Bloomberg notes the NAM and Chamber of Commerce’s opposition in the article, “Business Groups Press Lawmakers to Oppose Health-Care Measure, as well as:

“The measure would drive up labor costs to the point of forcing job losses,” the National Retail Federation said in its letter. “A ‘transparent procedural ploy’ for passing the package would harm Congress’s reputation.”

Caterpillar Inc., the world’s largest maker of construction equipment, in a letter said the measure would raise its cost by $100 million in the first year.

“We can ill afford cost increases that place us at a disadvantage versus global competitors,” wrote Gregory S. Folley, vice president and chief human resources officer at Peoria, Illinois-based Caterpillar, in the March 18 letter.

More …

• Dow-Jones, “UPDATE: Groups Make Final Push To Influence Health Bill Vote“
• MarketWatch, “Pros, cons take last shot at health-care bill“

We previously posted the NAM’s key vote letter in opposition.

And, in case the thought crossed your mind, no, House leadership did not find a way to use the reconciliation process to sneak tort reform into the health care bill. Total dollars spent on medical liability reforms? Zero.

In a discussion with  member companies earlier this week, National Association of Manufacturers President John Engler criticized the pending health care legislation for its lack of costs saving, dismissing the claims it helps reduce the budget deficit.

There isn’t a person on this call, there isn’t a person I come across, whose balance sheet wouldn’t look pretty good if they could take 10 years of revenue and set against that only six years of expenses. That’s how this is being handled in the Congress, when they say we’re making money and reducing the deficit.

Who wouldn’t? Ten years of revenue, six years of expenses - of course you look good. But the piper will have to be paid.

The remarks remain on point with the release of new Congressional Budget Office scoring on the latest version of health care legislation, presumably the one that the House will vote on this weekend. Ed Morrissey at HotAir.com reacts to the budget gimmickry, citing the $940 billion in gross payouts:

This is why they’re delaying the start of the program, of course. If it kicked in right away, the decade-long estimate would obviously be well into the trillions. So they simply stalled it for four years, incurring just $17 billion in costs — or 1.8 percent of the total 10-year estimate — through 2013 so that wavering Democrats could go back to their districts and tell baldfaced lies to their constituents about the pricetag. A perfect ending to this travesty.

As for the process gimmickry, in an interview with Hugh Hewitt, Stanford Law School professor and former Appeals Court Judge Michael McConnell explains why the “Slaughter” legislative approach of “deem and pass” cannot be squared with the U.S. Constitution, Article I, Section 7. As McConnell wrote in a Wall Street Journal op-ed:

It may be clever, but it is not constitutional. To become law—hence eligible for amendment via reconciliation—the Senate health-care bill must actually be signed into law. The Constitution speaks directly to how that is done. According to Article I, Section 7, in order for a “Bill” to “become a Law,” it “shall have passed the House of Representatives and the Senate” and be “presented to the President of the United States” for signature or veto. Unless a bill actually has “passed” both Houses, it cannot be presented to the president and cannot become a law. 

Unconstitutional and built on budgetary deceit: The health care legislation certainly doesn’t deserve the term “reform.”

Quin Hillyer of The Washington Times comments on the should-be-higher profile case of Comer v. Murphy Oil U.S.A., in a column, “No butterfly caused Katrina“:

A case called Comer v. Murphy Oil USA, winding its way through federal courts, offers leftists a perfect storm of fantasy fulfillment. Yet their fantasy balloons may well get popped. If the case is decided correctly, it could strike separate blows against both lawsuit abuse and global-warming alarmists, including those at the radicalized Environmental Protection Agency. …

This is the class-action lawsuit in which Mississippi residents sued  150 energy companies, chemical manufacturers and other emitters of greenhouse gases, claiming the emissions increased global warming, which made Hurricane Katrina so much more powerful and damaging to property. Compensate us!

