WashingtonPost.com gave big play Wednesday to a new poll that included questions about the recent U.S. Supreme Court decision in Citizens United v. FEC, which overturned the statutory ban on independent political advocacy by corporations and unions. The limits imposed by the Bipartisan Campaign Finance Reform Act unconstitutionally infringed upon First Amendment rights, the court ruled.

The online story was headlined, “Large majority opposes Supreme Court’s decision on campaign financing“:

Americans of both parties overwhelmingly oppose a Supreme Court ruling that allows corporations and unions to spend as much as they want on political campaigns, and most favor new limits on such spending, according to a new Washington Post-ABC News poll.

Eight in 10 poll respondents say they oppose the high court’s Jan. 21 decision to allow unfettered corporate political spending, with 65 percent “strongly” opposed. Nearly as many backed congressional action to curb the ruling, with 72 percent in favor of reinstating limits.

Unfettered corporate spending? No. Direct corporate campaign contributions to political candidates remain prohibited. The two questions posed in the poll also simplify the ruling to the point of inaccuracy:

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?

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. As Jeff Patch of the Center for Competitive Politics wrote in a news release, “Campaign finance is an incredibly complex legal framework, and most Americans have an incentive to remain rationally ignorant about the laws and regulations at issue.” (It’s an excellent release that rebuts the ABC/Post’s polling, also noting the vociferous campaign some political interests have mounted against the decision.)

We’d argue, as well, that polling questions should include reference to the U.S. Constitution or the First Amendment, since speech is at the heart of the issue. You could just as well ask: “Do you support or oppose the recent ruling by the Supreme Court that says the U.S. Constitution protects the right of corporations and labor unions to spend money in support of candidates before an election?” The public’s response would be different. Add in the phrase “free speech rights” and the response would change again.

As is typical of the coverage of this issue, the Post account also omits the self-interest of the newspaper industry in supporting limits on corporations’ speech. The McCain-Feingold campaign finance law specifically exempted the media from its restrictions on political advocacy.  Newspapers can spend money to pay the writers and other staff, supply the equipment, heat the building and distribute the product that includes an editorial before an election that says, “This is a bad idea and you should vote against Candidate X.” Any non-media corporation that did exactly the same thing would have violated the law. McCain-Feingold magnified the power of newspapers and their editorials.

Hans von Spakovsky of the Heritage Foundation has just released a new Legal Memorandum that discusses many of these issues from a legal and Constitutional perspective, “Citizens United and the Restoration of the First Amendment.” The article examines the legislative various proposals in the wake of the Supreme Court’s ruling to invent some new limits against advocacy, and concludes they still run afoul of the First Amendment. Unlike the ABC/Post poll, his arguments are founded in the U.S. Constitution.

From the Heritage Foundation’s budget expert, Brian Riedl, an analysis of President Obama’s FY2011 budget, “Obama’s Budget Seeks $2 Trillion More in Spending and Deficits Than Last Year.” Riedl highlights the unprecedented deficit spending, but in discussing economic growth, the immediate concern should be the tax increases.

President Obama bases nearly all of his (modest) deficit reduction on tax increases. Although no economic theory justifies raising taxes during a recession, he would impose nearly $1 trillion in tax hikes for 3.2 million upper-income families and small businesses. He would eliminate tax breaks for charitable giving and the mortgage interest deduction for millions of Americans.

President Obama has endorsed a cap-and-trade bill that would cost more than $800 billion over the next decade. He has also endorsed substantial tax hikes to finance health care reform. All told, tax increases would exceed $2 trillion, yet they are still not enough to prevent a $1 trillion annual deficit by 2020.

In imposing these new taxes, the Obama Administration would damage the global competitiveness of U.S. manufacturers and other businesses.  A report by the Tax Foundation documents that U.S. competitors are going in the opposition direction, reducing corporate taxes to promote growth, “OECD Nations Continue Cutting Corporate Tax Rates While U.S. Stands Still (Federal Plus Provincial/State Corporate Tax Rates for OECD Countries, 2008-2009).”

Less competitive = fewer sales = stagnation = fewer employees. So much for JOBS!

The recent analysis by the Milken Institute, “Jobs for America,” concludes that reducing the U.S. corporate income tax rate to match the OECD average would trigger new growth. By 2019, it could boost real GDP by $375.5 billion (2.2 percent), create an additional 350,000 manufacturing jobs, and increase total employment by 2.13 million.

