General Practice, Solo & Small Firm DivisionTechnology & Practice Guide

Legislative Update

by E. E. Anderson

E. E. Anderson, a retired general in the U.S. Marine Corps, is Group Director of the Government Practice Group and Chair of the Federal Legislation Committee.

Immigration Legislation Moves Ahead in Congress

House Republicans introduced H.R. 2202 on August 4, 1995, and have since held several hearings on the bill. This 364-page bill would crack down on illegal immigration, reduce the number of legal immigrants, restrict family reunification, and tighten employment-related immigration.

In early October, a Democratic effort to require the consideration of legal and illegal immigration in separate legislation was defeated in the Judiciary Committee by a 20-14 vote. A comparison of legal immigration under the current law versus H.R. 2202 yields the following results:

GOP bill Current Law 1997 717,000 785,000 1998 659,000 780,000 1999 631,000 796,000 2000 601,000 812,000 2001 595,000 830,000

The Democrats have long argued that the focus of reform should be on illegal immigration, not legal immigration, and that H.R. 2202 would prevent extended family members, including parents of adult children, from joining new U.S. residents in this country.

The bill's chief sponsor, Rep. Lamar Smith (R-TX), countered by saying that the proposed caps on the number of immigrant family members who may enter the country would double the openings for nuclear families and reduce what is presently a long wait for some relatives. The bill would allow only spouses and children of the first family member (the nuclear family) to legally immigrate. Rep. Smith said that 2.5 million foreigners await permission to enter this country and that "nuclear families have to have priority." However, during the mark-up, Rep. George W. Gekas (R-PA) sought to restore visas for unmarried adult children of citizens and permanent residents. Rep. Smith offered a substitute amendment that would let some unmarried adult children reunite with parents in the United States, provided these children were no older than 25 and were dependent on their parents. Rep. Gekas accepted this amendment and it was passed by a vote of 17 to 12.

One provision of the bill is designed to discourage American companies from laying off permanent employees and then replacing them with newly arrived immigrants at a fraction of the cost. Under the bill, these companies would be required to pay the new workers 110 percent of the wages paid to the laid-off employees. Further, college-educated immigrants would be required to have at least two years of work experience before applying for lawful permanent residency--those without a college degree would require four years of experience.

Other aspects of the bill provide for doubling the size of the border patrol and the construction of fences and other barriers along the southwest border. The bill would make it easier to turn away foreigners who claim to be fleeing from persecution and would overhaul the rules for deporting illegal immigrants. In this area, the ABA is quite concerned. The asylum seekers would be required to apply for asylum within 60 days of arrival, and there would be no opportunity for hearings before an immigration judge or for administrative appeals of an agency decision. The ABA also has expressed its concern over the bill's expedited procedures for deporting foreigners who illegally reside in the United States and over the proposed employment verification system. Additionally, privacy concerns also have been raised over the creation of a national data base for verification purposes.

The Senate bill (S. 269) sponsored by Senator Alan K. Simpson (R-WY) focuses on illegal immigration, but Simpson plans to introduce legislation to limit legal immigration.

Lobbying Legislation on a Fast Track

Less than a year after Senate Republicans successfully filibustered legislation that would have imposed new reporting requirements on lobbyists, the Senate passed a similar bill (S. 1960) by a vote of 98-0 on July 25, 1995. This bill was broken off from legislation that also would have banned gifts from lobbyists. A compromise between Republicans and Democrats, S. 1960 is designed to close loopholes in the 1946 bill that enabled most lobbyists to avoid registering. Under the bill, anyone who receives at least $5,000 in a six-week period from a single client is required to register with the clerk of the House and the secretary of the Senate. The lobbyists must indicate the federal agencies and congressional chambers they contact, and report the issues they lobbied on and how much was spent. The legislation also applies to organizations that use their own employees to lobby and spend at least $20,000 during a six-month period on that effort.

The limitation on gifts from lobbyists and other groups was handled in the Senate by the adoption of S. Res. 158 on July 28, 1995, by a 98-0 vote. This resolution limits gifts to $50 and puts a $100 cap on multiple gifts of more than $10 from a single source. The resolution also bans senators from accepting free travel to events that are substantially recreational, such as charity trips to raise money for charities. However, in lieu of a speaking fee, contributions of up to $2,000 to any charity organization designated by a senator are allowed. These new rules become effective on January 1, 1996.

