Federal Employee Benefits and Same-Sex Partnerships

Wendy R. Ginsberg
Analyst in Government Organization and Management

The federal government provides a variety of benefits to its 8 million employees and annuitants. Among these benefits are health insurance; enhanced dental and vision benefits; survivor benefits; retirement and disability benefits; family, medical, and emergency leave; and reimbursement of relocation costs. Pursuant to Title 5 U.S.C. Chapters 89, 89A, 89B, and other statutes, millions of federal employees may extend these benefits to their spouses and children. An estimated 34,000 federal employees are in same-sex relationships, including state-recognized marriages, civil unions, or domestic partnerships. 

The Defense of Marriage Act prohibits federal recognition of these unions for purposes of federal enactments. Some federal employees and Members of Congress argue that the same-sex partners of federal employees should have access to benefits afforded married, opposite-sex couples. 

To this end, companion bills that would extend certain benefits to the same-sex partners of federal employees and annuitants have been introduced in the 111th Congress. On May 20, 2009, Senators Joseph Lieberman and Susan Collins introduced S. 1102. That same day, Representative Tammy Baldwin introduced H.R. 2517. S. 1102 was referred to the Senate Committee on Homeland Security and Governmental Affairs, and ordered to be reported favorably on December 16, 2009. H.R. 2517 was referred to three different committees: the House Oversight and Government Reform Committee, the House Administration Committee, and the House Judiciary Committee. On January 22, 2010, the House Oversight and Government Reform Committee reported the bill, as amended. On January 29, 2010, H.R. 2517 was automatically discharged from the House Administration and Judiciary Committees pursuant to a deadline set by the Speaker of the House. 

The executive branch has also taken action on the issue of extending benefits to same-sex spouses of federal employees and annuitants. On June 17, 2009, President Barack Obama issued a memorandum directing executive agencies to extend benefits to the domestic partners of federal employees within the authority of existing law. On July 10, 2009, Office of Personnel Management Director John Berry issued a memorandum directing executive-branch agencies to review all benefits offered to employees who are married to someone of the opposite gender. The agencies were directed to determine whether the benefits listed were or could be extended to the same-sex domestic partners of federal employees. 

On December 17, 2009, the Congressional Budget Office released its cost estimate of H.R. 2517, stating that enacting the legislation "would increase direct spending by $596 million through 2019" and discretionary spending would increase $302 million over the same period of time. 

On June 2, 2010, President Obama released a second memorandum that extended specific benefits to the same-sex partners of federal employees, including coverage of travel, relocation, and subsistence payments. 

This report examines the current policies on the application of benefits to same-sex partners, analyzes the bills currently pending in the 111th Congress, and reviews the policy debate on extending benefits to same-sex partners. This report is about federal benefits for same-sex partners and not about same-sex relationships in general. .


Date of Report: June 24, 2010
Number of Pages: 30
Order Number: R41030
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Supreme Court Nominee Elena Kagan: Administrative Law and the Nondelegation Doctrine

Vanessa K. Burrows
Legislative Attorney

This report discusses and analyzes Supreme Court nominee Elena Kagan's 2001 article, Chevron's Nondelegation Doctrine, which she coauthored with David J. Barron, an assistant professor at Harvard Law School, during her time as a professor there. 

The article provides an overview of two traditional dichotomies in administrative law on which courts rely in choosing between whether to accord deference to agency interpretations of statutory provisions: (1) the use of formal or informal procedures, such as the procedures set forth in the Administrative Procedure Act (APA), and (2) the general or particular applicability of agency decisions, such as whether an agency action binds more than one party. The authors propose a new method of determining what type of judicial review should apply to agency actions. They term this approach the Chevron nondelegation doctrine and emphasize its roots in ideas of political accountability and discipline of agency action. 

Under Barron and Kagan's Chevron nondelegation doctrine, the agency's interpretation would receive a type of substantial deference from the courts, known as "Chevron deference," if the individual designated by Congress to carry out the statute (the statutory delegatee) has formally adopted the agency's decision after a meaningful review and issued the decision under her name. The agency's interpretation would receive a weaker type of judicial deference, known as Skidmore deference, if the statutory delegatee subdelegated her decision making authority to a lower-level agency official (other than her close advisors). Thus, under the Chevron nondelegation doctrine, the choice between whether agencies or courts should interpret and resolve ambiguous statutes would depend on the question of who in the agency makes the interpretation—a high- or low-level agency employee. 

If adopted by the Supreme Court, the Chevron nondelegation doctrine would appear to result in a major reformulation of the Court's jurisprudence regarding which agency actions receive Chevron deference. Courts generally do not focus on the identity of the agency decisionmaker, but rather view agencies as a single entity and do not differentiate in the levels of deference that they grant to decisions issued by civil servants or political appointees, branch chiefs or headquarters officials, agency heads or low-level employees. 

Barron and Kagan's proposed Chevron nondelegation doctrine would address a phenomenon of "judicial channeling" that the authors call "unfortunate"—that an agency's discretion in choosing from the multitude of legitimate modes of agency decision making is both influenced and limited by the courts' application of the more substantial Chevron deference to decisions undertaken with greater procedural formality or that apply more generally. Their Chevron nondelegation doctrine appears to address this problem by relegating the procedural requirements of the APA to a threshold determination of whether the agency's decision or interpretation is a lawful, or valid, action.


Date of Report: June 25, 2010
Number of Pages: 37
Order Number: R41305
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Questioning Supreme Court Nominees About Their Views on Legal or Constitutional Issues: A Recurring Issue

Denis Steven Rutkus
Specialist on the Federal Judiciary

In recent decades a recurring Senate issue has been what kinds of questions are appropriate for Senators to pose to a Supreme Court nominee appearing at hearings before the Senate Judiciary Committee. Particularly at issue has been whether, or to what extent, questions by committee members should seek out a nominee's personal views on current legal or constitutional issues or on past Supreme Court decisions that have involved those issues.

This issue might be of particular relevance to the Senate Judiciary Committee as it prepares for the scheduled start, on June 28, 2010, of confirmation hearings for Supreme Court nominee Elena Kagan. For the nominee herself once contended, in a 1995 book review, that a Supreme Court confirmation hearing should focus not on "the objective qualifications or personal morality of the nominee" but on the nominee's "substantive views." Such aims, she wrote approvingly, were achieved by the committee in the 1987 confirmation hearings for Supreme Court nominee Robert H. Bork. The Bork hearings, she said, presented to the public "a serious discussion of the meaning of the Constitution, the role of the Court, and the views of the nominee; that discussion at once educated the public and allowed it to determine whether the nominee would move the Court in the proper direction." By contrast, "subsequent hearings," she wrote, "have presented to the public a vapid and hollow charade, in which repetition of platitudes has replaced discussion of viewpoints and personal anecdotes have supplanted legal analysis."

Also in her 1995 article, Ms. Kagan said that what "must guide" a decision on whether to confirm a person to be a Justice is a Senator's "vision of the Court and an understanding of the way a nominee would influence its behavior." Further, she said, if questioning on "substantive positions ever were to become the norm, the nominees lacking a publication record would have no automatic advantage over a highly prolific author." She emphasized, however, that she was not arguing "that the President and the Senate may ask, and a nominee must answer, any question whatsoever." Some kinds of questions, she said "do pose a threat to the integrity of the judiciary"—for example, if a Senator "asked a nominee to commit herself to voting a certain way on a case that the court had accepted for argument."

In 2009, in testimony before the Judiciary Committee, as nominee to be Solicitor General, Ms. Kagan appeared to signal somewhat of a change in the views she expressed in 1995. In reply to a Senator's question at the 2009 hearings, Ms. Kagan stated that, while the Senate, when questioning a nominee, "has to get the information that it needs," the "nominee for any particular position, whether it is judicial or otherwise, has to be protective of certain kinds of interests."

This report also examines four recent Supreme Court confirmation hearings and provides excerpts of Senators asking, and nominees responding to, questions. It reveals a usual practice of nominees declining to respond to committee questions seeking their views about current legal or constitutional issues. Notable in this regard were the 1993 Supreme Court confirmation hearings for nominee Ruth Bader Ginsburg. In her opening statement to the Judiciary Committee, Judge Ginsburg articulated a limit on what the Senators could expect their questioning to elicit from her, stating she would be constrained, when responding to questions, from providing any "previews," "hints," or "forecasts" of how she as a Justice might cast her vote on issues coming before the Court: these limits subsequently came to be known informally as the "Ginsburg Rule," standing for the principle—invoked frequently by later Court nominees—that nominees should not, in replying to questions from Judiciary Committee members, disclose their personal views or opinions on issues if there were a possibility the issues in the future would come before the Court.


