Has any political watcher seen something like this before, a chairman of an executive branch agency getting involved in a political nomination battle like this? Highly unusual, especially before a highly partisan battle on the Senate floor, Monday’s cloture vote on the nomination of Craig Becker to the NLRB.

With the NLRB also before the Supreme Court in the appeal of New Process Steel v. NLRB, doesn’t this statement also undermine the NLRB’s case that two-member quorums represent an appropriate, legal delegation of authority? (For more background, see this Jackson-Lewis post, “U.S. Supreme Court to Decide Appeals Court Conflict Over NLRB Quorum.”)

A statement from Wilma Liebman, chairman of the National Labor Relations Board:

NLRB Chairman on Pending Nominations

WASHINGTON—In response to numerous press inquiries, National Labor Relations Board Chairman Wilma Liebman made the following statement regarding nominations to the Board of Craig Becker, Mark Pearce and Brian Hayes that have been pending before the Senate since July of 2009:

“I am disappointed that we still do not have a fully constituted Board despite the naming of three nominees last summer. The Board has been in limbo for a long time. For more than two years, the Board has had to operate with three vacancies, leaving only myself and Member Peter Schaumber to decide the hundreds of cases that come before us. We have done our best to carry out the Board’s important work, issuing more than 500 decisions in cases involving thousands of workers across the country. But our authority to do so has been challenged and now the Supreme Court will decide whether we can continue to function. At the same time, the Board has been unable to move forward on the most significant cases before it. I look forward to a time in the near future when the Board is back at full capacity resolving issues vital to American workers and their employers.”

The National Labor Relations Board is an independent federal agency vested with the power to safeguard employees’ rights to organize and to determine whether to have unions as their bargaining representative. The agency also acts to prevent and remedy unfair labor practices committed by private sector employers and unions.

Leibman is a Democratic appointee, but we’ve never before seen a Democrat or Republican member of an independent executive branch agency take such an overt, political role in a nomination.

Since the U.S. Supreme Court’s Jan. 21 ruling in Citizens United v. FEC, members of Congress have introduced the following bills and one constitutional amendment. Some are targeted at campaign contributions by foreign corporations, which were not affected by the Supreme Court’s decision, contrary to President Obama’s assertion in the State of the Union. See Hans von Spakovsky, Heritage Foundation, “The Truth About President Obama and Citizens United.”

• H.J.RES.68 : Proposing an amendment to the Constitution of the United States prohibiting corporations and labor organizations from using operating funds for advertisements in connection with any campaign for election for Federal office.
  Sponsor: Rep Boswell, Leonard L. [IA-3] (introduced 1/21/2010)
• H.R.4510 : To amend the Federal Election Campaign Act of 1971 to apply the ban on contributions and expenditures by foreign nationals to domestic corporations in which foreign principals have an ownership interest.
  Sponsor: Rep Grayson, Alan [FL-8] (introduced 1/26/2010)  
• H.R.4511 : To amend the Federal Election Campaign Act of 1971 to prohibit corporations which employ or retain registered lobbyists from making expenditures or disbursements for electioneering communications under such Act, and for other purposes.
  Sponsor: Rep Grayson, Alan [FL-8] (introduced 1/26/2010)
• H.R.4517: To amend the Federal Election Campaign Act of 1971 to apply the ban on contributions and expenditures by foreign nationals to domestic corporations which are owned or controlled by foreign principals, to increase the civil penalties applicable to foreign nationals who violate the ban, and for other purposes.
  Sponsor: Rep Hall, John J. [NY-19] (introduced 1/26/2010)    
• H.R.4522 : To amend the Federal Election Campaign Act of 1971 to apply the ban on contributions and expenditures by foreign nationals to domestic corporations which are owned or controlled by foreign principals.
  Sponsor: Rep Pascrell, Bill, Jr. [NJ-8] (introduced 1/26/2010)      
• H.R.4523 : To amend the Federal Election Campaign Act of 1971 to apply the ban on contributions and expenditures by foreign nationals to domestic corporations whose shareholders include any foreign principals.
  Sponsor: Rep Perriello, Thomas S.P. [VA-5] (introduced 1/26/2010)
• H.R.4527 : To amend the Federal Election Campaign Act of 1971 to require certain campaign-related communications paid for by a corporation or labor organization to include a statement identifying the chief executive officer of the corporation or the president of the labor organization, and for other purposes.
  Sponsor: Rep Driehaus, Steve [OH-1] (introduced 1/27/2010)     
• H.R.4540 : To amend the Federal Election Campaign Act of 1971 to extend the ban on election activity by foreign nationals to election activity by domestic corporations which are subsidiaries of foreign principals.
  Sponsor: Rep DeLauro, Rosa L. [CT-3] (introduced 1/27/2010)  
• S.2954 : A bill to amend the Federal Election Campaign Act of 1971 to apply the ban on contributions and expenditures by foreign nationals to domestic corporation which are owned or controlled by foreign principals.
  Sponsor: Sen Menendez, Robert [NJ] (introduced 1/26/2010) 
• S.2959 : A bill to amend the Federal Election Campaign Act of 1971 to protect Federal, State, and local elections from the influence of foreign nationals.
  Sponsor: Sen Franken, Al [MN] (introduced 1/27/2010)

