The Federal Tap: Running towards a runoff?
From Ballotpedia
October 26, 2018Issue No. 136
THE WEEK IN REVIEW
Sunday, October 21
Polls show Cramer's lead growing in Senate race for North Dakota
- Incumbent Sen. Heidi Heitkamp (D) is facing a challenge from Kevin Cramer (R) in the U.S. Senate race for North Dakota. In September, The Hill listed this as the Senate seat most likely to change party hands in 2018.
- Five polls released since the primary suggest that Cramer's lead over Heitkamp has grown. In June and early September polls, Cramer led Heitkamp 48-44 percent, within or near polls' margins of error. Two polls conducted between September 17 and October 2 found Cramer ahead by 10 to 12 percentage points. The most recent poll, released October 21, showed Cramer leading Heitkamp 56 percent to 40 percent.
- Of the 35 Senate seats up for election in 2018, North Dakota's is one of 16 battlegrounds that will determine partisan control of the next Senate. Going into the election, Republicans hold a 51-seat Senate majority. Democrats face greater partisan risk in 2018, as they are defending 26 seats while Republicans are only defending nine. Democrats must defend seats in 10 states Donald Trump (R) won.
- Trump won North Dakota by 36 points in 2016. Heitkamp was elected to the Senate in 2012, defeating her Republican opponent by 1 point.
Monday, October 22
Trump administration releases guidance easing restrictions on ACA waivers
- The Centers for Medicare and Medicaid Services (CMS) and the U.S. Department of the Treasury issued a guidance that gives states the ability to offer healthcare plans with less comprehensive coverage than what is required by the Affordable Care Act (ACA). The guidance allows states to apply for State Relief and Empowerment Waivers to offer alternative healthcare plans, including short-term or association health plans, as long as the state also offers ACA-compliant plans. The guidance takes effect immediately, but only health plans issued in 2020 and later will be impacted.
- “Federal law, under Section 1332 of the ACA, authorizes states to waive certain provisions of the law so long as the new state waiver plan meets specific criteria, or 'guardrails,' that help guarantee people retain access to coverage that is at least as comprehensive and affordable as without the waiver, covers as many individuals, and is deficit neutral to the federal government,” according to a press release from CMS. The Trump administration said that guidance issued by the Obama administration was too restrictive and did not give states flexibility to offer different healthcare plans.
- The guidance outlined five principles for states to follow as they create new healthcare plans and apply for waivers. CMS said that the waivers should aim to "provide increased access to affordable private market coverage; encourage sustainable spending growth; foster state innovation; support and empower those in need; and promote consumer-driven healthcare.”
- The guidance was created in response to President Donald Trump’s October 12, 2017, executive order seeking to ease ACA rules. Other actions taken under the order were allowing consumers to purchase short-term healthcare plans, providing exemptions to the ACA’s individual mandate, and changing ACA marketplaces.
TN-Sen fundraising update: Satellite spending tops $33 million
- New FEC fundraising numbers released revealed millions spent by candidates and satellite groups in the race for the United States Senate seat in Tennessee. Former Tennessee governor Phil Bredesen (D) raised nearly $14.9 million and had about $3.2 million cash on hand as of September 30. Bredesen’s fundraising numbers included a $2 million contribution of his own money. Rep. Marsha Blackburn (R) raised $11.6 million and had about $5 million cash on hand during the same time period.
- Satellite spending in the race topped $33 million, according to the latest reports. Majority Forward was among the top spenders, pouring $7.7 million into the race opposing Blackburn and $1.7 million supporting Bredesen. The Senate Leadership Fund spent $1.4 million in the race to support Blackburn.
Tuesday, October 23
Pompeo says U.S. will revoke visas for Saudi officials over murder of journalist
- Secretary of State Mike Pompeo announced during a press conference that the U.S. would revoke the visas of 21 Saudi Arabian officials for the murder of journalist Jamal Khashoggi. Pompeo said that the U.S. had identified some members of the Saudi intelligence services, the royal court, the foreign ministry, and other Saudi ministries who they believed were involved in Khashoggi’s murder. He also said that the Trump administration was considering imposing Global Magnitsky sanctions. The Global Magnitsky Human Rights Accountability Act allows the U.S. to impose financial sanctions on individuals who commit human rights abuses.
- In addition to revoking visas and exploring Magnitsky sanctions, Pompeo said, “These penalties will not be the last word on this matter from the United States. We will continue to explore additional measures to hold those responsible accountable. We’re making very clear the United States does not tolerate this kind of ruthless action to silence Mr. Khashoggi, a journalist, through violence.”
- Washington Post columnist Jamal Khashoggi, a resident of Virginia, wrote articles that were critical of the Saudi government. He was killed in October after entering the Saudi consulate in Istanbul, Turkey, to get paperwork for his marriage to his Turkish fiancée.
Runoff could occur in special election for U.S. Senate in Mississippi
- An NBC News/Marist poll of 511 likely voters found Sen. Cindy Hyde-Smith (R) leading Mike Espy (D), and Chris McDaniel (R), and Tobey Bartee (D) with 38 percent support in the special election for U.S. Senate in Mississippi. Espy and McDaniel followed with 29 percent and 15 percent, respectively.