Health care bills in both the House and Senate require individuals to purchase health-care coverage if they are not covered through some other program, a “compulsory contract.” In a new Legal Memorandum from the Heritage Foundation, Randy Barnett, Nathaniel Stewart and Todd F. Gaziano explain “Why the Personal Mandate to Buy Health Insurance Is Unprecedented and Unconstitutional”:

The purpose of this compulsory contract, coupled with the arbitrary price ratios and controls, is to require many people to buy artificially high-priced policies to subsidize coverage for others as well as an industry saddled with other government costs and regulations. Congress lawfully could enact a general tax to pay for these subsidies or it could create a tax credit for those who buy health insurance, but that would require Congress to “pay for” or budget for the subsidies in a conventional manner. The sponsors of the current bills are attempting, through the personal mandate, to keep the transfers entirely off budget or–through the gimmick of unconstitutional taxes or penalties they dub “shared responsibility payments”–make these transfers appear to be revenue-enhancing.

This “personal responsibility” provision of the legislation, more accurately known as the “individual mandate” because it commands all individuals to enter into a contractual relationship with a private insurance company, takes congressional power and control to a striking new level. Its defenders have struggled to justify the mandate by analogizing it to existing federal laws and court decisions, but their efforts do not withstand serious scrutiny. An individual mandate to enter into a contract with or buy a particular product from a private party, with tax penalties to enforce it, is unprecedented– not just in scope but in kind–and unconstitutional as a matter of first principles and under any reasonable reading of judicial precedents.

Defenders argue for the mandate by saying, “Well, you have to buy auto insurance to drive,” a false comparison demolished by the authors. The Heritage paper also addresses Commerce Clause and Taxing Clause issues and concludes that the Supreme Court would be unlikely to uphold legislation that included the mandate.

News coverage of the admittedly mind-bogglingly complex, thousand-plus page health care bills has mostly kept away from the personal mandate issue, save for some discussion of the Massachusetts precedent. These important questions of Constitutionality and liberty deserve more attention.

UPDATE (9:35 a.m.): Via The Volokh Conspiracy, a Heritage video of Sen. Orrin Hatch (R-UT), Barnett and Eugene Volokh on the unconstitutionality of the health care mandate. (Hat tip: Glenn Reynolds.)

A new web memo from the Heritage Foundation charts the Department of Labor’s march in reverse on transparency requirements for labor unions. From “Decreasing Union Transparency: A Step Backward for Workers“:

President Obama campaigned on a platform of transparency and opposing special interest lobbyists. However, his DOL has violated both of those principles by revoking the improvements in union financial transparency that Secretary Chao implemented.

Union members deserve to know how their dues are spent. It protects them from corruption and allows them to hold their union accountable for bad decisions, such as the SEIU’s close relationship with the now-disgraced ACORN. Congress should act to protect workers if the President will not.

See also Mark Hemingway at The Washington Exmainer, citing how the reporting requirements gave members of Denver United Food and Commercial Workers Local 7 enough information to inspire them to vote out their longstanding president, Ernie Duran, for nepotism and overspending.

From The Heritage Foundation, reporting on a new study released by the American Health Insurance Plans conducted by Price Waterhouse Coopers, “‘Reform’ Means You Pay More for Health Care”:

A major new report confirms the worst fears of many: Health care reform will raise the costs for most Americans—by about 18% on average. That is on top of existing inflation of health coverage.

Once the plan is fully phased-in (by 2019), a typical family of four would pay an extra $4,000 each year.

When combined with existing inflation, costs would rise from today’s $12,300 annual average to $25,900. Of that 111% increase, $9,600 is due to existing factors uncorrected by the legislation, and $4,000 due to additional costs created by the legislation.

Reuters, “White House blasts health insurance sector report,” highlights the campaign-style response from the Administration.

“This is a self-serving analysis from the insurance industry, one of the major opponents of health insurance reform,” White House spokesman Reid Cherlin said. “It comes on the eve of a vote that will reduce the industry’s profits. It is hard to take it seriously,” he added.

Even more predictable, “Advocacy groups jumping on AHIP report.”

Isn’t it possible that the AHIP report is generally accurate and worthy of consideration?

Governor Haley Barbour of Mississippi gave the keynote address today at a Heritage Foundation program on state legal reform. While most of his remarks dealt with the legislative strategy for ending lawsuit abuse, he touched on the medical liability in health care being debate at the federal law. Good comments:

It’s mysterious to me that the Administration and the leadership of Congress talk about health care reform and the goal of reducing costs, and yet refuse to put tort reform into the legislation. …

I believe that $200, $250 billion a year of health care costs are caused by litigation. Maybe more than that. But this is the lowest-hanging fruit. This ain’t rocket science. If they want a demonstration project, come on down to Mississippi, I’ll show you a demonstration project. And if it works in the worst state of the country for lawsuit abuse, I promise you it will work in other places too.

The program is available as an .mp3 file.