Date of Report: June 23, 2010
Number of Pages: 29
Order Number: R41300
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From Solicitor General to Supreme Court Nominee: Responsibilities, History, and the Nomination of Elena Kagan

Susan Navarro Smelcer
Analyst on the Federal Judiciary

Kenneth R. Thomas
Legislative Attorney

On May 10, 2010, President Obama nominated Solicitor General Elena Kagan to replace retiring Justice John Paul Stevens. If confirmed, Elena Kagan would be the first serving Solicitor General to be appointed to the Court since the elevation of Thurgood Marshall in 1967. She would also be only the fifth of 111 Justices to come to the bench with such experience.

Given that Solicitor General Kagan has made few public statements on important legal and policy issues, some have looked to her record as Solicitor General for some indication of her views. Others have looked to her time as Solicitor General as an important element of her professional experience, especially in light of the criticism of some that her lack of judicial and litigation experience make her unqualified to sit on the bench. Understanding the role and responsibilities of the Solicitor General can provide a useful backdrop against which to evaluate Elena Kagan's statements and official actions and assess her professional qualifications.

The role of the Solicitor General is unique in the American legal system. Not only does the Solicitor General represent the interests of the United States government before the Court, but the office is also charged with assisting the Supreme Court in the exercise of its judicial function. Through repeated opportunities to argue before the Court, some suggest that the office of the Solicitor General has built a "special relationship" with the Supreme Court based on trust and interdependence established over multiple and continuing interactions. The Court relies on the Solicitor General to perform a "gatekeeping" function by recommending for review only the most meritorious of the government's cases and providing the highest quality arguments for the Court's consideration. Through these actions, the Solicitor General seeks to convince the Supreme Court that the government's position is the correct one. Although scholars disagree on the exact nature of the office's influence, most of the time, the Solicitor General is successful in this task.

Despite this close relationship and the institutional knowledge that comes with it, few of the 45 Solicitors General have been appointed to the Supreme Court. Since the creation of the office in 1870, only four former or current Solicitors General have been elevated to the highest bench. The first, William Howard Taft, served in both the executive and judicial branches before his joining the Court, most notably as the 27th President of the United States. Stanley Reed, who was elevated directly from the position of Solicitor General to the Court, spent most of his professional career in private practice and had never been a judge before becoming an Associate Justice. Robert Jackson, like Reed, had no judicial experience before his appointment. He had, however, served in five different positions in the Department of Justice, including that of Attorney General, prior to his elevation. Unlike Reed and Jackson, Thurgood Marshall, a former federal appellate judge, had little experience in private practice and had only served as a government attorney for two years prior to his nomination to the Court. However, between working as the director and general counsel of the NAACP Legal Defense Fund for 21 years and serving as Solicitor General, Justice Marshall had extensive Supreme Court litigation experience before joining the bench.

If Elena Kagan is confirmed, she would be the fifth Solicitor General to serve on the Court. Although service as the Solicitor General has generally been viewed as an important and relevant qualification, her lack of judicial and litigation experience has raised questions by some as to whether she is qualified to sit on the Court. Although the ultimate judgment as to appropriate qualifications to be a Supreme Court Justice must be left to the Senate, it is clear that the experience of serving as Solicitor General provides the occupant of the office with unique insights into the Supreme Court.


Date of Report: June 23, 2010
Number of Pages: 20
Order Number: R41299
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Salaries of Members of Congress: Congressional Votes, 1990-2010

Ida A. Brudnick
Analyst on the Congress

The U.S. Constitution, in Article I, Section 6, authorizes compensation for Members of Congress "ascertained by law, and paid out of the Treasury of the United States." Throughout American history, Congress has relied on three different methods in adjusting salaries for Members. Standalone legislation was last used to provide increases in 1990 and 1991. It was the only method used by Congress for many years.

The second method, under which annual adjustments took effect automatically unless disapproved by Congress, was established in 1975. From 1975 to 1989, these annual adjustments were based on the rate of annual comparability increases given to the General Schedule federal employees. This method was changed by the 1989 Ethics Act to require that the annual adjustment be determined by a formula based on certain elements of the Employment Cost Index.

Under this revised process, annual adjustments were accepted 13 times (scheduled for January 1991, 1992, 1993, 1998, 2000, 2001, 2002, 2003, 2004, 2005, 2006, 2008, and 2009) and denied eight times (scheduled for January 1994, 1995, 1996, 1997, 1999, 2007, 2010, and 2011). Under this formula, Members were originally scheduled to receive a 0.9% pay adjustment in 2011. This adjustment would have equaled a $1,600 increase, resulting in a salary of $175,600. The pay adjustment was prohibited by P.L. 111-165 (H.R. 5146), which was enacted on May 14, 2010. Additional legislation preventing the scheduled 2011 pay adjustment was also introduced during the 111th Congress (H.R. 4255, H.R. 4423, S. 3074, S. 3198, and S. 3244). Pay for Members of Congress in 2011 will remain at the 2009 and 2010 level of $174,000.

A provision in the FY2009 Omnibus Appropriations Act prohibited any pay adjustment for 2010. Members were originally scheduled to receive a pay adjustment in January 2010 of 2.1%, although this would have been revised automatically to 1.5% to match the GS base pay adjustment.

While the above actions relate to pay for a single year, the Senate in 2009 passed legislation (S. 620) that would eliminate the provision of the Ethics Reform Act that provides for future automatic annual pay adjustments. Additional legislation that would alter the pay adjustment procedure has been introduced in the House and Senate (H.R. 156, H.R. 201, H.R. 215, H.R. 282, H.R. 346, H.R. 395, H.R. 566, H.R. 581, H.R. 751, H.R. 1105, H.R. 1597, H.R. 4336, H.R. 4681, H.R. 4720, H.R. 4761, H.R. 4762, S. 102, S. 317, S. 542, S. 1808, S. 3071, S. 3143, and S. 3158).

In January 2009, Members received a 2.8% pay adjustment under the formula established by the Ethics Reform Act. Members previously received a 2.5% adjustment in pay in January 2008, resulting in a salary of $169,300. According to the formula, Members originally were scheduled to receive a 2.7% adjustment in 2008, increasing their salary to $169,700. This figure was automatically revised downward to 2.5% to match the increase in base pay given employees under the General Schedule. Members voted to delay and then prohibit a pay adjustment for 2007. Pay in 2007 remained at the 2006 level of $165,200.

A third method for adjusting Member pay is congressional action pursuant to recommendations from the President, based on the recommendations of the Citizens' Commission on Public Service and Compensation established in the 1989 Ethics Reform Act. Although the Citizens' Commission should have convened in 1993, it did not and has not met since then.


Date of Report: June 15, 2010
Number of Pages: 28
Order Number: 97-615
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Salaries of Members of Congress: Recent Actions and Historical Tables

Ida A. Brudnick
Analyst on the Congress

Congress is required by Article I, Section 6, of the Constitution to determine its own pay. Prior to 1969, Congress did so by enacting stand-alone legislation. From 1789 through 1968, Congress raised its pay 22 times using this procedure. Members were initially paid per diem. The first annual salaries, in 1815, were $1,500. Per diem pay was reinstituted in 1817. Congress returned to annual salaries, at a rate of $3,000, in 1855. By 1968, pay had risen to $30,000. Stand-alone legislation may still be used to raise Member pay, as it was most recently in 1982, 1983, 1989, and 1991; but two other methods—including an automatic annual adjustment procedure and a commission process—are now also available.

The Ethics Reform Act of 1989 established the current formula for automatic annual adjustments, which is based on changes in private sector wages and salaries as measured by the Employment Cost Index. The adjustment goes into effect automatically unless denied statutorily by Congress, although the percentage may not exceed the percentage base pay increase for General Schedule employees.

Under this formula, Members were originally scheduled to receive a 0.9% pay adjustment in 2011. This adjustment would have equaled a $1,600 increase, resulting in a salary of $175,600. The pay adjustment was prohibited by P.L. 111-16 (H.R. 5146), which was enacted on May 14, 2010. Additional legislation preventing the scheduled 2011 pay adjustment was also introduced during the 111th Congress (H.R. 4255, H.R. 4423, S. 3074, S. 3198, and S. 3244). Pay for Members of Congress in 2011 will remain at the 2009 and 2010 level of $174,000.

A provision in the FY2009 Omnibus Appropriations Act prohibited any pay adjustment for 2010. Members were originally scheduled to receive a pay adjustment in January 2010 of 2.1%, although this would have been revised automatically to 1.5% to match the GS base pay adjustment.

