The Golden Apple – November 5, 2021

Working late on a Friday 
As we write, the House has begun the process of voting on an infrastructure package. President Joe Biden asked the House today to pass both an infrastructure bill and the reconciliation legislation that includes his Build Back Better plan. It appears that House Democrats have the votes to pass the infrastructure bill, but votes on the reconciliation package will have to wait until the week of November 15, when the House will return from a weeklong recess. 
OSHA, CMS issue vaccination rules  
Yesterday the Occupational Safety and Health Administration (OSHA) issued its much-anticipated Emergency Temporary Standard (ETS) on COVID-19 vaccination and testing. Members of GrayRobinson’s Labor & Employment Team are already working with clients on implementation of the standard, which took effect yesterday but allows 30 or 60 days for compliance. The ETS requires workplaces with “100 or more employees” to develop, implement, and enforce a mandatory COVID-19 vaccination policy, and to adopt policies that require employees to get vaccinated or submit to weekly COVID-19 testing and masking. Employers must provide up to four hours of sick leave for vaccination, with “reasonable time and paid sick leave” for employees who suffer side effects. Businesses must comply with the requirements for masking, paid time off, and appropriate notice to employees by December 5; they have until January 4, 2022 to comply with the ETS requirement for weekly testing of unvaccinated employees. Separately, the Centers for Medicare & Medicaid Services (CMS) issued its own requirements that eligible staff at health care facilities participating in Medicaid and Medicare be vaccinated. “while I would have much preferred that requirements not become necessary, too many people remain unvaccinated,” President Joe Biden said.
Buy Now, Pay Later: valuable financial tool, or trap for the unwary? — 
The House Financial Services Task Force on Financial Technology held a relatively short but information-packed hearing this week on the growing use of fintech payment products designed to help users manage cash flow: “buy now, pay later (BNPL)” transactions, overdraft avoidance, and earned wage access (EWA). Because these are not traditional credit products, they are not subject to the disclosure requirement of the Truth-in-Lending Act; because they’re not traditional credit products, the successful use of these products doesn’t show up on credit reports. Task Force members discussed whether this should change, as Democrats worried that the promised benefits were too good to be true and Republicans voiced concerns about stifling innovation and access. Rep. Maxine Waters (D-CA), Chairwoman of the full Committee, said that the Consumer Financial Protection Bureau (CFPB) should be looking at these products more closely, with a view to revising guidance issued by former Director Kathy Kraninger last year.
House panel discusses cybersecurity rules for third-party vendors  
Wednesday’s hearing of the House Financial Services Subcommittee on Consumer Protection and Finance on cyber threats to the financial system quickly focused on the specific issue of whether and how core processors adequately protect the data they receive from smaller community banks and credit unions. Cyberattacks on banks and other financial services providers continue to increase in number and sophistication. Smaller institutions rely on third-party vendors for technology and core processing services, but find that this can place them at risk. Witnesses told the panel that the declining number of service providers too often locked smaller institutions in to long-term, expensive contracts with companies that don’t prioritize their needs. They called for consistent, broad-based standards for data privacy and security, greater harmonization among regulators, and better sharing of information and best practices among all participants in the payments system.
Senate Judiciary debates approaches to stopping online sales of fake, stolen goods 
Blocking the online sales of counterfeit and stolen goods is another bipartisan issue on Capitol Hill, as was clear at Tuesday’s Senate Judiciary Committee hearing on two bills designed to help. The hearing focused on the INFORM Consumers Act, introduced by Chairman Dick Durbin (D-IL) and Senator Chuck Grassley (R-IA), the Committee’s ranking member, and the SHOP SAFE Act, introduced by Senators Chris Coons (D-DE) and Thom Tillis (R-NC). Together, the bills would require online marketplaces to make sure that consumers have basic identifying information about high-volume sellers on their platforms, and would incentivize marketplaces to adopt best practices for screening out counterfeit and stolen goods. Getting the legislation to the floor will require coordination with the Senate Commerce Committee, which also has jurisdiction on these issues.
Federal regulators ask Congress to create regulatory framework for stablecoins 
The Presidential Working Group on Financial Markets (PWG), the Federal Deposit Insurance Corporation (FDIC), and the Office of the Comptroller of the Currency (OCC) published recommendations this week that call for “legislation to ensure that payment stablecoins are subject to a federal prudential framework on a consistent and comprehensive basis.” The PWG said that “If well-designed and appropriately regulated, stablecoins could support faster, more efficient, and more inclusive payments options.” But they also present risks to users, the systemic risk of stablecoin runs, and concerns about payments system integrity, economic concentration of power, and systemic risk. In the absence of Congressional action, the Financial Stability Oversight Council may choose to designate some stablecoin uses as systemically important for purposes of oversight. “The rapid growth of stablecoins increases the urgency of this work.
President sends Omarova nomination to Senate 
Although he announced his plans some time ago, President Biden submitted his formal nomination of Saule Omarova to be Comptroller of the Currency to the Senate on Tuesday. Omarova, currently the Beth and Marc Goldberg Professor of Law at Cornell Law School, has already drawn fire from Senate Republicans over her public criticisms of the banking industry and her suggestions for breaking up giant banks and allowing the Federal Reserve Banks to offer retain banking services. Senator Pat Toomey (R-PA), ranking member of the Senate Banking Committee, asked her to submit her Moscow State University these to the Committee for review, and said on Wednesday that she had not done so. Toomey said in a floor speech last month that he had “never seen a more radical choice for any regulatory spot in our federal government.
Confirmations, Nominations, Departures
The Securities and Exchange Commission (SEC) named veteran SEC attorney Nicole Creola Kelly as Chief of its Office of the Whistleblower.

