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Talking to the Taliban

Although President Obama made only brief reference to Afghanistan during Tuesday night’s State of the Union address, it now looks like the issue of “talking to the Taliban” will be a major fault line in the 2012 Presidential election.

The Obama Administration has been pushing hard to ignite serious negotiations with the Taliban (or at least its Mullah Omar wing). The Taliban have announced plans to open an office in Qatar – perhaps to serve as a base for negotiations, but maybe just to gain some level of diplomatic legitimacy. After some initial grumbling that Qatar had given its consent without Afghan government engagement, President Karzai offered a somewhat reluctant endorsement of the emerging “peace process.”

But it’s pretty clear no one had consulted Mitt Romney.

Romney announced last week that if elected President, he would not negotiate with the Taliban. On Monday during the GOP debate, NBC’s Brian Williams asked Romney, “Governor, how do you end the war in Afghanistan without talking to the Taliban?” Romney replied, “By beating them.”

In an effort to tamp down diplomatic and political expectations, Marc Grossman, Obama’s Special Envoy, has said that negotiations with the Taliban are not imminent.

Indeed, it seems the bumpy road to Qatar may be shaped by the outcome of our own presidential election.

To talk or not to talk, that is the question.

On Tuesday, the Center for National Policy (Defense Secretary Leon Panetta is the immediate past Chairman of CNP) hosted a panel discussion on the topic. I was one of the panelists. It got pretty lively.

Talking to the Taliban

State Legislature Reapportionment: Colorado Case Study

By David Fine

The State of Colorado’s recently completed legislative reapportionment is a case study in a difficult political and legal process that gets relatively little attention, but is critical to representation around the country.

Just as at the federal level, state reapportionment happens once per decade following the census. Often, as in Colorado, state commissions are appointed, which include a balance of members from both parties and a non-affiliated member who are selected as representatives from the executive, judicial and legislative branches. In Colorado, the Commission had a short life span and the pressure was on outside counsel to find a pathway to an agreement to settle the issues in a timely manner. All the while, outside political operatives were swirling about, trying to influence the outcome. While the Commission was initially able to craft a plan that garnered strong majority votes, the plan was attacked, successfully, on legal grounds. State constitutional law, the rights of minorities, and the presence of technology in crafting alternative plans each played a significant role, as did the ultimate decision by the Colorado Supreme Court.


State legislative reapportionment, like its national analogue congressional redistricting, happens once per decade following the census. We were fortunate to have represented the Colorado Reapportionment Commission in the most recent reapportionment of Colorado’s state legislative seats.

Our firm was uniquely qualified to represent the Commission. Both my colleague Dick Kaufman and I had significant experience representing Republicans and Democrats respectively in congressional redistricting. Dick had represented Republican interests in the last reapportionment. I was the City Attorney of Denver. Our colleague David Skaggs had been a United States Representative for twelve years. All three of us are litigators. While we were well-versed in politics, we were first and foremost lawyers who understood that our job was to represent our client, and guide the client to its desired outcome.

Certain principles are fundamental to the representation of any client in any type of complex legal matter. Counsel must get to know the client and its organization as well as possible, and must establish trust and credibility with key client representatives. A strong relationship is developed by prompt, efficient, and thoughtful service, and by forming a partnership with the client that allows for vibrant give and take as the legal process unfolds and proceeds to its conclusion.

Reapportionment was one of my most challenging legal engagements. Although our client was the Commission, the Commission consisted of five Republicans, five Democrats, and one unaffiliated voter. Members, appointed by the Governor, the Chief Justice of the Colorado Supreme Court, and legislative leadership, included two lawyers, a college professor, the former Mayor of Denver, and past and present legislators. Each was extremely bright. The Commission would only exist for about six months and only for purposes of this reapportionment. In turn, we would only represent this client once, in an extremely concentrated fashion. The commissioners would be under great pressure and great public scrutiny, as would we as their counsel. The commissioners had a short amount of time to understand the complexity of their task: create a reapportionment plan that accounted for a myriad of interests, often in competition with each other, consistent with state law.  It would also have to survive scrutiny by the Colorado Supreme Court, which, by the state Constitution, was required to approve the plan.

Out of the public eye (but very much central to the process) were political operatives and expert map drawers connected to both the Democratic and Republican parties. Their job was to maximize their respective party’s chances of controlling the legislature for the next decade.

The aforementioned combination signified a sophisticated and demanding client, which would operate under a number of levels of scrutiny: the public, the press, the political parties, and ultimately the Court. Fortunately for both the commissioners and outside counsel, extremely dedicated and talented non-partisan staff from the Office of Legislative Legal Services staffed the Commission. They had the primary task of drafting the reapportionment plan and supporting reports, and gave objective assistance at every step of the process.