Members previously received a 2.8% adjustment in January 2009, increasing their salary from $169,300. In 2008, Members originally were scheduled to receive a 2.7% pay adjustment. The adjustment was revised downward to 2.5% to match the percent increase in the base pay of General Schedule (GS) employees. By law, the percent adjustment in Member pay may not exceed the percent adjustment in the base pay of GS employees. Congress previously voted to deny the scheduled annual adjustment for 2007.

This report contains information on the pay procedure and recent adjustments. It also contains historical information on the rate of pay for Members of Congress since 1789; the adjustments projected by the Ethics Reform Act as compared to actual adjustments in Member pay; details on past legislation enacted with language prohibiting the annual pay adjustment; and Member pay in constant and current dollars since 1992. For additional information on actions taken in Congress since the enactment of the Ethics Reform Act adjustment procedure, see CRS Report 97-615, Salaries of Members of Congress: Congressional Votes, 1990-2010, by Ida A. Brudnick. .


Date of Report: June 15, 2010
Number of Pages: 12
Order Number: 97-1011
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House Office of Congressional Ethics: History, Authority, and Procedures

Jacob R. Straus
Analyst on the Congress

The House Office of Congressional Ethics (OCE) began formal operations in January 2009, 10 months after it was established on March 11, 2008, with the passage of H.Res. 895. It was reauthorized at the beginning of the 111th Congress, when the House adopted H.Res. 5 containing the chamber's rules for the 111th Congress.

This action followed years of efforts by groups within and outside Congress to create an independent entity to investigate allegations of misconduct by Members, officers, and employees of Congress. During the 110th Congress, Speaker of the House Nancy Pelosi and Minority Leader John Boehner created the bipartisan Special Task Force on Ethics Enforcement, chaired by Representative Michael Capuano, to consider whether the House should create an "outside" ethics-enforcement entity. The task force worked for nearly a year before issuing its recommendations for the creation of the OCE.

The mandate of the OCE, which has jurisdiction only in the House, is to review information, and when appropriate, refer findings of fact to the House Committee on Standards of Official Conduct. Only this committee has, pursuant to House rules, the authority to recommend House discipline of Members and staff. Information of alleged wrongdoing by Members, officers, and employees of the House may be accepted by the OCE from the general public, but only the OCE board can initiate a review.

The OCE is composed of six board members, and at least two alternates, each of whom serves a four-year term. The Speaker and the minority leader each are responsible for the appointment of three board members and one alternate. The chair is selected by the Speaker and a co-chair is selected by the minority leader. Current Members of the House, federal employees, and lobbyists are not eligible to serve on the board.

On February 23, 2009, the OCE adopted final rules for the conduct of investigations, adopted a code of conduct, and established a website at http://oce.house.gov/.

This report describes the history and rationale behind the creation of the OCE, expected operations, its relationship with the House Committee on Standards of Official Conduct, and options potentially available for Congress if further amendments to the House ethics process are desired.

For additional information, please refer to CRS Report RL30764, Enforcement of Congressional Rules of Conduct: An Historical Overview, by Jacob R. Straus; CRS Report RL30650, Senate Select Committee on Ethics: A Brief History of Its Evolution and Jurisdiction, by Jacob R. Straus; CRS Report 98-15, House Committee on Standards of Official Conduct: A Brief History of Its Evolution and Jurisdiction, by Jacob R. Straus; and CRS Report RL33790, "Independent" Legislative Commission or Office for Ethics and/or Lobbying, by Jack Maskell and R. Eric Petersen. .


Date of Report: June 18, 2010
Number of Pages: 33
Order Number: R40760
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Supreme Court Nominee Elena Kagan: Selected Freedom of Speech Scholarship

Kathleen Ann Ruane
Legislative Attorney

President Obama has nominated his Solicitor General, Elena Kagan, to be the next Supreme Court Justice. If confirmed, she would fill the seat being vacated by Justice John Paul Stevens upon his retirement at the end of the 2009/2010 term. Prior to her term as Solicitor General, Ms. Kagan, in her capacity as an academic and scholar, wrote influential pieces analyzing free speech jurisprudence.

In particular, Ms. Kagan wrote a law review article entitled "Private Speech, Public Purpose: The Role of Government Motive in First Amendment Doctrine." This article is best described as an attempt to understand the underlying issues free speech doctrine addresses. Ms. Kagan argues, basically, that the Supreme Court scrutinizes most closely speech restrictions that carry the most risk of having been enacted to serve improper government motives (e.g., to benefit certain ideas, to suppress particular ideas, or to serve legislative self-interest). Ms. Kagan opens the article by noting that the Supreme Court claims that the purpose of Congress (or any governmental body) "is not a basis for declaring legislation unconstitutional." Ms. Kagan posits, nonetheless, that free speech jurisprudence is an indirect (even unconscious) attempt by the Court to ferret out improper government motives where speech restrictions are at issue. In this way, she explains seeming inconsistencies in First Amendment law. For example, she uses her improper motive theory to explain why it is permissible for the government to ban all fighting words, but impermissible for the government to ban only fighting words motivated by racial or ethnic discrimination. Under

Ms. Kagan's theory, it is more likely that the latter restriction was enacted pursuant to the improper governmental motive of suppressing ideas with which legislators disagree than the former, making the latter restriction unconstitutional, while the former withstands scrutiny. Ms. Kagan does not appear to argue that the theory she describes is the best possible way to establish a freedom of speech doctrine, nor does she argue that her theory is the only way to understand free speech jurisprudence. She states, instead, that she has engaged in this analysis, because "only when we know why the doctrine has emerged and what purposes it serves will we know whether and how to modify it." Thus, to the extent that she evaluates particular cases within this article, it seems that her assertions of whether particular decisions are "correct" or "incorrect" may refer to whether the reasoning of the decisions fits with the theory of jurisprudence she is explicating rather than her beliefs regarding the proper outcomes of the cases.

Ms. Kagan took a somewhat different, though consistent, perspective in her earlier article entitled "Regulation of Hate Speech and Pornography After R.A.V." The focus of this article, rather than being motivated by an attempt to understand the Court's underlying aims, seemed to be more on crafting statutes that would comport with the Court's existing case law, which takes into account what Ms. Kagan would argue are the Court's underlying aims. Ms. Kagan suggests various ways for crafting statutes that would restrict pornography and hate speech that she believes could be constitutional under the Court's then-current doctrine.

This report will explain these articles in further detail, as well as an additional, shorter piece, discussing the First Amendment implications of codes of conduct at public universities.


Date of Report: June 18, 2010
Number of Pages: 28
Order Number: R41290
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Campaign Finance Policy After Citizens United v. Federal Election Commission: Issues and Options for Congress

R. Sam Garrett
Analyst in American National Government

Following the Supreme Court's January 21, 2010, ruling in Citizens United v. Federal Election Commission, questions have emerged about which policy options could be available to Congress. This report provides an overview of selected campaign finance policy options that may be relevant. It also briefly comments on how Citizens United might affect political advertising. A complete understanding of how Citizens United will affect the campaign and policy environments is likely to be unavailable until at least the conclusion of the 2010 election cycle.

As Congress considers legislative responses, at least two broad choices could be relevant. First, Congress could provide candidates or parties with additional access to funds to combat corporate influence in elections. Second, Congress could restrict spending under certain conditions or require those making expenditures post-Citizens United to provide additional information to voters or regulators. Options within both approaches could generate substantial debate. Some may contend that the only way to provide Congress with the power to directly affect the content of the ruling would be to amend the Constitution.

More than 40 bills introduced during the 111th Congress may be relevant for legislative responses to Citizens United. These include, but are not necessarily limited to, H.Con.Res. 13, H.J.Res. 13, H.J.Res. 68, H.J.Res. 74, H.J.Res. 84, H.Res. 1275, H.R. 158, H.R. 1095, H.R. 1826, H.R. 2038, H.R. 2056, H.R. 3574, H.R. 3859, H.R. 4431, H.R. 4432, H.R. 4433, H.R. 4434, H.R. 4435, H.R. 4487, H.R. 4510, H.R. 4511, H.R. 4517, H.R. 4522, H.R. 4523, H.R. 4527, H.R. 4537, H.R. 4540, H.R. 4550, H.R. 4583, H.R. 4617, H.R. 4630, H.R. 4644, H.R. 4749, H.R. 4768, H.R. 4790, H.R. 5175, S.J.Res. 28, S. 133, S. 752, S. 2954, S. 2959, S. 3004, and S. 3295. Most recently, Senator Schumer and Representative Van Hollen introduced S. 3295 and H.R. 5175 respectively. That legislation, which has been a focus of recent attention, is known as the "DISCLOSE Act," an acronym for "Democracy is Strengthened by Casting Light on Spending in Elections." (For additional discussion of the House version of the DISCLOSE Act, which has been the subject of recent legislative action, see CRS Report R41264, The DISCLOSE Act (H.R. 5175): Overview and Analysis, by R. Sam Garrett, L. Paige Whitaker, and Erika K. Lunder.) Given the pace of developments since the ruling, this report is not intended to be exhaustive. Relevant legislation that has been introduced thus far is reflected through selected examples and in Table 1 at the end of this report. Additional legislation will be included in future updates.

