and identify the ways in which the Bulletin addresses them. In so doing, OMB should explain why it and OSTP -- rather than the agencies -- are best suited to resolve those problems. In view of the second factor, OMB should set forth either Congress’ or the President’s expectation that OMB and OSTP should address this topic, given its scientific and technical nature and its relevance to only a subset of federal agencies. OMB should also 1 Office of Management & Budget, Proposed Risk Assessment Bulletin, 71 Fed. Reg. 2600 (2006). 2 American Bar Association, Recommendation on Risk Assessment (August, 1999). ABA OMB riskasssement comments ver7.doc clarify that, to the extent its Bulletin conflicts with an agency’s statutory mandate, the latter must govern. Risk Information The ABA recommended that agencies provide complete contextual information about risk evidence,3 and that risk assessors clearly explain the judgments that they make.4 We therefore support the clear exposition of these categories of information in risk assessments. As a general matter, we believe transparency and explanation requirements are appropriate and will improve the process of risk assessment in the federal government. We would note that OMB based these requirements on the considerable literature that supports the exposition of such information, as did the ABA in its recommendation. The ABA recommendation also indicated that “[r]isk assessment should provide scientific estimates and characterizations of the nature and magnitude of the risks posed to human health, human safety and the integrity and quality of the environment ….”5 As the ABA intended, OMB has sought to require agencies to provide scientific estimates and characterizations of the nature and magnitude of risks posed to human health, human safety and the integrity of the environment.6 The ABA recommended that “an agency should document in the administrative record both its own evaluation of a risk assessment, and whether and how it was used in its decision process.”7 OMB does not appear to require this last step, presumably because its Guidelines are focused on risk assessment and not risk management. We would ask, however, that OMB consider mandating this procedure. It is not uncommon for agencies to blur the risk assessment and risk management components of regulation, particularly when it is politically convenient for an agency to insist that it must take some action on the basis of the scientific evidence before it, when in fact the agency’s decision is based on regulatory policy and is therefore a matter of risk management.8 Flexibility The ABA recommended that “[r]isk assessment requirements must allow for flexibility in assessing the variety of relevant risks and should acknowledge that risk assessors may 3 The ABA recommended that risk assessments must explicitly acknowledge and explain the limitations of the process in terms of methodology, data, assumptions, uncertainty and variability In particular, agencies should fully disclose qualitative aspects of risk, the reasonable range of uncertainties, and the experience of variability in the populations exposed to the risk. ABA Recommendation, supra note 2, ¶1. 4 Id. ¶4 (“[r]isk assessors should identify and explain their judgments.”). 5 Id. ¶1. 6 Proposed Bulletin, supra note 1, §§V-VI. 7 ABA Recommendation, supra note 2, ¶3. 8 See Wendy E. Wagner, The Science Charade in Toxic Risk Regulation, 95 COLUM. L. REV. 1613 (1995). -2- exercise professional judgment on these matters.”9 OMB recognizes the necessity of flexibility when it requires compliance with the standards in the Bulletin “to the extent appropriate.”10 The ABA recommendation also indicates that the “amount of effort that goes into a risk assessment should be reasonable in relation to the significance and complexity of the decision, the value of additional information, and the need for expedition.”11 OMB’s proposal satisfies this suggestion, although it provides an ambiguity that deserves clarification. OMB acknowledges the level of effort should be commensurate with the importance of the risk assessment,12 and the “scope and content of the risk assessment shall be determined on the basis of the objectives of the assessment and the best professional judgment, considering the benefits and costs of acquiring additional information before undertaking the assessment.”13 But OMB adds that agencies shall consider whether the information is sufficient “considering the benefits and costs of acquiring additional information before undertaking the assessment.”14 OMB should acknowledge that, under at least some statutory mandates, agencies may interpret its statutory mandate as not obligating it to consider the costs and benefits of acquiring new information. Instead, the agency may interpret its mandate to authorize it to take action expeditiously – based only on current available information – in order to ensure the public is adequately protected. While OMB recognizes the importance of flexibility in the proposed standards, the preamble could be clearer regarding the need for flexibility. This is important because OMB defines “risk assessment” very broadly to be “a scientific and/or technical document that assembles and synthesizes scientific information to determine whether a particular hazard exists and/or the extent of possible risk to human health, safety or the environment.”15 This definition includes not only the assessment of health risks, such as the cancer, but also the assessment of safety risks, such as the risk of injury or death in an automobile accident. OMB’s broad definition is appropriate. The ABA recommendation noted, “Risk assessments can be useful across a broad range of agency programs and decisions.”16 Nevertheless, many of the techniques discussed by OMB are best used to evaluate health risks and can be unnecessary or even inappropriate to assess other types of risks, such as safety risks posed by motor vehicles or airplanes. We believe therefore that OMB could assist agencies if it identified in its preamble which techniques it considers as generally appropriate for what types of risk assessment. 9 ABA Recommendation, supra note 2, ¶2. 10 Proposed Bulletin, supra note 1, §II.1. 11 ABA Recommendation, supra note 2, ¶8. 12 Proposed Bulletin, supra note 1, §III.2. 13 Id. §III.2. 14 Id. §III.2. 15 Id. §I.3. 16 ABA Recommendation, supra note 2, ¶8. -3- Weight of the Evidence The ABA also recommended that risk assessments “should be based on careful analysis of the weight of all available evidence.”17 The reference to “all available evidence” indicates that agencies should ultimately characterize risks based on both quantitative and qualitative evidence.18 For general risk assessment, OMB articulates a similar expectation. It requires agencies to provide “a characterization of risk, qualitatively, and, wherever possible, quantitatively.”19 Moreover, it requires that risk assessments “giv[e] weight to both positive and negative studies in light of each study’s technical quality.”20 We support these provisions. We do have a question, however, concerning a “weight of the evidence” approach in the context of influential risk assessments. For influential risk assessments, where human health effects are a concern, OMB instructs agencies to determine which effects are adverse by using “the best available scientific information generally accepted in the relevant clinical and toxicological communities.”21 We assume that OMB intended that the word “scientific” should not be limited in this context to quantitative (numerical) information, but OMB has not defined the term. Because of the potential for confusion, we recommend that OMB clarify that an influential assessment of when human health effects are adverse should be based on the weight of both the qualitative and quantitative scientific evidence. Objectivity OMB’s proposed standards require risk assessments to be “scientifically objective … as a matter of substance, neither minimizing nor exaggerating the nature of the magnitude of the risks.”22 While we agree with and support this goal, we believe the Guidelines would be improved if OMB more directly addressed the issue of science policy judgments in risk assessment. The ABA recommended that the risk assessment process “should be constructed to avoid bias and political pressure” and that, “[w]here relevant, additional economic, social, and political factors that were not incorporated into the risk assessment should also be considered when risk managers make regulatory decisions.”23 This language reflected an aspiration that the risk assessment process be “objective” as well as a realization that risk assessments involve judgments which make it misleading to characterize risk assessments 17 Id. 18 The report accompanying the recommendation explained that “’scientific’ should not be read to limit risk assessment to quantitative (numerical) techniques or results.” Section of Administrative Law & Regulatory Practice, Report (August, 1999), at 8. 19 Proposed Bulletin, supra note 1, §IV.3. 20 Id. §IV.4.b. 21 Id. §V.7. 22 Id. §IV.4.a. 23 ABA Recommendation, supra note 2, ¶1. -4- as purely “objective.”24 The goal is that risk assessments should be based on “recognized risk assessment methods” and not be “merely political or rhetorical.”25 The aspiration to have an “objective” risk assessment process was captured in the Red Book’s distinction between “risk assessment” and “risk management.” Nevertheless, it is simply not possible for risk assessment to be shorn of any policy element, and to do so would be counterproductive, as a NRC committee has explained: [T]he Red Book made it clear that judgment (also referred to as risk-assessment policy or science policy) would be required even during the phase of risk assessment. The present committee concludes further that the science-policy judgments that EPA makes in the course of a risk assessment would be improved if they were more clearly informed by the agency’s priorities and goals in risk management.26 While it is not possible to eliminate the use of science policy in making risk assessments, this practice should be entirely transparent,27 as discussed earlier.28 As the NRC excerpt quoted above indicates, the conduct of risk assessments, particularly those examining health effects, requires the use of policy judgments, as for example concerning how risk assessors extrapolate the results of animal data to construct a dose- response curve for humans. These policy judgments are employed in cases where no scientific data exists that answers the precise question that the agency is seeking to answer.29 We therefore believe that OMB might clarify that its use of “objective” captures OMB’s intention that risk assessment should not be invaded by political and rhetorical elements, but it also allows for the use of risk assessment inferences based on general scientific knowledge of the phenomena in question or inferences considered by risk assessment professionals as an appropriate way to bridge uncertainties. We also have a concern about OMB’s intentions regarding the use of conservative risk assessment policies in the context of influential risk assessments. For such assessments, OMB requires the evaluation of whether a health effect is adverse to be based on “the best available scientific information generally accepted in the relevant clinical and 24 Section Report, supra note 18, at 7. 25 Id. at 8. 26 NATIONAL RESOURCE COUNCIL, SCIENCE AND JUDGMENT IN RISK ASSESSMENT 259-60 (1994). 27 Section Report, supra note 18, at 6 (“To the extent that the use of particular assumptions or the remaining uncertain are problematic, all agree that the best cure is transparency, that is, full disclosure in the process, explanation of choices, and the appropriate participation by affected parties.”) 28 See notes 3-4 & accompanying text. 29 See Environmental Protection Agency, Proposed Guidelines for Carcinogenic Risk Assessment, 61 Fed. Reg. 17,960, 17, 964 (1996): [D]efault assumptions are necessarily made in risk assessments in which data gaps exist in general knowledge or in available data for a particular agent. The default assumptions are inferences based on general scientific knowledge of the phenomena in question and are also matters of policy concerning the appropriate way to bridge uncertainties that concern potential risk to human health (or, more generally, to environmental systems) from the agent under assessment. -5- toxicological fields.”30 In its preamble, OMB states that “it may be necessary for risk assessment reports to distinguish which effects are adverse from those which are non- adverse.”31 OMB should clarify that, by its use of the word “may,” it is leaving open the possibility that an agency’s mandate might require it to focus on changes caused by toxic exposure or other disruptive activities even where those changes are “non-adverse.” A similar confusion arises concerning OMB’s description of the relationship between risk assessment and risk management. In the preamble, OMB recognizes that regulatory statutes contain a wide variety of standards that guide risk management decisions. OMB also notes, however, that in light of these statutes, risk management is … based on “acceptable risk” considerations.32 We request OMB to confirm that it is using this phrase generically, and that it is not attempting to override or preempt the diversity of standards established by various statutes; e.g., the Clean Air Act (“adequate margin of safety”) or the Resource Conservation and Recovery Act (“to protect human health and the environment”). Ranges and Central Estimates Policy judgments are employed in risk assessment for another reason. Agencies commonly employ conservative risk assessment policies when they operate under statutory mandates which require them to minimize dangers to the public.33 Again, we assume that OMB does not intend to prohibit this practice since it offers agency decision- makers useful information when they turn to risk management. As the NRC indicated, a risk assessment is more useful when it is “clearly informed by the agency’s priorities and goals in risk management.”34 At the same time, we recognize that “the use of multiple conservatism reflects a highly contested policy choice in a given risk assessment.”35 We therefore agree with OMB that risk estimates ought to include “whenever possible, a range of plausible estimates, including central or expected estimates, when a quantitative characterization of risk is made available.”36 For highly influential risk assessments, OMB requires that a risk assessment shall “[h]ighlight central estimates as well as high-end and low-end estimates or risks when such risks are uncertain.”37 Unlike the prior requirement, this requirement does not contain a “whenever possible” quantification, which may be an oversight since other provisions concerning highly influential risk assessments contain such a qualification.38 30 Proposed Bulletin, supra note 1, §V.7. 31 Id. at 20. 32 Id. at 4. 33 See, e.g., EPA Office of the Science Advisor, “Staff Paper: An Examination of EPA Risk Assessment Principles and Practices” (March 2004), at 16 (“By taking an overall public health protective stance . . . , EPA’s approach to risk assessment takes into account the variety of language found in the various statutes . . . .”), available at http://www.epa.gov/osa/pdfs/ratf-final.pdf. 34 Note 26 & accompanying text. 35 Section Report, supra note 18, at 5. 36 Proposed Bulletin, supra note 1, §IV.7.e. 37 Id. §V.3. 38 See id. §V6. (“Characterize, to extent feasible, variability ….”), §V.8 (Provide discussion, to the extent possible, …”). -6- If not, an absolute requirement is problematic since “the lack of information may be so profound that choosing a ‘best’ value is little more than a guess or hunch.”39 Likewise, “choosing an average is little better; where variability is great, a single figure can be highly misleading.”40 OMB could, however, ask agencies that fail to provide a central estimate to explain why such an estimate could not be made. Alternative Mitigation Measures and Countervailing Risks OMB requires for risk assessments that will be used for regulatory analysis that a risk assessment include “a comparison of the baseline risk against the risk associated with the alternative mitigation measures being considered, and assess, to the extent feasible, countervailing risks caused by alternative mitigation measures.”41 We believe OMB should clarify this requirement. We assume that OMB means that an agency should identify for risk assessors what regulatory options it is considering so that risk assessors can provide risk information concerning such alternatives, and that OMB does not expect risk assessors to assess as a policy matter which regulatory alternatives should be adopted. Otherwise, the Guidelines would mandate risk management procedures in the course of assessing risk. Moreover, OMB should clarify that the decision of when and whether to conduct these alternative assessments will be guided by the applicable statutory mandate. Public Participation The ABA recommended that “[p]ublic procedures associated with risk assessments should be conducted through a transparency process that allows input from and understanding of the results by persons and groups interested.”42 OMB meets this expectation when it requires that agencies “shall follow appropriate procedures for peer review and public participation in the process of preparing the risk assessment.”43 OMB also requires agencies to prepare a “response-to-comment” document which identifies significant comments on the risk assessment, and provides responses to those comments, including a “rationale for why the agency has not adopted the position suggested by commentators and why the agency position is preferable.”44 While we agree with OMB that agencies should not ignore the comments that they receive concerning a draft risk assessment, we are concerned that the preparation of a separate document has the potential to ossify an already burdened rulemaking process. Moreover, we anticipate that commentators will raise the same or similar issues in the context of commenting on a proposed rule, thereby tasking the agency with responding to the same comments twice, which is still burdensome even if the agency ends up giving the same response. 39 Section Report, supra note 18, at 5. 40 Id. 41 Proposed Bulletin, supra note 1, §III.7.b. 42 ABA Recommendation, supra note 2, ¶7. 43 Proposed Bulletin, supra note 1, §III.5. 44 Id. §V.9. -7- Based on ABA policy, the Section believes that design of risk assessment procedures must take into account the impact of such procedures on an agency’s capacity to promulgate regulations.45 From this perspective, we believe the costs associated with a separate response-to-comment document in the rulemaking setting are greater than the potential benefits. We base this conclusion on the belief that this step is unnecessary to ensure that agencies will pay sufficient attention to comments on a risk assessment which supports a final rule. If an agency ignores comments that point out serious flaws in its risk assessment, commentators during a rulemaking will point out flaws in the risk assessment. If an agency promulgates a rule based on that assessment anyway, it runs a risk of a judicial remand. An agency therefore has a significant incentive to base its rulemaking on a reasonable risk assessment. We therefore recommend that OMB limit the “response-to-comment” document requirement to situations where the risk assessment is not done in anticipation of a rulemaking process. As noted, OMB requires agencies to respond to “significant” comments in its “response to comment” document. In its preamble, OMB instructs agencies that “[s]cientific comments are presumed to be significant.”46 We suggest that OMB delete this instruction. It is unnecessary since OMB has required the agency to respond to all significant comments. Moreover, agencies are likely out of an abundance of caution not to bother to overcome the presumption, which means they will end up answering non- significant objections. Finally, it suggests the public that they do not have a valid role in the risk assessment process or not as valid of role as industry groups, which are generally in a better position to hire scientists to write their comments. By comparison, the ABA’s risk assessment recommendation suggests that agencies should reach out to the public to seek their participation in commenting on risk assessments.47 OMB’s position is inconsistent with the spirit, if not the letter, of this suggestion. Exceptions OMB exempts risk assessments performed “with respect to individual agency adjudications and permit proceedings (including a registration, approval or licensing) unless the agency determines that compliance with this Bulletin is practical and appropriate and the risk assessment is scientifically or technically novel or likely to have precedent-setting influence on future adjudications and/or permit proceedings.”48 We 45 In an analogous context , the ABA in 1991 recommended that the “President and Congress … exercise restraint in the overall number of rulemaking impact analysis” and “assess the usefulness of existing and planned impact analysis.” American Bar Association, Recommendation on Rulemaking Impact Analysis (1991). The recommendation reflected concern that multiple analysis requirements can have the “effect of stymieing appropriate and necessary rulemaking.” Section of Administrative Law & Regulatory Practice, Report Accompanying Recommendation on Rulemaking Impact Analysis (November, 1991), at 2. 46 Proposed Bulletin, supra note 1, at 20. 47 ABA Recommendation, supra note 2, ¶8 (“Particular efforts, proportional to the overall effort involved, should be made to reach persons and groups who do not have the technical expertise to use [risk assessment] materials easily.”) 48 Proposed Bulletin, supra note 1, §II.2.b -8- recognize that this language is nearly identical to that in OMB’s Peer Review Bulletin.49 We objected to this language because of its inclusion of some subset of adjudications in the proposed Peer Review Bulletin. We questioned the authority for including any adjudications, inasmuch as they are not subject to Executive Order 12866,50 the Paperwork Reduction Act,51 or OMB’s Guidelines promulgated under the Information Quality Act.52 In addition, we objected because we believed there were significant practical problems with integrating peer review into adjudications, and we provided an example of an agency adjudication before an Administrative Law Judge. We repeat our objections to the inclusion of some adjudications in the proposed Bulletin for the same reasons. Some adjudications may involve decisions for which peer review and/or risk assessment might be appropriate, but specific procedural limitations apply to various types of adjudications that may raise practical and legal problems with applying the peer review and/or risk assessment guidelines to such adjudications. For example, Section 554 of the Administrative Procedure Act prohibits an ALJ from “consult[ing] a person or party on a fact in issue, unless on notice and opportunity for all parties to participate.” Such a restriction would make it very hard for an ALJ to conduct either peer review or a risk assessment. This restriction is just one example of the possible legal problems that might be caused by imposing peer review or risk assessment requirements on adjudications. However, just as Section 554 does not apply to all adjudications and this particular language does not apply to applications for initial licenses, there may be ways to accommodate peer review and risk assessment in certain types of adjudications. Unfortunately, neither the Peer Review Bulletin nor the proposed Risk Assessment Bulletin attempts to distinguish between adjudications based upon the procedural limitations applicable to them. We suggest that OMB identify these different categories of adjudications and specify for each category whether and how peer review and risk assessment may be conducted consistent with the procedural limitations imposed on adjudications by regulation, statute, and the Constitution. Finally, we note that none of the legal problems mentioned above apply to imposing peer review and/or risk assessment requirements on an agency as a prerequisite to submitting information as a party to a proceeding to the agency decisionmaker for consideration. There may, however, be practical problems. For example, unlike in a rulemaking context, the agency historically may not have produced a risk assessment document to submit as evidence in a licensing or adjudicatory proceeding. Before OMB mandates compliance with the Bulletin by an agency concerning its participation as a party, it should consider whether and how the Bulletin should apply to different types of submissions by an agency in adjudicatory proceedings. ***** 49 See 70 Fed. Reg. 2677 (Jan. 14, 2005). 50 See §3(e) (defining regulatory action the promulgation of a rule or regulation). 51 See 44 U.S.C. §3518(c)(1)(B)(ii). 