The House lobbying legislation is identical to the Senate version, but the House leadership determined that it could not be taken up until some time next year. This position did not please a number of GOP members, especially the freshmen. Rep. Linda Smith (R-WA) led the drive to force the House leadership to set an early date for consideration of this legislation. The freshmen achieved victory at some cost, as they had to accede to the less stringent gift ban adopted by the Senate.

While speedy passage in the House seems likely, there is Democratic pressure to prevent the cut-off of federal funds for a certain class of nonprofit organizations, known as 501(c)(4) organizations. Some of the more well-known groups in this category include the American Association of Retired Persons, the National Council of Senior Citizens, the Alliance for Justice, and the Sierra Club. The proposed legislation would bar any recipient of a federal grant from spending more than 5 percent of its receipts on federal, state, or local lobbying efforts. One member of Congress, Rep. James B. Longley, Jr. (R-ME), said that his office in Maine had been targeted by protesters from the National Council of Senior Citizens and that the Council's PAC gave $417,000 to Democratic congressional candidates while giving "not a red cent to a Republican." In furtherance of that protest, GOP lawmakers released the National Council of Senior Citizens' IRS filings, which showed that it received $72.9 million in federal money in the year ending June 30, 1994.

President Clinton has taken the offensive in this matter and has stated that he is going to issue an executive order banning executive branch officials from meeting with lobbyists who do not register in accordance with the provisions of the Senate bill.

Sentencing Guidelines Take a Hit

Last year, the U.S. Sentencing Commission was directed by the Violent Crime Control and Law Enforcement Act of 1994 to study current sentencing rules. Under the revised sentencing guidelines submitted by the commission to Congress on May 1, 1995, base sentences would be raised dramatically for the kingpin or for the offender who uses a gun, uses children to commit a crime, or is involved with group or drive-by shootings. Because of these increases and other enhancements for aggravating factors, the commission recommended reducing the disparity in penalties for offenses involving crack cocaine and powder cocaine.

Unless Congress disapproves the commission recommendations, they will go into effect on November 1, 1995. The Justice Department has urged Congress to approve legislation overriding the commission's amendments to prevent them from taking effect. On September 29, 1995, the Senate passed S. 1254 to disapprove the amendments to the federal sentencing guidelines relating to lowering crack cocaine sentences and sentences for money laundering and transactions in property derived from unlawful activity.

On September 12, 1995, the House Judiciary Committee approved by voice vote H.R. 2259, which would reverse those commission proposals involving crack cocaine and money laundering. Currently, federal judges must impose five-year mandatory minimum sentences in cases involving the distribution or possession of five or more grams of cocaine. The commission recommended imposing the mandatory sentence only when at least 500 grams are involved. This would put crack cocaine on a par with powder cocaine. Also, under current guidelines, a person convicted of laundering more than $100,000 is subject to 37 to 40 months in prison. The commission recommended reducing that to 21 to 27 months.

Rep. John Conyers, Jr. (D-MI), proposed three amendments to the bill. One was to accept the lighter sentencing guidelines for possession of crack cocaine, but not for distribution. Another was to accept the lighter sentencing guidelines for money laundering. The third amendment would delay the effective date until May 1, 1996. All three amendments were defeated, causing Conyers to say that the bill "absolutely ensures the continuation of manifestly unjust sentences" because blacks tend to be convicted on crack cocaine charges and whites on powder cocaine charges.

On October 18, 1995, the House approved H.R. 2259 by a vote of 332-83. After the House bill passed, the Senate then passed by voice vote an identical bill, S. 1254, clearing the measure for the president. President Clinton signed the bill into law on October 31, 1995. Recent nationwide riots in several federal prisons have been attributed by many to be the result of the rejection by Congress and President Clinton of the Sentencing Commission recommendation to lower penalties for crack cocaine possession and trafficking.

The ABA policy adopted at the Annual Meeting in August endorses the commission's policy in principle. This new ABA policy supports elimination of the current differences in sentences based upon drug quantity for offenses involving crack versus powder cocaine, and assigning greater weight in drug offense sentencing to other factors that may be involved in the offense, such as weapons use, violence, or injury to another person.

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