Capitol to Capitol | July 9, 2018

Another Supreme Court Nominee, But Different Politics


Johnny Appleseed was a real man, but his apples weren’t meant to be eaten.

Beginning in 1792, the Ohio Company of Associates made a deal with potential settlers of the West: anyone willing to form a permanent homestead on the frontier would be granted 100 acres of land if they planted 50 apple trees and 20 peach trees in three years. Given the difficulty of planting orchards, John Chapman “Johnny Appleseed” advanced ahead of the settlers, cultivated orchards and then sold them when the settlers arrived. Given that apple cider provided those on the frontier with a safe, stable source of drink, most of the apples from the trees planted by Chapman ultimately became cider.

The retirement of Justice Anthony Kennedy last month means that, for the third straight year, the politics of confirming a Supreme Court Justice will embroil the Senate. In recent years, Kennedy has been the court’s pivotal swing justice for many cases, which means that whoever replaces him will likely shift the court’s ideology to the right.   

In 2016, Senate Majority Leader Mitch McConnell (R-Ky.) refused to hold a vote on Merrick Garland, then-President Barack Obama’s nominee to replace Justice Antonin Scalia. Instead, McConnell insisted that the next elected president fill the vacancy on the court.

McConnell’s strategy paid off in 2017 when President Donald Trump nominated Neil Gorsuch to the post. However, McConnell was forced to employ the “nuclear option,” a move that eliminated the filibuster for U.S. Supreme Court confirmations, after Senate Democrats filibustered Gorsuch’s confirmation vote. The nominee for Kennedy’s seat on the court, which Trump is expected to announce at 9 p.m.(ET) tonight, will only need a simple majority to become the newest Supreme Court justice. However, 2018, like 2016, is an election year, where anything is possible. 

The Four Potential Nominees

The president has narrowed his potential nominees to a list of four, all federal appellate judges: 

Senate Math: Counting to 50

For this nominee, Republicans will have a narrower margin of error than they did for Neil Gorsuch. For one, after Democrat Doug Jones’ special election win in Alabama in 2017, the Republican Senate majority slimmed from 52-48 to 51-49. Second, Arizona Republican Senator John McCain, who is home battling brain cancer, has not been to the Capitol since December. Assuming he will not be able to vote, the Republican majority slims down even further to 50-49.

However, it is an election year and five Senate Democrats are up for election in states Trump easily won in 2016: Joe Donnelly (Ind.), Claire McCaskill (Mo.), Jon Tester (Mont.), Heidi Heitkamp (N.D.), and Joe Manchin (W.Va.). And even though Jones (D-Ala.) is not up for election until 2020, he represents one of the most conservative states in the union so expect conservative groups to pressure him to vote for whomever Trump nominates.

Roe v. Wade—Depending on who the president nominates, abortion politics could re-emerge as a prominent campaign year issue, especially if Trump decides to nominate one of the more socially conservative judges, particularly Amy Barrett. On July 1, Senator Susan Collins, the moderate Republican Senator from Maine whose vote could be crucial for confirmation, told CNN’s Jake Tapper that “I would not support a nominee who demonstrated hostility to Roe v. Wade, because that would mean to me that their judicial philosophy did not include a respect for established decisions, established law.”

Reading the Tea Leaves—Trump has kept his cards close to his chest on who he plans to nominate this evening. While the president has not ruled any of the candidates out, White House sources indicate that the greatest focus has been on Kavanaugh and Hardiman.

McConnell, who wants the path to confirmation to be as easy as possible, told the president last week that Kethledge and Hardiman presented the fewest obvious obstacles for confirmation.

Hardiman, who was the runner-up to Gorsuch for the president’s first Supreme Court nomination appears that he could be the front-runner, but we won’t find out until tonight.

Remote Sales Tax: Next Steps for States After Wayfair

On June 21, SCOTUS ruled in South Dakota v. Wayfair that state can require businesses without a physical presence in the state to collect and remit sales taxes on in-state transactions. While a tremendous victory for states and Main Street USA, states have a lot of work ahead to ensure that their newfound authority is implemented correctly and fairly. Efficient, easy, and friendly tax administration is important for successful and lasting implementation of this long overdue collection authority.