This engagement was the quintessential blend of law and politics. Politics drove the process, yet any reapportionment plan had to conform to standards set forth in the Colorado Constitution. As the Commission’s counsel, we had to understand the reapportionment process both legally and politically. We had to help the Commission navigate the Court’s prior opinions and attempt to discern how the present Court would approach the matter. While understanding the realpolitik motivating the commissioners, we needed to play it straight down the middle politically to ensure that we remained politically unbiased, maintained our credibility, and gave legally sound advice. Moreover, we had to accept the fact that politics would drive the creation of the alternative plans; only after the battle over drawing the plan was finished would counsel be called upon and given a relatively short period of time to craft the plan’s legal defense. We knew that whatever plan was adopted would be attacked legally by multiple unhappy parties, such as the “losing” political party and counties, cities, and others dissatisfied with the outcome.

As if this challenge weren’t sufficient, this reapportionment was unique. The Chair of the Commission, Mario Carrera, was an unaffiliated voter appointed by the Chief Justice of the Colorado Supreme Court. He was a telecommunications executive who, while quite involved in the community, lacked direct political experience. Carrera worked tirelessly to build a bipartisan consensus around a plan that would have created numerous competitive districts and recognized the significant increase in minority population by creating more districts that gave minority voters the chance to elect candidates of their choice. Carrera succeeded and the initial reapportionment plan passed by a vote of 8-3 for the Senate portion of the plan and 9-2 for the House portion.

In my opinion, the plan was a civic triumph, but it was more difficult to defend legally than a plan that hewed to the Colorado Supreme Court’s recent strict interpretation of the state Constitution. Various organizations vigorously opposed the plan and urged the Court to reject it under a strict reading of the Constitution. In a 4-2 opinion (with the Chief Justice authoring the dissent), the Court did so. On remand, the Commission passed a more partisan plan that adhered more strictly to constitutional guidelines. The Court approved the resubmitted plan.

State Legislature Reapportionment: Colorado Case Study

Data Privacy Outlook for 2012

The next few weeks will be very active on the data privacy front with the release of three-long awaited reports from the European Commission, the White House, and the Federal Trade Commission (FTC).

On January 14, I spoke about these reports and what we can expect in privacy in 2012 in a keynote at the Caltech/MIT Enterprise Forum.

While it’s unlikely that privacy legislation will pass Congress this year, we expect the White House to propose a privacy “bill of rights” and the creation of a broad multi-stakeholder process to create binding codes of conduct backed up by FTC enforcement.

From the FTC, we anticipate a continued push for more transparency in privacy practices, implementation of privacy by design principles, and the creation of what’s being described as a “do not track mechanism” to allow consumers the ability to opt-out of behavioral advertising and tracking across websites.

Finally, we expect the European Commission to submit its proposal to broaden the applicability of data protection laws outside the EU, create an opt-in for information sharing, and operationalize new concepts around privacy impact assessments and what the Commission calls the “right to be forgotten.”

Stay tuned to this space as these reports are released.

Data Privacy Outlook for 2012

U.S. Mayors: Challenges and Opportunities in the Current Environment

Last week, the United States Conference of Mayors (USCM) convened its 80th Annual Winter Meeting in Washington, DC.

The conference was said to be one of the best yet with strong participation, a stout lineup of speakers, and a dynamic leadership team that will transition from Los Angeles Mayor Antonio Villaraigosa to Philadelphia Mayor Michael Nutter.

The attendees were a diverse bunch: government relations professionals, former mayors, financial services providers, businesses offering a range of services and products to cities of all sizes, infrastructure and other public-private partnership (P3) partners, and, of course, the main attraction – 250 mayors from virtually every state in the union, Puerto Rico, and the District of Columbia. Acknowledged both for its strong bipartisan history and for being representative of both large and smaller cities, this year’s conference was also attended by nine cabinet members as well as other senior administration officials.

Due to the diverse nature of its membership, the discussions ran the gamut from transportation and infrastructure to tourism and culture to childhood obesity, senior citizens, and quality of life issues.

Considering the current economic environment, the conference began, not surprisingly, with a strong focus on economic and workforce development. Clearly, mayors from across the country are focused on getting their citizens back to work and preparing the workforce of the future to attract businesses to their cities. This means many things for many cities. The discussion at this year’s meeting is inclusive of all of the national issues being addressed by Congress and the Administration such as natural gas fracturing, the Keystone XL Pipeline, revitalizing the housing market, healthcare and immigration reform, and others.

