What's On Tap Last Week: May 16th-May 22nd

Monday, May 18th

Supreme Court rules plaintiffs can seek punitive damages for 1998 al Qaeda bombings in Africa

• The U.S. Supreme Court issued an opinion in Opati v. Republic of Sudan. The case originated in the United States Court of Appeals for the District of Columbia Circuit and was argued on February 24, 2020. It concerned the Foreign Sovereign Immunities Act (FSIA) and questioned if the Act prohibited plaintiffs from recovering punitive damages against Sudan for its role in embassy bombings in Kenya and Tanzania in 1998.
• From 1991 to 1996, the terrorist group al Qaeda maintained an operations base in Sudan, from which it launched terrorist cells in Kenya and Tanzania. Al Qaeda bombed U.S. embassies in Kenya and Tanzania in 1998, killing more than 200 people and injuring thousands. In 2001 and in following years, various plaintiffs sued the government of Sudan, arguing the bombings were "extrajudicial killings" under the FSIA. Sudan denied the allegations.
• In 2014, the U.S. District Court for the District of Columbia issued final judgments awarding more than $10.2 billion in punitive damages against Sudan. Sudan appealed the cases. On appeal, the U.S. Court of Appeals for the D.C. Circuit vacated the damages awarded. The Opati plaintiffs appealed to the U.S. Supreme Court, asking it to clarify whether "the FSIA may be applied retroactively to impose punitive damages on a state sponsor of terrorism."
• In an 8-0 ruling (Justice Brett Kavanaugh recused himself), the U.S. Supreme Court vacated the D.C. Circuit Court’s ruling. The court held that the FSIA may be applied retroactively and punitive damages against foreign states for terrorist activities are permissible for federal claims under the FSIA. In the opinion, Justice Neil Gorsuch wrote, "Congress was as clear as it could have been when it authorized plaintiffs to seek and win punitive damages for past conduct" under an amended version of the FSIA.

Tuesday, May 19th

Federal Election Commission regains quorum with Trainor's confirmation

• The Federal Election Commission’s (FEC) nearly nine-month period without a functioning quorum came to a close on Tuesday when the United States Senate voted 49-43 along party lines to confirm Republican election attorney Trey Trainor as the commission’s newest member. Trainor’s confirmation created the quorum of members necessary for the FEC to oversee campaign finance disclosures, perform audits, and enforce fundraising violations.
• Trainor joins Republican Chairwoman Caroline Hunter, independent Vice Chairman Steven Walther, and Democratic member Ellen Weintraub on the six-member commission. Two seats remain vacant.
• The FEC had lacked a quorum since Republican Vice Chairman Matthew Petersen resigned on August 31, 2019. That is the longest time in the agency’s history in which it went without a quorum, or the minimum number of members necessary to carry out regulatory functions. The Federal Election Campaign Act requires a vote of at least four of the FEC’s six members for the commission to undertake a number of key policy duties such as promulgating rules, issuing advisory opinions, and deciding enforcement actions.
• Prior to Trainor’s confirmation, three of the six commissioner seats were vacant, which meant the FEC was unable to enforce campaign finance laws or issue guidance regarding campaign finance to non-regulatory groups. Without a quorum, the FEC was also unable to address complaints filed with the agency regarding alleged violations of campaign finance laws. Weintraub has stated that there are 350 enforcement items pending for the commission to now address.

Biden, Trump win Oregon presidential primaries; Perkins, Merkley win nominations for Senate race

