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

From Bloomberg, “House to Vote on Employment Bills; Business Says Costs to Rise “:

Business groups say the measures, if enacted, would increase costs and expose companies to more lawsuits.

“This scares the heck out of me,” said Drew Greenblatt, owner of Marlin Steel Wire Products LLC in Baltimore. The privately held company makes wire baskets for manufacturers such as Toyota Motor Corp. and drugmaker Roche Holding AG.

Greenblatt, who has testified to Congress about small- business issues, said he expects the wage legislation to lead to higher premiums for his insurance protecting against lawsuits. His premium costs about 2 percent of his total payroll, he said.

“I have my health insurance going up and all these other costs going up,” Greenblatt said. “I just want to make wire baskets.”

Senator Majority Leader Reid has indicated that the Senate may vote next week on the bills, or at least H.R. 11, the Lilly Ledbetter Fair Pay Act. If passed, that means the first major bills of the 111th Congress will be those that discourage hiring by raising the marginal costs of labor, as Drew’s statement demonstrates. Odd priorities at a time of rising unemployment.

Andrew M. Grossman at the Heritage Foundation has written an excellent piece explaining the legal issues involved in the Ledbetter legislation, that is, how the bill would end statutes of limitations in filing wage claims. He makes the critical point that, contrary to the claims of the sponsors, the Ledbetter legislation goes far beyond merely reversing the U.S. Supreme Court decision in Ledbetter v. Goodyear Tire and Rubber.

From “The Ledbetter Act: Sacrificing Justice for ‘Fair” Pay’“:

It was a surprise to many legal observers a year and a half ago that the Ledbetter case–an unremarkable application of a rule settled 20 years prior–would attract any interest at all. But on closer examination, the course of events leading up to the Supreme Court’s decision, and the reaction since, have not been by chance but by design, part of a “perfect storm” orchestrated by trial lawyers, wrongheaded civil rights organizations, and labor groups to achieve a radical shift in employment law.[29] These special interests have an extensive agenda planned for the current Congress. Yet Members should consider each plank of it on the merits.

Far beyond reversing the result of a single Supreme Court decision–one that, viewed fairly, was consistent with precedent and fairly represented Congress’s intentions–the Lilly Ledbetter Fair Pay Act would open the door to a flood of lawsuits, some frivolous, that employers would find difficult or impossible to defend against, no matter their ultimate merit. Rather than help employees, the bill could end up hurting them by reducing wages and job opportunities–at a time when unemployment is rising and many are nervous about their job prospects. Instead, Congress should recognize that statutes of limitations serve many important and legitimate purposes and reject proposals that would allow litigants to evade them.

Earlier posts this week:

• Unemployment Up, and the House Responds Bizarrely
• The NAM’s Opposition to Ledbetter, Fair Pay Act
• Leading Off Congress with Labor, Trial Lawyer Legislation

The conservative Heritage Foundation, perhaps straining a little to be counterintuitive, identifies omissions from Senator Obama’s that could alarm “progressives.” Interesting enough. From The Morning Bell blog:

Global Warming: Obama did not utter the phrase “global warming” once last night. Progressives might respond that they prefer to label the issue “climate change,” so Obama should not have mentioned “global warming” anyway. Fair enough. But Obama only mentioned climate change once, and even then it was in reference to “new partnerships” he would form around the world “to defeat the threats of the 21st century.” No mention of cap and trade. No mention of carbon taxes or the preferred progressive term “putting a price on carbon.” All of Obama’s energy policies were framed as energy independence, not climate change. This should deeply worry progressives.

And…

Progressives firmly believe they can form a permanent governing majority if they reverse this trend. To do this they support “card check” legislation that would end the secret ballot in union organizing elections and allow union organizers to intimidate or force workers to sign cards, in public, saying they support unionization. While Obama has voted for card check legislation in the past, he did not mention it last night. Even more surprisingly, he failed to utter the words “labor” or “unions” either.

 

The most-common misleading response from organized labor to the criticism that the Employee Free Choice Act will destroy the secret ballot in the workplace goes like…well, here’s a recent example. It comes from Bill McCarthy, president of the Minneapolis Regional Labor Federation.

In attacking the EFCA, opponents distort the facts and charge that the legislation would end secret ballot elections in union organizing drives. Not true.

