HOT TOPICS OF THE POLITICAL ELECTION SEASON REPORT 2016 RELATING TO... ■ AMERICAN INDIAN LAW AND POLICY ■ ANTITRUST AND COMPETITION ■ COMMUNICATIONS AND INFORMATION TECHNOLOGY ■ CYBERSECURITY AND ENCRYPTION ■ ENERGY AND ENVIRONMENT PRE-ELECTION EDITION ■ HEALTH CARE ANALYSIS SEPTEMBER 2016 ■ INTERNATIONAL TRADE ■ TAX ■ TRANSPORTATION AND INFRASTRUCTURE Contents American Indian Law and Policy . 2 Antitrust and Competition . 6 Communications and Information Technology. 10 Cybersecurity and Encryption . 16 Energy and Environment . 20 Health Care. 26 International Trade . 32 Tax . 36 Transportation and Infrastructure . 40 AMERICAN INDIAN LAW AND POLICY 2 Fall 2016 American Indian Law and Policy American Indian Law and Policy SUMMARY POINTS Republican Candidate Donald Trump and the • In an effort to reach out to the positions of Assistant Secretary Republican Platform as many communities as for Indian Affairs and Solicitor at Mr. Trump’s campaign has yet to possible, former Secretary the Department of the Interior, and propose specific Native American Clinton’s campaign has put tribal liaison positions at various policies, and it is impossible to together a Native American other federal agencies. A Trump determine what policies a Trump policy workgroup that has presidency is expected to take administration would ultimately adopt. advised her campaign on longer to fill such positions. However, the National Republican issues of importance to Native • The leadership of the relevant Party Platform does recognize the American individuals and committees of jurisdiction failure of the federal government to tribal governments. In addition, in the Senate and House of sufficiently honor trust responsibilities to Secretary Clinton developed a Representatives is expected to Native American tribal governments, platform describing her position change, with both the Republican the social and economic hardships on several issues of relevance and Democratic leaders of the experienced by Native Americans, to Native Americans and tribal Senate Committee on Indian and the resolve to remedy those governments. Affairs changing and the situations through the encouragement • Mr. Trump’s campaign has not Republican leadership of the House of economic self-sufficiency. shared or disclosed any proposed Natural Resources Committee Native American policies. Subcommittee on Indian, Insular The Republican Platform to encourage • Given Secretary Clinton’s level and Alaska Native Affairs economic development in Indian of interest in Native American changing. This will likely result country focuses on the development of issues, a Clinton presidency is in significant turnover in staff for tribal resources by tribal governments, expected to fill administration the entire Senate Committee on absent restrictive federal regulations, positions that are directly related Indian Affairs, but probably not and says that tribes should have to Native American issues in much change in staff for the House more opportunities to be consulted short order. These would include Subcommittee. before any new regulatory policy is implemented on tribal lands. Finally, Republicans aspire to provide greater Fall 2016 3 protections for tribal cultures and Democrats have pledged to enact Mitch McConnell has expressed languages, which are considered to be legislation to negate the effects of a willingness to include this bill “national treasures.” intergenerational trauma, protect tribes’ on a larger must-pass piece of cultural resources, enforce the Indian legislation. However, the vast Democratic Candidate Child Welfare Act as it was originally majority of Senate Democrats Hillary Clinton and the intended, strengthen Indian voting oppose such action. Enactment of rights and protect tribal resources from this bill will largely depend on the Democratic Platform climate change. number of Senate Democrats who Secretary Clinton’s campaign has will support it. a website that provides a statement Outlook for Remainder of 2016 • Efforts to reauthorize the of her positions on several issues of Native American Housing importance to Native Americans, and 2017 and Self-Determination Act including her previous work in Indian • While not much activity is have continued since the law country. In general, she will focus on expected to occur in Congress expired in September 2013. consulting; protecting tribal assets and prior to the November elections, Congress has continued to fund resources; resolving long-standing Congress is expected to take these programs, but the level of disputes with the federal government; up several issues of importance funding has failed to increase strengthening public safety and justice to Native Americans and due, in part, to the fact that the in Indian