Message from the 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
Mark Anderson, Chair
Government Affairs Practice Committee
2300 Clarendon Boulevard, Fourth Floor
Arlington, Virginia 22201
Phone: (703) 525-7466
Mobile: (703) 622-5836
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The Federal Indian Consultation Right: A Frontline Defense Against Tribal Sovereignty Incursion
By Gabriel S. Galanda, Galanda Broadman, PLLC
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.
New Rules of Accountability under Canada's Lobbying Act
By Jacques J.M. Shore and Michael Polychuk, Gowling Lafleur Henderson LLP
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.
When Deference is Activism
By Allison R. Hayward, Center for Competitive Politics
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
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Around the States
California - Ethics
By Michelle Dicks Esq., OwnerGUARD Corporation
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
Changes on the Horizon for Baltimore City's Lobbying Laws
By Charles E. Sydnor, Enterprise Community Partners, Inc.
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
North Carolina Ethics and Lobbying Law Changes from the 2010 Session
By William G. Scoggin, Troutman Sanders Strategies
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
Summary of Texas Election
By Kimberly A. Yelkin, Gardere Wynne Sewell LLP
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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