Hillyer writes:

Remember the theory of the “butterfly effect,” whereby the flap of an insect’s wings in Brazil somehow could cause a tornado in Texas? In essence, the Comer theory amounts to sort of a butterfly effect writ extra-large. The problem with the butterfly effect is that a gazillion other creatures are flapping their wings all over the world, so it is literally impossible ever to prove a cause-and-effect relationship between airflows in Brazil and Texas or between Bolivia and Tennessee.

The trial judge, U.S. District Judge Louis Girola, Jr., dismissed the lawsuit because it sought to use the courts to balance complicated economic, environmental and international interests. These interests are constitutionally the domain of the political branches of government, not the courts. Unfortunately, a three-judge panel of the Fifth Circuit reversed, allowing the case to proceed. Now the full court will now consider the litigation en banc. Hillyer:

Remember, this first fight involves mere standing to sue, not the merits of the global-warming, butterfly-effect claims. But if it proceeds to trial, literally every one of us who uses energy could be legally liable for some degree of Katrina’s devastation. Energy-company shareholders, including retirees whose pension funds rely on stock in those companies, would see their savings diminished, while consumers surely would pay vastly higher prices if the millions of people who suffered damages in Katrina could lay claims for damages.

Hillyer cites an amicus brief filed in the litigation by the American Farm Bureau Federation, joined by the National Association of Manufacturers, the the American Tort Reform Association. The brief and case summary is available at the NAM’s Manufacturing Law Center’s entry on Comer, here.

It’s reassuring to see two state supreme courts uphold the authority of the policy-making branch of government, the legislature, to make policy in the area of civil justice reform. The opinions from Georgia and Texas serve as an implicit rebuke to the Illinois Supreme Court and the ridiculous legal reasoning the majority used in February to strike down the Legislature’s enactment of medical liability reforms.

• American Courthouse, Dan Pero, “Illinois Supreme Court Turns Back Tort Reform“
• Heartland Institute, Brian Faughnan, “Illinois Supreme Court Strikes Down Tort Reform“

On Monday,  the Georgia Supreme Court upheld the provisions of the 2005 tort reform package that limited liability for emergency room medical personnel. The Insurance Journal reported on the court’s decision in Gliemmo v. Cousineau (opinion): “The 4-3 ruling turned aside complaints that the law is unconstitutional because it gives special liability exemption to emergency medical care providers, despite general laws governing negligence claims that apply to all other health care professionals. The Georgia Constitution prohibits special laws that are not applied uniformly throughout the state and when general laws on the same issue already exist.” The ER Statue limits liability for certain emergency health care providers unless there is “clear and convincing evidence” of gross negligence.

• Atlanta Journal-Constitution, “Ga. Supreme Court upholds ER statute”
• Columbus Ledger-Enquirer, “Ga. Supreme Court upholds tort reform provision”

The Texas Supreme Court last Friday unanimously upheld the constitutionality of the state’s 10-year statute of repose on medical liability lawsuits. In the opinion in the case of Methodist Healthcare System of San Antonio et al. v. Rankin, Justice Don Willett wrote that the 2003 law was “a reasonable exercise of the Legislature’s police power to act in the interest of the general welfare.”

Attorney General Greg Abbott applauded the decision in a news release, citing the amicus brief his office had filed: “A decade is a long time to wait for a lawsuit to end – let alone for one to begin.” The brief further explained that “… our legal system does not remedy injuries in perpetuity. Evidence grows stale; eyewitnesses move; records become lost; and parties receive assurances that courts will not reexamine acts from the distant past that have long since faded from memory. The rule of law is served by clear rules – and that includes traditional rules governing the timing of suit.”

• Fort Worth Star Telegram, Texas Supreme Court rules that patients can’t sue for medical errors found …”
• Legal Newsline, Texas medical malpractice law survives challenge”
• Austin American-Statesman, “Court says different deadlines apply to surgical sponge lawsuits“

Jane M. McFetridge, managing partner of Jackson Lewis LLP’s Chicago office, testifyied at the Senate Committee on Health, Education, Labor, and Pensions hearing, “A Fair Share for All: Pay Equity in the New American Workplace.” From her prepared statement:

The Paycheck Fairness Act would preclude employers from making market-based pay determinations, encourage frivolous litigation, and expose companies to financial ruin by way of uncapped punitive damages and massive class action litigation. Rather than eliminating discrimination, the legislation, if passed, would provide a windfall to attorneys who litigate employment discrimination cases, but result in no meaningful change in the extant wage differential. Furthermore, the Paycheck Fairness Act would levy enormous cost on companies and employers already reeling from the worst economic crisis we have seen in most of our lives.