- The special election is nonpartisan, with all candidates running on one ballot without their partisan affiliation listed. In the likely scenario that no candidate receives a majority of the vote in the November 6 election, a runoff will take place on November 27.
- In a head-to-head matchup, Hyde-Smith topped Espy by 14 points, 50 percent to 36 percent. If the runoff were to feature Espy and McDaniel, Espy would be in the lead, 43 percent to 36 percent. John Stennis was the last Democrat to represent Mississippi in the U.S. Senate in 1989.
- The winner of the special election will complete former Sen. Thad Cochran's (R) term, which ends in 2021.
Friday, October 26
Supreme Court considers adding case challenging scope of judicial deference to federal agencies to the docket
- The U.S. Supreme Court considered Friday whether to hear a case challenging the scope of Chevron deference—a principle of judicial deference that compels a federal court to yield to a federal agency’s interpretation of an ambiguous statute. In California Sea Urchin Commission v. Combs a group of commercial fisherman claims that the U.S. Court of Appeals for the Ninth Circuit expanded the Chevron deference doctrine when it ruled that statutory silence could require deference.
- The Ninth Circuit held that U.S. Fish and Wildlife Service (FWS) was entitled to Chevron deference because the 1986 law governing its sea otter relocation program was silent, rather than ambiguous, on the relevant legal question.
- The program aimed to reintroduce endangered sea otters to Southern California waters near existing fishing businesses. The law authorizing the relocation required the adoption of protections for those fisheries regarding the accidental harm of the endangered otters. FWS repealed those protections in 2012. The petitioners claim that FWS did not have the authority to terminate protections, which left commercial fishermen vulnerable to penalties in the event of harm to an otter. The Ninth Circuit held that the law was silent on whether or not FWS could terminate the program and applied Chevron deference to support the agency’s decision.
Congress is out of session
The House and Senate will not be in session. Both chambers will reconvene on November 13, 2018.
SCOTUS is in session
The Supreme Court will hear arguments this week on October 29, October 30, and October 31. To learn more about this term, read our review.
WHAT'S ON TAP NEXT WEEK
Voter registration deadlines
- Next week, voter registration deadlines will pass in the following states:
- Oct. 22: Alabama, California, South Dakota, and Wyoming
- Both California and Wyoming offer Election Day registration.
- Oct. 23: New Hampshire
- Oct. 27: Iowa (Iowa also offers Election Day registration)
- Oct. 22: Alabama, California, South Dakota, and Wyoming
Wednesday, October 31
SCOTUS will hear oral arguments in Frank v. Gaos
- The U.S. Supreme Court will hear oral arguments in Frank v. Gaos. In July 2013, a group of people brought a class action lawsuit against Google under the Stored Communications Act for giving users’ internet search terms to third party websites, a violation of privacy rights. Google agreed to pay $5.3 million to six cy pres recipients. They agreed to give the money to universities and organizations that provided internet privacy education. “A cy pres award is the distribution of money from a class action settlement to a charitable organization,” according to ClassAction.org. Under the settlement, none of the money would go to individuals who had their privacy violated.
- In 2014, five individuals, including Thomas Frank, filled objections to the settlement plan. They argued that “the deal violated procedural rules in U.S. law requiring settlements to be fair, reasonable and adequate,” according to Reuters.
- In 2015, a district court approved the settlement. The court also addressed the objections of Frank and others. According to Oyez, the court “found that: (1) the cy pres award was appropriate because the award was non-distributable, (2) Rule 23(b)(3)’s superiority requirement was not affected by whether the award was cy pres, (3) there was a substantial nexus between the cy pres recipients and the interests of the class members, and there was no evidence that the parties’ preexisting relationships with the recipients influenced the selection process, and (4) the amount of attorney fees was commensurate with the benefit to the class.”
- The Ninth Circuit Court approved the district court’s ruling approving the settlement, as well as the court’s four findings in response to the objections. Frank then appealed to the U.S. Supreme Court.
- At issue in the case is “whether, or in what circumstances, a cy pres award of class action proceeds that provides no direct relief to class members supports class certification and comports with the requirement that a settlement binding class members must be ‘fair, reasonable, and adequate.’”
Where was the president last week?
- On Monday, President Donald Trump held a rally in Texas for Sen. Ted Cruz.
- On Tuesday, Trump received a briefing from senior military leaders and had dinner with them.
- On Wednesday, Trump signed legislation to address opioid and substance use disorders. He then traveled to Wisconsin and held a campaign rally for Governor Scott Walker and Senate candidate Leah Vukmir.
- On Thursday, Trump spoke about his administration's plan to lower drug prices.
- On Friday, Trump spoke to a group of people attending the Young Black Leadership Summit. He then had lunch with Secretary of State Mike Pompeo. In the evening, he held a campaign rally in Charlotte, N.C., for GOP candidate Mark Harris.
Federal Judiciary
- 132 federal judicial vacancies
- 56 pending nominations
- 22 future federal judicial vacancies
About
The Tap covered election news, public policy, and other noteworthy events from February 2016 to February 2022.