The foundation of modern labor law, the Wagner Act of 1935, provided a path to union recognition when a majority of workers in a workplace signed union authorization cards — simple and fair.

When labor adversaries passed the Taft-Hartley Act in 1947 over President Truman’s veto, however, employers gained the right to reject the workers’ union authorization cards and to petition the National Labor Relations Board to conduct an election to determine if a workplace should become union. ..[snip]

The EFCA would give workers, not employers, the right to decide how to express the choice about going union: through the card-check process OR through the NLRB election process.

McCarthy is playing the readers for idiots. Theoretically, oh sure, union organizers might, possibly, theoretically, choose an election, maybe. But under what possible circumstance would that be a realistic choice?

John Raudabaugh, Chicago attorney, labor expert and a former NLRB member, spoke at a Senate Republican Conference meeting on Monday devoted to the Employee Free Choice Act. He told Senators:

Labor wants card-check with 50+ percent yield to bypass but equate to the ballot box process. Why? To effectively silence the employer by conducting a quick, one-sided campaign without counter-information from the employer. Moreover, without the ballot-box, there is effectively no cure to overreaching and false Labor promises.

Labor and its funded academics ignore Taft-Hartley specifically protecting a worker’s right to refrain from third-party representation. Were the union to come up short of 50+ percent signed cards, would it really proceed to file a petition for an election? No, the secret ballot would not remain a real option under the EFCA proposal.

The real option, the REAL WORLD option, will be for labor to ratchet up the pressure and intimidation on employees until the organizers reach the 50-percent-plus-one required signatures.  

Both Raudabaugh and the Heritage Foundation’s labor fellow, James Sherk, gave excellent statements at the Senate session explaining current law and dissecting labor’s falsehoods. (Raudabaugh; Sherk.)

The details are important, which explains why labor shies from away from them in making the case for card check. The advocates prefer soundbites and platitudes — “It evens the playing field,” or “It restores the balance” or, “It doesn’t eliminate the secret ballot.”

Which warrants a snort and retort, “Do you think we’re idiots?”

Seems like an accurate summary of the state of play with S. 3036, the Lieberman-Warner climate bill, in today’s Washington Post story, “Senate Democrats May Pull Climate Bill.” Quoted is Don Stewart, communications director for Senate Minority Leader Mitch McConnell:

We are going to have Democrats voting to end debate on what they call the most important issue facing the planet and Republicans voting to continue debate on it.

More…

• National Center for Public Policy Research, citing a new poll: “The survey found 64% of likely voters in Outer South states (North Carolina, South Carolina, Kentucky and Tennessee) oppose spending more for gasoline to reduce U.S. emissions. 74% of likely voters from the region oppose spending more for electricity to reduce greenhouse gas emissions.” The news release says Sen. Elizabeth Dole (R-NC) is out of step with her constituents; she’s a sponsor of Lieberman-Warner. (UPDATE: Similar poll in the Mountain States with Baucus as a target.) (UPDATE: Senator Byrd [D-WV] in step with his constituents, survey shows.)

• The Lieberman-Warner bill expands Davis-Bacon’s prevailing wage mandates to a wide variety of projects — non-federal construction projects, that is – yet another way in which the legislation makes energy more expensive.  James Sherk at the Heritage Foundation has an analysis. But did you know that S. 3036 had Davis-Bacon provisions in it? News to us. It’s almost as if people didn’t want the bill to be really, fully debated.

• And prize for most Orwellian statement this week in the public discussion of alleged man-made global warming goes to Van Jones, the founder of Green For All.  In an interview with “Grist,” the environmental site, Mr. Jones comes up with this claim: “There may be some solutions we haven’t thought of before. We want what we call ‘cap, collect, and invest’ to be the main policy here. We want a cap on carbon. We think it’s a human-rights issue to cap carbon. Then we say collect.” It’s a human-rights issue to cap carbon. OK. And it’s a human rights issue to collect the proceeds from the private sector and redistribute it.

UPDATE (8:55 a.m.): CQ Politics: “Both parties had said they welcomed a wide-ranging debate on the measure (S3036), but it never materialized, in part because the Senate’s ongoing clash over judicial nominations ate up precious floor time and drained the patience of senators.”