country; combating drug tribal governments in the lame- law has expired. The biggest and alcohol addiction; increasing duck session that occurs after problem facing reauthorization opportunities for youth; ensuring high- the November election with is Republican opposition quality education for youth; ensuring adjournment sometime in to reauthorizing the Native that tribal communities have improved December. Hawaiian housing programs. health care; and fighting for Native • Most of the tribal programs are American veterans. funded through the Department of the Interior Environment and In addition to the Clinton campaign, Related Agencies Appropriations the National Democratic Party bill, which also includes funding Platform includes a section on how for the Indian Health Service. the Democratic Party will fight for Congress is expected to fund these Native American issues. This Platform programs for fiscal year 2017 includes pledges to uphold, honor by an omnibus appropriations and strengthen the trust responsibility bill. Funding for tribal programs to tribal governments; enact laws is not expected to be cut, but and policies that will expand any increases in funding are also tribal jurisdiction in Indian country; expected to be nominal. streamline the land-to-trust process; • While the House passed the and fully fund the Indian Housing Tribal Labor Sovereignty Act Block Grant Program, the Bureau this year, the Senate has yet to of Indian Education and the Indian act. Republican Senate Leader Health Service. Additionally, the 4 Fall 2016 American Indian Law and Policy • Efforts will continue to get a five • Congress will try to find a • The Democratic (Jon Tester, D-MT) percent set-aside for tribes in the compromise to help tribal and Republican (John Barrasso, annual Crime Victims Fund. The governments deal with the R-WY) leadership of the Senate Senate included this provision Affordable Care Act’s Large Committee on Indian Affairs is in its Commerce-Justice-Science Employer Mandate, which requires expected to change in 2017. Likely appropriations bill, but Indian tribes to offer all employees a replacements on the Republican country needs to get the provision minimum level of health care side are Lisa Murkowski (R-AK), in the omnibus appropriations coverage or pay a penalty. The John Hoeven (R-ND) and Steve bill. If successful, approximately mandate fails to account for those Daines (R-MT). Tom Udall (D-NM) $145 million will be available to employees who are covered by is likely to become the Democratic tribal governments in fiscal year the Indian Health Service. ranking member. 2017; this would be an increase in • Republican leadership of the • Republicans are expected to funding of about $142 million. House Natural Resources maintain the majority in the • A federal district court recently Committee will continue to push House, and minimal changes are ruled that the Department of the a bill that will reform the federal expected to occur on the House Interior cannot take lands into trust recognition process by providing Natural Resources Committee. for the Mashpee Wampanoag Congress with the sole authority However, the Ranking Republican Tribe because it was not under to grant federal recognition to on the House Subcommittee on federal jurisdiction as of 1934, tribal entities. Indian, Insular and Alaska Native citing the ruling of the U.S. • Any of these issues that do not Affairs Don Young (R-AK) will Supreme Court in Carcieri. get enacted by the end of 2016 likely have to relinquish his ranking The decision has Congress will likely be reintroduced in the position. Likely replacements are renewing efforts to find some first quarter of the next Congress, Paul Gosar (R-AZ) and Doug compromise to address the which begins in January 2017. LaMalfa (R-CA). Supreme Court ruling. Contributing Editors: Allison Binney, Jason Hauter and Michael Rossetti ANTITRUST AND COMPETITION 6 Fall 2016 Antitrust and Competition Antitrust and Competition SUMMARY POINTS • Since antitrust enforcement enforcement if she is elected, and owns The Washington actions and merger challenges including a focus on preventing Post. Additionally, through his tend to depend heavily on increased concentration and businesses, Mr. Trump has been specific facts, contrasting current understanding its relationship to involved in antitrust matters as antitrust enforcement with the stagnating personal incomes. a plaintiff and defendant and approach that will be taken • Mr. Trump has not articulated was once fined $750,000 in after the election is difficult. a general approach; antitrust a settlement with the Federal Still, there has been much enforcement could change in Trade Commission (FTC) for a rhetoric in the campaign about either direction if he is elected.