LEGISLATIVE DIVISION UPDATE
On November 3, 1783, the Continental Army was mustered out of service at Rocky Hill
near Princeton, NJ. At around the same time, General George Washington resigned his
command of the army. His desire to return to private life, rather than accumulate more
power as a military commander, had the opposite effect. His selfless act enhanced his
reputation, and certainly led to his selection as the new nation’s first President in 1789.
Congress is adjourned for the campaign season and will return from recess on
November 12.
CONGRESSIONAL ACTIVITIES
Congress was not in session.
Election Results
Ballots are still being counted in a few lingering races, and there will be a runoff election
in December to determine the Louisiana race for the U.S. Senate, but there was a
substantial shift in the balance of Capitol Hill as a result of Tuesday’s midterm elections.
In what is being called a “Republican Wave” the Republican party took control of the
Senate and expanded their majority in the House of Representatives. As of November
6, the Republicans won 22 of 36 open Senate races, picking up seven seats and
majority status. The Democrats won 11 of the remaining races, with races in Alaska and
Virginia still undecided – Dan Sullivan (R) leads Mark Begich (D) in Alaska and Mark
Warner (D) leads Ed Gillespie (R) in Virginia – and the Louisiana race headed to a
runoff between Mary Landrieu (D) and Bill Cassidy(R). In the House, the Republicans
won 246 of the 435 races, picking up 13 more seats of majority, with the Democrats
winning 180 races and 9 races still undecided. The Republican party also picked up
gains in state governmental bodies and gubernatorial elections. Regardless of the
ultimate outcome of the undecided races, the Republican party will hold a majority, but
not a supermajority required to overcome Presidential veto power, so forging some level
of bipartisan cooperation between Congress and the White House will be necessary to
avoid gridlock.
Fiscal Year 2015 National Defense Authorization Act (NDAA) Updates
House and Senate staffs of the Armed Services Committees continue to work to draft a
compromise National Defense Authorization Act, Fiscal Year (FY) 2015 bill; these past two
weeks marked many draft amendments being passed around by Senate staffs for review.
However, it appears the Senate still will be unable to pass its version of the NDAA specifying
the budget and expenditures of the Department of Defense (DoD). The Senate Armed Services
Committee has passed S. 2410 (its version of the NDAA) and sent it to the Senate floor where it
is on the Senate calendar and awaits debate. The bill provides $514 billion, including $496
billion for DoD’s base budget and $17.7 billion for other national security programs. However,
the likely bill to be worked on by the Senate seems to be the House-passed H.R. 4435, the
Howard P. “Buck” McKeon National Defense Authorization Act, it is on the Senate calendar as
well. That legislation authorizes $521.3 billion for the base budget and $79.4 billion for Overseas
Contingency Operations, primarily in Afghanistan. Essentially, even though the Senate has not
passed a NDAA bill, the committee staffs are ‘pre-negotiating’ a conference committee bill at
this time for review when Congress returns next month.
Hearings
No hearings were held.
Other Activities
Ninth Circuit Court Rules No One has Right to Wear Unearned Combat Decorations
On October 29, the Ninth Circuit Court ruled no one has the right to wear a combat decoration
that has not been earned as that falls under the definition of ‘conduct’ and is therefore not
protected as ‘free speech’ under the First Amendment to the Constitution. (It should be noted
that lying about receiving a military medal is still constitutionally protected.)
The defendant, Elven Swisher, served in the Marine Corps from 1954 to 1957. In 2001 he
applied to the Department of Veterans Affairs (VA) for service-connected disability
compensation benefits, claiming he had been wounded in a secret mission to North Korea in
1955, a year after the Korean War ended. VA granted the request in 2004 after Swisher
submitted what appeared to be a military document saying he had received a Silver Star and
other medals for his actions. But VA learned in 2006 his document was forged and VA ordered
Swisher to repay the benefits. He was later convicted and sentenced to a year in prison on
charges that included stealing government funds and wearing unauthorized medals at a
veterans’ event.
The appeals court upheld Swisher’s conviction in 2009, but he filed a new appeal after the court,
in a 2010 case, struck down a federal law that made it a crime to lie about earning military
decorations. The Supreme Court, in a 6-3 ruling, agreed with the Ninth Circuit in June 2012 that
the law violated ‘freedom of speech’. But three months later, in another case, a different Ninth
Circuit panel upheld the ban on wearing unearned military medals.
Congress has since rewritten the Stolen Valor law to prohibit lying about military honors for
financial gain, while repealing the ban on wearing medals one has not earned. But the repeal
did not help Swisher, whose conviction under the former law was upheld in this ruling.
According to an article in the San Francisco Chronicle, as the appeals court’s 2012 decision
concluded, the law under which Swisher was convicted “regulated harmful conduct” and “was
unrelated to the suppression of a particular viewpoint…” The court rejected defense arguments
the law could be used against innocent partygoers and actors, saying it had been interpreted to
punish only those who had an intent to deceive the public. In a separate opinion, Judge A.
Wallace Tashima said he was bound to follow the court’s 2012 ruling but disagreed with it.
While Swisher was separately charged with defrauding the government, Tashima said, he was
not accused of wearing the uniform for financial benefit, and “was convicted because he told a
lie” — an act that courts have found to be constitutionally protected.