But while mayors are indeed leaders on national issues, there is also a concurrent movement among many of them to focus on issues that are not traditionally at the forefront of the national political discussion but that significantly impact cities and their surrounding metro areas, namely:

  • How to invest in infrastructure for the future in difficult economic times; and
  • How to ensure there are tax dollars for those projects that improve quality of life, including arts centers, sports facilities, etc.

These were just a few of the ideas offered up by attendees, including President of the Republican Mayors Association, Oklahoma City Mayor Mick Cornett. Mayor Cornett was joined by other mayors in supporting “the metro movement,” which seeks to connect large and small municipalities to work together to achieve support for mutually beneficial projects.

Clearly, the challenges to cities are many in this economic environment. As states struggle, cities feel the impact of limited resources. Yet despite these challenges, many mayors are optimistic as many of their cities have major assets that can lead to growth. For example, the ports on the east and west coasts prepare for the expansion of the Panama Canal and most, if not all, of these ports are assets. Mayor Alvin Brown of Jacksonville is at the heart of this discussion.

The mayors of our cities provide unique business and policy alliances across the aisle and across the country with global impact.

U.S. Mayors: Challenges and Opportunities in the Current Environment

EPA Defends Controversial Power Plant Regulations

Last week, EPA Assistant Administrator Gina McCarthy provided remarks on new Clean Air Act (CAA) rules for utilities at an ICF International breakfast.

McCarthy offered a vigorous defense of EPA’s Utility MACT and Cross State Air Pollution Rule (CSAPR). Both of these rules face opposition among some in Congress and industry. Last month, a federal court issued a stay against the CSAPR, which was set to go into effect on January 1. Yet, McCarthy’s comments emphasized that EPA is determined to move forward with CSPAR, Utility MACT and other CAA regulations.

On the CSAPR, McCarthy stated that the federal court’s stay was not on the merits. McCarthy believes that EPA is on solid legal footing with regard to the merits of the CSAPR, and she noted that the court has set an expedited hearing schedule for the case.

With regard to the Utility MACT rule, McCarthy noted the public health benefits of the rule, while defending the flexibility offered under the regulation. McCarthy stated that the Utility MACT rule will provide certainty to utilities after years of legal wrangling related to mercury regulations. While the rule establishes a three-year compliance schedule, McCarthy emphasized that states could grant utilities an extra year if necessary. In addition, the rule allows EPA to issue an administrative order during the fifth year if compliance with the rule would threaten reliability.

It should be noted that Tom Kuhn, President of Edison Electric Institute, criticized EPA yesterday for not allowing a longer compliance schedule under the Utility MACT rule.

During the question and answer portion of the event, one attendee asked McCarthy when EPA might release new source performance standards (NSPS) for GHG emissions from power plants. McCarthy responded that a draft rule related to new and modified sources could be released by the end of the month, though she did decline to predict whether a final rule will be released prior to the elections. With regard to NSPS at existing power plants, McCarthy acknowledged that these regulations pose a “significant challenge” but EPA continues to work on these regulations.

The event also highlighted release of an ICF International report on retiring coal plants.

Congressional Republicans will likely again attempt to block the implementation of both the CSAPR and the Utility MACT rules this year through the appropriations process. Should EPA finalize NSPS for GHG emissions from power plants, Congressional Republicans could attempt to use the Congressional Review Act to block these regulations. These efforts are unlikely to be successful, as President Obama has previously threatened to veto legislation that blocks EPA’s authority to promulgate these rules.

Nonetheless, the issue of EPA regulations and their costs and benefits to the American public will likely be one of the top energy issues in this year’s Presidential election.

EPA Defends Controversial Power Plant Regulations

Data Privacy Day: Thursday, January 26

In recognition of Data Privacy Day next week, the National Cyber Security Alliance (NCSA) is sponsoring “The Intersection of Privacy & Security” at the George Washington Law School on Thursday, January 26.

The event is free and open to the public and promises to be a very timely discussion with the expected release of the White House privacy position next week.

FTC Commissioner Julie Brill and Ari Schwartz from the Department of Commerce will participate, among others.

From the invitation:

The convergence of privacy and security: how do we overcome the conflict that seems to be inherent between the two? Is it a philosophical impossibility or an aspiration to be achieved?

Data security, according to common definition is the “confidentiality, integrity and availability” of data. It is the practice of ensuring that the data being stored is safe from unauthorized access and use, ensuring that the data is reliable and accurate and that is available for use when it is needed. Privacy on the other hand, is the appropriate use of data.