The Senate confirmed Rajesh Nayak as Assistant Secretary of Labor for Policy, marking the first time since 2012 that a confirmed nominee has held that job.
The Week Ahead
Don’t forget to set your clocks back an hour on Saturday night — yeah, most of our devices do that on their own, but the clock on the stove doesn’t. Or at least, ours doesn’t. Congress is out of town next week, and federal offices are closed on November 11 for Veterans Day, as are ours. Barring something truly unforeseen, we won’t publish a Golden Apple on November 12, but will return on the 19th.
November 9 at 12:00 noon  House Financial Services Subcommittee on Diversity and Inclusion holds a remote hearing on “There’s No Pride in Prejudice: Eliminating Barriers to Full Economic Inclusion for the LGBTQ+ Community.”
The Ellis Insight – Jim Ellis on political news
Alaska: The Alaska Survey Research firm conducted a new poll of the 2022 US Senate race (10/22-27; 969 AK registered voters; online and text) and sees four candidates, including former Governor and 2008 Republican Vice Presidential nominee Sarah Palin if she were to run, advancing into the general election. Alaska has adopted a new primary system that sends four people onto the November ballot. If no one receives a majority vote, a ranked choice system is used to determine a winner.
According to ASR, Sen. Lisa Murkowski (R) would top the field at 35%. Former State Administration Director Kelly Tshibaka (R), who former President Donald Trump endorses, is second with 23%, just ahead of state Sen. Elvi Gray-Jackson (D-Anchorage) who has 22%.  Ms. Palin closely trails with 20%. 

Under the Ranked Choice system, the final ballot finds Sen. Murkowski holding a 60-40% margin over Ms. Tshibaka. Ms. Palin has hinted that she might run for the Senate, but has not made any definitive comment saying that she will become a candidate.

CO-8:  Now that the state Supreme Court has approved the Colorado Independent Redistricting Commission congressional map, the new 8th District that stretches from the cities of Thurston and Westminster to Greeley is official. Upon the high court announcing its favorable ruling, former state Rep. Lori Saine (R) declared her candidacy. State Sen. Barbara Kirkmeyer (R-Weld County) is soon expected to announce her own campaign. 

