Beltway Buzz, October 23, 2020

Sweet Asteroid of Death. There are 11 days until Election Day, November 3, 2020. For voters who are unhappy with the available options, there may be some good news: an asteroid may crash into Earth on November 2, 2020, perhaps canceling the remainder of 2020 and obviating the need to cast a ballot on Election Day.

SCOTUS Update. On October 22, 2020, the U.S. Senate Committee on the Judiciary approved the nomination of Judge Amy Coney Barrett to the Supreme Court of the United States by a vote of 12–0. None of the 10 Democratic members of the committee attended the hearing and vote. As the Buzz noted last week, Judge Barrett’s nomination is expected to go to the Senate floor on October 23, 2020, and her confirmation vote is expected to be held on October 26, 2020.

OSHA Clarifies N95 Respirator Effectiveness. This week, the Occupational Safety and Health Administration updated its COVID-19 Frequently Asked Questions to clarify that N95 respirator masks are “effective in protecting workers from the virus that causes COVID-19.” According to a U.S. Department of Labor (DOL) news release, OSHA’s updated guidance is intended to address “incorrect claims stating that N95 respirators[’] filter does not capture particles as small as the virus that causes the coronavirus.”

Business Groups Challenge Immigration Regulations. As expected, multiple legal challenges have been filed against the DOL’s prevailing wage regulation and the U.S. Department of Homeland Security’s H-1B reform regulation. One of the challenges was filed earlier this week by several business groups and universities. Regarding the economic impact of the regulations, the complaint states:

If left unchecked, [the rules] would sever the employment relationship of hundreds of thousands of existing employees in the United States, and they would virtually foreclose the hiring of new individuals via the H-1B program. They would also gut EB-2 and EB-3 immigrant visas, which provide for employment-based permanent residence in the United States.

The complaint argues that the rules should be set aside because they conflict with underlying statutory requirements and were promulgated in violation of the Administrative Procedure Act’s notice-and-comment requirements.

B in Lieu of H. Despite the lawsuits, as well as recent court rulings enjoining the visa ban of June 22, 2020, and U.S. Citizenship and Immigration Services fee increases, the administration continues its efforts to restrict temporary high-skilled immigration into the United States. On October 20, 2020, the U.S. Department of State issued a notice of proposed rulemaking eliminating the “B-1 in lieu of H” policy for business travel. The proposal asserts that the change “would increase clarity and transparency by removing confusing and outdated language about the scope of activity in the United States that is permissible on a B–1 visa.” Written comments on the proposed rule are due on or before December 21, 2020.

OFCCP Seeks Diversity and Inclusion Materials. On October 22, 2020, the Office of Federal Contract Compliance Programs (OFCCP) published a request for information (RFI) seeking “comments, information, and materials from the public relating to workplace trainings that involve race or sex stereotyping or scapegoating.” The RFI is in response to the “Executive Order on Combating Race and Sex Stereotyping” in which President Donald Trump directed OFCCP to collect from federal contractors and subcontractors “copies of any training, workshop, or similar programing having to do with diversity and inclusion as well as information about the duration, frequency, and expense of such activities.” Of course, participation in the RFI is voluntary, and the RFI states that OFCCP will not take enforcement action against a federal contractor or subcontractor that submits materials that are not in compliance “with Executive Orders 13950 or 11246, provided that such contractor or subcontractor promptly comes into compliance with the Executive Orders as directed by OFCCP.” The RFI also includes a hotline number and email address through which employees and members of the public may “report potentially unlawful training materials.”

Fantasy Congress. If your fantasy football team is in shambles (e.g., you regularly start any member of the Washington Football Team), there may be another outlet for drafting players, scoring points, and beating the competition: Fantasy Congress. The online game lets players draft federal legislators onto teams and assigns points for various political activities in which legislators participate. For example, a member of Congress earns 1 point for speaking on the House or Senate floor, 6 points for sponsoring a bill, 12 points when one of his or her bills passes the House or Senate, and so on. One great thing about Fantasy Congress is that, generally, you don’t have to worry about losing your players to injury—though with the behavior of some of our legislators, the Buzz sometimes wonders whether they should be subject to the concussion protocol.