President Obama Declares November “National Native American Heritage Month”
On October 31, President Obama declared November to be National Native American Heritage
Month and November 28, 2014, as Native American Heritage Day. His Proclamation:
NATIONAL NATIVE AMERICAN HERITAGE MONTH, 2014
------BY THE PRESIDENT OF THE UNITED STATES OF AMERICA
A PROCLAMATION
Every year, our Nation pauses to reflect on the profound ways the First Americans have shaped our
country's character and culture. The first stewards of our environment, early voices for the values that
define our Nation, and models of government to our Founding Fathers -- American Indians and Alaska
Natives helped build the very fabric of America. Today, their spirit and many contributions continue to
enrich our communities and strengthen our country. During National Native American Heritage Month, we
honor their legacy, and we recommit to strengthening our nation-to-nation partnerships.
As we celebrate the rich traditions of the original peoples of what is now the United States, we cannot
forget the long and unfortunate chapters of violence, discrimination, and deprivation they had to endure.
For far too long, the heritage we honor today was disrespected and devalued, and Native Americans
were told their land, religion, and language were not theirs to keep. We cannot ignore these events or
erase their consequences for Native peoples -- but as we work together to forge a brighter future, the
lessons of our past can help reaffirm the principles that guide our Nation today.
In a spirit of true partnership and mutual trust, my Administration is committed to respecting the
sovereignty of tribal nations and upholding our treaty obligations, which honor our nation-to-nation
relationship of peace and friendship over the centuries. We have worked to fairly settle longstanding legal
disputes and provide justice to those who experienced discrimination. We have taken unprecedented
steps to strengthen tribal courts, especially when it comes to criminal sentencing and prosecuting
individuals who commit violence against Native American women. And next month, my Administration will
host our sixth annual White House Tribal Nations Conference, part of our ongoing effort to promote
meaningful collaboration with tribal leaders as we fight to give all our children the tomorrow they deserve.
Today, as community and tribal leaders, members of our Armed Forces, and drivers of progress and
economic growth, American Indians and Alaska Natives are working to carry forward their proud history,
and my Administration is dedicated to expanding pathways to success for Native Americans. To increase
opportunity in Indian Country, we are investing in roads and high-speed Internet and supporting job
training and tribal colleges and universities. The Affordable Care Act provides access to quality,
affordable health insurance, and it permanently reauthorized the Indian Health Care Improvement Act,
which provides care to many Native Americans. And because the health of tribal nations depends on the
health of tribal lands, my Administration is partnering with Native American leaders to protect these lands
in a changing climate.
Every American, including every Native American, deserves the chance to work hard and get ahead. This
month, we recognize the limitless potential of our tribal nations, and we continue our work to build a world
where all people are valued and no child ever has to wonder if he or she has a place in our society.
NOW, THEREFORE, I, BARACK OBAMA, President of the United States of America, by virtue of the
authority vested in me by the Constitution and the laws of the United States, do hereby proclaim
November 2014 as National Native American Heritage Month. I call upon all Americans to commemorate
this month with appropriate programs and activities, and to celebrate November 28, 2014, as Native
American Heritage Day.
IN WITNESS WHEREOF, I have hereunto set my hand this thirty-first day of October, in the year of our
Lord two thousand fourteen, and of the Independence of the United States of America the two hundred
and thirty-ninth.
BARACK OBAMA
LEGISLATIVE DIVISION UPDATES
Staff Development
On Monday, November 3rd, staff from the Legislative and Veteran Employment and
Education divisions met with Senate Armed Services staff to discuss several provisions
of and amendments to the National Defense Authorization Act (NDAA) that are of
interest to The American Legion. When Congress returns on November 12th, they will
finalize the bill for passage.
On Wednesday, October 5th, the Center for American Progress held a panel to discuss
the Department of Education’s recently promulgated regulation regarding the so-called
“gainful employment rule”. The rule requires vocational programs to ensure that their
graduates have annual loan payments less than 8% of total earnings OR less than 20%
of discretionary earnings. The rule is controversial, with advocates arguing that it is a
necessary change in order to protect students from unscrupulous for-profit schools
whose programs rarely lead gainful employment, and detractors arguing that the rule
unfairly target schools that serve otherwise underserved populations, including
veterans.
On Thursday, November 6th, staff from the Legislative Division met with staff from the
office of Senator Pat Toomey (PA) to discuss the Fairness to Veterans Act. This bill has
been introduced in the House, but does not yet have a sponsor in the Senate.
Staff continues to engage congressional staffs to determine the status of the National
Defense Authorization Act for Fiscal Year 2015; and the twelve appropriations bills for
FY 2015, all of which must be passed (or, in lieu of an appropriations bill, a CR to fund
the federal government must be passed) for the entire fiscal year. The current CR
expires December 11.
Update on Flag Amendment Bills
On May 22, 2013, House Joint Resolution (H.J. Res.) 47 was introduced by
Representative Spencer Bachus (AL). This legislation is a proposed constitutional
amendment to protect the American flag from physical desecration. Its text states
simply: “The Congress shall have power to prohibit the physical desecration of the flag
of the United States.” The House measure currently has 31 cosponsors.
On June 13, 2013, Senator Orrin Hatch (UT) introduced Senate Joint Resolution (S.J.
Res.) 17, a companion bill to H.J. Res. 47. This Senate measure has 23 cosponsors.
The task before us now is finding additional cosponsors for these two measures. Please
contact your representative and senators, and ask them to become cosponsors of the
flag amendment in their respective chambers.
Ian de Planque, Director
The American Legion Legislative Division
[email protected]
(202) 861-2700
For Week Ending 11-07-2014