This report is not intended to provide a legal analysis of Citizens United or of constitutional issues that might affect the policy options discussed here. CRS Report R41045, The Constitutionality of Regulating Corporate Expenditures: A Brief Analysis of the Supreme Court Ruling in Citizens United v. FEC, by L. Paige Whitaker, and CRS Report R41096, Legislative Options After Citizens United v. FEC: Constitutional and Legal Issues, by L. Paige Whitaker et al., discuss legal and constitutional issues.


Date of Report: June 8, 2010
Number of Pages: 25
Order Number: R41054
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Campaign Finance: Potential Legislative and Policy Issues for the 111th Congress

R. Sam Garrett
Analyst in American National Government

Drawing from recent legislative and campaign activities, this report provides an overview of selected campaign finance policy issues that may receive, or have received, attention during the 111th Congress. Congress continues to consider the Supreme Court's January 21, 2010, ruling in Citizens United v. Federal Election Commission. The decision could shape the legislative debate on campaign finance issues during the second session of the 111th Congress. Thus far, most congressional attention responding to the ruling has focused on the DISCLOSE Act (H.R. 5175; S. 3295). 

Other than attention to Citizens United, four aspects of campaign finance policy have been subject to major actions thus far during the 111th Congress. First, in April 2009, the House passed legislation (H.R. 749) concerning authority to disburse campaign funds after a candidate's death. Second, on June 10, 2009, the Committee on House Administration favorably reported H.R. 512 (Davis, CA). The bill would amend the Federal Election Campaign Act (FECA) to restrict certain state election officials from involvement in others' campaigns. Third, on July 28, 2009, the Committee on House Administration held a hearing on H.R. 1826, a bill that would publicly finance House campaigns. Finally, the Senate is currently considering the nomination of John J. Sullivan to be a member of the Federal Election Commission. 

Questions about the health of the presidential public financing system were especially prominent during the 2008 election cycle, although legislation on the topic has not been introduced in the 111th Congress. Legislation on public financing of congressional campaigns was introduced in early 2009 (H.R. 158, H.R. 1826, H.R. 2056, S. 751, and S. 752). The cycle also witnessed new or expanded techniques for raising and spending money, such as bundling, joint fundraising committees, and hybrid advertising. Remaining issues from the 110th Congress, such as electronic filing of Senate campaign finance reports (S. 482 and S. 1858 in the 111th Congress), may also receive renewed scrutiny. Other issues, such as 527 organizations, may also be addressed. Congressional oversight of the FEC could also be on the legislative agenda. 

Some of the issues discussed in this report have only recently received substantial attention. Others have been long-running sources of controversy. All appear likely to remain prominent policy issues. Whether Congress decides to pursue these or other campaign finance issues, common questions about the role of money in politics, transparency, and the need for additional regulation are likely to shape the debate.


Date of Report: June 8, 2010
Number of Pages: 27
Order Number: R40091
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The Statutory Pay-As-You-Go Act of 2010: Summary and Legislative History

Robert Keith
Specialist in American National Government

On February 12, 2010, President Barack Obama signed H.J.Res. 45 into law, as P.L. 111-139. In addition to an increase in the statutory limit on the public debt to $14.294 trillion, the act contains two titles dealing with budgetary matters. Title I, referred to as the Statutory Pay-As-You-Go Act of 2010, establishes a new budget enforcement mechanism generally requiring that direct spending and revenue legislation enacted into law not increase the deficit. Title II, which contains only a single section, pertains to routine investigations by the Comptroller General aimed at eliminating duplicative and wasteful spending. This report provides a summary and legislative history of P.L. 111-139, focusing on the features of the Statutory Pay-As-You-Go Act of 2010. 

The Statutory Pay-As-You-Go Act of 2010 (Statutory PAYGO Act) establishes a process intended, as Section 2 of the act states, "to enforce a rule of budget neutrality on new revenue and direct spending legislation." The budgetary effects of revenue and direct spending provisions enacted into law, including both costs and savings, are recorded by the Office of Management and Budget (OMB) on two PAYGO scorecards covering rolling five-year and 10-year periods (i.e., in each new session, the periods covered by the scorecards roll forward one fiscal year). The budgetary effects of PAYGO measures are determined by statements inserted into the Congressional Record by the chairmen of the House and Senate Budget Committees and referenced in the measures. As a general matter, the statements are expected to reflect cost estimates prepared by the Congressional Budget Office (CBO). If this procedure is not followed for a PAYGO measure, then the budgetary effects of the measure are determined by OMB. 

Shortly after a congressional session ends, OMB finalizes the two PAYGO scorecards and determines whether a violation of the PAYGO requirement has occurred (i.e., if a debit has been recorded for the budget year on either scorecard). If so, the President issues a sequestration order that implements largely across-the-board cuts in nonexempt direct spending programs sufficient to remedy the violation by eliminating the debit. Many direct spending programs and activities are exempt from sequestration. If no PAYGO violation is found, no further action occurs and the process is repeated during the next session. 

The new statutory PAYGO process was created on a permanent basis; there are no expiration dates in the act. The process became effective upon enactment. 

As a budget enforcement tool, the new statutory PAYGO process is aimed at preventing, or at least discouraging, net deficit increases arising from the enactment of direct spending and revenue legislation. Any costs designated as emergencies are excluded from the scorecards, and significant costs associated with four specified categories of legislation may be excluded as well. In addition, significant savings stemming from the Community Living Assistance Services and Supports (CLASS) Act, establishing an insurance program for long-term care, are excluded from the scorecards. Finally, debt service costs are excluded as well. 

The statutory PAYGO process does not address deficit increases, stemming from changes in direct spending or revenue levels, that are projected to occur under existing law. Other budget enforcement procedures, such as the reconciliation process under the Congressional Budget Act (CBA) of 1974, may be used to reduce deficit levels projected under existing law. Further, the statutory PAYGO process does not apply to discretionary spending, which is provided in annual appropriations acts.


Date of Report: June 8, 2010
Number of Pages: 26
Order Number: R41157
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Senate Committee Hearings: Scheduling and Notification

Betsy Palmer
Analyst on Congress and the Legislative Process

Senate standing committees have authority to hold hearings whether the Senate is in session, has recessed, or has adjourned (Rule XXVI, paragraph 1). Regardless of the type of hearing, or whether a hearing is held in or outside of Washington, hearings share common aspects of planning and preparation.senate standing committees have authority to hold hearings whether the Senate is in session, has recessed, or has adjourned (Rule XXVI, paragraph 1). Regardless of the type of hearing, or whether a hearing is held in or outside of Washington, hearings share common aspects of planning and preparation.


Date of Report: June 8, 2010
Number of Pages: 3
Order Number: 98-337
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Voting and Quorum Procedures in the Senate

Betsy Palmer
Analyst on Congress and the Legislative Process

The Constitution states that "a Majority of each [House] shall constitute a quorum to do business.... " The Senate presumes that it is complying with this requirement and that a quorum always is present unless and until the absence of a quorum is suggested or demonstrated. This presumption allows the Senate to conduct its business on the floor with fewer than 51 Senators present until a Senator "suggests the absence of a quorum." 

When the absence of a quorum is suggested, the presiding officer directs the clerk to call the roll. Except when the Senate has invoked cloture, the presiding officer may not count to determine if a quorum is present. The Senate cannot resume its business until a majority of Senators respond to the quorum call or unless, by unanimous consent, "further proceedings under the quorum call are dispensed with" before the last Senator's name has been called. If a quorum fails to respond, the Senate may adjourn or take steps necessary to secure the attendance of enough Senators to constitute a quorum. Usually, the Senate will then have a roll call vote on agreeing to a motion that instructs the sergeant at arms to request the attendance of absent Senators. The results of that vote typically establish that a quorum is present, so the sergeant at arms rarely needs to go looking for absent Senators. 