52 See OMB Information Quality Guidelines, §IV.2. (defining “dissemination” not to include information disseminated in the course of adjudicative processes). -9- We hope that these comments are useful to OMB. Thank you for consideration of our comments. Sincerely yours, Eleanor Kinney Chair - 10 - POTENTIAL AGENDA ITEMS FOR THE 2006 ANNUAL MEETING OF THE HOUSE OF DELEGATES Tab 10A OF THE AMERICAN BAR ASSOCIATION NOTE: This list includes issues that may be presented for consideration at the 2006 Annual Meeting or a future meeting of the House of Delegates. Please remember that the filing deadline for submission of Reports with Recommendations by Association entities and affiliated organizations is Wednesday, May 10, 2006. ASSOCIATION’S CONSTITUTION AND BYLAWS 1. Proposed Amendments The House’s agenda will include the following proposals to amend the Association’s Constitution and Bylaws: A) Amends §1.2 of the Bylaws to include the following language as one of the purposes of the Association: “to defend the right to life all innocent human beings, including all those conceived but not yet born.” Contact: Edward Haskins Jacobs, Jacobs & Brady, P.C., 7 Church Street, Christiansted, St. Croix, U.S. Virgin Islands 00820, Phone: 340-773-3322, Fax: 340-773-2566, E-mail: firstname.lastname@example.org. B) Amends §26.1(c) of the Bylaws to change the term of the law student member-at-large of the Board of Governors from a two-year term to a one- year term. Contact: Vicki Goodman, 23 Jonathan Morris Circle, Media, PA 19063-1069, E-mail: email@example.com. C) Amends §31.7 of the Bylaws to provide that at least two members of the Standing Committee on Ethics and Professional Responsibility must be solo practitioners and two must be employed by law firms with five or fewer lawyers; and that at least two members of the Standing Committee on Professional Discipline must be solo practitioners and two must be employed by law firms with five or fewer lawyers. Contact: Harvey B. Rubenstein, 732 Hertford Road, Wilmington, DE 19803-1618, Phone: 302-478-9009, E-mail: firstname.lastname@example.org. ______________________________ *American Bar Association, 321 N. Clark Street, Chicago, IL 60610 **American Bar Association, Washington Office, 740 15th Street NW, Washington, DC 20005-1009 1 ARMED FORCES LAW 2. U.S. Court of Appeals Urges the President of the United States and the Senate to act promptly in discharging their respective responsibilities to assure that the full complement of judges of the Court of Appeals for the Armed Forces is available as soon as possible to carry on the business of the court. Standing Committee on Armed Forces Law. Contacts: Alan K. Ruvelson, Jr., 1600 W. University Avenue, #510, St. Paul, MN 55104-3829, Phone: 651-645-9359, Fax: 651-645-6801, E-mail: email@example.com; Susan Koz*, Phone: 312-988-5604, Fax: 312-988-5628, E- mail: KozS@staff.abanet.org. ATTORNEY CLIENT PRIVILEGE 3. Government Agencies Urges the Department of Justice and other government agencies to change their policies of directly and indirectly seeking to have corporations waive the attorney- client and work product client protections. Task Force on Attorney Client Privilege. Contacts: William Ide, McKenna Long & Aldridge LLP, 303 Peachtree Street, NE, Suite 5300, Atlanta, GA 30308-3265, Phone: 404-527-4650, Fax: 404-527-4198, E- mail: firstname.lastname@example.org; Susan Daly*, Phone: 312-988-6244, Fax: 312-988- 5578, E-mail: SueDaly@staff.abanet.org. CHILDREN AND THE LAW 4. Abuse and Neglect Proceedings Adopts ABA Standards of Practice for Lawyers Representing Parents in Abuse and Neglect Proceedings to improve the quality of representation and uniformity of practice throughout the country for parents’ attorneys in child abuse and neglect cases. ABA Center on Children and the Law. Contact: Mimi Laver**, Phone: 202- 662-1736, Fax: 202-662-1755, E-mail: LaverM@staff.abanet.org. CLIENT PROTECTION 5. Model Rules for Lawyers Funds Amends Rules 1 and 10 of the ABA Model Rules for Lawyers Funds for Client Protection to primarily address issues arising from the multijurisdictional practice of law. Standing Committee on Client Protection. Contacts: Robert D. Welden, Washington State Bar Association, 2101 Fourth Avenue, 4th Floor, Seattle, WA 98121-2317, Phone: 206/727-8232, Fax: 206/727-8319, E-mail: email@example.com; John Holtaway*, Phone: 312-988-5298, Fax: 312-988-5491, E-mail: firstname.lastname@example.org. ______________________________ *American Bar Association, 321 N. Clark Street, Chicago, IL 60610 **American Bar Association, Washington Office, 740 15th Street NW, Washington, DC 20005-1009 2 CRIMINAL JUSTICE 6. DNA Evidence Adopts a new set of ABA Criminal Justice Standards to provide law enforcement, defense attorneys, prosecutors and judges detailed guidance on collecting, preserving, testing, and using DNA evidence in pretrial, trial and post-conviction criminal cases. They will also address issues relating to DNA databases, including authorized and proscribed databases, access to databases, use restrictions and destruction of DNA evidence, and expungement of DNA profiles. Criminal Justice Section. Contacts: Hon. Martin Marcus, New York State Supreme Court, 851 Grand Concourse, Bronx, NY 10451, Phone: 718-590-6364, Fax: 718-590-7296, E-mail: email@example.com; Paul Giannelli, Case Western Reserve University, 11075 East Boulevard, Cleveland, OH 44106-7148, Phone: 216-368-2098, Fax: 216-368- 2086, E-mail: firstname.lastname@example.org. DIVERSITY INITIATIVES 7. Diversity in the Educational Pipeline Encourages the ABA to work with other legal groups to improve diversity in the educational “pipeline” to our profession. Advisory Council on Diversity in the Profession. Contacts: Sharon Stern Gerstman, 50 Delaware Avenue, Buffalo, NY 14202, Phone: 716-845-9478, Fax: 716-851-3265, E-mail: email@example.com; Evett L. Simmons, Ruden McClosky et al, 145 NW Central Park Plaza, Suite 200, Port St. Lucie, FL 34986-2482, Phone: 772-873- 5900, Fax: 772-873-3104, E-mail: firstname.lastname@example.org; Cie Armstead*, Phone: 312-988-6086, Fax: 312-988-5100, E-mail: email@example.com. DOMESTIC VIOLENCE 8. Civil Protection Order Statutes Urges states, local governments, Tribal governments and territories to enact civil protection order statutes that include victims of dating violence in their definition of those to gain protection from domestic violence. Commission on Domestic Violence. Contact: Robin Runge**, Phone: 202-662-8637, Fax: 202-662-1594, E- mail: RungeR@staff.abanet.org. ______________________________ *American Bar Association, 321 N. Clark Street, Chicago, IL 60610 **American Bar Association, Washington Office, 740 15th Street NW, Washington, DC 20005-1009 3 HOMELESSNESS AND POVERTY 9. Expanding HUD’s Definition of Homelessness Urges revision of the federal definition of homelessness currently used by the U.S. Department of Housing and Urban Development as the definition is overly narrow and often improperly excludes families and children, as well as homeless people located in rural areas. Commission on Homelessness and Poverty. Contact: Amy E. Horton-Newell**, Phone: 202/662-1693, Fax: 202/638-3844, E-mail: firstname.lastname@example.org. 10. Homeless Courts Adopts core elements of successful Homeless Courts programs such as voluntary participation, due process, the role of the plea agreement and the dismissal of minor charges, and where appropriate, the reduction or dismissal of more serious charges. Commission on Homelessness and Poverty. Contact: Amy E. Horton-Newell**, Phone: 202-662-1693, Fax: 202-638-3844, E-mail: email@example.com. INDIVIDUAL RIGHTS AND RESONSIBILITIES 11. Mental Illness and the Death Penalty Calls upon each jurisdiction that imposes capital punishment to implement specific policies and procedures as it relates to mental illness. Section of Individual Rights and Responsibilities. Contact: Tanya Terrell-Collier**, Phone: 202-662-1593, Fax: 202-662-1031, E-mail: firstname.lastname@example.org. JUDICIAL CONDUCT 12. Model Code of Judicial Conduct Revises the ABA Model Code of Judicial Conduct and proposes both format and substantive changes to the present Code which include jury debriefing, specialized courts, ex parte communications, disqualifications, misuse of the prestige of judicial office, affiliation with discriminatory organizations, the acceptance and reporting of gifts, reimbursements and expense waivers and political activities of judges and judicial candidates. Joint Commission to Evaluate the Model Code of Judicial Conduct. Contacts: Mark I. Harrison, Osborn Maledon PA, Suite 2100, 2929 N. Central Avenue, Phoenix, AZ 85012, Phone: 602-640-9324, Fax: 602-640-6049, E- mail: email@example.com; George Kuhlman*, Phone: 312-988-5300, E-mail: firstname.lastname@example.org. (Will likely be submitted for consideration at the 2007 Midyear Meeting.) ______________________________ *American Bar Association, 321 N. Clark Street, Chicago, IL 60610 **American Bar Association, Washington Office, 740 15th Street NW, Washington, DC 20005-1009 4 LEGAL AID AND INDIGENT DEFENDANTS 13. Access to Civil Justice A) Urges state, territorial and federal jurisdictions to provide counsel as a matter of right at public expense to low income persons in those categories of adversarial proceeding where basic human needs are at stake, such as those involving shelter, sustenance, safety, health or child custody. Task Force on Access to Civil Justice. Contacts: Howard H. Dana, Jr., Maine Supreme Judicial Court, Cumberland County Courthouse, 142 Federal Street, P.O. Box 368, Portland, ME 04112, Phone: 207-822-4175, Fax: 207-822-4145, E- mail: email@example.com; Terry Brooks*, Phone: 312-988-5747, Fax: 312-988- 5483, E-mail: TJBrooks@staff.abanet.org. B) Adopts the Principles of a State System for the Delivery of Civil Legal Aid, which describe a state or territory system for the delivery of civil legal aid that provides a full-range of high quality, coordinated and uniformly available civil law-related services to the state’s or territory’s low-income and vulnerable populations in sufficient quantity to meet their civil legal needs. Task Force on Access to Civil Justice. Contacts: Howard H. Dana, Jr., Maine Supreme Judicial Court, Cumberland County Courthouse, 142 Federal Street, P.O. Box 368, Portland, ME 04112, Phone: 207-822-4175, Fax: 207-822-4145, E- mail: firstname.lastname@example.org; Terry Brooks*, Phone: 312-988-5747, Fax: 312-988- 5483, E-mail: TJBrooks@staff.abanet.org. 14. Standards for Providers of Civil Legal Aid to the Poor Revises the Standards for Providers of Civil Legal Aid to the Poor which will address the many changes that have occurred in the practice of legal services for the poor over the past 20 years and sets forth best practices of organizations that provide high-quality civil legal services to the poor. Standing Committee on Legal Aid and Indigent Defendants. Contacts: William O. Whitehurst, Jr., Whitehurst Harkness Ozmun & Brees, P.O. Box 1802, Austin, TX 78767-1802, Phone: 512-476-4346, Fax: 512-476-4400, E-mail: email@example.com; Terry Brooks*, Phone: 312-988-5747, Fax: 312-988- 5483, E-mail: TJBrooks@staff.abanet.org. ______________________________ *American Bar Association, 321 N. Clark Street, Chicago, IL 60610 **American Bar Association, Washington Office, 740 15th Street NW, Washington, DC 20005-1009 5 LITIGATION 15. Darfur Resolution Calls upon the United States Government to end the ongoing atrocities and to provide humanitarian assistance in the Darfur province of the Sudan and eastern Chad, and to support the efforts of the International Criminal Court, the United Nations, and the African Union toward the same goals. Section of Litigation. Contact: Jerome C. Roth, Munger Tolles & Olson LLP, 560 Mission Street, San Francisco, CA 94105-2989, Phone: 415-512-4010, Fax: 415-512-4077, E-mail: Jerome.firstname.lastname@example.org. 16. Draft Expert Reports Adopts Federal and State Rules of Procedures so that draft expert reports and communications between an attorney and an expert regarding the expert’s report are protected as attorney work product and not discoverable. Section of Litigation. Contacts: Jeffrey J. Greenbaum, Sills Cummis Epstein & Gross P.C., One Riverfront Plaza , Newark, New Jersey 07102 , Phone: 973-643-5430, Fax: 973-643-5475, E- mail: email@example.com; Loren Kieve, Quinn Emanuel, 50 California Street, San Francisco, CA 94111-4624, Phone: 415-875-6320, Fax: 415-986-5707, E-mail: firstname.lastname@example.org; Michael P. Lynn, Lynn Tillotson & Pinker LLP, Ste 1400, 750 N St Paul, Dallas, TX 75201-3242, Phone: 214-981-3801, Fax: 214-981-3839, E-mail: email@example.com. 17. Inadvertent Privilege Waiver Urges adoption of principles to address the inadvertent disclosure of privileged material. Section of Litigation. Contacts: : Jeffrey J. Greenbaum, Sills Cummis Epstein & Gross P.C., One Riverfront Plaza , Newark, New Jersey 07102 , Phone: 973-643-5430, Fax: 973-643-5475, E-mail: firstname.lastname@example.org; Loren Kieve, Quinn Emanuel, 50 California Street, San Francisco, CA 94111-4624, Phone: 415-875-6320, Fax: 415-986-5707, E-mail: email@example.com; Michael P. Lynn, Lynn Tillotson & Pinker LLP, Ste 1400, 750 N St Paul, Dallas, TX 75201-3242, Phone: 214-981-3801, Fax: 214-981-3839, E-mail: firstname.lastname@example.org. PARALEGALS 18. Paralegal Education Programs Grants approval, reapproval, withdrawal of approval, and/or extension of the term of approval to several paralegal education programs. Standing Committee on Paralegals. Contact: Peggy C. Wallace*, Phone: 312-988-5618, Fax: 312-988-5483, E-mail: email@example.com. ______________________________ *American Bar Association, 321 N. Clark Street, Chicago, IL 60610 **American Bar Association, Washington Office, 740 15th Street NW, Washington, DC 20005-1009 6 PROFESSIONAL DISCIPLINE 19. General Agreement on Trade in Services (GATS) Supports the efforts of the U.S. Trade Representative to encourage adoption of transparency Disciplines on Domestic Regulation in response to Article VI(4) of the General Agreement on Trade in Services which requires the adoption of “any necessary disciplines”. Standing Committee on Professional Discipline. Contact: Ellyn S. Rosen*, Phone: 312-988-5311, Fax: 312-988-5491, E-mail: firstname.lastname@example.org. RENAISSANCE OF IDEALISM 20. Pro Bono Activities Urges legal employers, law schools and bar associations to adopt best practices that make it possible for attorneys to participate in pro bono activities. Commission on Renaissance of Idealism in the Legal Profession. Contacts: Mark D. Agrast, Center for American Progress, 1333 H Street, NW, 10th Floor, Washington, D.C. 20005, Phone: 202-682-1611, Fax: 202-682-1867, E-mail: email@example.com; Steven B. Scudder*, Phone: 312-988-5768, Fax: 312-988-5483, firstname.lastname@example.org. SUBSTANCE ABUSE 21. Insurance Coverage Urges state, territorial and local legislative bodies and government officials to adopt laws that require insurers to provide coverage for the treatment of alcohol or other drug disease personalized to each patient and based on the best scientific protocols and standards of care. Standing Committee on Substance Abuse. Contact: Valerie A. Adelson**, Phone: 202/662-1784, Fax: 202/662-1787, E-mail: email@example.com. ______________________________ *American Bar Association, 321 N. Clark Street, Chicago, IL 60610 **American Bar Association, Washington Office, 740 15th Street NW, Washington, DC 20005-1009 7 MEMORANDUM Tab 10B TO: Section of Administrative Law and Regulatory Practice FROM: Section Delegates Judy Kaleta and Tom Susman SUBJECT: 2006 Midyear Meeting of the American Bar Association and Meeting of the House of Delegates DATE: March 13, 2006 _____________________________________________________________________ REPORT ON THE ABA MIDYEAR MEETING The 67th Midyear Meeting of the American Bar Association (the “ABA”) was held February 8-13, 2006, at the Hyatt Regency Chicago Hotel, in Chicago, Illinois. Wide varieties of programs were sponsored by committees, sections, divisions, and affiliated organizations. The House of Delegates met for a one-day session. The Nominating Committee also met. The Nominating Committee sponsored a “Meet the Candidates” Forum on Sunday, February 12, 2006. The following candidates seeking nomination at the 2007 Midyear Meeting gave speeches to the Nominating Committee and to the members of the Association present: H. Thomas Wells, Jr. of Alabama, candidate for President-Elect for 2007-08 term; Judge Bernice B. Donald of Tennessee, candidate for Secretary for 2008- 2011 term (to serve as Secretary-Elect in 2007-08); and James Baird of Illinois, and Alice E. Richmond of Massachusetts, candidates for Treasurer for 2008-2011 term (to serve as Treasurer-Elect in 2007-08). THE HOUSE OF DELEGATES The House of Delegates of the American Bar Association (the “House”) met on Monday, February 13, 2006, Stephen N. Zack of Florida, presided as Chair of the House. The Chicago Police Department presented the colors. The invocation for the House was delivered by Marna S. Tucker of Washington, DC. The Chair of the House Committee on Credentials and Admissions, Stephen L. Tober of New Hampshire, welcomed the new members of the House. Deceased members of the House were named by the Secretary of the Association, Armando Lasa-Ferrer of Puerto Rico, and were remembered by a moment of silence. James Silkenat of New York spoke about Victor Futter of New York, former member of the 1 House of Delegates, who passed away. President-Elect Karen Mathis of Colorado gave remarks in remembrance of Burnham “Hod” Greeley of Hawaii, former member of the Board of Governors. Mr. Futter and Mr. Greeley will be greatly missed. The House again did not use electronic voting in order to conserve ABA resources. For more details of the House meeting, see the following two-part report of the House session. The first part of the report provides a synopsis of the speeches and reports made to the House. The second part provides a summary of the action on the recommendations presented to the House. I. SPEECHES AND REPORTS MADE TO THE HOUSE OF DELEGATES Statement by the Chair of the House Chair Zack reminded members that the Midyear Meeting was being held in Chicago this year instead of New Orleans, due to the devastation of Hurricane Katrina and expressed the House’s concern for the people of the affected states and their attorneys. He encouraged members of the House to read the ABA's Report on Katrina, and applauded the exemplary work done by the Task Force on Hurricane Katrina, chaired by former ABA President N. Lee Cooper of Alabama. Chair Zack encouraged members of the House to invite their families and friends to attend the Hurricane Task Force forum at 11AM. The forum will have presentations from the Presidents of the Louisiana, Alabama, Florida, Mississippi and Texas Bar Associations. Their presentations will describe what the ABA has done and the great amount of work remaining to be done. The Chair noted that the Fund for Justice and Education is the educational arm of the Association and that charitable contributions are needed to fund the critical activities of the Association. The ABA Legal Opportunity Scholarship Fund, which provides scholarships to minority law students as part of the ABA’s initiative to encourage and support diversity in the legal profession, is an FJE project. Chair Zack recognized and thanked the entities who had contributed to the scholarship fund. He requested that all members of the House who have not already donated to the FJE to do so and to ask others in the ABA to do so as well. He reminded members that ABA Day in Washington is scheduled for May 3 – 4, 2006, and that by participating, members of the ABA can help persuade senators and representatives of the importance of the governmental priorities of the Association, and particularly show a united front for the states affected by Hurricane Katrina. He reminded members of the House that the personal contact of an ABA member is an integral part of the success of the lobbying efforts of the ABA. 2 House members were reminded of Karen Mathis’ appointments process for 2006-07 and that the deadline for submitting applications is March 1, 2006. Applications must be submitted electronically through the ABA’s website. Chair Zack announced that the House will elect a member to the Committee on Scope and Correlation of Work at the 2006 Annual Meeting for a five-year term beginning at the conclusion of that meeting. The members of the Scope Nominating Committee are: Stephen N. Zack of Florida, Joseph D. O’Connor of Indiana, Judge Norma L. Shapiro of Pennsylvania, J. Anthony Patterson of Texas, and Christopher L. Griffin of Florida. Those interested in serving on the Committee on Scope and Correlation of Work were asked to submit applications by March 17, 2006 to any member of the Scope Nominating Committee. Statement by the Secretary Armando Lasa-Ferrer of Puerto Rico, Secretary of the Association, moved approval of the House of Delegates Summary of Action from the 2005 Annual Meeting, which was unanimously approved by the House. On behalf of the Board of Governors, Secretary Lasa-Ferrer presented and referred the House to Report Nos. 177 and 177A, the Board’s Informational and Transmittal Reports to the House, and Report No. 177C regarding the Association’s legislative priorities. Statement by the ABA President In his remarks to the House, President Michael S. Greco of Massachusetts, discussed the respect and gratitude shown to the ABA and American lawyers by lawyers around the world for the Association’s efforts to promote the rule of law and stable legal and judicial systems. He highlighted the outstanding work of the ABA Center for Rule of Law Initiatives and its constituent entities, including the November 2005 International Rule of Law Symposium. President Greco provided Delegates with updates on his five major ABA initiatives: (1) the Commission on Renaissance of Idealism in the Legal Profession, which is working to promote pro bono and public service work by lawyers; (2) the ABA Task Force on Access to Civil Justice, which is exploring the idea of a defined right to counsel for low- income Americans in serious civil matters that threaten the integrity of shelter, family and health; (3) the ABA Commission on Civic Education and the Separation of Powers, which is working to improve civic education for young people and adults on the roles and responsibilities of each branch of government; (4) the ABA Task Force on Domestic Surveillance in the Fight Against Terrorism, which presented a report with recommendations regarding the Administration’s warrantless wiretapping program, (which subsequently was adopted overwhelmingly by the House (see Report 302)); and (5) the ABA Task Force on Hurricane Katrina, which is calling on lawyers nationwide to remain committed to providing pro bono legal services for victims of last season’s hurricanes. 3 President Greco also commended and discussed the work of the Standing Committee on Federal Judiciary, the Task Force on Attorney-Client Privilege, the Center for Diversity Initiatives, the Commission on Mental and Physical Disability Law, and the Commission on Immigration. He concluded by urging the House to support the proposed dues increase as a necessary step to maintain and enhance the health and vitality of the Association. Statement by the Treasurer The Treasurer, Wm. T. Robinson III of Kentucky, referred the House to his detailed written report, and then reported on the following: Current ABA finances are healthy and lean. Volunteer leadership, working closely with staff, has worked hard to reduce expenses over the past 4 years to avoid increasing member dues. For example, actual expenditures for FY 02-03 were $104 million. This year’s budgeted expenditures are $105 million, just a 1% increase over a 4-year period. The ABA has cut all that it can. In order to continue the good work of the Association, additional resources are required. The ABA has no deficit that the requested dues increase is needed to cover. The Permanent Reserve has increased from a recent low of $24 Million to the current $37 Million and the Association’s debt ratio is a very healthy 1 to 5, debt to assets. Internal controls have been enhanced, a hot line implemented for our employees and the Audit Committee has been expanded and strengthened. All ABA employees have received ethics training and have “signed off” on new Business Conduct Standards. The process for developing Resolution 177B was “bottom up” and “volunteer driven.” The Membership Committee worked closely with the new Pricing Strategy Advisory Committee and Resolution 177B was not finalized until it had also been fully vetted and unanimously approved by both the Finance Committee and the Board of Governors. The innovative dues proposal for membership years 1-9 and the proposal for pilot projects will provide unprecedented data that is needed to plan for the future of the Association. Creative dues initiatives will enhance the Strategic Plan, recently proposed by the Standing Committee on Membership and accepted at this meeting by the Board of Governors. The overriding goal is to avoid cutting ABA programs. Approval of this dues increase by the House of Delegates is critical for the continued, financial health and vitality of the Association. In addition to his report, Mr. Robinson shared a video presentation that was shown to the Board of Governors. This video, among other things, noted the various goals of the ABA: 1) to be the national voice of the profession, 2) to help lawyers to do their work better through the many commissions and committees that have been established, 3) to educate the public, through its publications and commissions, 4) to improve the law itself; 5) to promote the full and equal participation of people of color, women, and people with disabilities; 6) to promote the rule of law throughout the worlds, and 7) to set and maintain the standards of law schools throughout the country. 4 Statement by the Executive Director Robert A. Stein of Illinois, Executive Director and Chief Operating Officer of the ABA, reported that the state of the Association was excellent. He thanked everyone for coming to Chicago in February for the Midyear Meeting in good spirits. The Midyear Meeting had been successful in every way, with excellent attendance. The membership news is very good. At the end of January, membership totals were 5,000 ahead of last year on the same date. Significantly ahead were lawyer members in class seven--who have been in practice for 10 or more years--and who pay the highest proportion of dues. A clearer picture of this year's membership will emerge after February 28, when members from the previous year who have not paid their dues in the current year will be dropped. Mr. Stein reported that an all out effort was being made to set a new all- time record high in total membership in his last year as Executive Director. Dues revenue collected is also $300,000 ahead of last year at the end of January. Numerous advances have occurred in the ABA's use of technology. Almost every week a new application has been rolled out using the powerful state of the art technology systems. Three recent highlights were noted: 1) A new Google search engine has been installed to improve searches for information on the ABA’s Website; 2) A new feature on the Web site is "My ABA", a member profile page giving members a complete listing of their information, including contact information, section and committee memberships, and meetings they have registered to attend; and 3) A new order management system has been installed, whereby any order received by the ABA will be sent by 5pm the same day. Some Senior Manager staff changes to note: 1) Hewett "Bucky" Askew, Director of the Office of Bar Admissions for the State Bar of Georgia, has been appointed the ABA's Consultant on Legal Education, with responsibility for directing the ABA's Law School Accreditation Process; and 2) Danial Kim, Editor and Publisher of the ABA Journal, has left the ABA to accept a position with the Detroit Newspapers. A search is underway for his successor. Remarks Regarding Model Code of Judicial Conduct Mark I. Harrison of Arizona, Chair of the Commission to Evaluate the Model Code of Judicial Conduct, reported on the following: He noted that the current review of the Code of Judicial Conduct is the first comprehensive review of the Code that has occurred in more than 15 years. The Commission, assisted by an able group of Advisors, has been working hard for the past two and a half years. The Commission and Advisory Group, which has held more than 40 meetings and teleconferences, including 14 in-person meetings, are comprised of judges, lawyers, academics, a judicial discipline administrator and a public member. He noted that the Commission has also been substantially assisted in its work by two Reporters, Professors Charles Geyh and W. William Hodes as well as by members of the staff of the ABA Center for Professional Responsibility. In addition, as its work progressed, the Commission worked closely with the ABA Judicial Division and with the Conference of Chief Justices. Mr. Harrison noted that the Commission will submit a final 5 draft of the revised Code of Judicial Conduct for action by the House of Delegates in August at the Annual Meeting in Hawaii. He reported that to date there have been ten public hearings and comments submitted by 300 individuals and groups. The final draft of the Commission's report is on the ABA Center for Professional Responsibility’s website, and public comments will be taken until March 15, 2006. Presentation on Effects of Hurricanes Katrina and Rita on the Administration of Justice Former ABA President N. Lee Cooper, Chair of the Task Force on Hurricane Katrina, began the presentation by reporting that one of the ABA’s mottos is justice, and as a result of the work of the task force, it is not “just us”, it is justice! Melissa Pershing, the Executive Director of the legal services organization from Alabama, presented a slide show which demonstrated the ravaging effects of the hurricane. She noted that thousands of cases have been heard, and praised the lawyers who helped provide the much needed legal services. She praised the law schools, bar associations and foundations throughout the nation who helped provide legal services, and trained those individuals providing legal services. She noted that rebuilding would take years….that ongoing support will be needed. LSC funding will impact the legal services that are needed. And on a final note: a disaster such as this will happen again, and coalitions and planning must occur so that everyone can be safer. She asked, in fact implored the House to make the ABA and the legal profession’s “shout out” heard by our Congress, and our legislators. Joy Phillips, president of the Mississippi Bar reported on her state’s devastation. She reported that about one thousand attorneys have been affected. She noted that some courts are being held in trailers, and they haven’t been