November 9, 2020 Monday Message from the McDonald Hopkins Public Law Team

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Monday, November 9

To our friends, clients and colleagues in local and regional government, higher education and the nonprofit sector, welcome to our latest Monday Message from the Public Law Group at McDonald Hopkins. In today’s email, assembled by attorneys Dave Gunning, Kelsey Smith, Mike Wise and Kevin Butler, you’ll find insights into areas of law we’re watching on your behalf.

In today’s edition:

  • National stimulus compromise still a distant hope following Election Day
  • A look ahead on higher education issues facing the president-elect
  • Ohio election musings from a stalwart in our Government Relations and Public Law practices
  • Update on legislation, litigation challenging HB 197 income tax provisions

National stimulus compromise still a distant hope following Election Day
Despite one of the most contentious elections in United States history and a continued political divide, congressional leaders are pushing for the passage of a new COVID-19 stimulus package before President-elect Joe Biden’s inauguration. Since Election Day on Nov. 3, 2020, both Senate Majority Leader Mitch McConnell and House Speaker Nancy Pelosi have stressed the importance of returning to the negotiating table.

Thus far, it does not appear that the two leaders are any closer to striking a deal than they were before the election. McConnell stated on November 6, that he believed a smaller stimulus package would be more appropriate. Pelosi rejected a narrower package that same day and asserted, “that isn’t anything that we would even be looking at.” Additionally, it is unclear if President Donald Trump would sign a new package should the two Congressional leaders put their political differences aside.

If Congress does not pass a new stimulus package, the current programs will expire on Dec. 31, 2020. This would include the lapse of additional unemployment benefits, the Pandemic Unemployment Assistance Program, weekly unemployment benefit bonuses, protection from evictions for failure to pay rent, and student loan deferrals. The loss of these programs and benefits would severely threaten many Americans’ livelihood and ability to financially navigate the ongoing pandemic.

For additional information on a new COVID-19 stimulus package and possible scenarios in the upcoming weeks, you can read CNET’s article here.

A look ahead on higher education issues facing the president-elect
Our Public Law partner Dave Gunning, who is active in government affairs and chairs a public university board of trustees, offers a number of interesting perspectives today in a blog post on the issues facing President-elect Biden as they relate to higher education. Chief among them: the fallout from COVID-19. “Deep financial problems stemming from enrollment drops and increased instructional expenses have forced thousands of layoffs and left an unknown number of colleges teetering on the brink of failure,” Dave writes, adding that regional philosophical differences on how to combat the virus will lead to enormous complexity in how the White House responds.

Other higher-education difficulties the Biden administration will have to address include:

  • High cost. “It is a very easy campaign slogan to say ‘College should be free!’ and everyone cheers,” Dave writes. “But the economic realities of these decisions are staggering. … [N]o matter what [Biden] wants to do, the cost of a college education has to be dealt with.”
  • Sexual assault claims: Policies protecting the rights of campus accusers and accused have seesawed over the past two presidential administrations. The next president’s challenge will be to strike a balance that will allow victims to freely report their abuse, while also protecting the rights of the accused so that they are not presumed guilty.
  • Foreign students: The Trump administration’s efforts to curtail illegal immigration affected what had been, prior to then, “the greatest growth universities enjoyed in the U.S. both demographically and financially” – that is, “the enormous influx of foreign students” and the resulting reputational and fiscal benefits to American higher education. “Last year foreign students only increased .05 percent across the country” – the lowest rate in over 25 years. Biden faces the hurdle of developing policies to curb illegal immigration while opening doors to legal foreign students.
  • Free speech: The perception that campuses have lost their status as the lodestars of free speech and open debate, writing, “[I]f you are not perceived to be on the ‘correct’ side of the discussion, you are thwarted and even threatened at college campuses across the country.” President-elect Biden must reverse this trend and “lead this country back to a place where college campuses can be the place of discussion and thought, not breeding grounds for hate and intolerance.”

Read the full blog post here.