State Rep. Yadira Caraveo (D-Adams County) and Adams County Commissioner Chaz Tedesco (D) are the leading announced Democratic candidates. The new 8th is a politically marginal district that will be highly competitive in 2022.
FL-20:  The special Democratic primary to replace the late South Florida Rep. Alcee Hastings (D-Delray Beach) is unlikely to be decided anytime soon. The crowded primary battle, the winning of which is tantamount to claiming the seat in the January 11th special general election, is coming down to only a dozen votes.
In the first count with all the precincts reporting, businesswoman Sheila Chefilus-McCormick, who spent close to $4 million of her own money on the race, led by 31 votes. In the second count, Broward County Commissioner Dale Holness ended as the leader by 12 ballots, according to the Associated Press. Other entities are reporting that the Holness lead is only nine votes. We can expect overseas and military ballots to be added as they can still be received before recounts and a drawn out legal battle begin.
IL-16:  With the Illinois legislature adopting a new congressional redistricting map and sending it to Gov. J.B. Pritzker (D) for his signature, Rep. Adam Kinzinger (R-Channahon), whose current 16th District boundaries were collapsed thus forcing him to challenge Rep. Darin LaHood (R-Peoria) in a Republican primary, announced that he will not seek re-election to a seventh term.
The new Illinois map now features two incumbent pairings with Rep. Kinzinger bowing out. Reps. Mary Miller (R-Oakland) and Mike Bost (R-Murphysboro) will battle for a re-configured southern Illinois 12th District, while Democratic Reps. Jesus “Chuy” Garcia (D-Chicago) and Marie Newman (D-La Grange) are placed in the same 4th District in order to create a second Chicago Hispanic CD.
MI-3:  Conservative commentator John Gibbs, who President Trump named to head the Office of Personnel Management but failed to be confirmed, announced that he will challenge Rep. Peter Meijer (R-Grand Rapids) in next year’s GOP primary in what will be a newly-configured Grand Rapids area congressional seat. Rep. Meijer, a freshman, was one of ten Republicans to support impeaching Mr. Trump. Redistricting will become a factor in this race as the Michigan Independent Citizens Redistricting Commission continues to work toward developing a new congressional map.
NY-25:  Over the weekend, former Rochester Police Chief La’Ron Singletary (R) announced his congressional candidacy against Rep. Joe Morrelle (D-Rochester). Under previous circumstances, this would be a difficult challenge since Rep. Morrelle’s 25th District, and formerly that of the late Rep. Louise Slaughter (D), is a solid Democratic seat.
Under the redistricting discussions currently underway in New York, however, with Democrats talking about trying to take five seats away from Republicans, means some of the current safely Dem seats could invariably become more competitive. Depending upon the final outcome of New York redistricting, this Rochester anchored congressional seat could become a targeted race.
North Carolina:  With Gov. Roy Cooper (D) having no veto over redistricting, the Republican legislature passed a congressional map that is likely to yield ten GOP seats and four Democratic. This would represent a net gain of two Republican seats. Court challenges are inevitable.
OH-1: Healthcare company executive Kate Schroder (D), who held veteran Ohio Rep. Steve Chabot (R-Cincinnati) to a 52-46% re-election victory, announced this week that she will not return for another run in 2022. The first glimpses of a new Ohio map will strengthen the 1st District for Chabot, making it even more difficult for a Democrat to unseat him.
OH-11 and 15: As expected, Democrat Shontel Brown won the vacant Cleveland-Akron congressional district to replace Housing and Urban Development Secretary Marcia Fudge (D), and Republican Mike Carey will fill resigned-Rep. Steve Stivers (R) term in southern Ohio’s 15th District. Each won easy special general victories. Upon both Ms. Brown and Mr. Carey being sworn into the Congress, the House will have only one more vacancy to fill.

Alaska:  The Alaska Survey Research firm (10/22-27; 969 AK registered voters; online and text) questioned respondents about the 2022 Governor’s campaign in their new top four qualifying system. Gov. Mike Dunleavy (R) leads a group of three others with 43% preference. Ex-Gov. Bill Walker (I) was second with 28%, followed by ex-state Rep. Les Gara’s (D) 22%, and potential candidate Natasha Von Imhof, an Anchorage Republican state Senator, who posted 8%.