• The presidential and congressional primary for Oregon was held on May 19, 2020. Candidates competed to advance to the general election scheduled for November 3, 2020.
  • Presidential primary election: 
    • Incumbent President Donald Trump (R) ran unopposed in the Republican primary and received all 28 of the state’s pledged delegates.
    • There are still ballots that have not been counted. Former Vice President Joe Biden (D) defeated U.S. Senators Bernie Sanders (I-Vt.) and Elizabeth Warren (D-Mass.) and U.S. Representative Tulsi Gabbard (D-Hawaii) in the Democratic primary. Biden has so far received 66.5 percent of the vote and 45 pledged delegates. Sanders (D) received 20.2 percent and eight pledged delegates. Warren and Gabbard received 9.6 and 1.7 percent of the vote, respectively. Eight delegates have not yet been allocated.
  • U.S. Senate election:
    • Incumbent Jeff Merkley (D) ran unopposed in the Democratic primary.
    • Ballotpedia identified the Republican primary as a battleground race. Jo Rae Perkins defeated Paul Romero, Robert Schwartz, and John Verbeek to win the GOP nomination. Perkins received 49% of the vote to Romero’s 30%, Schwatz’s 11%, and Verbeek’s 8%. In her Ballotpedia Candidate Connections survey, Perkins said she was “a Main Street American who believes the US Constitution strongly and clearly spells out the role of the US Senate and the federal government.”
  • U.S. House of Representative elections:
    • U.S. House District 1: Incumbent Suzanne Bonamici (D) and Christopher Christensen (R) advanced from the primary to the general election.
    • U.S. House District 2: Incumbent Greg Walden (R) did not file for re-election. 
      • The Democratic primary for U.S. House District 2 remained too close to call based on the unofficial results as of May 21. The candidates on the ballot included Nick Huertz, John Holm, Jack Howard, Alex Spenser, and Chris Vaughn. 
      • Ballotpedia identified the Republican primary as a battleground race. Former state Sen. Cliff Bentz (R) placed first out of the 11 candidates with 31.4% of the vote. Three other candidates received more than 5%: 2018 gubernatorial nominee Knute Buehler with 22%, former state Sen. Jason Atkinson with 20%, and businessman Jimmy Crumpacker with 18%.
    • U.S. House District 3: Incumbent Earl Blumenauer (D) and Joanna Harbour (R) advanced from the primary to the general election. Nonpartisan candidate Edward Baker will also appear on the general election ballot.
    • U.S. House District 4: Incumbent Peter DeFazio (D) and Alek Skarlatos (R) advanced from the primary to the general election.
    • U.S. House District 5: Incumbent Kurt Schrader (D) and Amy Ryan Courser (R) advanced from the primary to the general election.
• Oregon exclusively uses a vote-by-mail system. Voters may return their ballots to the office of the county clerk by mail or in person. Because of this system, there is no need for absentee or early voting procedures.

Federal appeals court upholds decision reinstating New York’s Democratic presidential primary

• A three-judge panel of the United States Court of Appeals for the Second Circuit affirmed a lower court decision reinstating New York's Democratic presidential preference primary on June 23. The state board of elections indicated that it would not appeal the decision. The panel comprised Judges Amalya Kearse, Dennis Jacobs, and Jose Cabranes. 
  • On April 27, the New York State Board of Elections canceled the Democratic presidential preference primary, acting on a law implemented earlier in April that authorized the state board of elections to remove candidates from the ballot upon the suspension or termination of their campaigns. Senator Bernie Sanders (I) suspended his presidential campaign on April 8, 2020, making former Vice President Joe Biden (D) the presumptive Democratic nominee. Board co-chairman Douglas A. Kellner said, "What the Sanders campaign wanted is essentially a beauty contest that, given the situation with the public health emergency, seems to be unnecessary and, indeed, frivolous."
  • The next day, former Democratic presidential candidate Andrew Yang and several candidates for New York's delegation to the Democratic National Convention filed suit against the board in federal district court. They alleged that "this unprecedented and unwarranted move infringes the rights of Plaintiffs and all New York State Democratic Party voters ... as it fundamentally denies them the right to choose our next candidate for the office of President of the United States." 
  • On May 5, Judge Analisa Torres, of the United States District Court for the Southern District of New York, sided with the plaintiffs and ordered the state board of elections to reinstate the primary. The appeals court affirmed Torres’ order. To date, 20 states and one territory have postponed state-level/territory-level elections in response to the COVID-19 outbreak. 

Michigan announces all voters to receive mail-in ballot applications for 2020 elections

• Michigan Secretary of State Jocelyn Benson (D) announced that all registered voters in the August 4 primary and November 3 general election will automatically receive mail-in ballot applications.
• To date, 12 states have opted to automatically deliver absentee/mail-in ballot applications to all voters in certain elections: Connecticut, Delaware, Georgia, Idaho, Iowa, Michigan, Nebraska, New York, North Dakota, Rhode Island, South Dakota, and West Virginia. 
• Another five states have chosen to automatically deliver the  absentee/mail-in ballots themselves to all voters in certain elections: California, Maryland, Montana, Nevada, and New Jersey. 

U.S. extends travel restrictions due to coronavirus with Canada and Mexico through June 22

• On Tuesday, May 19, acting Homeland Security Secretary Chad Wolf announced the U.S. would extend travel restrictions at the Canadian and Mexican borders for an additional  30 days to reduce the spread of the coronavirus.
• The restrictions, effectuated in late March in coordination with both countries, closed the borders to nonessential travel. Essential travel was still allowed, including for trade and commerce, but tourism and recreational travel were prohibited. The restrictions were first extended on April 20.
• In addition to travel restrictions placed on foreign countries by the federal government, Ballotpedia is tracking restrictions placed on out-of-state travelers by governors and state agencies.