able to have jury trials because they can’t get jury pools together. She reported that a Katrina Lawyer’s assistance fund has been set up, and more than 38 state bars and foundations have donated over $350,000. The Mississippi Bar acted as a clearinghouse for information and inquiries. Out of state attorneys provided assistance, and the Mississippi Supreme Court entered an order to extend deadlines and statutes of limitations. She asked the ABA for help, and reported that they were under-funded, and asked the ABA to remember Mississippi on ABA Day. She reported that the tax bases have been lost, and help is needed desperately! She invited section leaders, state bar leaders, to view the devastation. Mississippi needs the ABA’s political clout and support, and she implored the ABA for help. Frank Neuner, president of the Louisiana State Bar Association, spoke and noted that the Bar Leadership Institute didn’t prepare him for this. He noted that the second largest city in Louisiana is Houston Texas, and he thanked the president of the State Bar of Texas for his help. He reported that New Orleans, which was once the largest city in Louisiana, is now the fourth largest city in Louisiana. The State Bar of Texas sent staff members to man the bar offices for help. He noted that 52% of Louisiana lawyers have been displaced, and noted that there have not been criminal trials in Orleans Parish or St. Bernard Parish since the hurricane. He reported that three funds were set up: 1) a relief 6 fund for lawyers, 2) a relief fund to man a call center for the public, and 3) a relief fund to aid the legal infrastructure, because courts don’t have the funds or the infrastructure to recover. He noted that the Louisiana Bar is housing some courts, and some public defenders. He implored members to come to New Orleans and the gulf coast to visit to witness the devastation first hand. He thanked the ABA for all of its support. He received a standing ovation from the House. Eduardo Roberto Rodriguez, president of the State Bar of Texas spoke. He noted that Texas immediately established a task force to help the Louisiana State Bar. He reported that in addition to the help that the Texas State Bar Staff provided to the Louisiana Bar, homes and offices were offered and provided by Texas lawyers. He reported that 250,000 evacuees were taken in by the state of Texas. He stated that there were two main things that can be learned from this disaster: 1) just because one doesn’t live on the coast of a country, doesn’t mean that a disaster can’t occur; go to your state bars and start getting prepared for a disaster; and 2) all attorneys need to recognize that the disaster is just now affecting the legal profession, since FEMA funds are drying up. Evacuees, legal service providers and lawyers in Louisiana need assistance, since they have no where to go to get started again. He reminded us that when a disaster occurs, we should be generous, and reminded us that we need to remember that in six months or a year, the needs will still be there. He reported that it is only lawyers who will be able to help their colleagues get started again. Alan Bookman, president of the Florida Bar spoke. He reported that he was born and raised in New Orleans, and his family home is gone. He is happy to report that 90% of the students at Tulane Law School have come back to school, after being closed for the fall semester. He lives in Pensacola, and reported that in 2004, they were hit by Hurricane Ivan, and that 55,000 people were homeless. He reported that all of that pales in comparison to the devastation of Hurricane Katrina. He urged us all to go back to our states and our bar associations and set up disaster plans. He reported that that which a bar plans for will not be enough, because we can’t understand and appreciate the magnitude of a disaster. Chair Zack concluded the presentation by thanking all of the participants and the House applauded their efforts. The Katrina Forum was a deeply moving presentation that the House will always remember. Report of the Nominating Committee The Nominating Committee met on Sunday, February 12, 2006. On behalf of the Committee, James R. Silkenat of New York, Chair of the Steering Committee of the Nominating Committee, reported on the following nominations for the terms indicated: Officers of the Association 7 President-Elect (2006-2007) William H. Neukom of Washington Chair of the House of Delegates (2006-2008) Laurel G. Bellows of Illinois Members of the Board of Governors (2006-2009) DISTRICT MEMBERS District 3: Wayne J. Positan of New Jersey District 5: Larry S. McDevitt of North Carolina District 9: Charles A. Weiss of Missouri District 14: Laurie D. Zelon of California District 15: Bettina B. Plevan of New York District 16: W. Scott Welch III of Mississippi District 17: William P. Curran of Nevada SECTION MEMBERS-AT-LARGE Section of Health Law E. Paul Herrington III of Kentucky Section of Law Practice Management Gary Munneke of New York MINORITY MEMBER-AT-LARGE Anthony N. Upshaw of Florida JUDICIAL MEMBER-AT-LARGE Louraine C. Arkfeld of Arizona YOUNG LAWYER MEMBER-AT-LARGE Matthew L. Nelson of California Remarks by President-Elect Nominee Neukom William H. Neukom of Washington, President-Elect Nominee addressed the House of Delegates, and thanked the Nominating Committee, the House of Delegates, his Washington State Delegation, and his law firm, Preston, Gates & Ellis. He particularly thanked three law partners of long standing who are dear friends and have been role models: Bill Gates, Larry Bailey and David Tang. He also thanked his many mentors and 8 heroes among the ABA, and his family who have provided five generations of guidance and support. He reminded the House of the saying by Sir Isaac Newton: that if he has seen farther than others, it is because he has stood on the shoulders of giants, which is what the American Bar Association and the legal profession is comprised. Mr. Neukom stated that the American Bar Association is an enduring institution which has progressed from an era of surviving, to an era of competing, to an era of excelling, and now the American Bar Association is poised on the threshold of an era of leading – leading a movement toward communities of equity, opportunity and merit. To further that end, the ABA must be a welcoming, inclusive and diverse fellowship of lawyers who come together to improve our skills, our profession, the legal process, and our communities. We can accomplish most when we provide a big tent filled with round tables for informed deliberation. He reiterated his themes for the year: 1) enhancing lawyer skills and a joint commitment to the learned practice of law; 2) broadening our perspectives as “useful citizens;” and 3) embracing and promoting the rule of law with its essential elements of access and independence. He promised to be a good leader of the stewardship of this organization, and invited members of the American Bar Association in doing this important work. II. RECOMMENDATIONS VOTED ON BY THE HOUSE A brief summary of the action taken on recommendations brought before the House follows. The recommendations are categorized by topic areas and the number of the recommendation is noted in brackets. ADMINISTRATIVE LAW  On behalf of the Section of Administrative Law and Regulatory Practice, Thomas M. Susman, Delegate from Washington, D.C., moved revised Report 112 urging the Attorney General of the United States to issue a memorandum to Freedom of Information Act (FOIA) officials at federal agencies clarifying that the designation of agency records as “sensitive but unclassified” cannot be a basis for withholding agency documents from release. The recommendation was approved as revised. ASBESTOS-RELATED MATTERS 9 [106A] On behalf of the Tort Trial and Insurance Practice Section, Mitchell A. Orpett, Delegate from Illinois, moved Report 106A, recommending that any legislation establishing an administrative process in lieu of state, territorial or federal tort-based asbestos-related claims should insure access by claimants to adequate representation in the claims process. Leo Jordan of New Jersey, presented the resolution to the House. Robert Weiner, Delegate from Washington, D.C., spoke in opposition to the resolution. Michael Rosenberg, Delegate from Wisconsin, spoke in support. The recommendation was approved. [106B] On behalf of the Tort Trial and Insurance Practice Section, Mitchell A. Orpett, Delegate from Illinois, moved revised Report 106B, recommending that any legislation establishing an administrative process in lieu of state, territorial or federal tort-based claims should: 1) insure that awards to claimants not be depleted by subrogation from any private or governmental entity, 2) apply existing laws concerning taxation of awards to claimants (which generally are not subject to taxation), and 3) not unduly foreclose independent claims existing under state, territorial or federal law relating to safety or other obligations of employers. Leo Jordan of New Jersey presented the resolution to the House. The recommendation was approved as revised. [106C] On behalf of the Tort Trial and Insurance Practice Section, Mitchell A. Orpett, Delegate from Illinois, moved Report 106C, recommending that any legislation establishing an administrative process in lieu of state, territorial or federal tort-based asbestos-related claims should contain specific provisions to insure adequate upfront financing and disclosure of certain information concerning contributors. Leo Jordan of New Jersey, presented the resolution to the House. Robert Weiner, Delegate from Washington, D.C., spoke in opposition to the resolution. Michael Rosenberg, Delegate from Wisconsin, spoke in support. The recommendation was approved. [106D] On behalf of the Tort Trial and Insurance Practice Section, Mitchell A. Orpett, Delegate from Illinois, moved Report 106D, recommending that any legislation establishing an administrative process in lieu of state, territorial or federal tort-based asbestos-related claims should contain specific contingent provisions to respond to any potential occurrence of a shortfall of funds. Leo Jordan of New Jersey, presented the resolution to the House. The recommendation was approved. DISPUTE RESOLUTION  On behalf of the Section of Dispute Resolution, James Alfini, Delegate from Texas, moved revised Report 109 supporting the use of federal consent decrees as an important tool for resolving litigation and opposing legislation that limits the efficacy of consent decrees when state, local or territorial governments are parties thereto, such as those proposed in S. 489 and H.R. 1229. The recommendation was approved as revised. DOMESTIC SURVEILLANCE 10  On behalf of the Task Force on Domestic Surveillance in the Fight Against Terrorism, Neal R. Sonnett, Delegate from Florida moved revised Report 302 calling upon the United States President to abide by the U.S. Constitutional system of checks and balances, and respect the roles of Congress and the judiciary and opposing any future electronic surveillance that does not comply with FISA. The resolution also calls on Congress to conduct an investigation into the procedures for surveillance. It was reported that there were many salmon slips filed in support of this resolution. Speaking in opposition was Anthony Palermo, Delegate from New York, who noted that although he approved the content of the report in general, he had some problems with the substance of the report, in that the report was submitted too late, and he noted that this report was only available for the members of the House to view and peruse at today’s meeting. Mark Agrast, Delegate from Washington D.C., noted in response to this position that this recommendation is in response to an emergency situation. Mark Alcott, president of the New York State Bar Association, offered an amendment to the resolution. He moved to amend (motion was seconded) the resolution by deleting the third “resolved” clause, because he believes it asks Congress to interpret the law, and to interpret what the law means, which is not the role of Congress, it is the role of the judiciary. Neal Sonnett spoke in opposition to the amendment, stating that since Congress passed FISA, since they have amended it five times in the past, that this is the appropriate body to interpret this statute and to clarify what this statute means. A vote on the amendment was taken, and the motion failed. President Greco spoke in support of this resolution stating that every once in a while, the House is sent a recommendation by the American people, who are deeply concerned about secret surveillance. He noted that this is one of those moments in our history, and noted that the issue is not whether one can conduct secret surveillance, but whether the President can unilaterally conduct secret surveillance. He noted that this surveillance should be conducted by two branches of government: the Executive and the Legislative. He asked for unanimous support from the House for this resolution. The recommendation was approved as revised. A motion to reconsider was proposed by Cheryl Niro, Delegate from Illinois, who proposed to amend line 15 to add the phrase “was not intended to” in place of “did not”. The motion to reconsider failed. DUES INCREASE 11 [177B] On behalf of the Board of Governors, Treasurer Wm. T. Robinson III of Kentucky moved Report 177B recommending that membership dues be increased by approximately 17% to be effective with Fiscal Year 2006-07 and further recommending that limited testing of new dues pricing concepts be allowed. He reported that the ABA needs a dues increase so that the many fine and excellent programs that the ABA provides to its members and for the benefit of the public will not be cut. He reported that the strategic plan for membership is an excellent proposal, and that this dues increase will see that this plan comes to fruition. Speaking in opposition was Joanne A. Epps of Pennsylvania, Delegate representing the Section of Litigation. She acknowledged that there is no dispute nor denigration intended in the report of the Treasurer. She reported that history has shown that if dues are raised, it has the potential to lose members. She believes that perhaps the ABA should change what the organization does, and that perhaps we ought to look at the ABA’s core mission to determine if we are doing what we should be doing, and should continue doing. Speaking in favor of the resolution was the immediate past treasurer, Allan Joseph of California. He noted that if the ABA had stayed on the same expense trajectory that it has been on, they would have spent in excess of $17 Million. Speaking in opposition was Lawrence J. Fox, Delegate from Pennsylvania representing Litigation. He noted that the membership has literally been stagnant for the past ten years. He opposes increasing revenues by increasing dues. He believes that perhaps we shouldn’t be cutting programs, but should focus on representing the profession in the future, which cannot be helped by raising dues. Maury Poscover, Delegate from Missouri, and Chair of the Standing Committee on Membership, Christina Plum of Wisconsin, Chair of the Young Lawyers Division, Mary Pat Toups, Delegate from California, and President Greco also spoke in favor of the resolution. It was noted that there were several salmon slips filed in support of the resolution. The recommendation was approved. ELECTRONIC CASE FILING  On behalf of the General Practice, Solo and Small Firm Division, Amelia Boss, Delegate from Pennsylvania, moved Report 301 recommending the United States Bankruptcy Courts in each federal district permit attorneys who have received electronic case filing (ECF) training in any district to file documents electronically in bankruptcy cases in any other district. The recommendation was approved. FAMILY LAW  On behalf of the Section of Family Law, Timothy B. Walker, Delegate from Colorado, moved revised Report 102 opposing legislation and policies that prohibit, limit or restrict placement into foster care of any child on the basis of sexual orientation of the proposed foster parent when such foster care placement is otherwise appropriate under the applicable law of state, territory or tribe. The recommendation was approved as revised. HURRICANES KATRINA AND RITA 12 [106E] The Tort Trial and Insurance Practice Section submitted Report 106E, supporting the principle that emergency preparedness plans should take into account the needs of individuals with household pets or service animals as an essential part of the response to any disaster or emergency situation. The recommendation was withdrawn and incorporated into revised Report 305.  On behalf of Tort Trial and Insurance Practice Section (“TTIPS”), James F. Carr, Delegate from Colorado moved revised Report 305 urging Congress to investigate the response of the federal government to Hurricanes Katrina and Rita and urging state governments in the states affected by these hurricanes to explore mitigation efforts for future natural disasters. Sandra McCandless, Chair of TTIPS, spoke in favor of the resolution. It was noted that Resolution 106(E) was incorporated in this revised resolution. There were several salmon slips filed in support of the resolution. The recommendation was approved as revised. IMMIGRATION [107A] On behalf of the Commission on Immigration, Robert J. Grey, Jr. of Virginia, Immediate Past President, moved Report 107A supporting the due process right to counsel for all persons in removal proceedings and the availability of legal representation to all non-citizens in immigration related matters. President Grey noted that our nation needs to represent the highest ideals of our justice system, and if we are to preserve a safe haven for all in this country, and to promote and support the rule of law, this resolution must be passed. Many salmon slips were filed in support of this resolution. The recommendation was unanimously approved. [107B] On behalf of the Commission on Immigration, Donald Kerwin, Delegate from Washington, D.C., moved Report 107B supporting a regulated, orderly and safe immigration system that promotes national security, addresses the undocumented population, need for immigrant labor, value of family reunification, and the need for an effective enforcement strategy; and supporting lawful permanent residence and citizenship for undocumented persons who entered the United States as minors and have significant ties to the United States. The recommendation was approved. [107C] On behalf of the Commission on Immigration, Robert E. Juceam, Delegate from New York, moved Report 107C urging an administrative agency structure that will provide all non-citizens with due process of law in the processing of their immigration applications and petitions, and in the conduct of their hearings or appeals, by all officials with responsibility for implementing U.S. immigration laws. The recommendation was approved. IMMIGRATION (cont.) 13 [107D] On behalf of the Commission on Immigration, Don Bivens, Delegate from Arizona, moved Report 107D supporting a transparent, user-friendly, accessible, fair and efficient system for administering immigration laws that has sufficient resources to carry out its functions in a timely manner. The recommendation was approved. [107E] On behalf of the Commission on Immigration, James R. Silkenat, Delegate from New York, moved Report 107E opposing the detention of non-citizens in immigration removal proceedings except in extraordinary circumstances, which would include a determination, following a hearing and subject to judicial review, that a person presents a threat to national security or public safety, or presents a substantial flight risk. The recommendation was approved. [107F] On behalf of the Commission on Immigration, Esther Lardent, Delegate from Washington, D.C., moved Report 107F supporting the establishment of laws, policies, and practices that ensure optimum access to legal protection for refugees, asylum seekers, torture victims, and others deserving of humanitarian refuge. The recommendation was approved. [107G] On behalf of the Commission on Immigration, Pamila Brown, Delegate from Maryland, moved Report 107G supporting avenues for lawful immigration status, employment authorization, and public benefits for victims and derivative family members, of human trafficking and other crimes described in 101(a)(15)(U)(iii) of the Immigration and Nationality Act and supporting the use of Legal Services Corporation funding to provide services to such victims. The recommendation was approved.  On behalf of the Criminal Justice Section, Susan Gaertner, Delegate from Minnesota, moved Report 300 urging, under warranted circumstances, the expansion of the use of the pardon power to provide relief to non-citizens otherwise subject to removal on grounds related to conviction. The recommendation was approved. INDIVIDUAL RIGHTS AND RESPONSIBILITES [108A] On behalf of the Section of Individual Rights and Responsibilities, C. Elisa Frazier, Delegate from Tennessee, moved Report 108A urging Congress to create and appropriate funds for a Commission to study and make findings relating to the present day social, political and economic consequences of both slavery and the denial thereafter of equal justice under law for persons of African descent living in the United States and authorizes the Commission to propose public policies or governmental actions, if any, that may be appropriate to address such consequences. The recommendation was approved. INDIVIDUAL RIGHTS AND RESPONSIBILITIES (cont.) [108B] On behalf of the Section of Individual Rights and Responsibilities, Secretary Armando Lasa-Ferrer of Puerto Rico, moved revised Report 108B urging Congress to pass 14 legislation to establish a process to provide federal recognition for a Native Hawaiian governing entity. Bill Meheula of Hawaii presented the resolution to the House. The recommendation was approved as revised. INTELLECTUAL PROPERTY LAW  On behalf of the Section of Intellectual Property Law, Anthony Figg, Delegate from Washington, D.C., moved revised Report 303 supporting the granting of a permanent injunction enjoining a patent infringer from future infringement of a patent that has been adjudicated to be valid, enforceable and infringed, in accordance with the principles of equity on such terms as the court deems reasonable. The recommendation was approved as revised. INTERNATIONAL LAW  On behalf of the Section of International Law, William M. Hannay III, Delegate from Illinois, moved revised Report 110 urging the adoption by states and territories of a uniform law that would permit unsworn declarations under penalty of perjury to be executed by persons located outside the United States in lieu of affidavits, verifications, or other sworn documents, as is currently the federal practice under 28 U.S.C. §1746. The recommendation was approved as revised. LEGAL EDUCATION AND ADMISSIONS TO THE BAR [11-1] Jose R. Garcia-Pedrosa, Delegate from Florida, moved Report 11-1, amending Section 45.9 of the House Rules of Procedure, Law School Accreditation to clarify procedures for House of Delegates consideration of law school accreditation matters, as recommended by the Council of the Section of Legal Education and Admissions to the Bar. William C. Hubbard, Chair of the Committee on Rules and Calendar, reported that the Committee recommended that Report 11-1 be approved. There was a motion by Past President Wallace Riley of Michigan to postpone indefinitely this proposal, and to take up this proposal at the Annual Meeting. Speaking in opposition to the motion to postpone indefinitely were Sidney Eagles, Delegate from North Carolina, Pauline Schneider of Washington, D.C., Board of Governors Liaison to the Section, and Immediate Past President Robert Grey of Virginia. The motion to postpone indefinitely failed. Report No. 11- 1 was approved. LEGAL EDUCATION AND ADMISSIONS TO THE BAR (cont.)  On behalf of the Section of Legal Education and Admissions to the Bar, Jose R. Garcia-Pedrosa, Delegate from Florida, moved Report 100 concurring in the action of the 15 Council of the Section of Legal Education and Admissions to the Bar in adopting the revisions to the Rules of Procedure for Approval of Law Schools and to Standard 103 and its Interpretations of the Standards for Approval of Law Schools, dated February 2006. There was a motion by Past President Wallace Riley of Michigan to postpone indefinitely this proposal, and to take up this recommendation at the Annual Meeting. The motion to postpone failed. The recommendation was approved.  The House approved by consent the recommendation submitted by the Standing Committee on Paralegals, granting approval, reapproval and extension of the term of approval to several paralegal education programs, and withdrawing the approval of one program at the request of the institution. [304A] The House approved by consent the recommendation submitted by the Section of Legal Education and Admissions to the Bar, granting full approval to the University of St. Thomas School of Law in Minneapolis, Minnesota. [304B] The House approved by consent the recommendation submitted by the Section of Legal Education and Admissions to the Bar, granting provisional approval to the University of LaVerne College of Law in Ontario, California. [304C] The House approved by consent the recommendation submitted by the Section of Legal Education and Admissions to the Bar, granting provisional approval to the Liberty University School of Law in Lynchburg, Virginia. MEDICAL PROFESSIONAL LIABILITY  On behalf of the Standing Committee on Medical Professional Liability, Janice F. Mulligan, Delegate from California moved Report 103 reaffirming opposition to legislation that places a dollar limit on recoverable damages that operate to deny full compensation to a plaintiff in a medical malpractice action and opposing the creation of healthcare tribunals that would deny patients injured by medical negligence the right to request a trial by jury or the right to receive full compensation for their injuries. E. Paul Herrington, Delegate from Kentucky, and Past Chair of the Health Law Section, made a motion to postpone indefinitely. This motion was opposed by Dennis Drasco, Delegate from New Jersey, who noted that the Tort Trial and Insurance Practice Section and the Section of Dispute Resolution are also opposed to the motion to postpone indefinitely. Howard Wall, Delegate from Tennessee, spoke in support of the motion. Lawrence J. Fox, Delegate from Pennsylvania, opposed the motion to postpone. The motion to postpone indefinitely failed. The recommendation was approved. RENAISSANCE OF IDEALISM  On behalf of the Commission on Renaissance of Idealism, Mark D. Agrast, Delegate from Washington DC, moved revised Report 105, urging all lawyers to contribute to the 16 public good through community service in addition to exercising their professional responsibility to deliver pro bono service in accordance with Model Rules of Professional Conduct Rule 6.1, where applicable. The recommendation was approved as revised. RULE OF LAW  MICHAEL S. GRECO, ABA PRESIDENT moved Report 111 adopting the Statement of Core Principles of the legal profession, adopted at the international bar presidents meeting in Paris, France, November 19, 2005 and urging bar associations throughout the world actively to support and advance the Rule of Law. The recommendation was unanimously approved. UNIFORM STATE LAWS [104A] The House approved by consent the recommendation submitted by the National Conference of Commissioners on Uniform State Laws, approving the Uniform Foreign- Country Money Judgments Recognition Act, promulgated by the National Conference of Commissioners on Uniform State Laws in 2005 as an appropriate Act for those States desiring to adopt the specific substantive law suggested therein. [104B] The House approved by consent the recommendation submitted by the National Conference of Commissioners on Uniform State Laws, approving the Uniform Debt- Management Services Act, promulgated by the National Conference of Commissioners on Uniform State Laws in 2005 as an appropriate Act for those States desiring to adopt the specific substantive law suggested therein. [104C] The House approved by consent the recommendation submitted by the National Conference of Commissioners on Uniform State Laws, approving the Uniform Certificate of Title Act, promulgated by the National Conference of Commissioners on Uniform State Laws in 2005 as an appropriate Act for those States desiring to adopt the specific substantive law suggested therein. [104D] The House approved by consent the recommendation submitted by the National Conference of Commissioners on Uniform State Laws, approving the Uniform Assignment of Rents Act, promulgated by the National Conference of Commissioners on Uniform State Laws in 2005 as an appropriate Act for those States desiring to adopt the specific substantive law suggested therein. Closing Business At the conclusion of the meeting of the House on Monday afternoon, February 13, 17 after various thank you’s and reminders about the 2006 Honolulu Annual Meeting, Chair Stephen N. Zack recognized William C. Hubbard of South Carolina who then moved that the House adjourn sine die. S:\LIBPA\HOD\2006 Midyear\Select Committee Report.DOC 18 Tab 11 AMERICAN BAR ASSOCIATION PRESIDENTIAL ADVISORY COUNCIL ON DIVERSITY IN THE PROFESSION Kansas Bar Association American Immigration Lawyers Association National Association of Women Judges National Bar Association Bar Association of Erie County REPORT TO THE HOUSE OF DELEGATES 1 RESOLVED, that the American Bar Association work with the National Conference of 2 Bar Examiners and urge all state and territorial bar associations to work with that state or 3 territory’s bar examiner to ensure that the bar exam does not have a disparate impact on minority 4 bar passage rates. 