The national trial lawyers’ association, the American Association for Justice, opens its winter convention in Maui today. It’s been a busy year for the AAJ and their members, lobbying (so far successfully) to keep any meaningful tort reform out of health care legislation being considered by Congress.

We don’t begrudge anyone their conventions, board meetings, cocktail parties and fundraisers. Still, the AAJ’s activities are rarely covered by the major media despite the group’s impact on the economy, business climate, legislation and the American legal system.

So for context, below is a list of some of the workshops and litigation group meetings scheduled at the convention. Litigation groups are AAJ-recognized groups of attorneys who specialize in litigation against a particular product or industry.

We’ve only included meetings that had .pdf agenda attached to the session. The entire convention program is much longer and includes other litigation groups and activities.

And for more on the convention in Maui, the politicians who are attending, and other AAJ machinations, see our posts at the Point of Law blog.

Advocacy Track Monday — Persuasion
Advocacy Track Tuesday — Persuasion
Byetta Litigation Group
Chantix Litigation Group
Civil and Employment Section
Fosamax Litigation Group
Heart Devices Litigation Group
Interstate Trucking Ltigation Group
Litigation at Sunrise [This one's especially informative in a brief, 10-minute kind of way.]
Pain Pump Litigation Group

A common take by critics of the Supreme Court’s ruling in Citizens United v. FEC was that the ruling will allow corporations to dominate the electoral process by spending money. Many in the media also glossed over the fact that the ruling also applies to labor unions, allowing members of organized labor to express their political opinions freely through the campaign process.

So hemikudos to the AFL-CIO for having filed an amicus brief in support of Citizens United in challenging the limits on First Amendment rights imposed by the Bipartisan Campaign Reform Act, aka McCain-Feingold. We halve our praise because of the union’s churlish statement issued after the 5-4 ruling, in which the AFL-CIO claimed unions deserve special rights: “Unions, unlike businesses, are democratically-controlled, nonprofit membership organizations representing working men and women across the country, and their independent speech should accordingly be given greater protection.”

Make a profit? No First Amendment for rights for you!

Still, the union stuck its neck out by siding with David Bossie, the conservative activist, and his litigation against the FEC. The AFL-CIO’s lawyer in the case was Lawrence Gold of Lister, Trichtman and Ross, who even joined such notable conservative legal minds such as Bradley Smith and Hans von Spakosvky on a media briefing call after the Supreme Court decision.

Now the AFL-CIO is taking grief from the left for having joined other advocates of free speech. It’s probably no consolation to the labor bosses, but we say good for you.

Also…

George Mason law professor Ilya Somin explains more about the rights of corporations and individuals in several posts at the legal blog, Volokh Conspiracy:

• Why Restrictions on Corporate Speech Reduce Political Equality
• People Organized as Corporations are People Too
• Should People Acting through Corporations be Denied Constitutional Rights Because Corporations are ‘State-Created Entities’?

The National Association of Manufacturers (NAM) and other business and legal reform groups have joined in an amicus briefing supporting CSX Transportation, Inc., and its efforts to counter the litigation industry for generating fraudulent asbestos lawsuits. Filed Jan. 14 in the Fourth Circuit Court of Appeals, the brief backs the railroad’s appeal in CSX Transportation, Inc. v. Gilkison.