Typically, quorum calls are not used to bring Senators to the floor, but rather as a kind of "time out" while the Senate is in session. Senators "suggest the absence of a quorum" to suspend the Senate's formal floor proceedings temporarily. There are many purposes for such quorum calls. For example, they can be used to permit informal discussions that are intended to resolve a policy disagreement or procedural problem, or to allow a Senator to reach the floor in order to make a speech or begin consideration of a bill. When a quorum call is used for such a purpose, it usually is ended by unanimous consent before the call of the roll has been completed. 

The Constitution also provides that "the Yeas and Nays of the Members of either House on any question shall, at the Desire of one fifth of those present, be entered on the Journal." Any Senator who has been recognized may "ask for the yeas and nays" on whatever question the Senate is considering. If the yeas and nays are ordered at the request of at least 11 Senators (one-fifth of the minimum quorum of 51), that determines the manner in which the vote will be conducted. The timing of the vote is not determined by this request. A Senator may offer an amendment and immediately ask for the yeas and nays, even if the vote is not expected to take place until hours or days later. 

If the yeas and nays are not ordered, the Senate votes on questions by voice vote. Alternatively, if the presiding officer believes that the outcome is not in doubt, he or she may say that, "without objection, the amendment (or motion, etc.) is agreed to." If any Senator does object, a formal vote ensues. .


Date of Report: June 8, 2010
Number of Pages: 12
Order Number: 96-452
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Telework for Executive Agency Employees: A Side-by-Side Comparison of Legislation Pending in the 111th Congress

Barbara L. Schwemle
Analyst in American National Government

Legislation to augment telework in executive agencies of the federal government is currently pending in the 111th Congress. S. 707, the Telework Enhancement Act of 2010, and H.R. 1722, the Telework Improvements Act of 2010, were introduced on March 25, 2009, by Senator Daniel Akaka and Representative John Sarbanes, respectively. The Senate Committee on Homeland Security and Governmental Affairs marked up S. 707 on May 20, 2009, and ordered the bill to be reported with an amendment favorably. The committee reported the bill (S.Rept. 111-177) on May 3, 2010. The Senate agreed to the committee amendments, including a title change, and passed S. 707, the Telework Enhancement Act of 2010, under unanimous consent on May 24, 2010. The Subcommittee on Federal Workforce, Postal Service, and the District of Columbia of the House Committee on Oversight and Government Reform marked up H.R. 1722 on March 24, 2010, and reported it favorably, as amended, to the full committee. On April 14, 2010, the House Committee on Oversight and Government Reform marked up the bill and ordered it to be reported, as amended, to the House of Representatives. The committee reported H.R. 1722 (H.Rept. 111-474) on May 4, 2010. The House began consideration of the bill on May 5, 2010. A motion to suspend the rules and pass H.R. 1722, as amended, failed by the Yeas and Nays (twothirds required) 268 - 147 (Roll No. 251) on May 6, 2010. The House bill would amend Title 5 of the United States Code by adding a new Chapter 65 entitled "Telework." 

S. 707 would define telework as a work arrangement in which an employee performs officially assigned duties at home or other worksites geographically convenient to the residence of the employee. Under H.R. 1722, telework would mean a work flexibility arrangement under which an employee performs the duties and responsibilities of his or her position, and other authorized activities, from an approved worksite other than the location from which the employee would otherwise work. Both bills would require the heads of executive agencies to establish policies under which employees (with some exceptions) could be eligible to participate in telework. Employee participation in telework must not diminish either employee performance or agency operations (Senate bill) or agency operations and performance (House bill). Executive agency employees not eligible for telework generally would include those whose duties involve the daily direct handling of secure materials or on-site activity that cannot be handled remotely or at an alternative worksite (Senate bill) or the daily direct handling of classified information or are such that their performance requires on-site activity which cannot be carried out from a site removed from the employee's regular place of employment (House bill). S. 707 would require an employee to enter into a written agreement with the agency before participating in telework. The Senate and House legislation would require each executive agency to appoint a Telework Managing Officer, who would be responsible for implementing the telework policies. The agencies also would be required to provide training to managers, supervisors, and employees participating in telework. Both S. 707 and H.R. 1722 would provide for telework to be incorporated into Continuity of Operations (COOP) plans, require the Director of the Office of Personnel Management (OPM) to submit annual reports on telework to Congress, and require the Comptroller General (CG) to review the OPM report and then annually report to Congress on the progress of executive agencies in implementing telework. The bills also would require the CG to annually submit a report to Congress on telework at the Government Accountability Office (GAO). The Senate bill would require the agency Chief Human Capital Officers (CHCOs) to annually report to the chair and vice-chair of the CHCO Council on telework in their organizations. S. 707 and H.R. 1722 would authorize test programs for telework travel expenses. This report presents a side-by-side comparison of the provisions of S. 707, as passed, and H.R. 1722, as reported. It will be updated as events dictate. .


Date of Report: June 3, 2010
Number of Pages: 18
Order Number: RL34516
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Item Veto and Expanded Impoundment Proposals: History and Current Status

Virginia A. McMurtry
Specialist in American National Government

Conflicting budget priorities of the President and Congress accentuate the institutional tensions between the executive and legislative branches inherent in the federal budget process. Impoundment, whereby a President withholds or delays the spending of funds appropriated by Congress, provides an important mechanism for budgetary control during budget implementation in the executive branch; but Congress retains oversight responsibilities at this stage as well. Many Presidents have called for an item veto, or possibly expanded impoundment authority, to provide them with greater control over federal spending. 

The Impoundment Control Act of 1974 (Title X of P.L. 93-344), established two categories of impoundments: deferrals, or temporary delays in funding availability; and rescissions, or permanent cancellation of budget authority. With a rescission, the funds must be made available for obligation unless both houses of Congress take action to approve the President's rescission request within 45 days of "continuous session." 

Consideration of impoundment reform increasingly became joined with that of an item veto for the President. While Constitutional amendment proposals have not disappeared (see H.J.Res. 15), many who originally favored an item veto constitutional amendment turned to expanded rescission authority for the President as a functionally similar mechanism achievable more easily by statutory change. 

The Line Item Veto Act was signed into law on April 9, 1996 (P.L. 104-130), and it became effective January 1, 1997. Key provisions allowed the President to cancel any dollar amount of discretionary budget authority, any item of new direct spending, or certain limited tax benefits contained in any law, unless disapproved by Congress. On June 25, 1998, the Supreme Court, in the case of Clinton v. City of New York, held the law unconstitutional on the grounds that it violated the presentment clause; in order to grant the President true item veto authority, a constitutional amendment would be needed (according to the majority opinion). 

Measures seeking to provide a constitutional alternative to the 1996 law have been introduced in each subsequent Congress. In the 109th Congress, the House passed H.R. 4890, the Legislative Line Item Veto Act of 2006, by a vote of 247-172, but no further action on the measure occurred before the 109th Congress adjourned. 

Several measures have been introduced in the 111th Congress that would establish expedited rescission procedures, including H.R. 1294, H.R. 1390, H.R. 4921, S. 524, S. 640, S. 907, and S. 3423. Other proposals would provide for expedited rescission along with various other budget process reforms, such as increased earmark accountability or spending controls. In the 111th Congress, H.R. 3268, H.R. 3964, S. 1808, and S. 3026 provide examples of such omnibus budget process bills. Two Constitutional amendments proposals have been introduced, H.J.Res. 15 and S.J.Res. 22. On December 16, 2009, there was a Senate hearing on bills providing for expedited rescission authority. The Obama Administration has endorsed an expedited process for congressional consideration of rescission requests and announced on May 24, 2010, the transmittal of a proposal to Congress, titled Reduce Unnecessary Spending Act of 2010. The Administration bill has been introduced as H.R. 5454 and S. 3474. On May 25, 2010, the Senate Judiciary Subcommittee on the Constitution held a hearing to consider line-item veto proposals, including the Administration proposal.


Date of Report: June 11, 2010
Number of Pages: 32
Order Number: RL33635
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Supreme Court Justices: Demographic Characteristics, Professional Experience, and Legal Education, 1789-2010

Susan Navarro Smelcer
Analyst on the Federal Judiciary

The nomination of Solicitor General Elena Kagan to replace retiring Justice John Paul Stevens has prompted renewed discussion among Senators, media commentators, and scholars regarding racial, ethnic, gender, religious, professional, and educational diversity on the Court. If confirmed, Solicitor General Elena Kagan would be the fourth woman appointed to the Court. For the first time, women would comprise one-third of the nine sitting Justices. Her appointment would also mark the first time that three Jewish Justices have shared the bench. For the first time in the Court's history, not one Justice would claim an affiliation with a Protestant Christian denomination. Notably, Solicitor General Kagan would also be the first Justice appointed without judicial experience since the 1971 appointment of William Rehnquist and the first to have served as the Solicitor General since the elevation of Justice Thurgood Marshall in 1967. Finally, if Solicitor General Kagan were confirmed, each of the nine Justices will have been educated at one of three Ivy League schools, and five members of the Court would claim Harvard as their law school alma mater. Against the backdrop of recent and pending changes to the Court's composition, this report examines the social, professional, and educational backgrounds of the Justices across the entire history of the Supreme Court. 

