Mark Anderson,
Chair

To the members of the Government Affairs Practice Committee:

I hope the New Year is treating you well.

It has certainly been an exciting election cycle and time period for the Government Affairs Practice Committee. We have officially launched the Lobbying Law Compendium and are working to have it completed in draft form this Spring. We are also planning a number of interesting programs for the 2011 Spring Business Law Section Meeting and Annual ABA Meeting.

This is the Winter edition of the GAP Newsletter and thanks to all who contributed the terrific articles. I would also like to thank all who have volunteered to carry out the work of the GAP Committee over the past year. We have accomplished much for a new Committee and we look forward to a productive 2011.

Best wishes.

--Mark

Mark Anderson, Chair
Government Affairs Practice Committee
Stateside Associates
2300 Clarendon Boulevard, Fourth Floor
Arlington, Virginia 22201
Phone: (703) 525-7466
Mobile: (703) 622-5836
mda@stateside.com
www.stateside.com

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The word "consultation" embodies the Obama Administration's approach to federal Indian policy. So much so that federal agencies are actually engaging in tribal consultations on tribal consultation. Still other federal agencies completely missed the memo on tribal consultation - literally President Obama's Tribal Consultation Memorandum - and, in specific instances, have failed to meaningfully consult with tribal governments concerning federal activity. But the United States' obligation to consult with tribal governments about any federal matter implicating tribes is not a new mandate. Indeed, the consultation obligation has existed since at least treaty times under the express terms of certain treaties and age-old international legal norms governing U.S. treaty obligations. While the obligation is often attributed to President Clinton's Executive Order 13,175, the federal Indian consultation right was affirmed by President Lyndon Johnson as far back as 1968.


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The Federal Lobbying Act contains a statutory category of "designated public office holder" to refer to officials responsible for high-level decision-making in government. Communications between designated public office holders and lobbyists are currently subject to reporting requirements. Lobbyists are obligated to provide information to the Commissioner of Lobbying about the communications they have with designated public office holders. Further, the Commissioner may request that designated public office holders confirm information that has been provided by a lobbyist.


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During the Senate Judiciary Committee hearings on Solicitor General Elena Kagan's nomination to the Supreme Court, a number of the Court's critics, most prominently Senator Arlen Specter (D-Penn.), used the opportunity to castigate the "judicial activism" of Citizens United v. Federal Election Commission. Retired Justice John Paul Stevens said essentially the same thing in his well-publicized November 2010 60 Minutes interview. Ironically, calls for deference to Congress, particularly in the campaign finance arena, would serve a result-oriented agenda more activist than anything thus far entertained by the Roberts Court.


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The Governor of California recently approved SB 657, entitled the "California Transparency in Supply Chains Act of 2010." The new law requires disclosure of a company's "efforts to eradicate slavery and human trafficking from its direct supply chain for tangible goods offered for sale." (Civil Code §1714.43(a)(1).) Retail sellers and manufacturers (as defined by the California Revenue and Taxation Code) with annual worldwide gross receipts exceeding $100,000,000 must comply with the new law. It requires a conspicuous link from the company's Internet homepage to the disclosures. If there is no company Internet website, then within 30 days of receiving a written request from a consumer, the company must provide the written disclosure


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On October 18, 2010 City Council Bill 10-0615, entitled "Promoting Honesty in Lobbying" ("PHIL"), was introduced in the Baltimore City Council. It is being sponsored by seven of fifteen councilmembers. PHIL expands criteria for when a person is required to register as a legislative or executive lobbyist; increases the registration fee; clarifies and expands information required to be included in a lobbyist's activity report; and prohibit lobbyists from engaging in certain activities.


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In 2006, the North Carolina General Assembly passed a sweeping set of new state government ethics and lobbying laws, known collectively as the "Ethics Act." codified in Chapters 120C (lobbying) and 138A (ethics), with multiple references back and forth between the two acts. The laws placed a number of disclosure requirements and restrictions on those serving in public office. They also broadly banned the provision of anything of value by a registered lobbyist or principal (the "gift ban"), save for a fairly short list of exemptions. Finally, the definition of lobbying was expanded to include attempting to influence the Executive Branch and reporting requirements were expanded. Most of these new laws were effective January 1, 2007. The law had barely become effective when, in 2007, the legislature amended the Act extensively. Every session since, there has been at least one Ethics Act amendments bill per session. The 2010 regular session of the 2009 General Assembly included passage of H 961 (SL 2010-170). The changes are usually responsive to problems recognized by legislators, staff or the lobbying community. Sometimes they address opinions or guidance by the regulatory bodies, of which there are two: the State Ethics Commission ("SEC") and the Secretary of State, Lobbying Compliance Division ("SoS").


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Texas Republicans received election results that even exceeded their expectations as they not only maintained control of all statewide elected positions, but also saw their majority in the Texas House swell to 99-51, up from 76-74 just two years ago. Governor Rick Perry (R) was elected to an unprecedented third, four-year term, collecting 55 percent of the vote. Lt. Governor David Dewhurst (R), Comptroller Susan Combs (R) and Attorney General Greg Abbott (R) cruised to easy victories as well.


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