In September 2009, U.S. District Court Judge Frederick Stamp in Wheeling, W.V., dismissed CSX’s fraud and conspiracy complaint filed against a law firm now known as Robert Peirce & Associates, and Dr. Ray Harron, the radiologist used to screen test results for evidence of asbestos-related diseases. As WVNS-TV reported in October, “CSX Transportation Files Appeal in Dismissed Peirce Lawsuit”:

The company filed suit in 2005, alleging that Peirce’s staff and Harron had conspired with a union organizer, Robert Gilkison, and ex-railroad employees, Ricky May and Daniel Jayne, to fake asbestos screenings in order to win cash settlements from the company. Two years later they added a fraud claim against Earl Baylor, another former employee, again alleging that test results had been falsified for financial gain…A federal court jury cleared Gilkison and Peirce in August and said the worker and law firm bared no responsibility for the phony X-ray in an asbestos suit…A second trial involving Harron and the Peirce firm was supposed to go to trial Sept. 15 in connection with the Baylor case. However, Stamp cancelled the trial Sept. 1 in after granting their petitions for summary judgment.

The amicus brief relates the history of rampant, coordinated asbestos fraud in arguing that CSX’s suit should be allowed to proceed. Others joining the brief are the American Tort Reform Association, the Coalition for Litigation Justice, Inc., Property Casualty Insurers Association of America, and the Association of American Railroads. Counsel of record is Mark Behrens of Shook, Hardy & Bacon.

The NAM’s Legal Beagle search engine summarizes the association’s involvement, and the brief is available here.

The Washington Legal Foundation filed its own amicus brief on Jan. 19. LegalNewsline, a Chamber-supported publication, also has a good report on the litigation, “Groups line up to support CSX asbestos appeal.”

On the Mark Levin radio program last evening and then in today’s Washington Post, David Bossie of Citizens United drew attention to the Supreme Court’s March, 2009, oral arguments in Citizens United v. FEC. In response to questioning from the justices, Deputy Solicitor General Malcolm L. Stewart said that federal law, McCain-Feingold, allowed the government to limit or even ban books as well as electronic media. At that point, Bossie said he thought he had won his free speech case.

The Wall Street Journal’s lead editorial today, “A Free Speech Landmark,” also cited the exchange as a critical moment in the court’s consideratin. Below is the exchange, starting on page 21 of the transcript.

But first, another important point made clearly by Ilya Somin at the legal blog, Volokh.com: “People Organized as Corporations are People Too.”

Now the transcript:

JUSTICE ALITO: Do you think the Constitution required Congress to draw the line where it did, limiting this to broadcast and cable and so forth? What’s your answer to Mr. Olson’s point that there isn’t any constitutional difference between the distribution of this movie on video demand and providing access on the Internet, providing DVDs, either through a commercial service or maybe in a public library, providing the same thing in a book? Would the Constitution permit the restriction of all of those as well?
MR. STEWART: I think the — the Constitution would have permitted Congress to apply the electioneering communication restrictions to the extent that they were otherwise constitutional under Wisconsin Right to Life. Those could have been applied to additional media as well. And it’s worth remembering that the pre-existing Federal Election Campaign Act restrictions on corporate electioneering which have been limited by this Court’s decisions to express advocacy -
JUSTICE ALITO: That’s pretty incredible. You think that if — if a book was published, a campaign biography that was the functional equivalent of express advocacy, that could be banned?

The Washington Post’s opinion page today draws an unexpected lesson from Scott Brown’s victory in the Massachusetts Senate race in an editorial, “For Democrats and Republicans alike, lessons from the Massachusetts Senate election“:

The White House answer will be: We tried, and Republicans didn’t want to play ball. That’s true, and the growing strength of the party’s Tea Party wing is making cooperation ever more difficult.

But imagine that Mr. Obama had refused to take the Republicans’ no as his final answer. The president acknowledged, for example, that malpractice litigation is a factor in driving up health-care costs. He signaled he might be open to its reform if Republican senators would support his overall framework. When none did, malpractice reform fell by the wayside, which was the predictable response; why offend a Democratic interest group (trial lawyers) for no apparent political gain? But Mr. Obama could have insisted: This is a good idea, not just a Republican idea, and it belongs in health-care reform. A series of such steps, difficult as they would be, might have a real effect on public opinion and the political climate.

Agreed!

Mickey Kaus, a Democrat who supports health care reform, asks, “Is Health Care Reform Now a Vehicle to Promote Unionization?”