Over time, the Supreme Court has become more diverse in some ways and more homogeneous in others. When first constituted, and throughout most of its history, no women or minorities served on the Court. This changed with the appointment of the first African-American Justice, Thurgood Marshall, in 1967, and the first female Justice, Sandra Day O'Connor, in 1981. When Justice Marshall retired from the Court in 1991, he was succeeded by another African-American, Justice Clarence Thomas. Although Justice O'Connor, upon her retirement in 2006, was succeeded by a male, Justice Samuel A. Alito Jr., the Court's membership once again, in August 2009, included two female Justices, upon the confirmation of Sonia Sotomayor. 

The religious affiliations of the Court's members also have changed over time. For almost the first 50 years of the Court, all Justices were affiliated with Protestant Christian churches. The first Jewish Justice, Louis Brandeis, was appointed in 1916. Currently, two Jewish Justices, Ruth Bader Ginsburg and Stephen G. Breyer, serve on the Court. The first Catholic Justice, Chief Justice Roger Brooke Taney, was appointed in 1836. With the confirmation of Justice Sotomayor, six of the nine current Justices identify as Roman Catholic. 

The career experiences of the Court's Justices, while quite diverse in the past, have become more homogeneous in recent times. Historically, Justices had served in a variety of professions, such as in the Cabinet, in a federal or state legislative body, or in a private legal practice. In the last 50 years, however, Justices have more and more frequently been elevated from positions on the federal circuit courts of appeals. Of the nine current Justices, all possess federal circuit court experience, and six have served as government attorneys in some capacity. No sitting Justice has served in a federal or state Cabinet position or legislature. Justice Sonia Sotomayor brings both experience as a private practitioner and a government attorney and is the only current Justice on the Court to have experience as a federal trial judge. 

Over time, Justices' legal educations have become more homogeneous, as well. In the past 20 years, especially, three Ivy League law schools—Harvard, Yale, and Columbia—have been disproportionately represented on the Court. Of the nine sitting Justices, eight have attended one of these three law schools, including recently confirmed Justice Sotomayor, who is a graduate of Yale Law School. .


Date of Report: June 1, 2010
Number of Pages: 37
Order Number: R40802
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First-Term Members of the House of Representatives and Senate, 64th – 111thCongresses

Jennifer E. Manning
Information Research Specialist

Parker H. Reynolds
Analyst in American National Government

R. Eric Petersen
Analyst in American National Government

This report provides summary data on the number of Senators and Members of the House who first entered Congress in the 64th Congress (1915-1917) through the 111th Congress (2009-2010). First-term membership is divided into two broad categories in each chamber; Members chosen prior to the convening of a Congress, and those chosen after a Congress convenes. The resulting data, combining pre-convening and post-convening first-term Members, provide a count of all Members who served a first term in the House or Senate. 

Since the convening of the 64th Congress, 3,947 individuals have entered the House of Representatives for their first, or "freshman," terms as a Representative. An additional 26 have begun service as a Delegate or Resident Commissioner. During the same period, 796 individuals began their first terms in the Senate. 

Data on pre-convening first-term Members provides partial insight into the extent of membership turnover in the House and Senate since 1913. In both chambers, the data suggest that the overall number of Members elected to Congress who take their seats at the convening of a new Congress has declined since the 64th Congress. This appears to be consistent with some academic findings that argue that the duration of Members' careers have been increasing in the past century. Taken on their own, post-convening first-term Member data do not reveal clear patterns within individual Congresses, or over time. This is due in part to the wide range of reasons that a seat in the House and Senate may become vacant in the course of a Congress, and the circumstances under which it may be filled.


Date of Report: June 15, 2010
Number of Pages: 18
Order Number: R41283
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The Law of Church and State: General Principles and Current Interpretations

Cynthia Brougher
Legislative Attorney

The First Amendment of the U.S. Constitution prohibits the government from establishing a religion and guarantees citizens the right to freely exercise their religion. The U.S. Supreme Court has clarified the scope of these broad guarantees. This report provides an overview of the governing principles of the law of church and state. It explains the legal requirements for challenges under the Establishment Clause and Free Exercise Clause and the standards used to evaluate such challenges. The report includes current interpretations of these clauses and summarizes related statutes (P.L. 103-141, the Religious Freedom Restoration Act, or RFRA, and P.L. 106-274, the Religious Land Use and Institutionalized Persons Act, or RLUIPA).


Date of Report: June 2, 2010
Number of Pages: 9
Order Number: RS22833
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Public Display of the Ten Commandments and Other Religious Symbols

Cynthia Brougher
Legislative Attorney

Over the past few decades, the U.S. Supreme Court has issued several decisions regarding public displays of religious symbols. Although a few of these cases have involved temporary religious holiday displays, the more recent cases have involved permanent monuments of religious symbols, specifically the Ten Commandments. In 1980, the Supreme Court held in Stone v. Graham that a Kentucky statute requiring the posting of a copy of the Ten Commandments on the wall of each public school classroom in the state had no secular legislative purpose and was therefore unconstitutional. The Court did not address the constitutionality of public displays of the Ten Commandments again until 2005. In McCreary County v. ACLU of Kentucky and Van Orden v. Perry, the Court reached differing conclusions regarding displays of the Ten Commandments in different contexts. 

This report analyzes the Court's holdings in Stone, McCreary, and Van Orden, and the distinctions the Court made in reaching the divergent decisions. It also briefly addresses other relevant cases in which the Court evaluated constitutional issues related to religious displays on public property, including holiday displays. Finally, the report discusses related Court decisions regarding public displays, including Pleasant Grove City, Utah v. Summum and Salazar v. Buono.


Date of Report: June 2, 2010
Number of Pages: 11
Order Number: RS22223
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Supreme Court Nominee Elena Kagan: Defamation and the First Amendment

Edward C. Liu
Legislative Attorney

Defamation is the publication of a false statement of fact that injures another person's reputation. Modern defamation law incorporates First Amendment protections in the form of imposing a higher burden on plaintiffs who challenge statements about public officials, public figures, or matters of public concern. The modern framework of defamation stems from the Supreme Court's decision in New York Times v. Sullivan, in which the Court overturned a libel judgment against civil rights activists for their criticism of actions and policies by government officials in Birmingham, Alabama. Because the allegedly defamatory speech was critical of a government official or policy, the Court required the plaintiffs to prove by clear and convincing evidence that the defendant had acted with actual malice. Since then, the Court has extended similar protections to speech about public figures and speech concerning matters of public concern. 

In articles published in 1993 and 2000, then-assistant law professor Elena Kagan argued that, while Sullivan was rightly decided, it is not clear that its extension beyond attacks on official conduct or policy provides significant protection of core First Amendment values to justify the cost to individuals that have suffered reputational injury. Kagan noted that the scope of public figures or matters of public concern is expansive and has grown to include cases of celebrity gossip, and she argued that protection of these statements is far removed from the central meaning of the First Amendment, namely "to protect against all infringements the right of a sovereign people to criticize the government policy and public officials." Additionally, the increased complexity of defamation litigation detracts from the speech-promoting effects of the actual malice standard.


Date of Report: June 10, 2010
Number of Pages: 8
Order Number: R41281
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Federal Budget Process Reform in the 111th Congress: A Brief Overview

Robert Keith
Specialist in American National Government

Procedural change is a recurrent feature of federal budgeting, although the scope and impact of changes may vary from year to year. In order to advance their budgetary, economic, or political objectives, both Congress and the President regularly propose and make changes to the federal budget process. This report briefly discusses the context in which federal budget process changes are made and identifies selected reform proposals by major category. The identification of reform proposals in this report is not intended to be comprehensive. 

A variety of sources give rise to the interest in budget process reform, including Congress, the President, state and local government officials, and special commissions, among others. Congress initiated a thorough overhaul of its internal budget process and ameliorated ongoing conflicts with President Richard Nixon over the withholding of appropriated funds through enactment of the Congressional Budget and Impoundment Control Act of 1974. President Bill Clinton, like many Presidents before him, requested line-item veto authority, which Congress granted in 1996 in the Line Item Veto Act (but was invalidated by court action in 1998). State and local government officials were instrumental in securing passage of the Unfunded Mandates Reform Act of 1995. Finally, special commissions, such as the President's National Commission on Terrorist Attacks Upon the United States (the "9/11 Commission"), have recommended changes in budget structure and procedure that have been adopted. 