In late June, NCSL’s Task Force on State and Local Taxation hosted the first meeting of state policymakers since the Wayfair decision. The task force members, state tax administrators, national tax policy experts, and the private sector discuss the ruling and the next steps for states. This three-part session was recorded on Facebook Live. View the session.  

The task force also adopted a document of “Principles of State Implementation After South Dakota v. Wayfair,” which can help guide states as they proceed in implementing remote sales tax collection.

NCSL Contacts: Max Behlke, Jake Lestock

The Future of Gaming and Sports Betting


“Store Number 1” is the official name of the Starbucks in CIA headquarters. The coffee shop, affectionately known as “Stealthy Starbucks,” looks like most every other Starbucks and is one of the busiest in the country. However, you won’t find names on cups or any rewards cards here. Given the secrecy and security of the building, officials fear that names and the data stored on award cards could jeopardize national security as well as the safety of agents. 

In May, the Supreme Court dealt another decisive victory for states when they ruled that the Professional and Amateur Sports Protection Act was unconstitutional and violated the 10th Amendment.

Now, states may legalize and regulate sports betting activity if they so choose. Tax, revenue and spending, law enforcement, and gaming laws will all be affected. NCSL’s task force on state and local taxation held a session at its recent meeting to examine gaming trends, and to discuss the future of state tax laws as they relate to the future of sports betting. A Facebook Live recording can be found here.

NCSL Contact: Ethan Wilson

Farm Bill To Go To Conference

Before Congress’ July 4 recess, the Senate easily passed its Farm Bill 86-11 clearing the way for a conference committee to reconcile differences with the House’s version that passed a week earlier. The goal is to achieve a compromise agreement before the August recess. The House and Senate bills largely differ on a slew of safety net programs, including food stamps and farm subsidies, which will make negotiations rather tricky. The main debate will be over House Agriculture Chairman Mike Conaway’s (R-Texas) proposal to impose stricter work requirements for 5 million to 7 million recipients of the Supplemental Nutrition Assistance Program, which caused all House Democrats to oppose the bill.

The conference committee will also consider the inclusion of the Protect Interstate Commerce Act of 2018, a provision opposed by NCSL that passed in the House version of the Farm Bill. Sponsored by Representative Steve King (R-Iowa), the provision, if enacted, would pre-empt numerous state and local agricultural laws in every state.

It is likely the final bill will resemble the Senate bill after  McConnell recently stated that, “The House version of the farm bill had no Democratic support and you can’t pass a farm bill through the Senate with no Democratic support, so we’ll have to resolve the work issue in a way that is satisfactory to Democrats in order to pass a farm bill out of the Congress and get it to the president for his signature.”

Both nutrition and farm programs expire at the end of September, which means that Congress will have to pass an extension if a compromise bill is not reached.

NCSL Contacts: Ben Husch (Agriculture), Abbie Gruwell (SNAP)

U.S. Department of Education Approves Oklahoma’s ESSA State Plan

On July 2, the Department of Education (ED) announced the approval of Oklahoma’s consolidated state plan under the Every Student Succeeds Act (ESSA). Secretary Betsy DeVos said, “I am pleased to approve Oklahoma’s plan, which complies with the requirements of the law.” Hallmark points of the plan include a comprehensive needs assessment to identify on-site coaching and guidance for academic success and a school report card to reward schools that emphasize the importance of well-rounded education.

To date, only three states await ESSA plan approval: California, Utah and Florida. These states have received feedback from ED and are currently working on revisions.

NCSL Contacts: Joan Wodiska, Miranda McDonald

DOJ Accepting Applications for School Safety Grants

The Department of Justice is currently accepting applications for this year’s Community Oriented Policing Service (COPS) School Violence Prevention Program, or SVPP. Authorized by the STOP School Violence Act, the grant program offers as much as $25 million to state and local governments for school safety measures. SVPP covers up to 75 percent of the cost for:

  • Coordination with law enforcement.
  • Training for local law enforcement officers for student violence prevention.
  • Deterrent measures such as metal detectors, locks, and lighting.
  • Technology for accelerated notification to local law enforcement during an emergency. Other key measure that the COPS Office determines may provide a significant improvement in security. 