Federal judge orders release of certain federal prison inmates due to COVID-19 outbreak

• U.S. District Court Judge James Gwin for the Northern District of Ohio ordered the Bureau of Prisons to expedite the release of 837 medically vulnerable inmates in Ohio’s Elkton Federal Correctional Institute through either home confinement or compassionate release due to the coronavirus pandemic. 
  • In his order, the judge cited “poor progress in transferring the subclass members out of Elkton through the various means referenced in the Court’s preliminary injunction order.” 
  • The ruling follows a class action habeas petition filed by the ACLU of Ohio and the Ohio Justice and Policy Center.
• In Connecticut, U.S. District Court Judge Michael Shea for the District of Connecticut issued an order on May 12 directing prison officials at the federal prison in Danbury to identify inmates with health conditions that make them vulnerable to the coronavirus and to provide a list of these inmates to the court within 13 days. The order follows a class-action lawsuit filed by nearly 1,000 inmates. 
• Judge Shea did not rule on the inmates’ request for the mass transfer of inmates to either home confinement or other institutions, nor the appointment of a special master to enforce measures, such as social distancing, in the institution. He did, however, order an expedited hearing schedule for questions. 

Wednesday, May 20th

Senate confirms federal judges for first time since February

• The U.S. Senate confirmed three nominees to U.S. District Court judgeships. The Senate has confirmed 196 of President Trump’s Article III judicial nominees—two Supreme Court justices, 51 appellate court judges, 141 district court judges, and two U.S. Court of International Trade judges—since January 2017.
• The confirmed nominees are:
  • Scott Rash, confirmed to the United States District Court for the District of Arizona on a 74-20 vote. After Rash receives his judicial commission and takes his judicial oath, the court will have one vacancy, seven Democrat-appointed judges, and five Republican-appointed judges.
  • John Heil III, confirmed to the United States District Courts for the Northern District of Oklahoma, Eastern District of Oklahoma, and Western District of Oklahoma, on a 75-17 vote. After Heil receives his judicial commission and takes his judicial oath:
    • The Northern District court will have no vacancies, one Democrat-appointed judge, and three Republican-appointed judges.
    • The Eastern District will have no vacancies, two Republican-appointed judges, and no Democrat-appointed judges.
    • The Western District will have no vacancies, six Republican-appointed judges, and no Democrat-appointed judges.
    • Anna Manasco, confirmed to the United States District Court for the Northern District of Alabama. After Manasco receives her judicial commission and takes her judicial oath, the court will have no vacancies, two Democrat-appointed judges, and six Republican-appointed judges.

Biden outraises Trump, Republican party committees outraised Democrats in April

• Federal political committees that file on a monthly schedule, including party committees and presidential campaigns, submitted their May 2020 campaign finance reports Wednesday. The reports, which cover all fundraising and spending during the month of April, showed that Joe Biden outraised Donald Trump by more than two-to-one last month. The Republican National Committee (RNC) outraised the Democratic National Committee (DNC) by nearly the same margin.
• The Biden campaign raised $43.6 million in April, 88% more than the Trump campaign's $16.9 million. Biden's campaign spent 50% more than Trump's ($12.9 million to $7.7 million). As of April 30, the Trump campaign had 61% more cash on hand than the Biden campaign ($107.7 million to $57.1 million). Trump continues to lead Biden in overall fundraising since the beginning of 2017, having raised 38% more ($262.5 million to $178.4 million).
  • Biden's campaign raised 6.6% less in April than it did in March ($43.6 million versus $46.7 million), while Trump's raised 24.3% more ($16.9 million versus $13.6 million).
  • Trump's $262.5 million in overall fundraising is the second-highest figure for any presidential candidate at this point in the past three elections. The only candidate to have outraised Trump was Barack Obama (D), who had raised an inflation-adjusted $345.7 million as of May 2008. Trump's cash-on-hand total of $107.7 million is also the second-highest during this time, bested only by Obama's inflation-adjusted $132.4 million at this point in his re-election campaign.
  • Biden and Trump's combined $441 million in fundraising is the second-highest combined total when compared to the past three election cycles. At this point in the 2008 campaign, Obama and John McCain (R) had raised a combined inflation-adjusted $473.2 million.
• Republicans led in national committee fundraising for the month of April. The RNC raised $27.1 million and spent $27 million to the DNC's $15.3 million in fundraising and $10.7 million in spending. So far in the 2020 cycle, the RNC has raised 72.4% more than the DNC ($345.7 million to $161.9 million). The RNC's 72.4% fundraising advantage is down from 73.9% in April and 88.4% in March.
  • The National Republican Senatorial Committee (NRSC) raised $11.5 million and spent $6.2 million last month, while the Democratic Senatorial Campaign Committee (DSCC) raised $9 million and spent $5 million. So far in the 2020 cycle, the NRSC has raised 8.8% more than the DSCC ($109.5 million to $100.3 million). The NRSC's 8.8% fundraising advantage is up from 7.0% in April but down from 10.1% in March.
  • On the House side, the National Republican Campaign Committee (NRCC) raised $11.4 million and spent $8.0 million, while the Democratic Congressional Campaign Committee (DCCC) raised $11.3 million and spent $9.6 million. So far in the cycle, the DCCC has raised 27.8% more than the NRCC ($179.8 million to $135.9 million). The DCCC's 27.8% fundraising advantage is down from 30.0% in April and 30.9% in March.
• So far in the 2020 cycle, the RNC, NRSC, and NRCC have raised 28.9% more than the DNC, DSCC, and DCCC ($591.1 million to $442.0 million). The Republican fundraising advantage is up from 28.4% in April but down from 35.0% in March.