The federal budget process is rooted in constitutional mandates, statutory requirements, House and Senate rules and practices, and administrative directives. Thus, there are several avenues through which budget process changes can occur. Either chamber may focus on changes in its rules, thereby minimizing the time needed to effect the change and the scale of potential conflict needed to be resolved, but at the same time possibly minimizing the impact of the changes. Broader and potentially more consequential changes, involving statutes or constitutional amendments, may entail a larger set of participants in the decision-making (i.e., the other chamber, the President, state legislatures), likely escalating the effort required to reach agreement and lengthening the time period before the changes take effect. 

Legislative changes in the budget process may take the form of freestanding bills or joint resolutions (e.g., the Line Item Veto Act), or may be incorporated into other budgetary legislation, such as acts raising the debt limit (e.g., the Balanced Budget and Emergency Deficit Control Act of 1985, also referred to as the Gramm-Rudman-Hollings Act), implementing reconciliation instructions (e.g., the Budget Enforcement Act of 1990), or providing annual appropriations (e.g., revisions in the Senate's cap on discretionary appropriations). Budget process changes also may be included in the annual budget resolution (a concurrent resolution), or in simple House or Senate resolutions.


Date of Report: June 3, 2010
Number of Pages: 20
Order Number: R40113
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Olmstead v. L.C.: Judicial and Legislative Developments in the Law of Deinstitutionalization

Emily C. Barbour
Legislative Attorney

The Supreme Court ruled in Olmstead v. L.C., 527 U.S. 581 (1999), that, under Title II of the Americans with Disabilities Act (ADA) and its implementing regulations, states must transfer individuals with mental disabilities into non-institutional settings when a state treatment professional has determined such an environment is appropriate, the community placement is not opposed by the individual with a disability, and the placement can be reasonably accommodated. In subsequent litigation, appellate courts have (1) rejected interpretations of Olmstead that would make it more difficult to establish a prima facie violation and (2) distinguished "reasonable accommodations," which Olmstead requires states to make to their programs and services, from "fundamental alterations," which it does not. 

In addition to these judicial developments, the recent health care reform package, the Patient Protection and Affordable Care Act (PPACA, P.L. 111-148) as amended by the Health Care and Education Reconciliation Act (HCERA, P.L. 111-152), has the potential to influence states' Olmstead initiatives. As amended by HCERA, PPACA revises the federal Medicaid statute to give states greater incentives to provide home and community-based care services to people with disabilities, offer states greater flexibility in the kinds of packages of home and community-based services they can offer, and, perhaps, enable states to provide more Medicaid beneficiaries with long-term care services in their communities. Because judicial developments under Olmstead often occur in the context of federal Medicaid law, particularly Medicaid waiver programs, PPACA amendments to Medicaid may affect the outcome of future cases on deinstitutionalization. 

This report will discuss the Supreme Court's decision, selected subsequent appellate court decisions, and related legislation in the 111th Congress, including PPACA.


Date of Report: June 3, 2010
Number of Pages: 13
Order Number: R40106
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Salary Linkage: Members of Congress and Certain Federal Executive and Judicial Officials

Barbara L. Schwemle
Analyst in American National Government

The salaries of Members of Congress, certain high-level federal officials (those paid at Level II of the Executive Schedule (EX)), and certain federal justices and judges have, until recently, generally been in parity for many years. The Ethics Reform Act of 1989 provides for annual pay adjustments to be established for the Members, the Vice President, federal officials paid under the EX Schedule, and federal justices and judges. The act also requires a Citizens' Commission on Public Service and Compensation and the President to recommend salaries in parity for these federal government positions. The commission has never been activated, and, thus, such recommendations have never been made.


Date of Report: June 3, 2010
Number of Pages: 9
Order Number: RS20388
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Legislative, Executive, and Judicial Officials: Process for Adjusting Pay and Current Salaries

Barbara L. Schwemle
Analyst in American National Government

Leaders and Members of the Senate and the House of Representatives, the Vice President, individuals in positions on the Executive Schedule (EX), and federal justices and judges—all hereafter referred to as federal officials—are to receive an annual pay adjustment under the Ethics Reform Act of 1989, P.L. 101-194 (103 Stat. 1716, at 1769, 5 U.S.C. §5318 note). The percentage change in the wages and salaries for the private industry workers element of the Employment Cost Index (ECI), minus 0.5% (December indicator), provides the basis for the pay adjustment. In January 2010, the Vice President and federal officials paid on the EX schedule received a 1.5% salary increase. Members of Congress did not receive a pay adjustment in January 2010; Section 103 of Division J of P.L. 111-8, the Omnibus Appropriations Act for FY2009, enacted on March 11, 2009, denied the adjustment. Federal justices and judges also have not received a January 2010 pay adjustment. Section 140 of P.L. 97-92, enacted on December 15, 1981, provides that any salary increase for justices and judges must be specifically authorized by Congress, and this authorization has not been provided for 2010. 

The pay adjustment for federal officials required under the Ethics Reform Act of 1989 would be 0.9% in January 2011, the same as the January 2011 base pay adjustment required under the Federal Employees Pay Comparability Act of 1990, for federal civilian white-collar employees paid under the General Schedule (GS). P.L. 111-165, enacted on May 14, 2010, provides that Members of Congress will not receive a pay adjustment in FY2011. In addition, the Budget of the U.S. Government included President Barack Obama's order to freeze pay for senior political officials—the Vice President; individuals serving in EX positions or in positions whose rate of pay is fixed by statute at an EX level and serving at the pleasure of the President or other appointing official; a chief of mission or ambassador at large; a noncareer appointee in the Senior Executive Service; any employee whose rate of basic pay (including locality payments) is at or above EX level IV who serves at the pleasure of the appointing official; and senior White House staff with salaries of more than $100,000. The budget also reiterated that the policy prohibiting political appointees from receiving bonuses continues. 

Currently pending in the 111th Congress is legislation that would adjust the pay of federal justices and judges. The Federal Judicial Fairness Act of 2009, S. 2725, as introduced, would repeal the provision of law that requires Congress to specifically authorize any salary increases for justices and judges and amend current law to provide that justices and judges would receive the same overall average percentage pay adjustment as is authorized each year for the GS, the pay schedule that covers federal white-collar civilian employees in pay grades GS-1 through GS-15. 

EX pay rates provide limitations on maximum basic pay rates for members of the Senior Executive Service (SES), employees in senior-level (SL) and scientific and professional (ST) positions, and on basic pay, basic pay and locality pay combined, and total compensation for employees in General Schedule positions.


Date of Report: June 3, 2010
Number of Pages: 19
Order Number: RL33245
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Rescission Actions Since 1974: Review and Assessment of the Record

Virginia A. McMurtry
Specialist in American National Government

The Impoundment Control Act (ICA) was included as Title X of the Congressional Budget and Impoundment Control Act of 1974, signed into law on June 12, 1974 (88 Stat. 332). Under the ICA, unless Congress takes action to approve a rescission request from the President within the 45-day review period prescribed by the law, the funds must be released. With respect to a presidential rescission message, Congress may approve more or less than the amount requested by the President. In addition, absent a specific request from the President, Congress on its own accord may initiate rescission actions, by cancelling previously appropriated funds in a subsequent law. 

According to data compiled by the Government Accountability Office (GAO), from FY1974 through FY2008, Presidents requested 1,178 rescissions under the ICA, totaling somewhat over $76 billion. Close to a third of the proposals were approved by Congress, with approximately 40% of the total dollar amount of presidential rescission requests ($25 billion) enacted by Congress. The sum of rescissions requested by the President and subsequently enacted exceeded $1 billion in only four of the 35-plus years (FY1981, FY1982, FY1992 and FY1994). During this period Congress initiated 1,880 rescission actions amounting to $197.1 billion, nearly eight times the total of presidentially requested rescission subsequently enacted, reflecting a trend toward an increasing number of rescissions being initiated by Congress. 