Ohio election musings from a stalwart in our Government Relations and Public Law practices
In Ohio, turnout on election day was record-setting. Here are a few Ohio highlights from Mike Wise, a member of our Public Law and Columbus-savvy Government Relations practices:

  • President Trump won Ohio and all incumbent members of Congress were also victorious.
  • Ohio House Republicans appear to have expanded their majority from 61-38 to 64-35, as they picked up four seats and lost one seat. Ohio Senate Republicans may have expanded their majority by one, to 25-8. Democrat Sen. Sean O’Brien lost his seat to Sandra O’Brien in the Mahoning Valley and Republican Sen. Stephanie Kunze, while ahead against Democrat Crystal Lett, looks to be entering a recount for her suburban Columbus district seat.
  • Democrats picked up one seat on the Ohio Supreme Court, with Jennifer Brunner besting incumbent Judith French. Republicans now hold a 4-3 majority on the court.
  • There will be a brand new General Assembly in Columbus starting in January 2021 with a significant number of new faces in both the House and Senate. They will immediately take up a very challenging (due to COVID-19) two-year state budget.

The ebb and flow in state government reminds us it's never too late for any public, private or non-profit entity to engage a government relations team. Our lobbying group within Public Law includes former state legislators on staff who actively engage with the governor and General Assembly on legislative, regulatory, economic incentive and economic development issues. With more than 30 years of elective service in both state and local government, and another combined 30 years of government relations work, our lobbying team understands how to leverage state contacts for emergency and long-term local needs. Call on Mike and his colleagues for help.

Update on legislation, litigation challenging HB 197 income tax provisions
We wrote most recently on September 21, about a lawsuit and, separately, an effort in the Ohio General Assembly to undo the state law passed in March that preserved the status quo with regard to municipal income taxes collected from those working from home during the coronavirus pandemic. Today we provide another brief update.

A provision in H.B. 197 makes the city in which an employer is located the usual place of employment for those telecommuting during the coronavirus pandemic, notwithstanding that employees are performing their work from home. A July lawsuit filed by the Buckeye Institute in Franklin County against the City of Columbus is attempting to undo that law on due-process grounds, claiming that income tax withholdings must bear a relationship to the city in which the work was performed. Similarly, S.B. 352 (introduced August 11) and H.B. 754 (August 31) each attempt to repeal the portion of H.B. 197 dealing with municipal income taxes. Together, the litigation and bills cast into doubt whether Ohio’s hubs of employment will be able to retain the income taxes they’ve collected from work-from-home employees during the shutdown.

As Policy Matters Ohio analyzes it, it’s a question worth millions of dollars to municipalities statewide. For instance, Mayfield Village, which is home to Progressive Insurance, could lose a whopping 25 percent of its income tax revenue under a worst-case scenario. And some bedroom communities would stand to receive a windfall, complicating the discussions in Columbus as legislators assess the implications.

Since we last wrote, S.B. 352 was heard once in the Senate’s local government committee and continued, with no movement otherwise. Its companion, H.B. 754, still has not been sent to a committee at this point. We’ll provide updates on each of these measures when we learn more. Meanwhile, both Columbus and the state have moved to dismiss the Buckeye Institute’s lawsuit, claiming the General Assembly was within its constitutional and statutory right to provide for the temporary adjustment to usual withholding rules, and the Buckeye Institute has responded to those motions. The court has yet to rule on the motions, which are fully briefed at this point, but we’ll update you here on the status of both the lawsuit and the pending legislation as we learn more.

We’re back with our next edition of the Monday Message in two weeks. Meanwhile, if you have questions or need assistance on any of the matters we’ve covered above or with your legal needs in general, please feel free to contact any member of the McDonald Hopkins Public Law team.

Have a great week!

Teresa Metcalf Beasley
Chair, Public Law

©2020 McDonald Hopkins LLC All Rights Reserved
This Publication is designed to provide current information for our clients, friends and their advisors regarding important legal developments. The foregoing discussion is general information rather than specific legal advice. Because it is necessary to apply legal principles to specific facts, always consult your legal advisor before using this discussion as a basis for a specific action.

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