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State and Local Issues to Dominate U.S. Supreme Court Docket

The U.S. Supreme Court will hear cases this term related to campaign finance, affirmative action, public prayer and unions. The court’s ruling in these cases could make state elections much more expensive and change the way state and local governments hire and interact with their employees, especially their unionized workforce.

The most politically-charged case on the 2013-2014 docket is McCutcheon v. Federal Election Committee, a case related to the amount individuals can contribute to candidates and political parties. Should the court agree with the plaintiff’s argument that the two-year aggregate campaign contribution limit violates the First Amendment, they would expand upon Citizens United by increasing the threshold for individual contributions directly to candidates or political parties from $123,000 every two-year election cycle to $3.6 million. The court will be asked to agree with an amicus curiae brief presented by the Republican National Committee and Senate Minority Leader Mitch McConnell, R-Ky., and do away with direct contribution limits altogether.

Race-based policies have drawn  a skeptical response from the Supreme Court in recent years, and states like Oklahoma, Nebraska and Arizona have responded by approving constitutional amendments banning affirmative action. Against this backdrop, the justices took up Schuette v. Coalition to Defend Affirmative Action, Integration & Immigrant Rights, and Fight for Equality by Any Means Necessary, a Michigan affirmative action case with a 10-year history. In 2006, Michigan voters overwhelmingly approved a ballot initiative amending the state constitution to ban affirmative action in higher education and public sector hiring, and consequently, minority enrollment at the University of Michigan plummeted. A federal appeals court in 2012 ruled that the voter-approved referendum itself was discriminatory, and opponents of the referendum point out that all other state admissions policies are set by a popularly-elected board of regents. The state could take away the regents’ power to set admissions criteria or could enact another system that promotes diversity. To do so, however, minority groups would have to embark on the costly and challenging process to re-amend the state constitution with a second referendum. The vote for affirmative action in 2003 was 5-4; justices stressed at the time the intended temporary nature of the programs.

The high court will consider the constitutionality of prayer in legislative settings in Greece v. Galloway. In Greece, New York, a local preacher has traditionally opened town meetings with a prayer. The town argues that the meetings are open to anyone who wants to give a prayer, but the invocations are consistently Christian in nature and often ask non-Christians to participate.  The appeals court ruled the activity an endorsement of a certain religion. In a recent brief issued by the White House, the Obama administration stated, “So long as the goal of the government-backed prayer is not to recruit believers or criticize a given faith then the practice should be supported.”  Depending on the breadth of the ruling, the decision’s impact could seriously affect religion’s role in the public sphere.

SCOTUS also granted certiorari to a number of cases related to employment law. The court’s decisions last session could be characterized as pro-employer, and court watchers expect this trend to continue in the 2013-14 term.

The Illinois case Harris v. Quinn promises to have great repercussions for the future unionization of state and municipal workers. The plaintiffs claim that SEIU’s collection of non-political dues from non-member home health care workers employed by the state constitutes a violation of their First Amendment rights of association and petition. Also at issue in this case is whether workers paid through Medicaid but employed as independent contractors can be considered state employees. The district court dismissed the plaintiff’s claim, but the Supreme Court could find in their favor. According to Gabriella Khorasanee, a blogger for FindLaw, SCOTUS may even nullify its previous decision in Abood v. Detroit Board of Education to argue that non-union members cannot be forced to pay non-political portions of union fees laid out in collective bargaining agreements.

In another union related case, the Eleventh Circuit found in Florida case Mulhall v. Unite Here Local 355 that union arrangements with management to ease the process of unionization in exchange for its neutrality can constitute a bribe. They argued that the employee contact list that the management of Mardi Gras Gaming turned over to UHL was a “thing of value,” but the union claimed that these kinds of agreements are regular features of labor relations, and to make a change now would “wreak havoc” with labor law.

The decision in an Indiana case could “rein in the Department of Labor’s efforts to alter the Fair Labor Standards Act without formal (i.e., legislative) changes,” according to Sara Eber of employment law firm Seyfarth Shaw LLP. In Sandifer v. US Steel, SCOTUS will decide whether the time spent “donning and doffing” protective gear should be paid. The Department of Labor argues that it should, but the Seventh Circuit found in favor of US Steel.

Ark. Legislators Reconvene to Address Teachers’ Insurance Rates; N.H. Lawmakers to Tackle Medicaid Expansion in Nov.

Update at 2:45 p.m.: StateTrack’s Manuel Alex Moya notes that the New Hampshire Legislature will meet for a two-week special session in November.

The Executive Council of New Hampshire approved Gov. Maggie Hassan’s request for a Nov.  7-21  so  legislators can work toward a bipartisan plan to expand Medicaid.