The Line Item Veto Act of 1996 (P.L. 93-344), in effect for less than eighteen months before being overturned by the Supreme Court in 1998, gave the President enhanced rescission authority by reversing the burden of action regarding rescission proposals; cancellations of the President became permanent unless disapproved by Congress (ultimately requiring rejection by a 2/3 majority in both chambers). During this time, the President also had authority to cancel new items of direct spending and certain targeted tax benefits as well as items of discretionary spending. Figures from the Congressional Budget Office indicate that the 82 cancellations made by President Clinton in FY1998 (including those overturned) totaled some $355 million, with a projected five-year savings just under $1 billion. President Clinton's use of the short-lived enhanced rescission authority thus was not notably different from the prior annual record of presidential rescissions under the ICA framework. 

During his two terms in office, President George W. Bush sent no formal ICA rescission requests to Congress, but some controversy developed over his use of alternative means to propose spending reductions. President Bush, while evidently reluctant to use existing rescission authority contained in the ICA, called repeatedly for enactment of a measure that would give the President greater authority to reject items of spending. Such a bill passed the House in the 109th Congress and was reported in the Senate. A contentious issue is whether such a measure might give preference to presidential spending priorities over congressional spending priorities, arguably affecting the legislative power of the purse. 

During his first year in office, President Barack Obama sent no formal ICA rescission requests to Congress. On May 24, 2010, however, the President transmitted to Congress a draft proposal, the "Reducing Unnecessary Spending Act," which would establish expedited procedures for congressional consideration of certain rescission messages.


Date of Report: May 26, 2010
Number of Pages: 26
Order Number: RL33869
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Speed of Presidential and Senate Actions on Supreme Court Nominations, 1900-2010

R. Sam Garrett
Analyst in American National Government

Denis Steven Rutkus
Specialist on the Federal Judiciary

The speed with which appointments to the Supreme Court move through various stages in the nomination-and-confirmation process is often of great interest not only to all parties directly involved, but, as well, to the nation as a whole. This report provides information on the amount of time taken to act on all Supreme Court nominations occurring between 1900 and the present. It focuses on the actual amounts of time that Presidents and the Senate have taken to act (as opposed to the elapsed time between official points in the process). For example, rather than starting the nomination clock with the official notification of the President of a forthcoming vacancy (e.g., via receipt of a formal retirement letter), this report focuses on when the President first learned of a Justice's intention to leave the Court (e.g., via a private conversation with the outgoing Justice), or received word that a sitting Justice had died. Likewise, rather than starting the confirmation clock with the transmission of the official nomination to the Senate, this report focuses on when the Senate became aware of the President's selection (e.g., via a public announcement by the President). 

The data indicate that the entire nomination-and-confirmation process (from when the President first learned of a vacancy to final Senate action) has generally taken almost twice as long for nominees after 1980 than for nominees in the previous 80 years. From 1900 to 1980, the entire process took a median of 59 days; from 1981 through 2009 (when the most recent Supreme Court appointment was completed), the process took a median of 111.5 days. Although Presidents after 1980 have moved more quickly than their predecessors in announcing nominees after learning of vacancies (a median of 18 days compared with 34 days before 1980), the Senate portion of the process (i.e., from the nomination announcement to final Senate action) now appears to take much longer than before (a median of 80.5 days from 1981 through 2009, compared with 17 days from 1900 through 1980). Most notably, the amount of time between the nomination announcement and first Judiciary Committee hearing has more than quadrupled—from a median of 12.5 days (1900-1980) to 50.5 days (1981-2009). The most recent confirmation of a Supreme Court Justice, that of Sonia Sotomayor in 2009, illustrated the lengthier overall time frame for recent Supreme Court appointments. Forty-eight days elapsed between President Barack Obama's announcement of then-Judge Sotomayor's selection and the start of Judiciary Committee hearings on the nomination. The entire interval from the time at which the President apparently first learned of the vacancy until final Senate consideration spanned 97 days. 

Most recently, on May 10, 2010, President Obama announced that he would nominate Solicitor General Elena Kagan to the seat being vacated by Associate Justice John Paul Stevens. Hearings are scheduled to begin June 28, 2010. If that schedule unfolds as planned, the interval between the nomination announcement and the start of hearings for Kagan (49 days) would differ by just one day from the interval between nomination announcement and the start of hearings for Judge Sotomayor in 2009 (48 days). Both those periods are close to the median 50.5 days that elapsed between the nomination announcement and the start of hearings for all Supreme Court nominees between 1981 and 2009. As with previous nominations to the Court, the selection process, the Senate schedule, and other factors will affect the timetable that emerges for the next Supreme Court nomination. The Senate may proceed at any pace it deems appropriate after a nominee is announced.


Date of Report: May 28, 2010
Number of Pages: 52
Order Number: RL33118
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Supreme Court Nominee Elena Kagan: Presidential Authority and the Separation of Powers

Todd B. Tatelman
Legislative Attorney

In light of Elena Kagan's nomination to serve as an Associate Justice of the United States Supreme Court, this report analyzes then-Professor Kagan's views of executive power and the doctrine of separation of powers as laid most extensively out in her 2001 Harvard Law Review article Presidential Administration. This report will proceed as follows. First, it will briefly describe the constitutional and legal basis for presidential authority with respect to domestic policy, focusing on the relevant constitutional text as well as the Supreme Court jurisprudence that forms the foundation for almost all discussions of executive authority. Second, the report will provide a discussion of the well-established and competing theories of executive power, the traditional view as well as the "unitary theory of the executive." Third, the report will discuss Professor Kagan's theory of "presidential administration" and her legal responses to both of the aforementioned theories. Fourth, the report will turn to the application of Professor Kagan's theory to the field of administrative law, with an emphasis on the non-delegation doctrine and the level of deference often afforded to executive branch agencies by the judiciary, often referred to as Chevron deference. Finally, the report will provide a discussion of some of the criticism of Professor Kagan's views, especially as they relate to the President's legal authority in the areas of foreign policy and national security, both of which are expected by many to be issues that the Supreme Court will adjudicate in future terms.


Date of Report: June 4, 2010
Number of Pages: 23
Order Number: R41272
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Item Veto and Expanded Impoundment Proposals: History and Current Status

Virginia A. McMurtry
Specialist in American National Government

Conflicting budget priorities of the President and Congress accentuate the institutional tensions between the executive and legislative branches inherent in the federal budget process. Impoundment, whereby a President withholds or delays the spending of funds appropriated by Congress, provides an important mechanism for budgetary control during budget implementation in the executive branch; but Congress retains oversight responsibilities at this stage as well. Many Presidents have called for an item veto, or possibly expanded impoundment authority, to provide them with greater control over federal spending. 

The Impoundment Control Act of 1974 (Title X of P.L. 93-344), established two categories of impoundments: deferrals, or temporary delays in funding availability; and rescissions, or permanent cancellation of budget authority. With a rescission, the funds must be made available for obligation unless both houses of Congress take action to approve the President's rescission request within 45 days of "continuous session." 

Consideration of impoundment reform increasingly became joined with that of an item veto for the President. While Constitutional amendment proposals have not disappeared (see H.J.Res. 15), many who originally favored an item veto constitutional amendment turned to expanded rescission authority for the President as a functionally similar mechanism achievable more easily by statutory change. 

The Line Item Veto Act was signed into law on April 9, 1996 (P.L. 104-130), and it became effective January 1, 1997. Key provisions allowed the President to cancel any dollar amount of discretionary budget authority, any item of new direct spending, or certain limited tax benefits contained in any law, unless disapproved by Congress. On June 25, 1998, the Supreme Court, in the case of Clinton v. City of New York, held the law unconstitutional on the grounds that it violated the presentment clause; in order to grant the President true item veto authority, a constitutional amendment would be needed (according to the majority opinion). 

Measures seeking to provide a constitutional alternative to the 1996 law have been introduced in each subsequent Congress. In the 109th Congress, the House passed H.R. 4890, the Legislative Line Item Veto Act of 2006, by a vote of 247-172, but no further action on the measure occurred before the 109th Congress adjourned. 

Several measures have been introduced in the 111th Congress that would establish expedited rescission procedures, including H.R. 1294, H.R. 1390, H.R. 4921, S. 524, S. 640, and S. 907. Other proposals would provide for expedited rescission along with various other budget process reforms, such as increased earmark accountability or spending controls. In the 111th Congress, H.R. 3268, H.R. 3964, S. 1808, and S. 3026 provide examples of such omnibus budget process bills. Two constitutional amendment proposals have been introduced, H.J.Res. 15 and S.J.Res. 22. On December 16, 2009, there was a Senate hearing on bills providing for expedited rescission authority. The Obama Administration has endorsed an expedited process for congressional consideration of rescission requests and announced on May 24, 2010, the transmittal of a draft bill to Congress, titled "Reduce Unnecessary Spending Act of 2010."


Date of Report: May 24, 2010
Number of Pages: 31
Order Number: RL33635
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