5 6 FURTHER RESOLVED, that the American Bar Association work with the Law School 7 Admission Council and urge all state, territorial and local bar associations to work with 8 accredited law schools to combat high rates of minority attrition and to ensure that admission 9 policies do not have a disparate impact on minority acceptance rates. 10 11 FURTHER RESOLVED, that the American Bar Association urge all state, territorial and 12 local bar associations to work with colleges and universities to develop and support pre-law 13 programs that will ensure the increase of minority applications to law school and will increase 14 the readiness of minority applicants for law school. 15 16 FURTHER RESOLVED, that the American Bar Association urge all state, territorial and 17 local bar associations to work with elementary and secondary schools to develop and support 18 programs that will ensure an increase in minority applications to college and will increase the 19 readiness of minority applicants for college. *As of March 23, 2006 REPORT Accompanying Resolution # ___, August 2006 House of Delegates The American Bar Association has long held that diversity of the legal profession is essential for the maintenance of our system of justice. As the following report will show, however, it will be impossible to achieve true diversity at the current rate of matriculation into the profession. The minority representation in the United States population continues to grow. The disparity between the minority representation in the legal profession and the minority representation in the United States population is considerable, and that gap continues to grow. The current graduation rate from accredited law schools will not reverse this disparity. The current application pool of minority candidates to law school will not reverse this disparity. The current applicant pool of minority candidates to colleges and universities with an interest in the legal profession will not reverse this disparity. The pipeline into the profession must be strengthened and filled to diminish this disparity. On November 3-5, 2005, the American Bar Association together with the Law School Admissions Council sponsored a Pipeline Diversity Conference to address the best ways to strengthen the pipeline. This resolution is the result of the findings of that conference. I. RECOGNIZING THE PROBLEM Many professions and businesses have recognized that a diverse workforce benefits clients, the workforce itself, and the general population. They also recognize that diversity in highly skilled or professional positions requires investments in minority youth who form the “pipeline” to the workforce. Yet, while other professions have implemented diversity pipeline programs for decades, the legal profession has largely remained disengaged from this effort, causing it to lag behind. Even well-intentioned employers cannot recruit the requisite numbers of attorneys of color if they are fighting over the same diminishing pool of candidates, culled from a system of legal education that is failing to enroll and graduate sufficient numbers of the best and the brightest members of our ethnic communities. Former American Bar Association President Dennis Archer puts the need for diversity in our profession into the most basic terms: Too often, where white people see justice in our legal system, people of color see justice short-changed. When you recognize that in the United States, it is the ability to petition our courts for fairness that keeps people from seeking justice in the streets, then you understand that diversity in the legal profession is critical for democracy to survive.1 1 Remarks at ABA Council on Racial & Ethnic Justice Conference “Diversity in the Legal Profession: Opening the Pipeline,” Oct. 22-23, 2003, in Washington, DC. A. The Racial Divide While racial and ethnic minorities make up approximately 30% of the U.S. population, they make up less then 15% of the practicing attorneys in this country.2 This racial divide will only become greater, as statistics project that by the year 2050, the United States will nearly be a “majority-minority” country, and the Latino population will exceed all of the other minority populations combined; a true demographic sea change.3 Achieving a student body reflective of the population’s exact racial proportions is not necessarily the goal of the legal academy or the profession, but it is instructive to compare the racial/ethnic composition of the U.S. population to the percentage of minorities in law school and the profession. Law school enrollment in 2003-04 consisted of 20.3% racial and ethnic minorities, which represented a slight drop from the previous year.4 Contributing to this disproportion is the phenomena that at each step of the way, the pipeline for minority students--from pre-kindergarten into the legal profession—is leaking. Many reputable, research-oriented organizations and individuals have studied the racial/ethnic disparities in the educational pipeline. Gleaning from their reports and statistics, this brief overview highlights the pipeline problem facing the legal academy and the profession. B. Pre-Kindergarten to Law School Children as young as three years old already experience disparate problems as students in pre- kindergarten programs. One study5 reported that African-Americans attending state-funded pre- kindergarten were almost twice as likely to be expelled as Latino or white children, and boys of all colors and ethnicities were expelled at a rate more than 4.5 times that of girls. High school is another point in the pipeline for which documentation of a differentiation exists for minorities. A 2004 report from The Civil Rights Project at Harvard University found that white high school students had a 74.9% graduation rate, compared to a 50.2% high school graduation rate for blacks. At 51.1%, graduation rates for American Indian high school students were slightly above blacks, while Hispanic students were at 53.2%. Asian/Pacific Islander students had the highest high school graduation rate, at 76.8%. 6 2 UNITED STATES CENSUS BUREAU, CENSUS 2000, available at www.census.gov/main/www/cen2000.html; COMM’N ON RACIAL & ETHNIC DIVERSITY IN THE PROFESSION, AM. BAR ASS’N, STATISTICS ABOUT MINORITIES IN THE PROFESSION FROM THE CENSUS (2000), available at www.abanet.org/minorities/links/2000census.html. The statistics referenced in this article cover different time periods and are drawn from several sources, including the United States Census and the American Bar Association. Recognizing that there is some debate over which groups should be included in which racial/ethnic categories—e.g., whether “African-American” includes Caribbean blacks who live in the United States—this report uses the descriptive categories that the respective original source used. 3 BLACKWELL, KWOH, AND PASTOR, SEARCHING for THE UNCOMMON COMMON GROUND 22 fig.1-1 (2002). 4 ELIZABETH CHAMBLISS, MILES TO GO: PROGRESS OF MINORITIES IN THE LEGAL PROFESSION 8 (2004), available from American Bar Association Commission on Racial and Ethnic Diversity in the Profession. 5 WALTER S. GILLIAM, YALE UNIV. CHILD STUDY CTR., PRE-KINDERGARTENERS LEFT BEHIND: EXPULSION RATES IN STATE PRE KINDERGARTEN SYSTEMS 6 (2005). 6 GARY ORFIELD ET AL., LOSING OUR FUTURE: HOW MINORITY YOUTH ARE BEING LEFT BEHIND BY THE GRADUATION RATE CRISIS (2004). A joint release by The Civil Rights Project at Harvard University, the Urban Institute, Advocates for Children of New York, and the Civil Society Institute; accessible from www.civilrightsproject.harvard.edu/. From high school graduation to college we lose considerable numbers of minority students—in higher proportions than their white counterparts. For example, 64% of white high school graduates in 2001 immediately enrolled in college. For that same year, 55% of black students attended college right after high school. 7 Minority students do, however, regain some ground when overall college enrollment rates are considered. College enrollment rates have been increasing steadily among high school graduates from all racial-ethnic groups, so that by 1998, just over 68% of the white population between 18 and 24 had been enrolled in (four-year) college for one or more years. Because African-American and Hispanic high school graduates do not enter four-year colleges at the same rate as their white peers, the comparable percentages of African-American and Hispanic 18-to-24 year olds that had been enrolled in college for at least one year were 62 and 53.8 Examining the distribution of college degrees awarded provides another snapshot of the racial/ethnic disparity. For academic year 2002-03, white/non-Hispanic college students received 70% of the Bachelor of Science degrees conferred in Title IV degree-granting institutions. Black/non-Hispanic students earned 8.7% of college degrees that year; with comparable rates of 6.3 for Hispanics; 6.2% for Asian/Pacific Islanders; and 0.7 for American Indian/Alaska native.9 Another leaky portion in the pipeline is college matriculation through graduation. A 2005 report from the National Center for Education Statistics found that only 38.5 % of black (non-Hispanic) students at 4-year colleges graduated “on time.” Hispanic students graduated at a higher rate, 43.5%, but Asian/Pacific Islander students had the highest college graduation rate at 63%, while white (non-Hispanic) had a 57.3% college graduation rate.10 As is too often true, the male students of color fare even worse. In that same NCES study, only 32.8% of African-American men who started college graduated in the standard time period, compared to 40% of Hispanic men, 54.4% of white men, and 59.6 of Asian men.11 The process for recruiting ethnically and racially diverse students into post-secondary educational institutions faces even greater challenges in states that ban affirmative action in public schools. The University of California system overall admitted 3,400 fewer students in the fall of 2003 and rerouted 7,600 more would-be first-year students to community colleges. The 7 See generally National Center for Education Statistics Website at http://nces.ed.gov/ [hereinafter NCES Website]. 8 GITA Z. WILDER, THE ROAD TO LAW SCHOOL AND BEYOND: EXAMINING CHALLENGES TO RACIAL AND ETHNIC DIVERSITY IN THE LEGAL PROFESSION 1 (2003), accessible from www.lsacnet.org (click on “Research Reports”). 9 See generally NCES Website. 10 L.G. KNAPP ET AL., ENROLLMENT IN POSTSECONDARY INSTITUTIONS, FALL 2003; GRADUATION RATES 1997 & 2000 COHORTS; AND FINANCIAL STATISTICS, FISCAL YEAR 2003 (NCES 2005-177). U.S. Dept. of Education. Washington, DC: National Center for Education Statistics. 11 Id. at 12. lower admission numbers have hit underrepresented minorities the hardest. The most striking drop was among African-American student applicants, whose admission numbers were down 15% from the 2002 admission year. As of late spring 2004, only 98 African-American students had registered for fall re-enrollment, out of an expected class of 3,821 at University of California at Berkeley. Data shows that the overall campus-wide drop in African-American students was followed by a 9.2% decrease for Native American students, 3% for Latinos, and 2% for Asian- Americans.12 C. Law Schools and Students of Color The crisis in the pipeline to the legal profession continues in disproportionately lower application, enrollment, and graduation rates of minorities in U.S. law schools. In fall 2004, Caucasian/white students made up nearly 65% of all applicants to ABA-accredited law schools. That same group of applicants consisted of 10.6% African-Americans; 8.5% Asians, and 7.9% total for the combined Hispanic groups (Chicano/Mexican American, Hispanic/Latino, and Puerto Rican). 13 The comparison of minority law school applicants to actual first-year enrollment reveals a slight increase in the percentage of students of color for most groups. Consider the 2004 statistics: 2004 MINORITY LAW SCHOOL APPLICANTS & FIRST-YEAR ENROLLEES14 Total applicants % of all applicants Total 1st % of all 1st year year All Minorities 27,992 28.0% 10,694 22.0% African-American 10,674 10.6% 3,457 7.2% Hispanics (combined) 7,969 7.9% 2,868 5.9% Asian/Pac. Islander 8,568 8.5% 3,982 8.2% Amer. Indian/Alaska Native 781 0.8% 387 0.8% Nonetheless, the numbers of matriculating law school students of color is—modestly put— disturbing. Between the years 2000 and 2004, the number of first-year African-American law students rose from 3,402 to 3,457; a mere 1.6% increase (55 students) in a four-year period. The numbers of matriculating Latino students, from all subgroups, remains very small in relationship to their increasing numbers in the overall general population. In 2004, there were fewer than 400 Native Americans matriculating to law school nationally. Asian Americans represent the only real gains in matriculants, with a first-year law school enrollment increase of more than 36%, going from 2,924 in the year 2000 to 3,982 in 2004.15 12 Jerrod Thompson-Hicks, “Minority Admits Down in UC System; Groups Say Regent Using Asians as ‘Pawns,’” June 9, 2004, available at www.civilrights.org. 13 LAW SCH. ADMISSION COUNCIL, LSAC VOLUME SUMMARY BY ETHNIC AND GENDER GROUP, available at www.lsacnet.org. 14 ABA SECTION OF LEGAL EDUCATION AND ADMISSION TO THE BAR, LEGAL EDUCATION STATISTICS, available at www.abanet.org/legaled/statistics/minstats.html. 15 Id. Once the minority students have entered law school, the next point along the pipeline to examine is enrollment. In the past decade, minority law school enrollment has hovered around 19-21% of all law school students. Interestingly, there was a notable one-year increase from 1993-94, when minorities were 17.8% of law school students, to 1994-95, when they made up 19.1% of law students. Such a sizeable increase in percentage points has not happened since then. In the past ten years, the net improvement of minority law school enrollment has inched up from the 19.1% in 1994-95 to 28% in 2004-05. Yet, the news for African-American students is not as encouraging. In the past decade, the highest enrollment for African-Americans was 7.5% of all law school students, both in 1994-95 and 2000-01. In 2003-04, the percentage of African- Americans dipped to a 13-year low, with a representation of only 6.6% of all law school students. The next year (2004-05) the comparable statistics did increase four percentage points, to 10.6%. Hispanic and Native American enrollment has held relatively steady in the past few years, around 7.9% and 0.8% respectively. 16 Asian-Americans have seen a steady increase in both their number and percentage of law school enrollment since 1997-98. In 2003-04, for the first time, the percentage of Asian-American law students surpassed the percentage of African-American students. 17 In 2004, the percentage of Asian-Americans was considerably larger than any other minority group at some law schools. For example, at Western State University in California, 21% of the minority students admitted was Asian-American; at Santa Clara University (CA), the percentage was 28%. The greatest percentage of Asian-Americans in a U.S. law school exists at the University of Hawaii, with 61%. Yet, not all law schools experience such high percentages of Asian Americans. For example, at the University of Missouri and the University of Maine, the percentages of Asian American law students are considerably lower: 4% and 3%, respectively.18 Unfortunately the pipeline constricts further during law school due to a higher attrition rate for racially and ethnically diverse law students than that of white law students. It is commonly noted that minority law students have a higher attrition rate, but pinpointing specific statistics can be challenging. National data about persistence in law school are difficult to come by and often must be inferred by juxtaposing information from different sources. Since attrition is the obverse of persistence, one approach is to examine enrollment figures—supplied by the ABA— for first-, second-, and third-year students in three successive years. The difference between one year’s enrollment figures and those of the previous year can be considered attrition.19 The inferred attrition rate for students entering law school in 1998 affirms the anecdotal 16 Id. 17 Id. 18 America’s Law School Diversity Index, 2004, U.S. NEWS & WORLD REPORT. 19 WILDER, supra note 9, at 20. evidence: minorities leave law school before securing their J.D. at a faster rate than their white counterparts. ATTRITION: PERCENT OF FIRST YEAR STUDENTS REMAINING IN LAW SCHOOL20 2nd year, % 3rd year, % remaining remaining All Minorities 86.8% 84.7% African-American 83.5% 79.3% Hispanics (combined) 87.3% 86.2% Asian/Pac. Islander 91.2% 90.9% Amer. Indian/Alaska Native 81.4% 80.3% White 93.6% 91.2% D. LSAT and the Bar Exam According to many experts, the test score gap between people of color (especially African- Americans) and majority students begins as early as the fourth grade.21 This gap continues through college entrance examinations at the undergraduate and graduate level. Because the gap is so large, test scores are another point of leakage on the diversity pipeline. While the LSAT remains a reliable predictor of success in law school and the Law School Admission Council (makers of the LSAT), warn against over-reliance on numerical qualifiers alone,22 low-scoring test takers do not have the same probability of being admitted as high-scoring candidates. Comparable to the test to enter law school, the exam at the end of law school reveals another juncture in the pipeline that stymies aspiring attorneys of color. Bar passage rates for racially diverse law students are generally lower than whites, but the vast majority of all students who take the bar exam do eventually pass. The oft-cited 1998 LSAC National Longitudinal Bar Passage Study found that 94.8% of all students in the research group eventually passed the bar. Blacks had the lowest percentage rate, 77.6%, while Asian Americans, at 91.9%, had the highest among minority groups. White students in this study passed the bar exam at a 96.7% rate.23 Spotlighting more recent statistics for one state bar shows much lower passage rates for all groups. In California, 54.1% white bar exam takers passed the February 2004 exam, while 18.1% African-Americans passed, 22.7% Latinos passed, and 32.2% Asian-Americans passed.24 20 Id. at 21. 21 CHRISTOPHER JENCKS AND MEREDITH PHILLIPS, eds. THE BLACK-WHITE TEST SCORE GAP (1988). 22 LAW SCH. ADMISSION COUNCIL, CAUTIONARY POLICIES CONCERNING LSAT SCORES AND RELATED SERVICES (1999), available at www.lsacnet.org/lsac/publications/CAUTIONARYPolicies2003.pdf. 23 LINDA F. WRIGHTMAN, LSAC NATIONAL LONGITUDINAL BAR PASSAGE STUDY, RESEARCH REPORT 32 (1998). Accessible from www.lsacnet.org (click on “Research Reports”). 24 CALIFORNIA BAR JOURNAL, “President’s Column: We’re a Long Way from Full Diversity,” State Bar President Anthony Capozzi, August 2004 at 9. The passage rates for the July 2004 California Bar Exam, continue to display this disparate trend: 74.6% of the white test takers passed. However, the pass rate for African-Americans was 48.2%; for Hispanics, 53.4%; for Asians, 65.5%; and for other minorities, 61.1%. It should also be noted that not only are the percentages low, but the absolute numbers of graduates who take the exam are disappointingly low: 2,138 white persons took the July 2004 California Bar, while only 110 African-American did so; 294 Hispanic, 487 Asian and 193 other minorities took the Bar.25 Clearly it is disturbing that such a comparatively low pass rate exists for such a small pool of potential lawyers of color. E. The Cumulative Effect Fewer applicants, lower admissions and matriculation rates into law school, higher attrition rates during law school and lower bar passage rates upon completion of law school all contribute to the constriction of the pipeline into the legal profession for students of color. The severe effect of this accumulated leakage is graphically portrayed by the LSAC 2004 presentation in Attachment A.26 The cumulative effect also manifests itself in the racial and ethnic make-up of new lawyers as they secure their first jobs in the profession. Of 30,035 jobs obtained across the country by the 2004 graduating law class, minorities captured 19.7% % of the jobs. By gender, minority men obtained 8.2% of all jobs (white men had 42.5%) and minority women secured 11.5% of all jobs (white women had 37.8%). 27 II. MOVING COLLABORATIVELY TOWARDS SOLUTIONS Collaboration is the key to the ultimate success of the diversity pipeline project. Conference participants from each of the focus areas repeatedly cited the need for cooperation among and between all groups both directly and indirectly related to the pipeline. In order to understand the importance of collaboration to the task at hand it is necessary to view the pipeline as a whole unit or continuum. In so doing, we see that each component of the continuum must feed into the next. No component can exist without its predecessor component. If one component fails to support the next, the continuum ceases to exist. Based on this analogy, the value of collaboration to the pipeline diversity project is clear. There can be no pipeline of diversity into the legal profession without support from the legal academy. If the educational system fails to produce academically prepared students of color, there will be no students of color to guide along the pipeline into the profession. Building collaborations and working comfortably and successfully within those collaborations is no easy feat. Parties must first share a common goal and agree to collaborate. They may have to 25 Id. 26 Included in the presentation “Diversity in the Pipeline to the Legal Profession,” Law School Admission Council, 2004 LSAC Annual Meeting and Educational Conference. 27 NATIONAL ASSOCIATION OF LAW PLACEMENT, “Jobs for New Law Graduates—Trends from 1994-2004,” accessible from www.nalp.org/content/index.php?pid=143. step out of their comfort zones and/or give up a little power to accomplish this, which can be a difficult and stressful thing to do. It is essential that collaborating parties develop trusting, non- threatening relationships with each other in order to achieve their common goals. Some groups may require professional team building services to assist them in this endeavor. Once parties have agreed to work together, they must contribute fully, take responsibility for their contributions, and value the contributions of their partners in collaboration. There are undeniable challenges to establishing strong collaborations. Not every collaborative relationship is successful. The conference participants acknowledged this reality but felt strongly that the goal of pipeline diversity is too important to allow these challenges to derail their efforts. Conference participants identified several potential collaborators specifically related to the pipeline diversity project and examples of what each one can bring to a collaborative effort: • Local and state bar associations, corporations, and law firms/providing bar preparation course scholarships and stipends • Law schools and bar associations/keeping records of bar exam passage rates based on race and sex • Law firms and corporate legal departments/providing mentoring, success training, and counseling to associates of color • All legal employers/training managers and staff to identify racism and sexism • Law schools and local bar associations/providing a clearinghouse of job opportunities for lawyers of color who pass the bar exam • All law schools/counseling students on how to be successful law school graduates • Law firms and large corporations/funding, employment opportunities, and mentoring • Local, state, national, and minority bar associations/providing access to other collaborators, leadership, mentoring, and funding • Community Colleges/providing sources of first generation lawyers and Street Law programs • Law students/mentoring • Schools, school districts, and state education agencies/academic programming • Foundations/Funding • LSAC/”Got Law” and other programs • Universities/faculty in non-legal disciplines • Local, state, and federal government offices/career options, summer internships, and mentoring • Judiciary/clerkship opportunities and mentoring • Bookstores, publishers, computer companies/funding • Parents/student support • National student organizations (BLSA, HLSA, etc.)