Our panel will consider the implications of how privacy and security are two sides of the same coin and what companies can and should do to ensure privacy and security are protected while allowing innovation to flourish.

Click here to register to attend.


The National Cyber Security Alliance Presents:

The Intersection of Privacy & Security

Featuring: The Honorable Julie Brill

Commissioner, Federal Trade Commission

Thursday, January 26, 2012  |  9:00am – 11:45am

George Washington Law School – Moot Court Room

2000 H Street, NW • Washington, DC 20052


9:00   Registration

9:30   Welcome

  • Michael Kaiser

Executive Director, National Cyber Security Alliance

  • Dan Solove

John Marshall Harlan Research Professor of Law, The George Washington University School of Law

  • Paul Schiff Berman

Dean and Robert Kramer Research Professor of Law, The George Washington University School of Law

9:40  Keynote

The Honorable Julie Brill

Commissioner, Federal Trade Commission

10:10 Panel Discussion

Reflections & Aspirations:

The Past, The Present & The Future


Christopher Wolf

Founder & Co-Chair, Future of Privacy Forum and Partner, Hogan Lovells US LLP


  • David Hoffman

Director of Security Policy and Global Privacy Officer, Intel

  • Gerard Lewis

Vice President, Deputy General Counsel & Chief Privacy Officer, Comcast Cable

  • Ari Schwartz

Senior Internet Policy Advisor, U.S. Department of Commerce

10:50 Panel Discussion

Privacy & Security:

Best Practices in Action


Christopher Wolf

Co-Chair & Founder, Future of Privacy Forum and Partner, Hogan Lovells US LLP


  • Rick Buck

Head of Privacy GSI, eBay

  • Erin Egan

Chief Privacy Officer, Policy, Facebook

  • JoAnn C. Stonier

Global Privacy & Data Protection Officer, MasterCard Worldwide

  • Bob Quinn

Senior Vice President-Federal Regulatory & Chief Privacy Officer, AT&T

11:40  Close

  • Michael Kaiser

Executive Director, NCSA

Data Privacy Day: Thursday, January 26

U.S. Debt Ceiling: Is Another Increase Inevitable?

On Thursday, January 12, the Obama Administration notified Congress that the United States is within $100 billion of reaching the federal debt ceiling, triggering a process that will result in the raising of the debt ceiling by an additional $1.2 trillion. It’s important to understand the federal debt limit and the process for raising it.

Every year, the U.S. Government spends more money than it takes in from taxes and other sources of revenue. The annual federal deficit is the amount owed by the federal government that reflects the cash difference between revenues to the federal treasury and government expenditures every year. In fiscal year 2011, total federal revenues were $2.3 trillion, but total expenditures were $3.6 trillion. As the U.S. continues to borrow money without paying back the debt, the federal deficit has continued to increase.

To keep government debt from getting out of control, Congress has limited spending through a statutory national debt ceiling (The debt ceiling statute is 31 U.S.C. 3101). The debt ceiling is basically an aggregate cap on the total amount of money the federal government is allowed to owe (and to borrow to finance). As of September 2011, the federal debt ceiling was $15.1 trillion. As our deficit reached this alarming maximum in early 2011, the political debate was whether the U.S. should increase the debt ceiling or change our spending policies?

Congress ultimately decided to do both. The Budget Control Act of 2011 (“BCA”; Public Law 112-25) passed last August, contained provisions, which both permit an increase in the debt ceiling but also seek to reduce the deficit and get federal spending under control. Key features of the BCA include:

  • Established a process under which the federal debt ceiling may be raised by up to $2.4 trillion;
  • Instituted spending cuts of roughly the same amount over a ten year period by specifying spending caps and mandating across the board cuts (known as sequestration) if budget authority approved by Congress exceeds those caps;
  • Established a Joint Select Committee on Deficit Reduction (the so-called “Super-committee”), which was tasked with developing legislative recommendations to reduce the deficit (it failed); and
  • Required both houses of Congress to vote on an amendment to the Constitution, which would require a balanced budget (neither House passed an amendment by the required 2/3 majority for a constitutional amendment).

The aspect of the BCA now at issue relates to raising the federal debt ceiling. Under Title III of the Act, three tranches of debt ceiling increases are authorized. An initial increase of $400 billion became available in August 2011. A second installment of $500 billion was exercised last September. The notification President Obama provided Congress on January 12, 2012 relates to the third installment of debt ceiling increase under the Act, this one for an additional $1.2 trillion. The aggregate increase permitted under the BCA will now total $2.1 trillion. If this most recent request to raise the federal debt ceiling is approved, the new debt limit will be $16.4 trillion.