“We have a significant opportunity to improve the health and financial well-being of our families, strengthen our economy, and improve our state’s financial future,” said Hassan.

In order for a consensus to be achieved, Democrats, who control the House, will need the support of Republicans, who hold a 13-to-11 seat lead in the Senate.

An attempt to come to such an agreement failed earlier this year during regular session. Instead, a bipartisan advisory panel was established to hear testimony from state and national experts for almost four months. They eventually concluded with a unanimous recommendation that New Hampshire expand Medicaid through the promised $2.5 billion in federal funding while also considering private insurance options and ways to protect taxpayers.


StateTrack‘s Cheryl Robins reports that Gov. Mike Beebe (D) called for a special session in the Arkansas General Assembly to address the forthcoming health insurance rate increase for the Public School Employee Plan.  The session will begin on Thursday at 3 p.m. and will likely conclude by the end of the day on Saturday.

One proposed measure would reduce the 2014 rate increase from 50 percent to 10 percent through the provision of $43 million in one-time surplus funds. Proposed legislation also would redirect future savings from the Education Facilities Partnership Fund; modify requirements for Teacher Professional Development; establish a task force to study and revise the Public School Employees Plan; and clarify the distribution of state revenue generated from the Uniform Rate of Tax and direct that revenue to the Educational Facilities Partnership Fund.


Utah, Wisconsin Legislatures Convene for Special Sessions

StateTrack’s Cheryl Robins reports that Gov. Gary R. Herbert (R) of Utah and Gov. Scott Walker (R) of Wisconsin have called their respective legislatures back into to the capitals for special sessions. The Utah Legislature convened Wednesday, Oct. 16, a day after Walker called Wisconsin lawmakers back.

The Utah Legislature is considering various actions to offset the effect of the federal government shutdown on state operations. Issues under consideration include the appropriation of state funds to open and operate national parks, authorizing unemployment benefits for furloughed employees, and funding for other obligations occasioned by delays in federal funding. To view a copy of the proclamation, please click here.

Walker called the legislature back into session to consider legislation to cut taxes for property owners by $33 over two years for a typical homeowner, spending down the state surplus by $100 million. Wisconsin ended its 2011-13 budget with a $759.2 million surplus, $89 million higher than expected. The extra surplus is largely due to $71.5 million in higher-than-expected tax revenue.  The Legislative Fiscal Bureau reported that the tax cut proposal would increase the estimated shortfall in the 2015-17 budget to $725 million from $545 million.

On Tuesday, the Senate approved the property tax cut by 28-5, with Democrats arguing that the  cut would barely amount to a dollar a month and the funds instead should go into the state’s rainy day fund, which is currently $278.5 million, after a $153.2 million addition in the most recent budget. The Assembly is expected to take up and pass the legislation on Thursday and Walker  is expected to sign it shortly afterwards.

To view a copy of the Executive Order, please click here.

Mississippi Tea Party Candidate to Announce Possible Cochran Primary Challenge

Mississippi state Sen. Chris McDaniel is scheduled to announce on Thursday whether he will challenge six-term Sen. Thad Cochran in the GOP primary, according to invitations to the event from local tea party groups.

“Mississippi state senator Chris McDaniel, a favorite of many Mississippi for Liberty and Tea Party members, stated just minutes ago that he plans to make an important announcement regarding his future political aspirations this coming Thursday, October 17th,” wrote Mississippi for Liberty’s Jim Cunningham to supporters, according to an email obtained by CQ Roll Call.

Another organization, the Mississippi Tea Party, sent out a similar invitation for the Ellisville, Miss., event. The Clarion-Ledger, which first reported the news of the impending announcement, notes that a third organization, the South Mississippi Tea Party, is chartering buses to take supporters to the announcement.

Read More on Roll Call Mississippi Tea Party Candidate to Announce Possible Cochran Primary Challenge

Senate Leaders Optimistic About Debt, Shutdown Deal After House Plan Collapses

The Senate’s leaders appear to have a path forward on a legislative package to avert a default and reopen the government, but a lot of staff work remains before reaching the finish line.

“They’re still working out the details between Sens. McConnell and Reid, and we’re close,” Senate Majority Whip Richard J. Durbin said.

“They had a basic agreement of what would be included. The staff is now working on a lot of — action going on right now on a lot of different items, but all pointing in the right direction at this moment,” the Illinois Democrat told reporters a few minutes later.

To that end, senior aides from the Budget and Appropriations committees, as well as others, were seen in the vicinity of Majority Leader Harry Reid’s second floor suite.

Read More on Roll Call: Senate Leaders Optimistic About Debt, Shutdown Deal After House Plan Collapses