/student support • CLEO, OLIO, PRLDEF, and the American Indian Law Center/academic support services • Law schools and Academic Assistance programs/academic assistance • K-12, college, and law school programs/identifying students of color interested in the law • K-12, college, law school programs, and practitioners/introducing students to the legal profession, Street Law programs, and mock trials • Birth-3, K-12, college, and law school programs/minority placement • High school counselors and law schools/career awareness and law school admissions process • K-12 and parenting organizations/educational enhancement The issue of funding will be an ongoing challenge for the Pipeline Diversity project. Law firms, corporations, bar associations, foundations, and community organizations are the obvious first- line sources for financial support of pipeline programming. Other sources may include colleges and universities, alumni associations, fraternities and sororities, and individual donors. Successful funding of pipeline diversity will require tenacity, creativity, and significant collaborative effort. The acquisition of adequate funding will most likely be tied directly to the ability of stakeholders to educate the community on the benefits of pipeline diversity. This report is intended to be a “first step” toward that goal. III. APPROACHES TO SOLVE THE PROBLEM A. Starting Early The time to plug a leaky pipeline is before its precious flow seeps away. For the legal academy and the legal profession, that time well precedes law school and ideally would begin in grades K- 12. Then, proactive measures have a much better chance of positively impacting minority preparation for and progress through college and law school. In fact, the pervasive nature of the problem suggests that the legal academy and the profession may need to consider participating in collaborations that address the achievement gap even before kindergarten. Disparities in school preparation begin before children enter elementary school. Research has found that African- American and Hispanic children are more likely than white or Asian children to enter kindergarten with fewer school-related skills.28 28 MARGARET BRIDGES et al., “Preschool for California’s Children: Promising Benefits, Unequal Access,” POLICY BRIEF, POLICY ANALYSIS FOR CALIFORNIA EDUCATION, University of California, Berkeley and Stanford University, at 118 (September 2004), U.S. Dept. of Education. To further illustrate the need to start early, California provides another example of K-8 disparities. School performance in California is measured by a standardized test from the Academic Performance Index. Schools ranking in the lowest 30% are considered “low- performing.” Only 10% of white elementary students in California attend low-performing schools. In contrast, 52% of Hispanic and 43% of African-American students attend low- performing schools in that state. A low teacher-to-student ratio also adversely affects student performance. In California, Hispanic and African-American children are much more likely than white students to be in overcrowded schools.29 While some in the legal academy and legal profession may find it daunting to extend their outreach efforts across the educational chasm all the way back to pre-kindergarten and elementary school, professionals in all aspects of the law must at least increase their presence in initiatives targeted towards high school and college students of color. Research and statistics clearly show that if we wait until law school to implement effective outreach, the pool of racially and ethnically diverse students is too small to produce a sufficient flow of new lawyers of color. B. Address the Perspective That the Law is the Enemy In general, Americans don’t like lawyers. Both 1998 and 2002 ABA research projects, as well as other previous studies, found that “the legal profession is among the least reputed institutions in American society.”30 Within the context of this American cultural distaste for lawyers, people of color often hold even more negative perceptions of the U.S. justice system due, in part, to their own (or someone they know) encounters with the system. Racial profiling, over-representation of minorities on death row and in the juvenile justice system, or any number of other recent news topics serve as fodder for many minorities’ belief that the “law is the enemy.” Thus, effective outreach to some students of color, particularly those in the lower socio-economic levels, may need to address this potential perspective and seek to show the students how law can be a tool for justice. C. Use & Misuse of LSAT Scores The troubling relationship between LSAT achievement and students of color bears further examination. As with other types of tests, there is a significant achievement gap between minority students (particularly African-Americans) and white students relative to LSAT scores. The gap is so substantial that the LSAT represents another major point of leakage on the diversity pipeline. The LSAT is considered to be a reliable predictor of law school success and first-time bar exam passage.31 Accordingly, applicants who score low on the LSAT have a lower 29 DEBORAH REED, “Educational Resources and Outcomes in California, by Race & Ethnicity,” CALIFORNIA COUNTS Vol. 6:3 at 9; accessible from the Public Policy Institute of California Website, www.ppic.org/main/home.asp. 30 ABA SECTION OF LITIGATION, “Public Perceptions of Lawyers: 2002 Consumer Research Findings,” available at www.abanet.org/litigation/lawyers/home.html. 31 ABA SECTION OF LEGAL EDUCATION & ADMISSIONS TO THE BAR, “Addressing Misperceptions Concerning the Use of LSAT and Bar Passage Data in the Accreditation Process, 2005 at B. 1. probability of law school admission than their high-scoring counterparts. Some suggest that because LSAT success is such a strong indicator of success on the bar exam, many ABA-accredited law schools are less willing to admit or “take a chance” on students of color (who often perform poorly on such tests) for fear of jeopardizing their accreditation and bar passage rankings. Likewise, they argue, new law schools desiring to serve minority communities are unable to obtain accreditation because of their admission of low-scoring students. In their opinion, what results is a chilling effect on the admission of minorities into ABA-accredited law schools, which serves to further constrict the diversity pipeline. Contrary to this opinion, the ABA Accreditation Committee maintains that law schools do not risk loss of accreditation for simply admitting low LSAT-scoring applicants, particularly when such schools provide sufficient academic assistance and bar prep support to those students, bettering their chances for a successful academic outcome and first time passage of the bar exam. Only those law schools that fail to meet the academic and bar preparation needs of their students, resulting in high attrition rates and low bar passage rates, are at risk of losing their accreditation status. The ABA cites Accreditation Standards 301(a) and 501(b), which state, respectively: A law school shall maintain an educational program that prepares students for admission to the bar and effective and responsible participation in the legal profession. A law school shall not admit applicants who do not appear capable of satisfactorily completing its educational program and being admitted to the bar. The ABA Accreditation Committee is careful to state that LSAT scores are merely an indicator of success, and that the committee does not apply the latter standard to require non-admission of low-scoring students. This is an extremely contentious issue that will not be resolved easily. It is clear, however, that the controversy around the LSAT represents yet another significant hurdle for students of color to overcome. The law school admissions process and LSAT scores continue to be entrenched barriers at the law school level. Conference participants identified the following strategies to overcome the barriers at this level. These include: • tying LSAT scores to ultimate bar passage instead of first-time bar passage • de-emphasizing the importance of LSAT scores by discontinuing the practice of reporting scores to US News and World Report magazine • requiring law schools to include LSAT scores for transfer students and first year students in their reporting • opening a transparent dialogue with the ABA Accreditation Committee with regard to determining an acceptable rate of student attrition and bar passage D. Other Issues for Law School and Beyond Another stumbling block that surfaces at this point on the pipeline is the inability (or unwillingness) of many law schools to create and foster an inclusive and welcoming environment for minority students. This leads to feelings of isolation among students of color, which has a direct impact on attrition rates. Possible solutions include: • retaining a diversity consultant or opening a campus office of diversity to assist school administrators and staff in targeted planning on diversity related issues • providing diversity training to all students in conjunction with first-year orientation programs • making diversity a stronger factor in accreditation considerations The institutional barriers to success in the transition phase (the period between law school graduation and the successful acquisition of legal employment) must also be addressed. The most daunting of these barriers are passing the bar exam and securing employment. Yet, these, too, can be overcome if the legal academy and profession take the following proactive steps: • jointly sponsoring supplemental bar exam preparatory workshops, such as Minority Legal Education Resources, to strengthen test-taking techniques and writing skills • underwriting the costs of such workshops through scholarships and grants • providing students of color with job search and placement assistance (particularly those who are not in the top 25 percent of their class and do not have access to on campus interviewing) • promoting and encouraging affirmative outreach efforts within law firms and other legal employers to increase the job opportunities for minority students • creating and supporting programs aimed at the recruitment and retention of minority associates in law firms • offering financial assistance in the form of stipends to students of color as they seek employment E. The Value of Personal Contact Students of color must be exposed to effective mentoring and networking programs at all points along the pipeline continuum, starting at the kindergarten level. Such programming should become more intensive as students progress along the pipeline. Mentoring and networking programs aimed at students of color should be multi-faceted and offer: • successful and committed mentors and role models who can guide students of color, keep them focused on their goals, offer encouragement, and provide recommendations, introductions, and access to important networks • intervention programs for at-risk minority students aimed at drop-out prevention and promoting the value of education and academic achievement • services to educate minority parents on the educational opportunities and financial and educational resources available • career awareness services that provide information about the law and expand students’ knowledge of the legal system’s positive role in society. Such programming should be targeted at students’ specific interests. For example, students interested in science can be introduced to the field of patent law; students interested in sports and entertainment can be introduced to sports and entertainment law, etc. • character education workshops that encourage students to make positive life choices from an early age • extra-curricular and summer enrichment activities that provide opportunities for students to visit law schools and meet minority law students. Such immersion activities give students a realistic view of life as a law student and can help plant the seed or vision that attending law school is an attainable goal • extra-curricular and summer enrichment activities, such as job shadowing, that provide students of color with the opportunity to visit law firms, government offices, and court buildings and meet practicing lawyers and judges. Again, such activities reinforce the idea that the law is an attainable profession • assistance to students in developing pre-law clubs and other law-related activities • quality pre-law counseling services to aid students of color in proper course selection, obtaining financial assistance and scholarships, and understanding the importance of character and fitness, leadership, and community involvement in preparation for admission to law school • career planning assistance with regard to obtaining clerkships, internships, and employment • services to track the progress of students of color beginning in their first year of law school and going forward through their acquisition of employment • assistance to students of color in preparing for the bar exam • exposure to information and experiences that will help students of color become well- rounded and culturally adept • workshops on developing effective job interview skills • assistance to students of color in obtaining financial support while they prepare for the bar exam so that students can devote their undivided attention to their studies without financial worry. This support should cover the costs of bar review courses, living expenses, and bar exam fees • opportunities to participate in practice-oriented and minority organizations on campus, alumni associations, bar associations, and other organizations such as the Inns of Court • career planning and resume building services F. Academic Assistance at All Levels In order to make the pipeline into the profession a successful reality, it is essential that students of color have access to the best academic assistance and support available. Academic programming should be flexible enough to meet the needs of every student at every grade level. Collaboration between the various components of the pipeline must be encouraged if students are to benefit. Academic assistance can take the form of: • sustained development of reading, writing, comprehension, math, and critical analysis skills at every grade level to ensure promotion • tutoring services to strengthen core academic (reading, writing, math) and test-taking skills • remedial support (when necessary) • mandatory summer school • extra-curricular and summer enrichment programs • skill building in specific areas such as writing, comprehension, and critical thinking • career academic services that teach students how to plan their educational careers into the future through course selection, prerequisite coursework, etc. • programs and activities that teach logic and reasoning • test prep services • academic Success programs in law school • performance tracking of first-year law students IV. THE FUTURE Beyond the moralistic responsibility, it also makes good business sense for the legal profession to invest time and resources in the diversity pipeline. Law firms, corporate legal departments, government, and the judiciary cannot recruit attorneys of color who do not exist. Diversity efforts will encounter inherent obstacles as long as there remain too few people of color who decide to enter the profession in the first place. Forward-thinking legal employers have already accepted this reality, and label their diversity pipeline “donations” as recruitment expenses. To fully maximize its efforts, the legal academy and the profession must tap into the power of collaboration. Effectively reaching elementary (or earlier), high school, and college students requires working closely with educators who are on the front lines with these students. Fortunately, many education-related individuals, institutions, associations and organizations are already addressing these issues. The legal academy and the legal profession—from law schools and bar associations to judges and senior lawyers—must now lend their collective weight to help make a difference. Respectfully Submitted, Evett Simmons Chair Presidential Advisory Commission on Diversity in the Profession August 2006 GENERAL INFORMATION FORM Submitting Entity: ABA Presidential Advisory Council on Diversity in the Profession Submitted by: Evett Simmons, Chair 1. Summary of Recommendation(s). The Recommendation urges the American Bar Association and all state, territorial and local bar associations to work with national, state and territorial bar examiners, law schools, universities and elementary and secondary schools to address significant problems facing minorities within the pipeline to the profession. 2. Approval by Submitting Entity. The Recommendation was approved by the ABA Presidential Advisory Council on Diversity in the Profession in February 2006. 3. Has this or a similar recommendation been submitted to the House or Board previously? Yes, the ABA has a strong history of promoting diversity in the profession. 4. What existing Association policies are relevant to this recommendation and how would they be affected by its adoption? The ABA created the Legal Opportunity Scholarship in 2000 and created the ABA Presidential Advisory Council on Diversity in the Profession in 2000 in order to promote strengthening the pipeline into the profession. This recommendation would enhance that goal by seeking to involve all state, territorial and local bar associations in the effort. 5. What urgency exists which requires action at this meeting of the House? Action is timely. 6. Status of Legislation N/A 7. Cost to the Association None 8. Disclosure of Interest N/A 9. Referrals. The report and recommendation have been referred to every entity represented in the House of Delegates. 10. Contact Person Sharon Stern Gerstman 50 Delaware Avenue Buffalo, New York 14202 716-845-9478 firstname.lastname@example.org Informational Report AMERICAN BAR ASSOCIATION 4/12/2006 SECTION BALANCE SHEET DETAIL BY RESP Page 1 of 1 PERIOD: MAR-06 ACCT CURRENT YEAR TO DATE 15010 ADMINISTRATIVE LAW ASSETS 56000 MISCELLANEOUS PREPAID EXPENSE 0.00 57010 NTQA 105,378.00 57020 CAPITAL GUARDIAN 76,499.00 57050 PIMCO TOTAL RETURN FUND 121,934.00 TOTAL ASSETS EXCLUDING SHORT TERM INCOME FUND 303,811.00 LIABILITIES 67012 ADMIN LAW REVIEW DEFRD SUBS INCOME 12,013.02 67055 COMMTE NEWSLTR DEFERRED SUBS INCOME 664.20 68030 DEFERRED DUES-SECTIONS 763.75 68050 DEFERRED DUES-ASSOCIATES 0.00 68070 DEFERRED DUES-LAW STUDENTS 0.00 69000 DEFERRED MISCELLANEOUS INCOME 0.00 TOTAL LIABILITIES 13,440.97 BEGINNING FUND BALANCE 261,672.96 FISCAL YEAR REVENUE 389,912.51 FISCAL YEAR EXPENSE (301,902.21) ENDING FUND BALANCE 349,683.26 TOTAL LIABILITIES AND FUND BALANCE 363,124.23 SHORT TERM INCOME 59,313.23 Informational Report MARCH MEMBERSHIP RANKINGS BY TOTAL MEMBERSHIP LAW SECTION/FORUMS LAWYER ASSOC. STUDENT TOTAL Young Lawyers Division 108,619 1,036 2,230 111,885 Litigation 52,019 1,081 18,502 71,602 Business Law 40,305 1,260 4,195 45,760 Tort Trial & Insurance Practice 21,431 524 12,487 34,442 General Practice 12,422 203 16,961 29,586 Real Property, Probate & Trust 25,028 272 2,975 28,275 Law Practice Management 10,578 1,099 10,626 22,303 Labor & Employment Law 17,502 356 2,072 19,930 Admin. Law & Regulatory Practice 6,749 161 12,948 19,858 Taxation 16,309 430 1,299 18,038 Intellectual Property Law 14,129 742 2,636 17,507 International Law 8,410 1,291 3,752 13,453 Legal Educ. & Admissions to Bar 8,603 930 1,838 11,371 Science & Technology 3,798 344 5,937 10,079 Environment, Energy & Resources 8,266 311 1,350 9,927 Family Law 7,464 243 1,934 9,641 Public Utility, Comm. & Trans. 3,272 109 6,192 9,573 Health Law 7,431 192 1,173 8,796 Criminal Justice 6,280 227 2,168 8,675 Dispute Resolution 6,597 1,034 1,029 8,660 Antitrust Law 7,202 754 592 8,548 Public Contract Law 2,887 201 5,208 8,296 Affordable Housing 2,047 35 5,504 7,586 Senior Lawyers Division 6,395 69 44 6,508 Construction Industry 5,344 347 430 6,121 Govt. & Public Sector Division 4,302 71 1,275 5,648 State & Local Government Law 3,959 58 595 4,612 Entertainment & Sports Industry 2,560 174 1,168 3,902 Judicial Division (combined) 3,226 138 444 3,808 Indv. Rights & Responsibilities 1,862 70 584 2,516 Communications Law 1,675 120 509 2,304 Franchising 1,753 159 99 2,011 Air & Space Law 1,041 124 275 1,440 Center for Professional Responsibility 964 47 76 1,087 MARCH 2006 SECTION RANKINGS BY LAWYER MEMBERSHIP Litigation 52,019 Business Law 40,305 Real Property, Probate & Trust 25,028 Tort Trial & Insurance Practice 21,431 Labor & Employment Law 17,502 Taxation 16,309 Intellectual Property Law 14,129 General Practice 12,422 Law Practice Management 10,578 Legal Educ. & Admissions to Bar 8,603 International Law 8,410 Environment, Energy & Resources 8,266 Family Law 7,464 Health Law 7,431 Antitrust Law 7,202 Admin. Law & Regulatory Practice 6,749 Dispute Resolution 6,597 Senior Lawyers Division 6,395 Criminal Justice 6,280 Construction Industry 5,344 Govt. & Public Sector Division 4,302 State & Local Government Law 3,959 Science & Technology 3,798 Public Utility, Comm. & Trans. 3,272 Judicial Division (combined) 3,226 Public Contract Law 2,887 Entertainment & Sports Industry 2,560 Affordable Housing 2,047 Indv. Rights & Responsibilities 1,862 Franchising 1,753 Communications Law 1,675 Air & Space Law 1,041 AMERICAN BAR ASSOCIATION 2005-06 Section Membership March 31, 2006 CHART A: TOTAL SECTION MEMBERSHIP ALL CATEGORIES March 2006 March 2005 CHANGE LAW LAW LAW SECTION/FORUMS LAWYER ASSOC. STUDENT TOTAL LAWYER ASSOC. STUDENT TOTAL LAWYER ASSOC. STUDENT TOTAL Admin. Law & Regulatory Practice 6,749 161 12,948 19,858 6,142 170 12,364 18,676 9.9% -5.3% 4.7% 6.3% Affordable Housing 2,047 35 5,504 7,586 1,535 37 3,375 4,947 33.4% -5.4% 63.1% 53.3% Air & Space Law 1,041 124 275 1,440 1,035 106 241 1,382 0.6% 17.0% 14.1% 4.2% Antitrust Law 7,202 754 592 8,548 7,668 702 955 9,325 -6.1% 7.4% -38.0% -8.3% Business Law 40,305 1,260 4,195 45,760 41,497 1,170 7,711 50,378 -2.9% 7.7% -45.6% -9.2% Communications Law 1,675 120 509 2,304 1,745 144 644 2,533 -4.0% -16.7% -21.0% -9.0% Construction Industry 5,344 347 430 6,121 5,153 335 383 5,871 3.7% 3.6% 12.3% 4.3% Criminal Justice 6,280 227 2,168 8,675 6,000 235 2,066 8,301 4.7% -3.4% 4.9% 4.5% Dispute Resolution 6,597 1,034 1,029 8,660 6,363 817 993 8,173 3.7% 26.6% 3.6% 6.0% Entertainment & Sports Industry 2,560 174 1,168 3,902 2,554 188 1,155 3,897 0.2% -7.4% 1.1% 0.1% Environment, Energy & Resources 8,266 311 1,350 9,927 8,125 288 1,349 9,762 1.7% 8.0% 0.1% 1.7% Family Law 7,464 243 1,934 9,641 7,429 255 1,763 9,447 0.5% -4.7% 9.7% 2.1% Franchising 1,753 159 99 2,011 1,698 141 87 1,926 3.2% 12.8% 13.8% 4.4% General Practice 12,422 203 16,961 29,586 12,003 197 16,411 28,611 3.5% 3.0% 3.4% 3.4% Govt. & Public Sector Division 4,302 71 1,275 5,648 3,958 64 1,206 5,228 8.7% 10.9% 5.7% 8.0% Health Law 7,431 192 1,173 8,796 7,373 189 1,126 8,688 0.8% 1.6% 4.2% 1.2% Indv. Rights & Responsibilities 1,862 70 584 2,516 1,909 75 397 2,381 -2.5% -6.7% 47.1% 5.7% Intellectual Property Law 14,129 742 2,636 17,507 14,292 756 2,640 17,688 -1.1% -1.9% -0.2% -1.0% International Law 8,410 1,291 3,752 13,453 8,193 1,168 2,962 12,323 2.6% 10.5% 26.7% 9.2% Judicial Division (combined) 3,226 138 444 3,808 3,219 143 318 3,680 0.2% -3.5% 39.6% 3.5% Labor & Employment Law 17,502 356 2,072 19,930 17,585 304 2,051 19,940 -0.5% 17.1% 1.0% -0.1% Law Practice Management 10,578 1,099 10,626 22,303 10,048 1,135 7,314 18,497 5.3% -3.2% 45.3% 20.6% Legal Educ. & Admissions to Bar 8,603 930 1,838 11,371 8,352 943 1,748 11,043 3.0% -1.4% 5.1% 3.0% Litigation 52,019 1,081 18,502 71,602 50,932 1,001 17,866 69,799 2.1% 8.0% 3.6% 2.6% Public Contract Law 2,887 201 5,208 8,296 2,730 202 201 3,133 5.8% -0.5% 2491.0% 164.8% Public Utility, Comm. & Trans. 3,272 109 6,192 9,573 2,980 117 4,192 7,289 9.8% -6.8% 47.7% 31.3% Real Property, Probate & Trust 25,028 272 2,975 28,275 24,602 274 2,660 27,536 1.7% -0.7% 11.8% 2.7% Science & Technology 3,798 344 5,937 10,079 3,992 324 1,055 5,371 -4.9% 6.2% 462.7% 87.7% Senior Lawyers Division 6,395 69 44 6,508 6,824 67 48 6,939 -6.3% 3.0% -8.3% -6.2% State & Local Government Law 3,959 58 595 4,612 4,049 60 544 4,653 -2.2% -3.3% 9.4% -0.9% Taxation 16,309 430 1,299 18,038 16,502 406 1,273 18,181 -1.2% 5.9% 2.0% -0.8% Tort Trial & Insurance Practice 21,431 524 12,487 34,442 20,947 502 11,879 33,328 2.3% 4.4% 5.1% 3.3% Total 320,846 13,129 126,801 460,776 317,434 12,515 108,977 438,926 1.1% 4.9% 16.4% 5.0% Center for Professional Responsibility 964 47 76 1,087 771 32 30 833 25.0% 46.9% 153.3% 30.5% Young Lawyers Division 108,619 1,036 2,230 111,885 104,757 900 2,247 107,904 3.7% 15.1% -0.8% 3.7% AMERICAN BAR ASSOCIATION 2005-06 Section Membership March 31, 2006 Chart B: Membership Summary - Lawyers Current Month Activity Baseline Ending Membership Membership Net Monthly Ending Monthly Net Cumulative Net Membership Sections & Divisions 8/31/05 Prior Month ALL Adds ALL Drops Reinstates Discrep Activity Membership Growth Growth Prior Year Admin. Law & Regulatory Practice 7,171 6,681 115 119 72 0 68 6,749 1.0% -5.9% 6,142 Affordable Housing 1,812 2,011 44 29 21 0 36 2,047 1.8% 13.0% 1,535 Air & Space Law 1,145 1,020 10 4 15 0 21 1,041 2.1% -9.1% 1,035 Antitrust Law 8,064 7,013 136 26 79 0 189 7,202 2.7% -10.7% 7,668 Business Law 44,236 39,715 320 134 404 0 590 40,305 1.5% -8.9% 41,497 Communications Law 1,893 1,649 15 5 16 0 26 1,675 1.6% -11.5% 1,745 Construction Industry 5,519 5,247 64 7 40 0 97 5,344 1.8% -3.2% 5,153 Criminal Justice 6,777 6,098 128 17 71 0 182 6,280 3.0% -7.3% 6,000 Dispute Resolution 7,274 6,492 49 16 72 0 105 6,597 1.6% -9.3% 6,363 Entertainment & Sports Industry 2,898 2,470 48 6 48 0 90 2,560 3.6% -11.7% 2,554 Environment, Energy & Resources 8,728 8,122 84 13 73 0 144 8,266 1.8% -5.3% 8,125 Family Law 8,143 7,262 119 14 97 0 202 7,464 2.8% -8.3% 7,429 Franchising 1,856 1,726 18 5 14 0 27 1,753 1.6% -5.5% 1,698 General Practice 13,864 12,154 211 138 195 0 268 12,422 2.2% -10.4% 12,003 Govt. & Public Sector Division 4,933 4,158 129 19 34 0 144 4,302 3.5% -12.8% 3,958 Health Law 8,020 7,272 82 10 87 0 159 7,431 2.2% -7.3% 7,373 Indv. Rights & Responsibilities 2,076 1,829 23 5 15 0 33 1,862 1.8% -10.3% 1,909 Intellectual Property Law 15,487 13,833 161 24 159 0 296 14,129 2.1% -8.8% 14,292 International Law 9,042 8,195 128 29 116 0 215 8,410 2.6% -7.0% 8,193 Judicial Division (combined) 3,548 3,175 20 10 41 0 51 3,226 1.6% -9.1% 3,219 Labor & Employment Law 18,851 17,235 156 29 140 0 267 17,502 1.5% -7.2% 17,585 Law Practice Management 10,932 10,427 116 64 99 0 151 10,578 1.4% -3.2% 10,048 Legal Educ. & Admissions to Bar 8,534 8,572 45 36 22 0 31 8,603 0.4% 0.8% 8,352 Litigation 54,891 51,155 619 197 442 0 864 52,019 1.7% -5.2% 50,932 Public Contract Law 2,989 2,843 42 18 20 0 44 2,887 1.5% -3.4% 2,730 Public Utility, Comm. & Trans. 3,291 3,235 40 27 24 0 37 3,272 1.1% -0.6% 2,980 Real Property, Probate & Trust 26,407 24,519 342 42 209 0 509 25,028 2.1% -5.2% 24,602 Science & Technology 4,334 3,746 37 29 44 0 52 3,798 1.4% -12.4% 3,992 Senior Lawyers Division 7,007 6,365 11 11 30 0 30 6,395 0.5% -8.7% 6,824 State & Local Government Law 4,363 3,908 36 12 27 0 51 3,959 1.3% -9.3% 4,049 Taxation 17,405 16,082 102 19 144 0 227 16,309 1.4% -6.3% 16,502 Tort Trial & Insurance Practice 22,818 21,104 200 112 239 0 327 21,431 1.5% -6.1% 20,947 Total 344,308 315,313 3,650 1,226 3,109 0 5,533 320,846 1.8% -6.8% 317,434 AMERICAN BAR ASSOCIATION 2005-06 Section Membership March 31, 2006 Chart C: Membership Recruitment (Adds) September November December Last Year February October January Cumulative August March June April Cumulative Recruitment Percent Percent Percent July May Sections & Divisions Recruitment to Date Sec-Only ABA LST Admin. Law & Regulatory Practice 95 260 248 419 469 409 115 0 0 0 0 0 2,015 1,697 14.1% 11.2% 74.7% Affordable Housing 30 84 70 118 157 140 44 0 0 0 0 0 643 252 18.7% 8.7% 72.6% Air & Space Law 17 19 13 7 14 22 10 0 0 0 0 0 102 101 46.1% 31.4% 22.5% Antitrust Law 76 59 50 67 111 110 136 0 0 0 0 0 609 704 49.3% 36.6% 14.1% Business Law 469 440 318 364 468 406 320 0 0 0 0 0 2,785 3,881 49.0% 29.4% 21.6% Communications Law 17 19 29 24 20 16 15 0 0 0 0 0 140 176 42.9% 31.4% 25.7% Construction Industry 61 58 42 61 74 52 64 0 0 0 0 0 412 347 56.6% 29.9% 13.6% Criminal Justice 98 144 119 146 215 188 128 0 0 0 0 0 1,038 1,011 46.7% 28.2% 25.0% Dispute Resolution 79 67 63 59 426 72 49 0 0 0 0 0 815 874 74.1% 15.8% 10.1% Entertainment & Sports Industry 49 38 50 43 76 71 48 0 0 0 0 0 375 389 53.3% 24.8% 21.9% Environment, Energy & Resources 110 89 98 93 124 95 84 0 0 0 0 0 693 660 51.8% 24.7% 23.5% Family Law 89 141 120 126 159 120 119 0 0 0 0 0 874 837 53.9% 21.1% 25.1% Franchising 29 21 18 11 22 19 18 0 0 0 0 0 138 119 67.4% 29.7% 2.9% General Practice 154 472 397 697 787 665 211 0 0 0 0 0 3,383 3,210 18.6% 11.3% 70.1% Govt. & Public Sector Division 162 113 87 112 159 126 129 0 0 0 0 0 888 810 55.5% 29.5% 15.0% Health Law 108 119 91 85 98 94 82 0 0 0 0 0 677 703 56.4% 26.6% 17.0% Indv. Rights & Responsibilities 35 39 21 15 26 23 23 0 0 0 0 0 182 180 58.2% 27.5% 14.3% Intellectual Property Law 156 139 126 134 210 190 161 0 0 0 0 0 1,116 1,178 52.6% 23.1% 24.3% International Law 146 124 108 89 189 186 128 0 0 0 0 0 970 891 48.6% 29.2% 22.3% Judicial Division (combined) 38 33 34 29 42 36 20 0 0 0 0 0 232 322 52.6% 32.8% 14.7% Labor & Employment Law 198 223 157 189 228 207 156 0 0 0 0 0 1,358 1,426 54.5% 25.7% 19.8% Law Practice Management 104 230 191 313 386 314 116 0 0 0 0 0 1,654 861 22.1% 10.3% 67.7% Legal Educ. & Admissions to Bar 227 235 69 50 62 73 45 0 0 0 0 0 761 584 42.0% 39.4% 18.5% Litigation 568 797 680 1,000 1,133 943 619 0 0 0 0 0 5,740 5,220 36.9% 15.4% 47.7% Public Contract Law 43 59 40 53 59 52 42 0 0 0 0 0 348 250 42.8% 26.7% 30.5% Public Utility, Comm. & Trans. 