School districts or nonprofit organizations may receive funding via contract and sub-awards made through grant recipients. The deadline to apply is July 30.

NCSL Contacts: Joan Wodiska, Miranda McDonald (Education) Susan Frederick, Lucia Bragg (Public Safety)

On This Day, July 9, in…

  • 1847, the state of New Hampshire enacted the first 10-hour work day law. 
  • 1868, the 14th Amendment to the United States Constitution is ratified, guaranteeing African Americans full citizenship and all persons in the United States due process of law.
  • 1877, Alexander Graham Bell, Gardiner Greene Hubbard, Thomas Sanders and Thomas Watson formed the Bell Telephone Company.
  • 1922, Johnny Weissmuller became the first person to swim the 100 meters freestyle in less than a minute. After his swimming career, he became the sixth actor to portray Tarzan in films, a role he played in 12 motion pictures. Other actors also played Tarzan, but Weissmuller was the actor most identified with the role.
  • 1953, New York Airways began the first commuter passenger service by helicopter. Headquartered at LaGuardia Airport, the airline's main service was to shuttle air travelers between the city and the region's biggest airports (Newark, LaGuardia, Idlewild), bypassing congested roads and lengthy subway rides.

Also of Note…


Play-Doh was originally wallpaper cleaner.

In the late 1920s, Cleo McVicker, an employee of the Cincinnati-based Kutol Products soap company, negotiated a contract with Kroger grocery stores to manufacture ready-made wallpaper cleaner that could remove coal residue from wallpaper. Although they had never made wallpaper cleaner before, Cleo and her brother Noah developed a non-toxic, malleable clay-like compound made from water, salt and flour. The product kept the company afloat and successful for another 20 years. It wasn’t until 1955, when wallpaper cleaner sales began to plummet, that a relative of the McVickers’, a school teacher, first used the product as a play object. The rest, as they say, is history.

  • ‚ÄčWhy Scott Pruitt lasted so long at the EPA, and what finally did him in (Vox)

Scott Pruitt was productive and loyal to Trump. But his ambition got in the way.

  • Trump’s fight with federal employee unions gets real as new rules take effect (Washington Post)

The administration describes the executive orders as an effort to streamline a bloated bureaucracy. But unions say the rules are intended to weaken their bargaining power and make it easier to fire workers.

  • Face of Brexit Boris Johnson Resigns, Plunging May Into Crisis (Bloomberg)

The move tips Prime Minister Theresa May deeper into crisis and increases the chances she’ll face a leadership challenge over her Brexit policy.

  • 5 things to watch as Trump heads to NATO summit (The Hill)

President Trump will arrive in Brussels on Tuesday night with an eye toward pushing allied members of the North Atlantic Treaty Organization (NATO) to boost their defense budgets.


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NCSL's Advocacy in Washington

NCSL's Washington staff advocate Congress, the White House, and federal agencies on behalf of state legislatures in accord with the policy directives and resolutions that are recommended by the NCSL Standing Committees and adopted by the full conference at the annual NCSL Legislative Summit Business Meeting. As a result of the advocacy that is guided by these policies positions, NCSL is recognized as a formidable lobbying force in state-federal relations.

NCSL Staff in Washington, D.C.

  • Molly Ramsdell | 202-624-3584 | Director
  • Jake Lestock | 202-624-8171 | Budgets and Revenue
  • Danielle Dean | 202-624-8698 | Communications, Financial Services
  • Susan Frederick | 202-624-3566 | Law, Criminal Justice, and Public Safety
  • Abbie Gruwell 202-624-3569 | Human Services
  • Ben Husch | 202-624-7779 | Natural Resources and Infrastructure 
  • Jon Jukuri  | 202-624-8663 | Labor, Economic Development and International Trade
  • Haley Nicholson | 202-624-8662 | Health
  • Ethan Wilson | 202-624-8686 | Commerce and Financial Services
  • Joan Wodiska | 202-624-3558 | Education