As public policy, the legislation would be harmful, she testified, but for law firms like Jackson Lewis, it would mean a lot of lucrative new work.

The hearing Thursday also provided a good reminder of how policymaking benefits from having elected officials with experience in the private sector. Both Sen. Mike Enzi (R-WY) and Sen. Johnny Isakson (R-GA) drew on their backgrounds as former business owners to get beyond ideological talking points into a discussion of how litigation-inviting legislation would burden employers — the people who actually create jobs.

Here’s Enzi’s opening statement.

As we noted earlier today, the Senate HELP Committee held a hearing on the Paycheck Fairness Act this morning. The NAM joined with many other employer groups in sending a letter to the HELP Committee members prior to the hearing. Our letter explains that the Paycheck Fairness Act “would jeopardize employee incentive pay and employee privacy, and promote costly litigation against even well-intentioned employers – all while doing little to prevent actual wage discrimination.”

Our letter further explains that if the bill were to become law it would:

threaten employee bonus or incentive pay that, by definition, provides some employees a higher wage than others,

prohibit employees from negotiating higher pay either before being hired or during employment,

allow employees’ wages to be disclosed to peers, friends, family and competitors,

require employers to submit pay data on their employees to the Federal government,

force the Labor Department to reinstate a flawed and duplicative pay grade survey that has proven ineffective at enforcing civil rights laws among federal contractors,

make it easier for trial lawyers to file large class actions against employers, and

establish unlimited punitive and compensatory liability under the Equal Pay Act against employers of every size.

While the Senate has been focusing on numerous bills to create jobs, it seems counterintuitive to move forward on legislation that would make it more difficult for employers to create and retain jobs.

The Senate Health, Education, Labor, and Pensions Committee has started its hearing, “A Fair Share for All: Pay Equity in the New American Workplace.” The hearing represents the return of Congressional attention to the Paycheck Fairness Act, in this case, S.182, to amend the Fair Labor Standards Act of 1938 (FLSA) known as the Equal Pay Act to increase liability and penalties for gender-based wage discrimination. The bill:

• Makes employers who violate sex discrimination prohibitions liable in a civil action for either compensatory or (except for the federal government) punitive damages.
• States that any action brought to enforce the prohibition against sex discrimination may be maintained as a class action in which individuals may be joined as party plaintiffs without their written consent.
• Authorizes the Secretary of Labor (Secretary) to seek additional compensatory or punitive damages in a sex discrimination action.

Well, that’s fair, the lawyer remarked.

Our man Keith Smith is at the hearing and will be Tweeting developments @Shopfloor_NAM. We just know he’ll be fair.

The Senate HELP Committee this Thursday will hold a hearing on the Paycheck Fairness Act. While this bill’s title gives the casual observer the sense that it will prevent discrimination in pay, in reality it only promotes more litigation. In the process, the legislation creates tremendous uncertainty for employers who are struggling to create and retain jobs in these trying economic conditions.

This legislation will be a boon to the trial bar by allowing unlimited punitive damages and larger class action suits against employers under the Equal Pay Act. Because the Equal Pay Act is a strict-liability statute, plaintiffs’ attorneys don’t even need to demonstrate an employer’s intent to do harm to file a suit. If passed into law the Paycheck Fairness Act would force employers to second-guess every pay decision that they make.