36 104 73 129 175 138 40 0 0 0 0 0 695 334 13.4% 8.5% 78.1% Real Property, Probate & Trust 270 251 193 218 301 487 342 0 0 0 0 0 2,062 1,740 65.6% 18.0% 16.4% Science & Technology 71 54 55 76 92 83 37 0 0 0 0 0 468 370 36.5% 20.7% 42.7% Senior Lawyers Division 58 33 73 22 63 37 11 0 0 0 0 0 297 150 91.9% 6.4% 1.7% State & Local Government Law 54 43 38 47 63 40 36 0 0 0 0 0 321 391 54.8% 26.5% 18.7% Taxation 123 125 107 113 181 134 102 0 0 0 0 0 885 950 49.4% 30.7% 19.9% Tort Trial & Insurance Practice 231 384 305 497 627 491 200 0 0 0 0 0 2,735 2,431 27.5% 13.3% 59.2% Total 4,001 5,016 4,083 5,406 7,216 6,039 3,650 0 0 0 0 0 35,411 33,049 40.6% 19.7% 39.7% 2004-05 Total Adds 3,693 5,411 4,038 6,494 4,807 4,995 3,611 4,096 3,599 6,393 8,919 5,612 61,668 Change from 2004-05* 308 -395 45 -1,088 2,409 1,044 39 2,362 7.1% *Negative number means fewer adds in 2005-06 than in 2004-05. AMERICAN BAR ASSOCIATION 2005-06 Section Membership March 31, 2006 Chart D: Total Cancellations (Drops) September November December Last Year February January October Cumulative August March June April Cumulative Total Drops to Percent Percent July May Sections & Divisions Total Drops Date Sec-Only ABA Admin. Law & Regulatory Practice 358 104 95 123 173 1,537 119 0 0 0 0 0 2,509 2,401 44.2% 55.8% Affordable Housing 98 15 12 20 43 212 29 0 0 0 0 0 429 378 59.0% 41.0% Air & Space Law 67 10 7 6 6 121 4 0 0 0 0 0 221 226 46.6% 53.4% Antitrust Law 358 62 47 29 57 971 26 0 0 0 0 0 1,550 1,879 38.7% 61.3% Business Law 1,289 215 174 195 229 4,884 134 0 0 0 0 0 7,120 8,082 32.6% 67.4% Communications Law 124 8 15 17 12 194 5 0 0 0 0 0 375 462 51.2% 48.8% Construction Industry 167 20 16 14 23 380 7 0 0 0 0 0 627 694 40.0% 60.0% Criminal Justice 254 47 26 37 54 1,171 17 0 0 0 0 0 1,606 1,749 32.8% 67.2% Dispute Resolution 519 47 43 33 48 858 16 0 0 0 0 0 1,564 1,929 48.8% 51.2% Entertainment & Sports Industry 184 19 15 12 18 507 6 0 0 0 0 0 761 855 36.0% 64.0% Environment, Energy & Resources 283 32 31 24 50 795 13 0 0 0 0 0 1,228 1,506 36.7% 63.3% Family Law 297 60 41 32 42 1,164 14 0 0 0 0 0 1,650 1,763 32.5% 67.5% Franchising 99 13 6 4 9 119 5 0 0 0 0 0 255 293 54.9% 45.1% General Practice 857 235 169 180 268 3,173 138 0 0 0 0 0 5,020 4,709 40.1% 59.9% Govt. & Public Sector Division 393 82 51 50 99 859 19 0 0 0 0 0 1,553 1,597 49.6% 50.4% Health Law 362 52 40 27 42 820 10 0 0 0 0 0 1,353 1,673 42.1% 57.9% Indv. Rights & Responsibilities 117 21 8 13 19 228 5 0 0 0 0 0 411 601 51.6% 48.4% Intellectual Property Law 599 92 64 37 49 1,768 24 0 0 0 0 0 2,633 3,077 34.9% 65.1% International Law 401 66 51 49 52 1,070 29 0 0 0 0 0 1,718 2,022 42.0% 58.0% Judicial Division (combined) 166 27 17 10 19 346 10 0 0 0 0 0 595 779 47.9% 52.1% Labor & Employment Law 560 77 50 49 74 2,008 29 0 0 0 0 0 2,847 3,259 31.5% 68.5% Law Practice Management 694 98 66 67 102 1,016 64 0 0 0 0 0 2,107 2,372 55.5% 44.5% Legal Educ. & Admissions to Bar 94 28 16 19 33 488 36 0 0 0 0 0 714 851 30.7% 69.3% Litigation 1,536 274 220 239 385 6,203 197 0 0 0 0 0 9,054 9,274 33.4% 66.6% Public Contract Law 153 17 16 6 21 239 18 0 0 0 0 0 470 462 49.4% 50.6% Public Utility, Comm. & Trans. 198 31 22 25 44 391 27 0 0 0 0 0 738 870 51.6% 48.4% Real Property, Probate & Trust 799 113 90 89 100 2,417 42 0 0 0 0 0 3,650 4,168 33.4% 66.6% Science & Technology 353 37 23 31 40 535 29 0 0 0 0 0 1,048 1,199 52.8% 47.2% Senior Lawyers Division 444 34 33 23 19 375 11 0 0 0 0 0 939 1,386 63.9% 36.1% State & Local Government Law 220 34 23 15 32 416 12 0 0 0 0 0 752 916 48.9% 51.1% Taxation 528 72 47 51 47 1,361 19 0 0 0 0 0 2,125 2,522 36.4% 63.6% Tort Trial & Insurance Practice 836 161 124 138 210 2,780 112 0 0 0 0 0 4,361 4,276 39.6% 60.4% Total 13,407 2,203 1,658 1,664 2,419 39,406 1,226 0 0 0 0 0 61,983 68,230 39.0% 61.0% 2004-05 Cumulative Drops 16,862 3,414 1,842 2,213 2,816 39,385 1,698 1,096 1,141 303 1,594 494 72,858 Change from 2004-05* -3,455 -1,211 -184 -549 -397 21 -472 -6,247 -9.2% *Negative number means fewer drops in 2005-06 than in 2004-05. Tab 12 Date: March 22, 2006 To: Council, Section of Administrative Law & Regulatory Practice From: Trevor Potter Chair, Elections Committee Sabine Romero Co-Chair Re: Electoral College At the February meeting in Chicago, we presented to you a letter from President Michael Greco regarding Sen. Birch Bayh’s Fair Vote Plan. President Greco’s letter referenced the ABA’s long-standing position in support of electoral college reform and asked our Section to study the Fair Vote Plan with an eye toward presenting a resolution to the House of Delegates in August 2006. The Elections Committee proposed to continue the Fair Vote Plan discussion with the Standing Committee on Election Law and the Section of Individual Rights and Responsibilities (the two other addresses of President Greco’s letter), and to update the Council at the Spring meeting in Bermuda. Further research, and a meeting with Standing Committee on Election Law, has revealed that, although the ABA has adopted Resolutions calling for Electoral College reform in the past, there is no current ABA policy in place on the subject. Attached for your reference are copies of the two previous ABA resolutions (now archived). Accordingly, the first order of business now becomes the drafting of a new Resolution on the Electoral College for ABA approval, so that the Fair Vote Plan (or other proposed changes) can be considered in the context of a current ABA policy on the Electoral College. During our Bermuda meeting, we’d like to have a brief but focused discussion to gauge the Council’s position on, and support for, updating and re-adopting the electoral college resolutions: • Do we believe the electoral college as it currently operates needs reform? • If so, what aspects of its structure, function, or effect should be altered? Do we believe the winner of the popular vote should be the winner of the election? Do we think States should allocate electors on some basis other than winner take all? Does the “faithless elector” problem require correction? Do we believe the effect it has on campaigning (the target state system) is a problem? Once we know the views of the Council on these fundamental questions, we will be in a better position to coordinate with The Standing Committee on Election Law and SIRR in drafting and circulating a new resolution on the Electoral College. Our goal now would be to draft language for purposes of full ABA consideration in January 2007. Archived August 1997 Tab 13 Archived August 1997 Archived August 1997 Archived August 1997 Archived August 1997 Archived August 1997 Archived August 1997 Archived August 1997 Archived August 1997 Archived August 1997 Archived August 1997 Archived August 1997 Archived August 1997 Archived August 1997 Archived August 1997 Archived August 1997 Archived August 1997 Archived August 1997 Tab 14 DRAFT # 1 PROPOSAL FOR A UNITED STATES SOCIAL SECURITY COURT by Robin J. Arzt for ABA Administrative Law Section [This position paper is presented in my individual capacity. My position as an ALJ with the Social Security Administration (“SSA”) is stated in this position paper for identification purposes only. This position paper was written in my private capacity and without the use of federal government resources or federal work time. No official support or endorsement by the SSA or the United States is or should be inferred. The views expressed in this letter are mine and do not necessarily represent the views of the SSA or the United States.] Table of Contents Page COURT STRUCTURE 1 JURISDICTION AND APPELLATE REVIEW 10 STATUS AS AN INDEPENDENT AGENCY AND COURT OF LAW OF THE EXECUTIVE BRANCH 17 JUDGES PAY AND BENEFITS 23 COURT STRUCTURE NAME OF COURT: The court would be known as the United States Social Security Court (the “Court”). COMPOSITION OF THE COURT: The Court should be composed of at least 30 judges, one of whom will serve as Chief Judge. Unlike the United States Tax Court (“Tax Court”), United States Court of Federal Claims (“Federal Claims Court”), and United States Court of Appeals for the Armed Forces (“Armed Forces Court”), for which a precise number of judges is fixed,1 or the Court of Appeals for Veterans Claims (“Veterans Court”), for which a small band for the number 1 The number of judges specified for the Tax Court is 19 judges. 26 U.S.C. § 7443(a). The Federal Claims Court has 16 judges. 28 U.S.C. § 171(a). The Armed Forces Court has five judges. 10 U.S.C. § 942(a). of judges is fixed,2 only a lower bound is set for the size of the Court to allow flexibility for the appointment of sufficient judges to handle the caseload. The caseload for the Court will be large, so the Court will need to be larger than the other Article I courts. During the years that ended on March 31 of 2003, 2004 and 2005, the District Courts respectively received 18,080, 16,172, and 16,181 Social Security Act benefits appeals from SSA Appeals Council decisions.3 In the major cities, over half of the District Court cases are disposed of by voluntary remands and decisions on the merits are uncommon. If the Court is to be an improvement over the present process, the Court must provide a much higher percent of dispositions on the merits and afford the claimants a meaningful opportunity to be heard at oral argument. Even with 30 judges, each judges would hear over 500 cases per year. There is an additional concern that relates to the necessary size of the Court. SSA recently published its final regulations regarding its administrative review process for adjudicating initial disability claims that laudably will gradually phase out the Appeals Council and replace it with a Decision Review Board (“DRB”) composed of Administrative Law Judges (“ALJs”) and Administrative Appeals Judges (“AAJs”).4 However, the new regulations also eliminate the claimants’ right to an administrative appeal from an individual ALJ’s disability decision that is made on the merits to the DRB5 and instead permits an appeal directly to court.6 Congressional testimony on behalf of the Judicial Conference of the United States (1) stated its opposition to “the elimination of a claimant’s right to request review of an administrative law judge’s adverse decision by the Appeals Council, or another administrative reviewing unit with comparable authority, prior to seeking relief in federal district court” because of a concern about a large increase in the number of court appeals that would burden the courts and cause greater disposition delays, and (2) cogently explained the need for a specialized administrative tribunal to which a Social Security disability benefits claimant can appeal an ALJ’s decision in the context of the recent adverse experience of skyrocketing numbers of immigration case appeals to the courts since the “streamlining” of the Board of Immigration Appeals decision making procedures.7 In the preamble to the SSA’s final regulations, the SSA acknowledged that 2 The number of judges specified for the Veterans Court is at least three and not more than seven judges. 38 U.S.C. § 7253(a). 3 Judicial Business of the United States Courts: 2005 Annual Reports of the Director at Table C-2, available at http://www.uscourts.gov/judbus2005/contents.html; Judicial Business of the United States Courts: 2004 Annual Reports of the Director, Table C-2, available at http://www.uscourts.gov/judbus2004/contents.html; Business of the United States Courts: 2003 Annual Reports of the Director at Table C-2, available at http://www.uscourts.gov/judbus2003/contents.html. 4 Administrative Review Process for Adjudicating Initial Disability Claims, 71 Fed. Reg. 16454 (final rule March 31, 2006) (to be codified at 42 C.F.R. § 405.405(a)). 5 71 Fed. Reg. at 16454 (to be codified at 42 C.F.R. § 405.405(b)). 6 71 Fed. Reg. at 16447, 16454 (to be codified at 42 C.F.R. §§ 405.1(b)(3)-(5), 405.373(c)(2)). 7 Joint Hearing on the Commissioner of Social Security’s Proposed Improvements to the Disability Determination Process before the House Subcommittees on Human Resources and Social Security of the Committee on Ways and Means, 109th Cong. (1st Sess., September 27, 2005) (statement of Hon. Howard 2 many commentators on the proposed version of its regulations, including the Judicial Conference, expressed concern that eliminating the claimants’ final administrative appeal from an individual ALJ’s decision would greatly increase court appeals.8 Given the large number of claimants’ appeals from individual ALJ decisions to the Appeals Council, about 92,500 in the fiscal year 20049 and over 89,000 in fiscal year 2005,10 it is reasonable to presume that the initial judicial review step caseload likely would increase six-fold if the new regulations are implemented nationally in their current form, which would require a concomitant six-fold increase in the size of the Court. Based on a comparison to the caseload and size of the seven judge Veterans Court, a 2002 report prepared by Professors Paul Verkuil and Jeffrey Lubbers for the Social Security Advisory Board (“SSAB”) that recommended an Article I Social Security Court to replace District Court judicial review estimated that the Court would need 45 judges.11 During the fiscal years that ended on September 30 of 2003, 2004 and 2005, the seven judge Veterans Court respectively received 2,532, 2,234, and 3,466 new cases,12 which are appeals from about 24% to 26% of the partially or fully unfavorable decisions of the Board of Veterans’ Appeals.13 However, cases with no involuntary adverse determination on the merits are disposed of by the Clerk of the Veterans Court without the need for action by a judge: voluntary joint remands agreed to by the parties, cases settled by the parties through the Veterans Court’s voluntary settlement program, voluntary remands in part and affirmances or dismissals in part agreed to by the parties, voluntary dismissals, and nearly all dismissals for defaults and lack of jurisdiction. This resulted in the judges needing to decide about 700, 620 and 700 of the cases respectively in fiscal years 2003, 2004 and 2005.14 Of the cases that the judges hear, only 1% include oral argument, which either occurs in Washington, D.C., or by telephone conference call.15 The Tax Court procedure requires judge action on all matters. Tax case settlements are placed on a calendar call and a judge signs a judgment to end the case by the end of the calendar call. D. McKibben, Chair, Judicial Conference Committee, Federal-State Jurisdiction, Administrative Office of the U.S. Courts). 8 71 Fed. Reg. at 16439-16440. 9 SSA Office of Hearings and Appeals Annual Report for Fiscal Year 2004 at 9, available at http://ohaweb.ba.ssa.gov/ohanet/OAC/acquarterly/annual_report_2004-4thQtrRpt.pdf. Fiscal Year 2004 ended September 30 2004. 10 SSA Office of Hearings and Appeals Annual Report for Fiscal Year 2005 at 9, available at http://ohaweb.ba.ssa.gov/ohanet/OAC/acquarterly/annual_report_2005-4thQtrRpt.pdf. Fiscal Year 2005 ended September 30 2005. 11 Paul Verkuil and Jeffrey Lubbers, Alternative Approaches to Judicial Review of Social Security Disability Cases: A Report to the Social Security Advisory Board 65 (March 2002), available at http://www.ssab.gov/Publications/Disability/VerkuilLubbers.pdf. 12 United States Court of Appeals for Veterans Claims Annual Reports, available at http://www.vetapp.gov/AboutCourt/Annual%20Reports.pdf. 13 The Board of Veterans’ Appeals partially or fully denied about 10,200, 9,300 and 13,000 claims in Fiscal Years 2003, 2004 and 2005, respectively. Fiscal Year 2004 Report of the Chairman, Board of Veterans’ Appeals at 12-13, available at http://www.va.gov/Vetapp/ChairRpt/BVA2004AR.pdf; Clerk of the Veteran’s Court. 14 Veterans Court Annual Reports, supra at n. 14. 15 About the Court, Court Facts, Procedures, available at http://www.vetapp.gov/aboutcourt/courtfacts.asp. 3 APPOINTMENT OF THE JUDGES: Judges of the Court should be appointed by the President, by and with the advice and consent of the Senate, solely on the grounds of fitness to perform the duties of the office. A person should not be appointed to the Court who is not a member in good standing of the bar of a Federal court or of the highest court of a State. Not more than the number equal to the next whole number greater than one-half of the number of judges of the Court should be members of the same political party.16 The appointment should specify the regional division of the Court to which a judge is assigned as his permanent duty station. We may want to consider the desirability and political feasibility of specifying that a desired or required aspect of fitness to perform the duties of the office of a judge of the Court is: (1) substantial experience as an administrative law judge (“ALJ”) who has heard and decided Social Security Act benefits claims and/or reviewed Social Security Act benefits claims decisions by ALJs as a member of the SSA Decision Review Board, (2) substantial experience as an administrative appeals judge (“AAJ”) who has reviewed Social Security Act benefits claims decisions by ALJs as a member of either the SSA Appeals Council and/or SSA Decision Review Board, (3) substantial experience as a representative of Social Security Act benefits claimants before the Social Security Administration (“SSA”) and the courts, and/or (4) substantial academic expertise regarding the Social Security Act laws, related regulations, and adjudication process that is demonstrated by significant scholarly publications in the subject area. JUDGES’ TERM OF OFFICE: The term of office of the judges of the Court should be 15 years. A judge who is nominated by the President for appointment to an additional term on the Court without a break in service and whose term of office expires while that nomination is pending before the Senate should continue in office for up to 1 year while that nomination is pending.17 REGIONAL DIVISIONS AND OFFICES: The principal offices of the Court should be in the five cities of the regional headquarters of the five most populous regional offices of the Social Security Administration (“SSA”), which currently are New York City, Atlanta, Chicago, Dallas, and San Francisco, 18 but the Court or any of its regional divisions may sit at any place within the United States.19 16 These provisions are identical to those for the Armed Forces Court and Veterans Court. 10 U.S.C. §§ 942(b)(1), 942(b)(3); 38 U.S.C. § 7253(b). 17 These provisions are identical to those for the Veterans Court. 38 U.S.C. § 7253(c). Armed Forces Court, Tax Court, and Federal Claims Court judges also have a 15 year term of office. 10 U.S.C. § 942(b)(2), 26 U.S.C. § 7443(e), 28 U.S.C. § 172(a). 18 Five regional offices of the Court were recommended in the Verkuil, Lubbers report, supra note 11, at 58-59 and 65-66, which described a 1985-1986 Department of Justice draft bill that posited a Social Security Court with five regions in New York City, Atlanta, Chicago, Dallas, and San Francisco to provide claimants access to the courthouse. 19 This provision is identical to the provision for the Tax Court. 26 U.S.C. § 7445 4 Regional placement of the Court makes sense to provide claimant access, avoid the need and cost for national travel for all of the judges, and to ensure judges’ familiarity with the laws of the circuits that their regions cover. TIMES AND PLACES OF SESSIONS: The times and places of sessions of the Court should be prescribed by the Judges of the Court with a view to securing reasonable opportunity to benefits claimants to appear before the Court with as little inconvenience and expense to benefits claimants as is practicable.20 Oral arguments should be held within 75 miles of where the benefits claimants resides or be held by video teleconference, at the election of the Judges of the Court.21 The Court should be authorized to use facilities and hold court throughout the United States (including its territories and possessions) as is necessary for compliance with this section. The facilities of the Federal courts and other comparable facilities administered by the General Services Administration should be made available for proceedings outside of New York City, Atlanta, Chicago, Dallas, and San Francisco.22 DESIGNATION OF CHIEF JUDGE: The judges of the Court will at least biennially designate a judge to act as the Chief Judge. 23 Rotating the Chief Judge responsibility on a regular basis ensures collegiality and shared responsibility in the operation of the Court, much as the responsibility for chairing academic departments operates. An election by the judges ensures that a majority of the Court feels comfortable with the designated Chief Judge. POWERS OF THE CHIEF JUDGE: The chief judge of the Court is the head of the Court. If a regional division is composed of less than the number of judges designated for the division as a result of a vacancy or the absence or inability of a judge assigned thereto to serve thereon, the Chief Judge may assign other judges to the regional 20 This provision is similar to the provisions for the Tax Court and Federal Claims Court. 26 U.S.C. § 7446; 28 U.S.C. §§ 173, 2503(c). 21 This provision is based upon SSA’s practice of holding ALJ hearings within 75 miles of the claimant’s residences or workplaces either by physically sending the ALJ to the locality or holding the hearing by video teleconference. 20 CFR §§ 404.929, 404.936, 404.938, 404.950, 416.1429, 416.1436, 416.1438, 416.1450. SSA reimburses claimants for travel to hearings if they live or work more than 75 miles from the hearing site. 20 CFR §§ 404.999c, 416.1498. 22 These provisions are similar to the provisions for the Federal Claims Court. 28 U.S.C. § 798(a). 23 This is the method of the Tax Court, 26 U.S.C. § 7444(b), which appears preferable to the mechanical rules set for the selection of the Armed Forces Court and Veterans Court Chief Judges, 10 U.S.C. § 943(a), 38 U.S.C. § 7253(d), or the selection of the Chief Judge by the President as is specified for the Federal Claims Court, 28 U.S.C. § 171(b). 5 division or direct the division to proceed with the transaction of business without awaiting any additional assignment of judges thereto.24 The Chief Judge may effect the voluntary transfer of a judge’s permanent duty station from one regional division to another when a judge requests the transfer and the transfer serves the efficiency and economy of the Court. A majority of the Chief Judge and Regional Chief Judges will decide which decisions will have precedential value and be published. Other powers of the Chief Judge appear as part of other recommendations. DESIGNATION OF REGIONAL CHIEF JUDGES: The Chief Judge should at least biennially designate a judge to act as the Regional Chief Judge for each of the Regional Divisions, except the Regional Division in which the Chief Judge sits. The position of Regional Chief Judge should be rotated among the judges whose permanent duty station is in each Regional Division. The Chief Judge should be the Regional Chief Judge for the Regional Division in which the Chief Judge sits. The powers of the Regional Chief Judges appear as part of other recommendations. PANELS: The Court may hear cases by judges sitting alone or in panels, as is determined pursuant to procedures established by the Court. Any such panel should have not less than three judges. The Court should establish procedures for the assignment of the judges of the Court to such panels and for the designation of the chief of each such panel. A majority of the judges of a panel of the Court should constitute a quorum for the transaction of the business of the panel. A vacancy in a panel of the Court should not impair the powers or affect the duties of the panel or of the remaining judges of the panel. 25 QUORUM AND EFFECT OF VACANCY: A majority of the judges of the Court or of any regional division thereof should constitute a quorum for the transaction of the business of the Court or of the regional division, respectively. A vacancy in the Court or in any regional division thereof should not impair the powers nor affect the duties of the Court or regional division nor of the remaining judges to exercise the powers of the Court or regional division.26 24 These provisions are similar to the provisions for the Tax Court. 26 U.S.C. § 7444(c). 25 These provisions are identical to the provisions for the Veterans Court. 38 U.S.C. §§ 7254(b), 7254(c)(2). 26 These provisions are similar to the provisions for the Armed Forces Court, Tax Court and Veterans Court. 10 U.S.C. § 942(g), 26 U.S.C. § 7444(d), 38 U.S.C. § 7254(c)(1). 6 PRECEDENCE OF JUDGES: The Chief Judge of the Court should have precedence and preside at any session that the Chief Judge attends. A Regional Chief Judge should have precedence and preside at any session that the Regional Chief Judge attends, unless the Chief Judge also is in attendance. The other judges should have precedence and preside according to the seniority of their original commissions. Judges whose commissions bear the same date should have precedence according to seniority in age.27 JUDGES’ POWERS – JURISDICTION: Although each judge will be appointed to a specific regional division of the Court as the judge’s permanent duty station, judges of the Court may sit at any place within the United States. JUDGES’ POWERS – OATHS OR AFFIRMATIONS: Judges of the Court should have the authority to administer oaths or affirmations. Although the Veterans Court does not hold evidentiary hearings or trials, it has the power to administer oaths. The Tax Court and Federal Claims Court hold trials, so they necessarily have the power to administer oaths or affirmations.28 JUDGES’ POWERS - SUBPOENAS: Judges of the Court should not need the authority to issue subpoenas, since the Court should not hold evidentiary hearings or trials or bear any burden to develop the record. The Tax Court holds trials of the facts, so necessarily has the power to subpoena documents and witness and compel witness appearances at depositions.29 The Veterans Court, Federal Claims Court, and Armed Forces Court statutes do not specify subpoena power. However, the Federal Claims Court is authorized to hold evidentiary hearings and trials within and outside the United States and subpoena power is implicit in this authority.30 JUDGES’ POWERS – CONTEMPT: Judges of the Court should have the power, at their discretion, to punish by fine or imprisonment such contempt of the Court’s authority as (1) misbehavior of any person in its presence or so near thereto as to obstruct the administration of justice, (2) misbehavior of any of its officers in their 27 These provisions are similar to the provisions for the Armed Forces Court and Veterans Court. 10 U.S.C. § 943(b), 38 U.S.C. § 7254(d). 28 This provision is similar to the provisions for the Tax Court, Federal Claims Court, and Veterans Court. 26 U.S.C. § 7456(a), 28 U.S.C. § 2503(c), 38 U.S.C. § 7254(e). 29 26 U.S.C. § 7456(a)-(b). 30 28 U.S.C. §§ 798(a)-(b), 2503(c). 