From former Attorney General Ed Meese and Hans Spakovsky of the Heritage Foundation, a good summary of the complicated Medicare Secondary Payer issue, subrogation and qui tam litigation. The House Ways and Means Committee recently considered — and ultimately did not pass - an amendment that would have opened wide the gates for bounty-hunting attorneys to file suit supposedly to reclaim Medicare money but really just to achieve big settlements. And they wouldn’t have to prove actual harm, but make their claims solely based on statistical data.

From “The Trial Lawyers’ Earmark: Using Medicare to Finance the Lifestyles of the Rich and Infamous”

In one of the starkest examples of how plaintiffs’ lawyers want to use Congress to get rich at the expense of the American taxpayer, an amendment that would have generated abusive Medicare litigation on a massive scale–along with the usual huge attorneys’ fees–was recently added to [and then removed from] the health care reform bill in the U.S. House of Representatives.  The current Medicare statute simply ensures that Medicare is reimbursed for the medical benefits it pays when a third party is legally responsible for a Medicare beneficiary’s injuries or medical costs. However, the tort lawyer amendment would:

• Allow new types of lawsuits against the makers of consumer products (including food) for supposed injuries to Medicare beneficiaries based on questionable statistical speculation;
• Flood the federal courts with lawsuits that circumvent state tort law and federal requirements for class action lawsuits, diversity jurisdiction, or amount in controversy;
• Violate the privacy of Medicare beneficiaries by making their medical records available to tort lawyers without their permission (or that of the government);
• Interfere with the rights of beneficiaries against third parties responsible for their medical costs; and
• Improperly and unwisely turn the Medicare reimbursement provision into a qui tam statute that would allow plaintiffs’ lawyers to pursue claims that Medicare does not think are valid or proper, reducing the availability of medical treatment for Medicare beneficiaries.

Walter Olson of the Manhattan Institute first blew the whistle on this jaw-dropping effort to include special interest legislation in the health care bill. See his column in Forbes, “Inside the Health Care Bill.”

From Heritage, the Foundry, “President Obama, You Forgot a Word in Your Cap and Trade Speech“:

When pressing the House of Representatives on the Waxman-Markey cap and trade bill, President Obama remarked,

Make no mistake: This is a jobs bill.”

Insert “killing” between “jobs” and “bill” and you have yourself an accurate statement. Cap and trade is a jobs killing bill.

According to The Heritage Foundation analysis of the Waxman-Markey cap and trade bill, Over the 2012-2035 timeline, job losses average over 1.1 million. By 2035, a projected 2.5 million jobs are lost below the baseline – without a cap and trade bill.

Particularly industries hit hard are: agriculture, transportation, chemicals, wood products, machinery, paper, plastics & rubber, electrical equipment & appliances, construction and, of course, manufacturing.

For more information, check out The Heritage Foundation’s Rapid Response Page on Cap and Trade.

A good take on the EPA’s proposed finding of endangerment on major greenhouse gases, except for water vapor, from the Heritage Foundation’s Foundry blog, “Make Them Regulate, starting with the preposterous image of Clean Air Watch’s Frank O’Donnell pretending to be Dirty Harry:

Commenting on the Environmental Protection Agency’s decision to classify carbon dioxide and other greenhouse gasses as a danger to the public’s health and welfare, Frank O’Donnell, president of the eco-leftist Clean Air Watch, told the Los Angeles Times, “The Obama administration now has the legal equivalent of a .44 magnum … The bullets aren’t loaded yet, but they could be.” If our economy ever hopes to recover, it is imperative that the American people reject the Obama administration’s audacious blackmail threat.

The EPA’s endangerment finding for greenhouse gas emissions on Friday will not be finalized until a mandated 60-day comment period is completed. But once it becomes final, the ruling will trigger massive economy-wide EPA regulations. New York Law School professor David Schoenbrod tells the Washington Post: “This would be a regulatory maze far exceeding anything we’ve seen before.” According to the US Chamber of Commerce, regulating carbon through the Clean Air Act would affect at least one million mid-sized commercial buildings, including: 1/5 of all food service businesses, 1/3 of all health care businesses, 1/2 of the entire lodging industry, and even 10% of all buildings used for worship. The Heritage Foundation’s Center for Data Analysis has estimated that EPA carbon regulations will cause annual job losses exceeding 800,000 for several years and a cumulative GDP loss of $7 trillion by 2029.

 

We all too often hear claims by labor bosses that employers engage in illegal efforts to prevent union organizing. Today, the Heritage Foundation helps shed some light on some of the harsh realities of the tactics employed by union organizers. Further evidence that the best way to prevent intimidation and harrassment in the workplace is through private ballot elections.

Rian Wathen, Former Organizing Director for the UFCW discusses how authorization cards are often collected.

Hat tip: James Sherk