If no candidate reaches majority support on election night, a ranked choice process will then take effect. The ASR did not test how the candidates would divide under the ranking system that will be used next year in Alaska elections for the first time.
Nevada:  Nevada US Rep. Mark Amodei (R-Carson City) said this week that he will not enter the growing Republican gubernatorial field and instead will seek re-election to the 2nd District House seat that he first won in a 2011 special election. Mr. Amodei indicated he can best serve the state in Washington with what could possibly be his lone Republican voice within the federal delegation. He believes this will be important since he stated that his party has a strong chance of capturing the majority in the 2022 midterm election.
New Jersey:  After trailing through virtually all of the vote counting process, New Jersey Gov. Phil Murphy (D) was declared the winner in his tight battle with former state Assemblyman Jack Ciattarelli (R) in one of the surprise results of the November 2nd election. With votes still be received, and can be through November 8th, the Governor has taken a one percentage point lead over Mr. Ciattarelli in a result that was supposed to be a comfortable win for Mr. Muprhy.
New York:  New York Attorney General Letitia James announced during the week that she will challenge new Gov. Kathy Hochul in next year’s Democratic gubernatorial primary. The move had been expected. Also in the Democratic race is New York City Public Advocate Jumaane Williams. Outgoing New York City Mayor Bill de Blasio has also filed a statewide campaign committee that could be used for his own Governor’s bid. 

Immediately upon Ms. James’ announcement, frequent statewide and congressional candidate Zephyr Teachout (D) declared her candidacy for the open Attorney General’s post.
Virginia:  The closing polls that found Republican Glenn Youngkin eclipsing former Gov. Terry McAuliffe (D) proved correct, as the GOP businessman claimed the Governor’s race with a 51-48% margin. Mr. Youngkin becomes the first Republican to be elected the Democratic state’s chief executive since 2009. With him also came Republican victories in the Lt. Governor and Attorney General’s race, the latter with state Delegate Jason Miyares (R) unseating Democratic incumbent Mark Herring, in addition to capturing a slim state House of Delegates majority.

Atlanta:  Former Atlanta Mayor Kasim Reed (D), attempting to regain his former position in the open seat 2021 race, failed to qualify for the runoff. Atlanta City Council President Felicia Moore (D) placed first, with City Councilman Andre Dickens (D) running 612 votes ahead of Mr. Reed for second position. The Moore-Dickens runoff will be held November 30th.
Boston:  At-large City Councilor Michelle Wu (D) was easily elected Boston’s Mayor on Tuesday, defeating Councilor Annissa Essaibi George (D) by a 64-36% margin. Ms. Wu replaces Acting Mayor Kim Janey (D) who failed to make the runoff in the first election. Former Mayor Marty Walsh (D) resigned the position to become US Labor Secretary.
Buffalo:  Mayor Byron Brown, who lost his re-nomination election in June to Democratic socialist India Walton, rebounded with a 59% victory as a write-in candidate in the general election. Ms. Walton was unopposed on the ballot, but Mr. Brown’s political operation convinced voters to use printed stickers to write in his name at the polling place.
Detroit:  As expected, Mayor Mike Duggan (D), easily won a third term as the city’s chief executive. He defeated former Detroit Deputy Mayor Anthony Adams (D) in a landslide 76-24% result.
Minneapolis:  Minneapolis Mayor Jacob Frey (D), after a tumultuous term in office, survived the ranked choice voting system and won re-election on the second round of counting after falling below 50% in the initial tabulation. Additionally, the ballot proposition to decide whether the Minneapolis Police Department was to be eliminated in lieu of a Department of Public Safety bureaucracy was defeated with 56% of the people voting against the measure.
New York:  Two ballot propositions, one to create same-day voter registration and the other to allow no excuse absentee balloting, which are two key parts of national Democrats’ election law change packages, were soundly defeated in New York State on Tuesday night. It now appears that New York election procedure won’t change for the 2022 midterm election.
New York City:  Also as expected, Brooklyn Borough President Eric Adams, who won the Democratic primary back in June, was easily elected New York City’s Mayor on Tuesday night, defeating Republican Curtis Sliwa, 66-29%. Mr. Adams is a former police officer and pledges to strengthen the city’s law enforcement department. Mr. Adams replaces incumbent Mayor Bill de Blasio (D) who was ineligible to seek a third term.
Staten Island:  Former Congressman Vito Fossella (R), who chose not to run for re-election in 2008 after being arrested for drunk driving and discovered having a second family in Virginia, has returned to elective office. On Tuesday, Mr. Fossella was elected Staten Island Borough President with 62% of the vote.