7 official transactions; or (3) disobedience or resistance to its lawful writ, process, order, rule, decree, or command.31 ASSISTANCE TO THE COURT: The Court should have such assistance in the carrying out of its lawful writ, process, order, rule, decree, or command as is available to a court of the United States. The United States Marshal for a district in which the Court is sitting should, when requested by the Chief Judge or a Regional Chief Judge of the Court, attend any session of the Court in that district.32 REPRESENTATION OF PARTIES: The SSA Commissioner would be represented before the Court by the SSA General Counsel or the General Counsel’s delegate. The claimants would be represented in accordance with the rules of practice prescribed by the Court. No qualified person should be denied admission to practice before the Court because of his or her failure to be a member of any profession or calling. Accordingly, in addition to members of the bar admitted to practice before the Court in accordance with its rules of practice, the Court should allow other persons to practice before the Court who meet the standards of proficiency prescribed in the Court’s rules of practice.33 CLERK OF THE COURT: Each of the five regional divisions of the Court should have a Regional Chief Clerk. The Chief Clerk of the Court should be the Regional Chief Clerk of the regional division in which the Chief Judge sits. The Chief Clerk and Regional Chief Clerks should have the authority to dispose of the cases that have no involuntary adverse determination on the merits without the need for action by a judge, such as voluntary joint remands agreed to by the parties, cases settled by the parties, voluntary remands in part and affirmances or dismissals in part agreed to by the parties, voluntary dismissals, and possibly dismissals for defaults and lack of jurisdiction. The case volume for the Court will warrant regionally located clerks of the Court and staff, who also need to be where the judges and court sessions are to get the Court’s daily business done. Having the Chief Clerk position rotate to where the Chief Judge sits will simplify the administration of the Court. Clerk authority to dispose of the cases that have no involuntary adverse determination on the merits greatly will increase the efficiency of the Court and help reduce the number of 31 This provision is similar to the provisions for the Tax Court and Veterans Court. 26 U.S.C. § 7456(c), 38 U.S.C. § 7265(a). 32 This provision is similar to the provisions for the Tax Court and Veterans Court. 26 U.S.C. § 7456(c), 38 U.S.C. § 7265(b). 33 These provisions are similar to those for the Tax Court and Veterans Court. 26 U.S.C. § 7452, 38 U.S.C. § 7263(b). 8 judges needed to handle the caseload. As is stated in the “composition of the court” section, cases with no involuntary adverse determination on the merits are disposed of by the Clerk of the Veterans Court without the need for action by a judge. However the Tax Court procedure requires judge action on all matters. In determining whether allowing clerk dispositions or having all matters disposed of by the judges may achieve greater efficiency of case dispositions, we need to consider the counter-intuitive results from the Veterans Court and Tax Court: the Veterans Court has a backlog equal to close to two years of new case filings34 but the Tax Court has a small backlog of cases equal to only about 25% of one year of new filings.35 EMPLOYEES: (a) The Court may appoint regional chief clerks without regard to the provisions of title 5 governing appointments in the competitive service, 5 USC §§ 3301 et seq. The five regional chief clerks will serve at the pleasure of the Court. (b) The Judges of the Court may appoint law clerks and secretaries in such numbers as the Court may approve without regard to the provisions of title 5 governing appointments in the competitive service, 5 USC §§ 3301 et seq. Each law clerk and secretary will serve at the pleasure of the appointing Judge. (c) The regional chief clerks, with the approval of the Court, may appoint necessary deputies and employees without regard to the provisions of title 5 governing appointments in the competitive service, 5 USC §§ 3301 et seq. (d) The Court may fix and adjust the rates of basic pay for the regional chief clerks and other employees of the Court without regard to the provisions of chapter 51, 5 USC §§ 5101 et seq., subchapter III of chapter 53, 5 USC §§ 5331 et seq., or section 5373 of title 5, 5 U.S.C. § 5373. To the maximum extent feasible, the Court will compensate employees at rates consistent with those for employees holding comparable positions in the judicial branch. (e) In making appointments under subsections (a) through (c) of this section, preference will be given, among equally qualified persons, to persons who are preference eligibles as is defined in section 2108(3) of title 5, 5 U.S.C. § 2108(3). 34 As of mid February 2006, 5,166 cases were pending in the Veterans Court. Through 2004, the average number of cases pending had been 2,500-3,000. Oral report by the Clerk of the Veterans Court (March 1, 2006). During 2004 and 2005, a total of 5,700 new cases were filed in the Veterans Court. United States Court of Appeals for Veterans Claims Annual Reports, available at http://www.vetapp.gov/AboutCourt/Annual%20Reports.pdf. 35 During fiscal years 2004 and 2005, 24,200 and 24,700 cases respectively were filed in Tax Court and 22,800 and 23,900 cases respectively were closed. At the end of fiscal years 2004 and 2005, the Tax Court respectively had 23,900 and 24,900 cases pending. As of the end of fiscal 2005, of the 24,900 cases that were pending, only about 6,400 were pending for more than one year, which is a fair measure of any backlog. Office of Chief Counsel, IRS, Counsel Automated Tracking System, Charts for Docketed Inventory-Cases in Dispute, Tax Court – Receipts and Closures-All Cases, and Tax Court Inventory-Age of Pending Cases-As of September 30, 2005 (provided by the Office of Chief Counsel, IRS). 9 (f) The Court may procure the services of experts and consultants under section 3109 of title 5, 5 U.S.C. § 3109. (g) The Chief Judge and Regional Chief Judges of the Court may exercise the authority of the Court under this section whenever there are not at least two other judges of the Court in a given regional division. (h) The Court will not be considered to be an agency within the meaning of section 3132(a)(1) of title 5, 5 U.S.C. § 3132(a)(1) [for the purposes of the subchapter relating to employment of Senior Executive Service, 5 U.S.C. § 3131 et seq.]. (i) The Court may accept and utilize voluntary services and uncompensated (gratuitous) services, including services as authorized by section 3102(b) of title 5, 5 U.S.C. § 3102(b) [relating to personal assistants to aid handicapped employees], and may accept, hold, administer, and utilize gifts and bequests of personal property for the purposes of aiding or facilitating the work of the Court. Gifts or bequests of money to the Court will be covered into the Treasury.36 These provisions permit the Court wide latitude in obtaining and maintaining a high quality workforce. These provisions also permit the Court to use voluntary services and gifts, which Executive Branch agencies generally are not permitted to do. SEAL: The Court should have a seal that is judicially noticed.37 JURISDICTION AND APPELLATE REVIEW JURISDICTION: The Court would perform the first step in the judicial review process of final administrative decisions by the Commissioner of the Social Security Administration (“SSA”) of Social Security Act benefits claims upon appeal by benefits claimants who received adverse decisions. The Court would have exclusive jurisdiction to review the final administrative decisions by the SSA Commissioner of Social Security Act benefits claims arising from the old-age, survivors, and disability insurance programs under Title II38 and the supplemental security income program under Title XVI39 of the Social Security Act. The SSA Commissioner may not seek initial judicial review by the Court of any of the SSA Commissioner’s final administrative decisions of disability benefits claims.40 The Court would have 36 These provisions are identical to the provisions for the Veterans Court. 38 U.S.C. § 7281. 37 This provision is identical to the provisions for the Tax Court and Veterans Court. 26 U.S.C. § 7444(a), 38 U.S.C. § 7254(a). 38 42 U.S.C. §§ 401 et seq. 39 42 U.S.C. §§ 1381 et seq. 40 This provision is the same as that for the Veterans Court. 38 U.S.C. § 7252(a). The Social Security Act currently does not authorize the SSA Commissioner to appeal the Commissioner’s final disability decisions to court for review. 42 U.S.C. § 405(g). 10 power to affirm, modify, or reverse a SSA decision, vacate and remand an SSA decision to the SSA, or dismiss an appeal to the Court. The Social Security Act section regarding judicial review of SSA’s final administrative decisions, 42 U.S.C. § 405(g), would require amendment to substitute the Court for the United States District Courts. The Court’s jurisdiction would not extend to initial judicial review of the final administrative decisions by the Secretary of the Department of Health and Human Services (“DHHS”) of Medicare, Medicaid and other federal health care enforcement proceedings brought under the Social Security Act and other applicable statutes. Such enforcement proceedings currently are heard on administrative appeal by ALJs within the Civil Remedies Division of the DHHS Departmental Appeals Board that administratively is within the Office of the DHHS Secretary, with final administrative decision-making authority vested in the DHHS Secretary.41 Barring the SSA Commissioner from seeking judicial review of the Commissioner’s own final disability benefits decisions is a continuation of the current procedure. The Social Security Act does not authorize the SSA Commissioner to appeal the Commissioner’s disability decisions to court for review, just as the Secretary of the Veterans Administration is barred from appealing the decisions of the Secretary’s Board of Veterans' Appeals.42 STANDARD AND SCOPE OF APPELLATE REVIEW: Standard of Appellate Review: The appellate review by the Court of the findings of fact in SSA’s final administrative decisions will continue to be subject to the substantial evidence standard that is set forth in 42 U.S.C. § 405(g) of the Social Security Act: the findings of fact by the SSA Commissioner are conclusive, if they are supported by substantial evidence. Findings of fact made by the SSA Commissioner will not be subject to a trial de novo by the Court. The Court will not hold evidentiary hearings or trials. Review by the Court will be based on the record of the proceedings before the SSA Commissioner. As part of the Commissioner's answer to the appeal, the Commissioner will file a certified copy of the transcript of the record including the evidence upon which the findings and decision complained 41 SSA’s Official Internet Site for the Civil Remedies Division of the DHHS Departmental Appeals Board, at http://www.dhhs.gov/dab/civil/. Social Security Act enforcement proceedings for civil money penalties, assessments and exclusions from program participation are brought by CMS, the DHHS Office of Inspector General, or SSA Office of Inspector General. The scope of the Social Security Act civil remedies cases that may be sought by CMS or the DHHS or SSA Offices of the Inspector General, jurisdiction over the appeals from which is vested in the ALJs within the Civil Penalties Division, is stated in 20 C.F.R. § 498.100, 42 C.F.R. §§ 402.1, 1003.100, 1005.2(a), 20 C.F.R. Part 498, and 42 C.F.R Parts 498, 1001, 1003, and 1004. The ALJs within the Civil Penalties Division also have jurisdiction over civil remedies case appeals for violations of statutes other than the Social Security Act, which are listed at http://www.dhhs.gov/dab/appellate/regulations.html. 42 38 U.S.C. § 7252(a), 42 U.S.C. § 405(g). 11 of are based. Issues of law will be addressed de novo.43 When a final disability benefits decision of the SSA Commissioner is adverse to a party and the sole stated basis for the decision is the failure of the party to submit proof in conformity with any applicable regulations prescribed by the SSA Commissioner, the Court will review only the questions of conformity with and the validity of such regulations.44 Oral Argument: Oral argument must be allowed in every case unless a panel of three judges who have examined the briefs and record unanimously agrees that oral argument is unnecessary because the appeal is frivolous, the dispositive issue or issues have been authoritatively decided, or the facts and legal arguments are adequately presented in the briefs and record and the decisional process would not be significantly aided by oral argument. The parties may agree to submit a case for decision on the briefs, but the Court may direct that the case be argued.45 The Court will follow Rule 34 of the Federal Rules of Appellate Procedure (“FRAP”) regarding the holding of oral arguments and FRAP Rules 28-32 regarding the briefing of cases. The Court may prescribe additional rules of practice and procedure regarding oral argument and briefing of cases that do not conflict with the FRAP Rules. An opportunity for oral argument and full briefing of each case will afford a full and dynamic airing of the issues on appeal that will not occur with just a review of the record certified from SSA and briefs alone. Of the cases that the Veterans Court Judges hear, only 1% include oral argument, which either occurs in Washington, D.C., or by telephone conference call.46 This is because the statutes regarding the Veterans Court do not address oral argument and the procedure for oral argument that was adopted by the Veterans Court does not require it. Rule 34 of the Veterans Court 47states that “[o]ral argument will be allowed only when ordered by the Court…. The Court may order oral argument on its own initiative or on a party's motion…” An example of an additional rule that the Court may adopt is setting limits on oral argument time. The Notes of the Advisory Committee regarding FRAP Rule 34 state that A majority of circuits now limit oral argument to thirty minutes for each side, with the provision that additional time may be made available upon request. The Committee is of the view that thirty minutes to each side is sufficient in most cases, but that where additional time is necessary it should be freely granted on a proper showing of cause therefor. It further feels that the matter of time should be left ultimately to each court of appeals, subject to the spirit of the rule that a reasonable time should be allowed for argument. The term "side" is used to 43 These provisions are based upon those for the Veterans Court, 38 U.S.C. § 7252(b), and the Social Security Act provision for judicial review of Social Security Act benefits claims, 42 U.S.C. § 405(g). 44 This provision is identical to the Social Security Act provision for judicial review of Social Security Act benefits claims, 42 U.S.C. § 405(g), and similar to but more specific than the provision for the Veterans Court, 38 U.S.C. § 7261(d). 45 These provisions are identical to those in FRAP Rule 34(a)(2) and 34(f). 46 About the Court, supra at note 15. 47 Veterans Court Rule 34(a). 12 indicate that the time allowed by the rule is afforded to opposing interests rather than to individual parties. Thus if multiple appellants or appellees have a common interest, they constitute only a single side. If counsel for multiple parties who constitute a single side feel that additional time is necessary, they may request it.48 Closed Record on Appeal: The Court may not receive and consider additional evidence outside of the record certified to the Court by the SSA, regardless of whether the given case is before the Court on appeal from a final administrative decision of the SSA Appeals Council under the current statutes and regulations, or on appeal from a final administrative decision of an ALJ or, beginning in 2007, the SSA Decision Review Board under the SSA Commissioner’s new regulations regarding the Administrative Review Process for Adjudicating Initial Disability Claims.49 The Social Security Act judicial review provision requires that a court receive new evidence only when a claimant shows that there is material new evidence and there is good cause for not including it in the record earlier, which then requires the court to remand the case to SSA for consideration of the new evidence.50 However, there is no statutory basis in the Social Security Act for the receipt and decision upon new evidence at the first step of judicial review. The current SSA regulations currently do not close or limit the record at any point in the administrative adjudication process. Even at the final step of administrative review, the Appeals Council engages in plenary review unless it says to the contrary.51 The SSA regulations also state that “[w]e will consider at each step of the review process any information that you present as well as all the information in our records.”52 “The regulations further make clear that the [Appeals] Council will ‘evaluate the entire record,’ including ‘new and material evidence,” in determining whether to grant review.”53 The reason the SSA keeps the record open is explained by the provision in the “judicial review” section of the Social Security Act, which authorizes the remand of a case when a claimant shows that there is material new evidence and there is good cause for not including it in the record earlier.54 Given the existence of this provision, SSA’s closing the record at any administrative step would lengthen the time it takes for the claimants to get decisions because they would have to appeal for judicial review just to admit new evidence, increase the number of appeals for judicial review, and increase the number of court remands. Under the Commissioner’s new disability process regulations, the record will be closed when the ALJ decision is issued, regardless of whether it becomes the SSA Commissioner’s final administrative decision.55 However, an ALJ may be requested by a 48 FRAP Rule 34, Notes of Advisory Committee 49 71 Fed. Reg. 16424-14462 (final rule March 31, 2006). 50 42 U.S.C. § 405(g). 51 Sims v. Apfel, 530 U.S. 103, 120 S. Ct. 2080, 2085-2086, 147 L. Ed. 2d 80 (2000), citing, 20 C.F.R. § 404.975. 52 20 C.F.R. § 404.900(b). 53 Sims, 120 S. Ct. at 2086, quoting, 20 C.F.R. § 404.970(b). 54 42 U.S.C. § 405(g). 55 71 Fed. Reg. at 16453 (to be codified at 42 C.F.R. § 405.360). 13 claimant to consider new evidence after the ALJ’s decision.56 The Commissioner’s regulations of course do not affect the Social Security Act judicial review statute. Appeal Conferences: The Court may hold conferences in a case to address any matter that may aid in disposing of the case, including simplification of the issues and discussions of settlement.57 The Court will follow FRAP Rule 33 regarding the holding of conferences. The Court may prescribe additional rules of practice and procedure regarding conferences that do not conflict with the FRAP Rules. Scope of Appellate Review: (a) In any action brought before it, the Court, to the extent necessary to its decision and when presented, will (1) decide de novo all relevant questions of law, interpret constitutional, statutory, and regulatory provisions, and determine the meaning or applicability of the terms of an action of the SSA Commissioner; (2) compel action of the SSA Commissioner unlawfully withheld or unreasonably delayed; (3) hold unlawful and set aside decisions, findings (other than those described in clause (4) of this subsection), conclusions, rules, and regulations issued or adopted by the SSA Commissioner that are found to be (A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (B) contrary to constitutional right, power, privilege, or immunity; (C) in excess of statutory jurisdiction, authority, or limitations, or in violation of a statutory right; or (D) without observance of procedure required by law; and (4) in the case of a finding of material fact adverse to the claimant made in reaching a decision in a case before the SSA with respect to benefits under laws administered by the SSA Commissioner, hold unlawful and set aside or reverse such finding, if the finding is not supported by substantial evidence. (b) In making its determinations, the Court will review the record of proceedings before the SSA Commissioner and the briefs filed and oral argument by the parties before the Court, and will take due account of the rule of prejudicial error.58 VENUE: A Social Security benefits claimant’s appeal should be filed in the Regional Division of the Court in which the claimant resides or has his principal place of business at the time the appeal to the Court is filed. If the claimant moves his residence to the jurisdiction of another Regional Division of the Court after the claimant’s appeal is filed and before oral argument is heard or before the case is decided without oral argument, the claimant’s case should be transferred to the 56 71 Fed. Reg. at 16454 (to be codified at 42 C.F.R. § 405.373). 57 This provision is identical to that in FRAP Rule 33. 58 These provisions are adapted from similar provisions for the Veterans Court but using the Social Security standard of review, 38 U.S.C. § 7261(a)-(b). 14 Regional Division where the claimant moved for oral argument and/or decision, unless the claimant or the claimant’s representative waives the change of venue. If a claimant does not reside or have the claimant’s principal place of business within the United States, the case should be filed in the Atlanta Regional Division of the Court. ISSUE PRECLUSION AND EXHAUSTION: The Court should not preclude judicial review of issues that are not enumerated on appeal from a final decision of the SSA Commissioner in order to preserve judicial review of the issues upon claims for Title II and Title XVI Social Security Act benefits. The Court cannot require issue exhaustion in SSA administrative appeals, unless and until the SSA Commissioner adopts a regulation that requires issue exhaustion. Preclusion of issues not specified in a notice of appeal to the Court is not appropriate, given the informality of the adjudication process for Social Security Act benefits claims, for the same reasons that the Supreme Court has stated that an issue exhaustion requirement for SSA administrative appeals is not appropriate. As the Supreme Court stated in Sims v. Apfel, there is no statute or regulation that requires a Social Security benefits claimant to list the specific issues to be considered on an administrative appeal on his request for review of an ALJ’s decision by the SSA Appeals Council in order to preserve those issues for judicial review.59 Although agencies often issue “regulations to require issue exhaustion in administrative appeals,”60 which are enforced by the courts by not considering unexhausted issues, “SSA regulations do not require issue exhaustion.”61 In Sims, the Supreme Court refused to impose a judicially inferred issue exhaustion requirement in order to preserve judicial review of the issues upon a claim for Title II and Title XVI Social Security Act benefits. The Supreme Court reasoned that the issues in SSA hearings are not developed in an adversarial administrative proceeding and the “[Appeals] Council, not the claimant, has primary responsibility for identifying and developing the issues.”62 The Supreme Court added that “we think it likely that the Commissioner could adopt a regulation that did require issue exhaustion.”63 Accordingly, although the statute that creates the Court could require preclusion of issues that are not enumerated on appeal, or the Court could issue a procedural rule under its rulemaking authority that requires issue preclusion on appeal, the Supreme Court’s compelling rationales in Sims in the context of the administrative adjudication process for not requiring issue exhaustion in the absence of adversarial administrative hearings and proceedings are equally compelling for the first level of judicial review. While many Social Security benefits claimants now have representation, they often are represented by non-attorneys, and about 15% of claimants are unrepresented. Expecting the elderly and disabled to bear the burden of preserving specific legal issues for judicial review does not 59 Sims, 530 U.S. at 108. 60 Id. 61 Id. 62 Id. at 112. 63 Id. at 108. 15 comport with a sense of fair play and keeping the Social Security claims process claimant-friendly. JUDICIAL REVIEW OF COURT DECISIONS: The United States Courts of Appeals, other than the United States Court of Appeals for the Federal Circuit (“Federal Circuit”), will have exclusive jurisdiction to review the decisions of the Court in the same manner and to the same extent as decisions of the District Courts in civil actions tried without a jury. The judgment of any such court will be final, except that it shall be subject to review by the Supreme Court of the United States upon certiorari.64 The appeals from the Court should be to the regional Circuit Courts of Appeal, as appeals from the District Court decisions of Social Security Act benefits claims now are, rather than to the D.C. Circuit or the Federal Circuit. The Verkuil Lubbers report recommended appellate review by the regional circuits to continue the diversity on questions of law,65 but there also is the practical consideration that the size of this appellate caseload would overwhelm the D.C. or Federal Circuit. Placing all of the Circuit-level Social Security benefits claims appeals in either the D.C. Circuit or the Federal Circuit would either nearly double the D.C. Circuit’s caseload or increase the Federal Circuit’s caseload by about 50%. During the years ending March 31, 2004, and March 31, 2005, respectively 768 and 690 Social Security cases were filed with the regional Circuit Courts of Appeals, among the total of 45,769 and 47,094 cases of all types combined that were filed.66 During the years ending March 31, 2004, and March 31, 2005, respectively only 1,515 and 1,637 cases of all types combined were filed with the Federal Circuit.67 During the years ending March 31, 2004, and March 31, 2005, respectively only 705 and 851 cases of all types combined were filed with the D.C. Circuit Court of Appeals.68 Thus, adding the Social Security Act benefits appeals caseload to the docket of either the D.C. Circuit or the Federal Circuit would overwhelm these courts. Also, keeping appellate review in the regional Circuit Courts allows regional access to the claimants. Both appeals from Bankruptcy Court decisions, after District Court review, and Tax Court decisions are appealed to the regional Circuits, which makes sense since the Bankruptcy and Tax Courts also serve individual claimants throughout the country who often have limited means. (Although the Tax Court is based in Washington, D.C., it sits throughout the country.) 64 This provision is similar to the provision for the judicial review of Tax Court decisions. 26 U.S.C. § 7482(a). 65 Verkuil Lubbers report, supra note 11, at 66. 66 Judicial Business of the United States Courts: 2005 Annual Reports of the Director at Table B-7, available at http://www.uscourts.gov/judbus2005/contents.html; Judicial Business of the United States Courts: 2004 Annual Reports of the Director, Table B-7, available at http://www.uscourts.gov/judbus2004/contents.html. 67 Id. at Tables B-8. 68 Id. at Tables B-7. 16 STATUS AS AN INDEPENDENT AGENCY AND COURT OF LAW OF THE EXECUTIVE BRANCH STATUS OF THE COURT: The Court would be a court of record established under Article I of the Constitution of the United States. The Court would be a “court of law” that is an “independent regulatory agency” of the Executive Branch. As an independent regulatory agency, the Court also would be an “independent establishment” of the Executive Branch as is defined in 5 U.S.C. § 104. Independent Regulatory Agency: Designation as an independent regulatory agency is essential to have the Court be accountable only to Congress and the President. The phrase “independent regulatory agency” is the technical phrase for an agency that Congress makes independent of the usual degree of Executive Branch oversight, and of course does not mean that such an agency necessarily regulates conduct or benefits programs. Congress formed the Board of Tax Appeals, which later became the Tax Court, to provide a tribunal that is an agency independent of the IRS to hear taxpayers’ appeals from tax deficiency notices before payment of the tax because of the inherent unfairness to taxpayers of having the same agency that investigates and prosecutes cases also perform appellate review.69 Congress created the Veterans Court as an independent regulatory agency to provide claimants for veterans disability benefits with independent judicial review of the Veterans Administration’s determinations of disability claims.70 The Armed Forces Court, which is located within the Defense Department for administrative purposes only,71 does not appear to have been enacted as independent regulatory agency.72 The Federal Claims Court is within the Judicial Branch. The OSHRC73 and (2) FMSHRC74 are exclusively adjudicatory agencies that are outside of the Labor Department and are independent regulatory agencies.75 Examples of independent regulatory agencies that Congress has created within existing Executive Branch agencies to perform adjudications, among other things, include the (1) Federal Energy Regulatory Commission (“FERC”) within the Department of Energy, and (2) Surface Transportation Board (“STB”) within the Transportation Department. The STB replaced and took over the functions of the Interstate Commerce Commission.76 The only list of the independent regulatory agencies that appears in a statute is found at 44 69 Richard L. Revesz, Specialized Courts and the Administrative Lawmaking System, 138 U. PA. L. REV. 1111, 1112 n.9, 1118-1119 (1990) (quoting, Report of Tax Simplification Board: Hearing on H.R. REP. NO. 68-103, at 4 (1st Sess. 1923). 