In addition, the bill eliminates key employer affirmative defenses when presented with such claims. Just last year EEOC data shows that fewer than 5 percent of discrimination claims actually had legal grounds behind them. What does this mean? Even though a case may not have grounds, it forces employers to mount expensive defenses themselves against such claims. As The Washington Post when they rightfully pointed out that this legislation “risks tilting the scales too far against employers and would remove, rather than restore, a sense of balance.”

While illegal discrimination has no place in today’s workplaces, this legislation will not address those issues. Discrimination on the basis of gender is already illegal. The legislation does not make discrimination any more against the law, it simply opens up the judicial process to more civil lawsuits based on equal pay claims. Who benefits? Not the worker, the lawyers

Matt Sundquist of the legal affairs blog, Scotusblog, examines two public opinion surveys taken after the U.S. Supreme Court’s decision in Citizens United v. FEC, which held that incorporated entities—businesses, unions and nonprofit advocacy groups—have a First Amendment right to spend money from their general treasuries to fund independent advertisements urging people to vote for or against candidates for public office.

We had already critiqued one, a Washington Post/ABC survey, for the tendentious phrasing of its questions. The other survey Sunquist writes about was conducted for the self-styled campaign finance reform advocates, Common Cause, Change Congress, and the Public Campaign Action Fund, which seek to limit campaign spending and abridge First Amendment Rights.

[Neither] of the surveys mentions important distinctions between federal laws, which previously banned corporate contributions, and state laws, which in many cases have permitted it for years.  And in all three of the questions, the broad language seems to affirmatively mislead respondents.  Although respondents would assume that the survey used accurate, clear language and provided all of the information needed to form an opinion, the survey did neither.

Although the language of these polls is flawed, it is possible to design an improved poll.  Future Citizens United polls ought to distinguish between state and federal laws and eschew mistaken categorical claims.  Knowing that respondents will apply conversational definitions to words, the polls’ creators should use precise language, clarify what types of corporate and union spending are permitted, and accurately contrast the new scope of campaign laws with previous laws.

As we noted in a Saturday post, a survey conducted by the Center for Competitive Politics — which supported the Citizens United ruling — posed specific questions that elicited more informative responses.

From the Center for Competitive Politics, a news release, “Poll on Citizens United shows support for free political speech“:

A poll released today by the Center for Competitive Politics shows that Americans generally support First Amendment rights in politics for corporations, unions and nonprofit advocacy groups.

A majority of respondents supported the Supreme Court’s decision in Citizens United v. Federal Election Commission when asked about the facts of the case and its result: “that incorporated entities—businesses, unions and nonprofit advocacy groups—have a First Amendment right to spend money from their general treasuries to fund independent advertisements urging people to vote for or against candidates for public office.”

“Citizens hold complex views on money in politics. They are wary of ‘special interests’ as well as ‘corporate’ spending, and some are surprisingly willing to censor the press,” said CCP Chairman Bradley A. Smith. “At the same time, Americans understand that campaign finance restrictions have failed to reduce the influence of ‘special interests’ and don’t support government efforts to silence the political views of groups, including unions and corporations.”

“Americans also strongly oppose regulations that would restrict the distribution of political books, movies and other publications,” Smith said.

The Washington Post recently touted the results of several poll questions it posed to claim the public overwhelmingly opposed the Supreme Court’s decision in Citizens United and supported limits on corporate contributions. Here were the two questions:

35. Changing topics, do you support or oppose the recent ruling by the Supreme Court that says corporations and unions can spend as much money as they want to help political candidates win elections? Do you feel that way strongly or somewhat?

36. Would you support or oppose an effort by Congress to reinstate limits on corporate and union spending on election campaigns? Do you feel that way strongly or somewhat?

In knocking the Post for bias and unrevealed self-interest in its coverage of the Washington Post/ABC News poll, we commented, “First, we doubt many in the public are aware of the Citizens United ruling, so a polling story that emphasizes the strong bipartisan sentiment’ for limits oversells the case.” And what do you know? The poll conducted for the Center for Competitive Politics by the Iowa firm, Victory Enterprises, starts out with a question that reveals 60 percent of those questioned were unfamiliar with the Supreme Court’s ruling.