The BCA specifies the procedures to be followed in order to increase the debt ceiling. First, the President is required to certify that the federal debt limit is within $100 billion of the statutory ceiling. Once that certification is made, Congress has 15 calendar days within which to pass a “joint resolution of disapproval,” which would disapprove the President’s exercise of authority to raise the debt ceiling by an additional amount (see Budget Control Act section 301(a)).  Expedited procedures are provided in the law to ensure that Congress has the opportunity to vote upon a joint resolution of disapproval within the time period specified.

Last September, when President Obama sought to raise the debt ceiling in accordance with the second tranche authorized in the BCA, the House passed a resolution of disapproval, but the Senate did not, so the increased debt limit went into effect.

It may be anticipated that a similar fate will await this most recent request.

U.S. Debt Ceiling: Is Another Increase Inevitable?

Health Insurance Exchanges: 2012 State-Level Picks

The January edition of Inside Health Insurance Exchanges, the only national publication dedicated exclusively to the topic, includes our Exchange team’s recent projections for state-level activity in 2012.

The report anticipates that more than a dozen states will actively undertake the construction of an exchange regardless of how the Supreme Court rules on the constitutionality of the Affordable Care Act.

Most others are expected either to postpone activity until after the decision or have indicated strongly that they will defer to the federal government to build an exchange in their state no matter what  decision emerges from the Court.

We will continue to track and analyze developments in the states as they happen.

Health Insurance Exchanges: 2012 State-Level Picks

Campaign Finance: States Propose Rule Rewrites

The Colorado Secretary of State has proposed a significant rewrite of Colorado’s campaign finance rules.

The Secretary has received public comment and my guess is that final rules will be promulgated in the near future. The rules may generate litigation and will require careful study to ensure compliance going into the 2012 elections. Once they are finalized, we will post a complete analysis of the new rules.

Are you – and your organization – ready to comply with federal and state ethics requirements during this election year?

Click here to sign up for our free seminars taking place this month in Washington, DC (January 18), Denver, CO (January 19), and Atlanta, GA (January 25) focusing on corporate political activities, preparation for and interaction in the 2012 elections, and organizational best practices regarding voluntary political activity disclosure.

Campaign Finance: States Propose Rule Rewrites

Save Yourself A Lot Of Pain: Double Check Your LD-203 Filing Procedures

One of the biggest areas of noncompliance with the Lobbying Disclosure Act (LDA) is in the area of failure to file proper LD-203 semiannual contribution reports.

Often failure to submit reports is a simple oversight. Nonetheless, such failures to report will lead to notices of noncompliance from the House and Senate or even referral to the Justice Department when failures to file reports are not corrected. Save your organization from the pain of receiving a letter from the Justice Department alleging noncompliance and threatening fines or penalties. At the very least such DOJ letters scare firm management and take time to resolve, even if the failure to file was inadvertent or a misunderstanding about the filing requirements.

We work with our clients to develop an LD-203 filing checklist. Every Registrant should develop a system to ensure consistency in reporting PAC contributions on FEC reports and LD-203 reports. Auditors do check to compare the LD-203 and FEC reports. A system needs to be established and maintained by a Registrant to capture funds spent in “honoring” a covered official so that such expenditures can be reported.

Often Registrants do not properly terminate registrations or eliminate employees no longer lobbying on LD-2 reports, thus creating future LD-203 noncompliance for both the Registrant or its current/former employees. A lobbyist is considered still active in the House/Senate data base and required to file semiannual LD-203 reports until such time as all registrations where that lobbyist name was listed have been terminated or the individual lobbyist name has been removed from each specific active registration.

Submitting proper terminations can be confusing to those less versed in LDA filing procedures and failure to submit proper filings often leads to inadvertent violation of the law. These mistakes then take time to research, explain and correct in response to a Congressional or Justice Department inquiry.

Are you – and your organization – ready to comply with federal and state ethics requirements during this election year?

In this 2012 election year, companies and organizations across the country are taking a hard look at how government affects their day-to-day business activities and are weighing the various avenues of political participation available to them, including campaign contributions, PAC donations, independent expenditures, and direct issue advocacy. With so many options for political engagement at the federal, state, and local levels and with so many legal and regulatory schemes to take account of, it is critical that organizations understand the rules of the road when taking action to influence government decision making.

Click here to sign up for our free seminars taking place this month in Washington, DC (January 18), Denver, CO (January 19), and Atlanta, GA (January 25) focusing on corporate political activities, preparation for and interaction in the 2012 elections, and organizational best practices regarding voluntary political activity disclosure.

Save Yourself A Lot Of Pain: Double Check Your LD-203 Filing Procedures