ICFA PAC Builds Relationships
by Robert M. Fells, Esq., general counsel
The 2004 national elections marked the debut of the ICFA PAC as a fledgling but decidedly growing player on the Washington political scene. Significantly, the re-election of President George W. Bush to a second term and the increased majority control by the Republican Party in both the Senate and the House of Representatives will result in maintaining the status quo of the past four years for the foreseeable future. That prospect provides both challenges and opportunities.
Senior Democrats in both houses will again be denied the chairmanship of committees and with it the power to establish agendas and convene public hearings concerning issues of their choosing. As a practical matter, this means that neither house in Congress is likely to pursue passage of the Dodd/Foley bill that seeks to regulate funeral homes, cemeteries, and related businesses. However, this "back burner" treatment of the Dodd/Foley proposal may continue only in the absence of a "major event" involving the funeral services profession (see the October"Washington Report" column for details). In the event of a headline-grabbing development concerning funeral service, the Dodd/Foley bill may then receive front burner status with bipartisan appeal.
The 2004 election marked the first time that the newly established ICFA PAC made contributions to Congressional candidates and key leaders. A total of $23,000 in contributions was made by ICFA PAC in $1,000 amounts to 23 members of Congress in both houses and from both parties. Of those seeking re-election, all ICFA-supported candidates were successful in their bids except Tom Daschle (D-SD), the powerful minority leader of the Senate.
It is worth noting that the ICFA PAC Disbursement Committee made decisions on which Congressional members to support based on each member's key position on Congressional committees or in the leadership of the House and Senate, rather than on personal likes or dislikes. Both Sen. Christopher Dodd (D-CT) and Rep. Mark Foley (R-FL) were up for re-election this year and both won impressive victories. In Connecticut, Dodd received 66 percent of the popular vote, easily winning a fifth term, while Foley won a sixth term in the House, receiving 68 percent of the vote. Another ICFA-supported candidate, Sen. Charles Grassley (R-IA), who chaired two days of public hearings on funeral industry sales practices in April 2000, also won re-election with an astounding 70 percent of the popular vote. The increasing seniority these three men continue to gain means that they will be important players whenever funeral- and cemetery-related issues are considered by Congress.
The ICFA PAC contributions initiated relationships with select members of Congress to ensure that the voice of the ICFA membership will be heard and that the association will receive a fair hearing as issues affecting our members' businesses develop in the future. Finally, it should be noted that despite the Republican victory in the 2004 election, in a mere two years from now one-third of all senators and all members of the House of Representatives will be up for re-election.
'Cash Advance' Disclosure Litigation
As previously reported, an El Paso, Texas, county court ruled that certain funeral home defendants owned by Service Corporation International had breached their contracts with a purchaser because they failed to provide disclosures required under Texas state law and under the FTC Funeral Rule.
Specifically, the court interpreted the "cash advance" disclosure provisions of the Funeral Rule as requiring funeral providers not only to disclose if a service charge has been added to the price of the cash advance item or service, but also to disclose the actual amount of the charge. In addition, the court held that anything a funeral provider obtains from a third party, such as caskets or vaults, should be considered a cash advance item and the price markup should therefore be disclosed.
The ICFA quickly decided to file a third-party "friend of the court" brief advising the court that its interpretation of the Funeral Rule was erroneous and that the FTC itself had never interpreted the rule in such manner. (The ICFA brief can be viewed at www.icfa.org/pdf/hijarnationalamicusfinal.pdf
.) Additional third-party briefs on behalf of the defendants were also filed by the NFDA, the Alderwoods Group, Stewart Enterprises and Carriage Services, among other interested parties.
On October 12, the court in this case, Hijar v. SCI Texas Funeral Services Inc., ruled on defendants' motion to reconsider its decision and upon the plaintiff's motion to strike the briefs submitted by the ICFA and the other third parties. The court denied the motion to reconsider, which in effect confirms its original decision, and granted plaintiff's motion to strike from the record all third-party "friend of the court" briefs.
The court must still determine the amount of monetary damages awarded to plaintiff before the case can be appealed to the state appellate court for review. The potential consequences of this decision could eventually impact the entire funeral service profession. ICFA members will be kept informed of significant developments.