70 38 U.S.C. §§ 7281, 7282, 7287. 71 10 U.S.C. § 941. 72 10 U.S.C. §§ 941-946. 73 29 U.S.C. § 661. 74 30 U.S.C. § 823. 75 Characteristics of Independent Executive Agencies, Congressional Research Service CRS-1-CRS-9 at CRS-1, n. 1 (July 25, 1996), (statement by Rogelio Garcia to House Subcommittee on Social Security). 76 49 U.S.C. §§ 701(a), 702, 703(c). 17 U.S.C. § 3502(5), which addresses federal information policy and includes OSHRC and FMSHRC. Court of Law: The Court must be designated expressly by statute as an Executive Branch court of law so that its principal officers, the judges who in turn will serve as the Chief Judge, unambiguously have the power to appoint inferior officers pursuant to the Appointments Clause of the Constitution. The Appointments Clause provides in pertinent part: [The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.77 Making sure the Chief Judge is empowered to appoint inferior officers is essential to the Chief Judge’s ability to appoint the inferior officers needed to assist in running the Court. Because the statutes that created the Tax Court are silent whether it is a court of law or an Executive Branch department, the Supreme Court had to address the issue of whether the Tax Court, which is an executive branch agency, was empowered to appoint inferior officers. In Freytag, after the Supreme Court found that the special trial judges employed by the Tax Court are judicial officers who are inferior officers,78 the Supreme Court held that all inferior officers must be appointed by the President, courts of law, or heads of departments, and Congress does not have discretion to mandate another appointment method.79 “Heads of departments” was construed rather narrowly to include heads of cabinet departments, by limiting the definition of “department“ to the fourteen executive departments that are listed in 5 U.S.C. § 101 (State, Treasury, Defense, Justice, Interior, Agriculture, Commerce, Labor, Health and Human Services, Housing and Urban Development, Transportation, Energy, Education, and Veterans Affairs). However, the Court also said that the Appointments Clause is not so strictly limited by its terms and left the door open for possible later approval of inferior officer appointments by heads of principal agencies.80 77 U.S. CONST., art. II, § 2, cl. 2. 78 The four most recent Supreme Court Appointments Clause cases regarding judicial officers, including Freytag, follow a two step analysis. The first question is whether the judicial officer is a mere employee or an inferior officer who must be appointed pursuant to the Appointments Clause. So far, all judicial officers have been held to be inferior officers. The second question is whether judicial officers, as inferior officers, were appointed by an authorized court of law or head of a department. Edmond v. United States, 520 U.S. 651 (1997); Ryder v. United States, 515 U.S. 177 (1995); Weiss v. United States, 510 U.S. 163 (1994); Freytag v. Commissioner of Internal Revenue, 501 U.S. 868 (1991). 79 Freytag, 501 U.S. at 877-81. 80 Id. at 886. 18 The Supreme Court in Freytag held, 5 to 4, that the Tax Court is a court of law empowered to appoint special trial judges. The Supreme Court left open the issue of whether an agency is a department.81 However, four of the Justices stated in their concurring opinion that the Tax Court is a department of the Executive Branch82 and that "department" should be construed as a separate executive organization run by a principal officer.83 The concurring justices’ standard appears to be more in accord with both the Constitutional term of “department,” which is not limited to any specific class of Executive Branch departments, and the Administrative Procedure Act standard of an agency being any federal authority with the power to issue final administrative decisions.84 In addition, Congress clearly states in the following other statutes that there are “departments” in the Executive Branch other than the “executive departments” enumerated in 5 U.S.C. § 101: Congress defined “federal agency” for the purposes of the statute on the federal agencies’ use of passenger carriers to include “(A) a department (as such term is defined in section 18 of the Act of August 2, 1946 (41 U.S.C. 5a)), (B) and Executive department (as such term is defined in section 101 of Title 5)”85 Section 18 of the Administrative Expenses Act of 1946, 41 U.S.C. § 5a, provides that “‘department’ as used in this Act shall be construed to include independent establishments [and] other agencies.”86 A Freytag-type controversy may be avoided simply by expressly designating it by statute as an Executive Branch court of law. Independent Establishment: For the purposes of Title 5, entitled “Government Organization and Employees,” the Executive Branch consists of: (1) the fourteen “executive departments” that are listed in 5 U.S.C. § 101, (2) the three “military departments” listed in 5 U.S.C. § 102 (Army, Navy, and Air Force), (3) “government corporations” and “government controlled corporations,” which are defined in 5 U.S.C. § 103, and (4) “independent establishments,” which are defined in 5 U.S.C. § 104 as “an establishment in the executive branch…which is not an Executive department, military department, Government corporation, or part thereof, or part of an independent establishment.” “‘Executive agency’ means an Executive department, a Government corporation, and an independent establishment.”87 Thus, independent regulatory agencies are “independent establishments.” A provision that the Court is an independent establishment is necessary to expressly state where the new agency fits in the Executive Branch structure described in Title 5. 81 Id. at 882-91. 82 Id. at 901-21. 83 Id. at 919-21. 84 Administrative Procedure Act § 1, 5 U.S.C. § 551(1). 85 31 U.S.C. § 1344(g)(2)(A)-(B). 86 Administrative Expenses Act of 1946, § 18, 41 U.S.C. § 5a. 87 5 U.S.C. § 105. 19 REMOVAL FROM OFFICE: A judge of the Court may be removed from office by the President for inefficiency, ineligibility, neglect of duty, malfeasance in office, or engaging in the practice of law, or, in the case of a Chief Judge, for appointing or promoting an official or employee on the basis of a political test or qualification, but for no other cause. Before a judge may be removed from office, the judge will be provided with a notice that includes a full specification of the reasons for the removal and an opportunity for a public hearing. The proposed Court, as an independent agency, will not be under the direction and control of the President or any other Executive Branch official outside of the Court. Therefore, in the absence of cause, the President may not remove the judges, who are the principal officers of an agency that is not under his direction and control. Restricting the President’s ability to arbitrarily remove the appointed principal officers is a primary characteristic of an independent agency, so that the officers are not subject to “at will” removal for political or other reasons.88 The provision is modeled on similar provisions of nearly twenty independent agencies, and includes all of the grounds for removal that appear in the provisions. Examples include the Tax Court,89 Veterans Court,90 Federal Claims Court,91 Armed Forced Court,92 Occupational Safety and Health Review Commission (“OSHRC”),93 Federal Mine Safety and Health Review Commission (“FMSHRC”),94 and SSA.95 The requirement of notice and an opportunity for a public hearing is modeled on the removal provisions for the Tax Court and Veterans Court judges.96 Over one dozen independent agencies’ statutes have no removal provision, but Supreme Court rulings bar removal of “members of a body created to exercise purely adjudicatory functions that are not subject to review by any other executive branch official.”97 Mental or physical disability is addressed in the retirement benefits provisions. DISBARMENT OF REMOVED JUDGES: A judge of the Court who is removed from office by the President should not be permitted at any time to practice before the Court.98 88 Garcia, supra note 75, at CRS-1. 89 26 U.S.C. § 7443(f). 90 38 U.S.C. § 7253(f). 91 28 U.S.C. § 176. Removal of a Federal Claims Court Judge is effected by the United States Court of Appeals for the Federal Circuit, which is appropriate for this Judicial Branch court, but not for an Executive Branch court such as the Social Security Court will be. 92 10 U.S.C. § 942(c). 93 29 U.S.C. § 661(b). 94 30 U.S.C. § 823(b)(1)(B). 95 42 U.S.C. § 902(a)(3). Only the Tennessee Valley Authority allows removal for political impropriety. Garcia, supra note 75, at CRS-4, n. 11. 96 26 U.S.C. § 7442(f), 38 U.S.C. § 7253(f). 97 Garcia, supra note 75, at CRS-3-CRS-5. 98 The Tax Court and Federal Claims Court have disbarment provisions, 26 U.S.C. § 7443(c), 28 U.S.C. § 177, but the Veterans Court does not, 38 U.S.C. § 7251 et seq. 20 INDEPENDENT BUDGET AND AUTHORIZATION OF APPROPRIATIONS: The Chief Judge shall prepare an annual budget for the Court for inclusion in the budget of the President for each fiscal year, which shall be included in that budget and submitted by the President to the Congress without review or revision within the Executive Branch. Appropriations requests for staffing and personnel of the Court should be based upon a comprehensive work force plan, which shall be established and revised from time to time by the Chief Judge. Appropriations for administrative expenses of the Court should be authorized to be provided on a biennial basis. The degree of independence that an agency has is affected by the degree of control that it has in preparing and submitting its budget requests to Congress. Budget requests usually are changed by the Office of Management and Budget (“OMB”), but Congress can permit agencies to submit their budgets without revision. Congress also can provide that the President submit an agency’s budget without revision “together with the President's annual budget for the agency,” so that the Appropriations Committees can compare the agency budget with the OMB proposed revisions. The proposed provision for the Court that bars OMB from submitting revisions of the Court’s budget requests would maximize the Court’s independence within the Executive Branch99 and is the same provision as Congress enacted for the Veterans Court100 and the U.S. International Trade Commission.101 The provision also is based in part upon the budget provisions for the SSA and U.S. Postal Service as independent agencies, which require budget submission without revision, but permit the President also to submit his recommendations, among other budget provisions.102 ADMINISTRATION OF THE COURT: Notwithstanding any other provision of law, the Court may exercise, for purposes of management, administration, and expenditure of funds of the Court, the authorities provided for such purposes by any provision of law, including any limitation with respect to such provision of law, applicable to a court of the United States as that term is defined in 28 U.S.C. § 451, except to the extent that such provision of law is inconsistent with a provision of the statutes that create the Court.103 As an independent agency, the Court requires the authority to self-administer. EXPENDITURES: The Court should be authorized to make such expenditures (including expenditures for personal services and rent at the seat of Government 99 Garcia, supra note 75, at CRS-5-CRS-8. 100 38 U.S.C. § 7282(a). 101 19 U.S.C. § 2232. 102 42 U.S.C. § 904(b), 39 U.S.C. § 2009. 103 This provision is identical to that for the administration of the Veterans Court. 38 U.S.C. § 7287. 21 and elsewhere, and for law books, books of reference, and periodicals) as may be necessary to execute efficiently the functions vested in the Court. Except as provided elsewhere regarding the expenditure of practice and registration fees that are collected from practitioners admitted to practice before the Court, all expenditures of the Court shall be allowed and paid out of moneys appropriated for purposes of the Court upon presentation of itemized vouchers signed by the certifying officer designated by the Chief Judge for each of the Regional Divisions.104 As an independent agency, the Court requires the authority to expend funds to carry out its business. RULEMAKING; RULES OF PRACTICE AND PROCEDURE: The Court should have the exclusive power to prescribe such rules of practice and procedure and other regulations as it deems necessary or appropriate to carry out its functions. 105 The rules should be known as the “Rules of Practice and Procedure of the United States Social Security Court.” The Court cannot have the authority to issue rules regarding the policies or administration of the Social Security Act programs, which is the province of the SSA Commissioner. The rules and regulations of the Court should be promulgated by the Chief Judge pursuant to 5 U.S.C. § 553 of the Administrative Procedure Act, since the Court is an Executive Branch agency, but the Court should not be required to provide an opportunity for a hearing on the record in order to issue rules. As an independent agency, the Court requires the authority to issue regulations regarding its self-administration. However, the Court will not have authority to issue rules regarding the policies or administration of the Social Security Act programs, which is the province of the SSA Commissioner. The proposal does not require the Court to provide an opportunity for a hearing on the record in order to issue rules because of the Court’s limited rule making power. Accordingly, 5 U.S.C. §§ 556-57 of the Administrative Procedure Act, which set forth the requirements for hearings on the record, will not apply to the Court’s rule making power. Rules of evidence need not be prescribed, which would be the Federal Rules of Evidence, since the Court will not be holding evidentiary hearings or trials. DIRECT TRANSMITTALS TO CONGRESS AND PUBLICATION OF REPORTS: The Court will transmit to Congress and the President copies of budget estimates, requests including personnel needs, information, legislative 104 This provision is similar to those for the Tax Court, 26 U.S.C. § 7472, and Veterans Court, 38 U.S.C. § 7282(b)-(c). 105 These provisions are similar to those for the Armed Forces Court, 10 U.S.C. § 944, Tax Court, 26 U.S.C. § 7453, Federal Claims Court, 28 U.S.C. § 2503(b), Veterans Court, 38 U.S.C. § 7264, STB, 49 U.S.C. § 703(e), and OSHRC, 29 U.S.C. § 661(g). 22 recommendations, prepared testimony for Congressional hearings, and comments on legislation. An officer of an agency, including the OMB, may not impose conditions on or impair communications by the Court with Congress, or a committee or Member of Congress.106 The Court annually will transmit to the President, the Committee on Finance of the Senate and its Subcommittee on Social Security and Family Policy, and the Committee on Ways and Means of the House of Representatives and its Subcommittee on Social Security quarterly and annual reports that include (1) a comprehensive survey of the operation and activities of the Court, (2) information on the number, claim type, age, and status of pending cases, and number, claim type, disposition time, and type of resolution of cases closed during the report period, (3) recommendations that relate to amendments to the statutes that relate to the Court, and (4) recommendations that relate to any other matter the Court considers appropriate. The Court will provide for the publication of its reports on the Court’s website and at the Government Printing Office in such form and manner as may be best adapted for public information and use, and such authorized publication shall be competent evidence of the reports of the Court without any further proof or authentication thereof. The reports of the Court will be subject to sale by the Government Printing Office in the same manner and upon the same terms as other public documents.107 The degree of independence that an agency has is affected by whether the agency must clear its communications and information that the agency wishes to submit to Congress with OMB before contacting Congress.108 JUDGES PAY AND BENEFITS SALARY: Each judge of the Court should receive a salary at the same rate and in the same installments as is received by judges of the United States District Courts.109 RETIREMENT BENEFITS AND SURVIVORS ANNUITIES FOR JUDGES: The judges of the Court should have retirement benefits and survivors annuities that are commensurate with those provided for the judicial officers of the other Article I courts. The following provisions should be included, all of which have precedent in 106 This provision is modeled on the provisions for the Surface Transportation Board. 49 U.S.C. §§ 703(g), 704. 107 This provision is modeled on those for the Armed Forces Court, Tax Court, and Surface Transportation Board. 10 U.S.C. § 946, 26 U.S.C. § 7462, 49 U.S.C. §§ 703(g), 704. There is no provision that requires the Veterans Court to publish reports regarding its pending cases and case dispositions. 108 Garcia, supra note 75, at CRS-8-CRS-9. 109 This is the rate of pay for the Tax Court Judges, 26 U.S.C. § 7443(c), Federal Claims Court Judges, 28 U.S.C. § 172(b), and Veterans Court Judges, 38 U.S.C. § 7253(e). The rate of salary and frequency of installments is specified in 5 U.S.C. § 5505 and 28 U.S.C. § 135. The rate of pay for the Armed Forces Court judges is the same rate as for the judges of the United States Courts of Appeals. 10 U.S.C. § 942(d). 23 the retirement benefits and survivors annuities provided for the judicial officers of the other Article I courts. Judges of the Court who complete a 15 year term of service at any age becomes entitled to an annuity equal to 100 percent of his or her final salary. The pension and survivors’ annuities should include cost of living increases that are not capped at the current salary level. The judges should not be required to contribute toward the cost of the pension or survivors’ annuities. There should be provisions for disability retirement, a reduced annuity on a pro rata basis when there is less than 15 years of service, and continuation after retirement of health insurance coverage within the Federal Employee Health Benefits program. A fund known as the Social Security Court Retirement Fund should be established in the Treasury similar to those established for the Veterans Court judges,110 Federal Claims Court judges,111 and Bankruptcy Judges and United States Magistrates.112 A fund known as the Social Security Court Survivors' Annuities Fund should be established in the Treasury similar to those established for the Tax Court judges113 and Federal Claims Court judges, Bankruptcy Judges and United States Magistrates.114 The amounts required to reduce to zero the unfunded liability of the Social Security Court Retirement Fund and Social Security Court Survivors' Annuities Fund should be authorized to be appropriated to the Funds. Any legislation for enactment also should state that there are authorized to be appropriated such sums as may be necessary to carry out this section.115 In summary, five groups of Article I federal judicial officers have pension plans that provide for annuities equal to 100 percent of their final salary after 10 to 15 years of service and upon reaching a certain age between 65 and 70. However, one other group of Article I federal judicial officers has a pension plan that provide for an annuity equal to 80 percent of their final salary and bases eligibility upon completion of 15 years of service alone, regardless of age. The judges either contribute one percent of their salary for no more than 15 years or are not required to contribute any funds. All of the plans provide for survivors annuities. Some of the details of the plans are as follows. Since 1989, a Veterans Court judge who reaches age 65 with 15 years of service, with a decreasing amount of service required down to ten years upon reaching age 70, becomes entitled to an annuity equal to the judge’s final salary.116 As is stated above, the term of the appointment is 15 years.117 Veterans Court judges must contribute an additional one percent of salary per annum for the full salary plan during their first 15 years of service after election to participate in the plan.118 A judge may elect among this plan or either CSRS or FERS, depending upon the plan to which he may be entitled. There is no early 110 38 U.S.C. § 7298. 111 28 U.S.C. § 178(l) 112 28 U.S.C. § 377 (o). 113 26 U.S.C. § 7448(c). 114 28 U.S.C. § 376(b). 115 These provisions are the same as the one for the Federal Claims Court retirement fund to which the judges of that court are not required to contribute. 28 U.S.C. §§ 178(l)(3)(A) and 178(l)(3)(C). 116 38 U.S.C. § 7296(b). 117 38 U.S.C. § 7253(c). 118 38 U.S.C. § 7296(i)-(j). 24 retirement provision but the statute provides for disability retirement.119 There are survivors’ annuities for a surviving spouse and surviving dependent children.120 Veterans Court judges who elect to participate in the survivors’ annuity program must contribute the same amount as Federal Claims Court judges are required to contribute to their plan: 2.2 percent of salary per annum and 2.2 percent of the retirement salary per annum.121 A Tax Court judge who reaches age 65 with 15 years of service, with a decreasing amount of service required down to ten years upon reaching age 70, becomes entitled to an annuity equal to the judge’s final salary.122 As is stated above, the term of the appointment is 15 years.123 Tax Court judges are not required to contribute an additional one percent of salary per annum for the full salary plan after election to participate in the plan. A judge may elect among this plan or either CSRS or FERS, depending upon the plan to which the judge may be entitled. There is no early retirement provision, but the statute provides for a mandatory retirement age of 70, a reduced annuity on a pro rata basis when there is less than 10 years of service, and disability retirement.124 There are survivors’ annuities for a surviving spouse and surviving dependent children.125 A Tax Court judge who elects to participate in the survivors’ annuity program is required to contribute 3.5 percent of salary per annum and 2.2 percent of the retirement salary per annum.126 Since 1990, a judge of the Federal Claims Court who reaches age 65 with 15 years of service, with a decreasing amount of service required down to ten years upon reaching age 70, becomes entitled to an annuity equal to the judge’s final salary.127 The term of the appointment is 15 years.128 These judges are not required to contribute toward the cost of the annuity.129 A judge may elect among this plan or either CSRS or FERS, depending which plan he may have been entitled to.130 There is no early retirement provision, but the statute provides for a disability retirement.131 There are survivors’ annuities for a surviving spouse and surviving dependent children.132 Federal Claims Court judges who elect to participate in the survivors’ annuity program are required to contribute 2.2 percent of salary per annum and 2.2 percent of the retirement salary per annum.133 119 38 U.S.C. § 7296. 120 38 U.S.C. § 7297. 121 38 U.S.C. § 7297(c), 28 U.S.C. § 376(b)(1)(B). 122 26 U.S.C. § 7447(b). 123 26 U.S.C. § 7443(e). 124 26 U.S.C. § 7447. 125 26 U.S.C. § 7448. 126 26 U.S.C. § 7448(c)(1). 127 28 U.S.C. § 178(a). 128 28 U.S.C. § 172(a). 129 28 U.S.C. § 178(l)(3)(C). 130 28 U.S.C. § 178(f). 131 28 U.S.C. § 178. 132 28 U.S.C. § 376. 133 28 U.S.C. § 376(b)(1)(B). 25 Since 1988, a Bankruptcy Judge or U.S. Magistrate who reaches age 65 with 14 years of service becomes entitled to an annuity equal to his or her final salary.134 If such a judge has at least eight years of service and retires before age 65, he receives an annuity starting at age 65 that is reduced by a formula.135 The eight and 14 year periods doubtless were picked because these respectively are the length of a Magistrate's and Bankruptcy Judge's term,136 if they are not reappointed. These judges must contribute an additional 1 percent per annum for the full salary plan during their first 14 years of service.137 A judge may elect among this plan or either CSRS or FERS, depending which plan he may have been entitled to.138 The annuity includes cost of living increases, but the annuity may not exceed the current salary for the position.139 There is no early retirement provision, but the statute provides for a disability retirement.140 There are survivors’ annuities for a surviving spouse and surviving dependent children.141 Bankruptcy Judges and U.S. Magistrates who elect to participate in the survivors’ annuity program are required to contribute 2.2 percent of salary per annum and 3.5 percent of the retirement salary per annum.142 Since 1989, a judge of the U.S. Court of Appeals for the Armed Forces who completes a 15 year term of service at any age becomes entitled to an annuity equal to 80 percent of his or her final salary.143 The term of the appointment is 15 years.144 A judge may elect among this plan or either CSRS or FERS, depending which plan he may have been entitled to.145 The statute does not have an early retirement provision, but allows full retirement at any age, if the judge completes a 15 year term.146 There are survivors’ annuities for a surviving spouse and surviving dependent children.147 The judges are not required to contribute toward the cost of the pension or survivors’ annuities.148 The pension and survivors’ annuities include cost of living increases that are not capped at the current salary level.149 SENIOR JUDGE STATUS; RECALL OF RETIRED JUDGES: The Court should have provisions for its judges to take senior judges status and for the recall of retired judges that are commensurate with those provided for the judicial officers of 134 28 U.S.C. § 377(a). 135 28 U.S.C. § 377(c). 136 28 U.S.C. §§ 152(a), 631(e). 137 28 U.S.C. § 377(j). 138 28 U.S.C. § 377(f). 139 28 U.S.C. § 377(e). 140 28 U.S.C. § 377(d). 141 28 U.S.C. § 376. 142 28 U.S.C. § 376(b)(1). 143 10 U.S.C. §§ 942(b), 945(a)(1), 945 (b). 144 10 U.S.C. § 942(b)(2). 145 10 U.S.C. §§ 945(a)(2)-(3), 945(i). 146 10 U.S.C. § 945(a)(1). 147 10 U.S.C. §§ 945(d), 945(h). 148 10 U.S.C. § 945(h). 149 10 U.S.C. § 945(e). 26 all other Article I courts.150 Any judge of the Court who retires and becomes a senior judge should not be counted as a judge for purposes of the number of judgeships authorized for the court.151 In the event that Congress sets an upper bound for the size of the Court, permitting judges to take senior status without counting as a judge in terms of the number of authorized judgeships will permit the Court to have the benefit of senior judges’ services in addition to a fully staffed Court. 150 10 U.S.C. §§ 942(e); 26 U.S.C. § 7447(b)(4)-(c); 28 U.S.C. §§ 178(d)-(f); 38 U.S.C. §§ 7257, 7299 (the Veterans Court does not have a senior judge program, but the statute permits the recall of retired judges). 151 Only the Federal Claims Court statute specifies that “any judge who retires…shall not be counted as a judge…for purposes of the number of judgeships authorized” for the court. 28 U.S.C. § 178(e)(2). 27