It’s one thing to delay until 2018 the tax on “Cadillac” health plans for existing union-negotiated plans, to let the parties rejigger the balance between wages and benefits. That’s a standard “grandfather” clause, letting people whose existing arrangements are disrupted keep them going for a while (though why it should apply only to union pay packages is a good question).

But it’s another thing to extend this union loophole to collective bargaining agreements that haven’t been negotiated yet, or to not-yet unionized firms that organize and then tap into existing collectively bargaining benefit arrangements. That would in effect give workers a tax bonus if they should organize between now and 2018. The government might as well mail a “first time union member” check of $3,000 to every American who successfully unionizes his workplace. As IBD notes, that would be a pretty good substitute for the stalled “card check” legislation, which would try to spur organizing by letting unions avoid a secret ballot (and call in federal arbitrators to set wages).

Looks like the Haiti earthquake has pushed health care off the Sunday news talk shows.

California Gov. Arnold Schwarzenegger proposed a “California Jobs Initiative” in his State of the State address last week, a legislative package he described in more detail at an event Monday in Torrance. The site was Ace Clearwater Enterprises, which manufactures complex formed and welded assemblies for the aerospace and power generation industries. (The company president is Kellie Johnson, a member of the NAM’s Executive Committee.)

The Governor’s plan is quite substantive, framed around these goals: To create 100,000 new jobs and train an additional 140,00 Californians; to streamline regulations to get shovels into the ground, extending the home buy tax credit; and to eliminate sales taxes on green-tech manufacturing equipment.

The fifth element — tort reform — is worth of special note given the efforts to block or even reverse legal reform in Congress. The fact sheet for the jobs initiative summarizes the section, “Reforming The Legal Climate For California’s Businesses”:

To foster an atmosphere where businesses can thrive, the Governor will propose a series of changes to regulations governing class action law suits, products liability suits and seek to cap punitive damage awards. Unfair and frivolous suits impact where companies locate or expand. California’s current litigation laws lead to large settlements with little value to consumers but become worth millions to lawyers at the expense of California businesses. Current statutes also impede growth by holding businesspersons liable for defective products - even if the seller had no knowledge or control over the defect - and allowing for punitive damage awards that are wildly unpredictable among similar cases.

The Governor will propose a set of statutory changes that will set forth clear guidelines for class action lawsuits improve California’s litigation climate by allowing defendants to appeal class action certifications and by requiring the plaintiff rather than the defendant to pay for notification to other potential class members. In addition, these reforms will provide for limitations on the scope of damages assessed against business persons for defective products and eliminate unreasonable and excessive noneconomic and punitive damages awards.

For more, see the the California Civil Justice blog, “Gov. Schwarzenegger Urges Legal Reforms to Improve Climate for California Businesses, and Dan Pero at AmericanCourthouse.com, “Schwarzenegger to Fight for Legal Reform.”

Steven Milloy of Junkscience.com focuses on the substandard science used to support EPA’s recent proposed ozone limits in an op-ed in today’s Investor’s Business Daily, “Roguish EPA’s Junk Science Risks Recovery.” Excerpt:

The EPA points to a slew of studies to back up its proposal, but the scientific and economic reality of the proposal is far different. There is no body of systematically collected and scientifically analyzed data showing ambient levels of smog in the U.S. are the primary cause of a substantial or even detectable number of significant health effects.

To the extent the EPA points to published studies it claims support its proposal, these studies invariably involve cherry-picked data that have been statistically tortured to produce dubious, if not suspicious results — these studies tend to emanate from EPA-funded researchers. Imagine a police department that was also judge and jury.

Roguish AND imperial! Just the kind of regulatory agency we need.

Expect the science or lack thereof to remain a serious issue dogging the EPA’s action, and by dogging we mean serving to hold the agency accountable. The National Association of Manufacturers in October 2008 submitted a 160-page Request for Reconsideration to the EPA detailing a variety of problems with the agency’s studies and processes that led to its 2008 rule. The Legal Beagle entry on the action provides more detail on the flawed work.

Previously, in May 2008, the NAM and other members of the Ozone NAAQS Litigation Group petitioned the U.S. Court of Appeals for the D.C. Circuit to review the Bush Administration rule. The court held any action in abeyance until the current EPA acted. The industry petitioners have since requested a briefing schedule to move the case forward, a motion resisted by the EPA.