Thursday, May 21st

Ratcliffe confirmed as director of national intelligence, resigns U.S. House seat

• The U.S. Senate voted 49-44 on May 21 to confirm U.S. Rep. John Ratcliffe (R-TX) as the new director of national intelligence (DNI). Ratcliffe will take over the office from the current acting DNI, Richard Grenell. 
• Grenell is the second acting DNI to serve in an interim capacity since Dan Coats stepped down from the position in August 2019, and the third acting DNI in the Trump administration. Ratcliffe will be the sixth person to become DNI since the first appointee was sworn into office in 2005 after the position was established. 
• The full Senate vote took place two days after the Senate Intelligence Committee advanced Ratcliffe’s nomination with an 8-7 vote along partisan lines. All eight Republican voting members of the committee voted to advance Ratcliffe’s nomination. One independent and all six Democratic voting members voted against advancing the nomination. Ratcliffe’s nomination was the first committee vote under new interim leadership from Sen. Marco Rubio (R-FL). Rubio became interim committee chairman when Sen. Richard Burr temporarily stepped down from his leadership role on May 15. 
• All 49 yea votes in the full Senate came from Republican senators. 43 Democrats and one independent voted nay. 4 Republican, 3 Democratic, and one independent senator did not vote.
• Ratcliffe resigned effective Friday from his position representing Texas’ 4th Congressional District in the U.S. House of Representatives. A spokesperson for Texas Gov. Abbott said that the governor would not call a special election to fill the vacancy caused by Ratcliffe’s resignation. Ratcliffe ran unopposed in the March 3 Republican primary for his congressional district. Republican leaders in his district will meet in August to select the Republican nominee who will run in the general election. 

The House is IN Session; Senate is OUT of session

The House is in session for two days next week. The Senate is not in session. Click here to see the full calendar for the second session of the 116th Congress.

SCOTUS is OUT of session

The Supreme Court will not hear arguments this week. To learn about the current 2019-2020 term, click here.

What's on Tap Next Week

Thursday, May 28th

Filing period to end for congressional offices in Vermont, Wyoming

• The major-party congressional filing deadlines to run for elected office in Vermont and Wyoming are on May 28 and May 29, respectively.
• In Vermont, prospective candidates may file for the following office:
  • Vermont's At-Large Congressional District (one seat)
• In Wyoming, prospective candidates may file for the following offices:
  • U.S. Senate (one seat)
  • Wyoming's At-Large Congressional District (one seat)
• The primary in Vermont is scheduled for August 11, and the primary in Wyoming is scheduled for  August 18. The general election in both states is scheduled for November 3, 2020.
• Vermont and Wyoming’s major-party congressional filing deadlines are the 39th and 40th to take place in the 2020 election cycle. The next major-party congressional filing deadlines are on June 1 in Alaska, Kansas, and Wisconsin.
• Entering the 2020 election, the Democratic Party holds the At-Large Congressional District seat from Vermont, and the Republican Party holds the At-Large Congressional District seat from Wyoming. 
• The U.S. Senate has 45 Democrats, 53 Republicans, and two independents who caucus with the Democratic Party. Only 33 out of 100 Senate seats are up for election. A majority in the chamber requires 51 seats.
• The U.S. House has 233 Democrats, 196 Republicans, and one Libertarian. All 435 seats are up for election. A majority in the chamber requires 218 seats.

Where was the President Last Week?

• On Monday, Trump participated in a roundtable with restaurant executives and industry leaders and a governors’ video teleconference on the COVID-19 response.
• On Tuesday, Trump held a Cabinet meeting and attended a policy lunch with Republican Senators at the Capitol.
• On Wednesday, Trump met with Arkansas Gov. Asa Hutchinson and Kansas Gov. Laura Kelly.
• On Thursday, Trump toured a Ford plant in Ypsilanti, Michigan.
• On Friday, Trump participated in a ceremony honoring veterans and POW/MIA.

Federal Judiciary

• 82 federal judicial vacancies
• 46 pending nominations
• 6 future federal judicial vacancies

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