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.

Time to catch up with the crash-and-trade legislation being worked out behind closed doors on the House side.

CQ Politics, “Waxman Reaches Deal on Emissions“:

Leaders of the House Energy and Commerce Committee have agreed to soften their short-term targets for reducing greenhouse gas emissions as they work to write a bill that can move to the House floor.

Chairman Henry A. Waxman , D-Calif., said Tuesday evening that Democrats have resolved most of the core issues that were in dispute over draft legislation he released several weeks ago. He plans to release the text of the bill Thursday, begin a markup on May 18 and get committee approval by the end of next week.

Joint Statement From Greenpeace, FOE, and Public Citizen on the House Energy and Commerce Committee Climate and Energy Bill:

We are extremely troubled by the reports coming out of the Energy and Commerce Committee last night on additional compromises to the already flawed American Clean Energy & Security Act. The world needs real leadership from Congress and the Administration to address global warming - action that will enable us to transform our economy with clean, renewable energy technology, new green jobs and show leadership internationally. If reports are true, the compromises being struck on the bill undermine these goals.

Reuters, “Republicans push changes to U.S. climate bill“:

WASHINGTON (Reuters) - Republicans in the U.S. House of Representatives on Wednesday vowed to push for major changes to a climate change bill that could move through a key committee next week, including a proposal to count nuclear power as a clean energy alternative….

Representative Joe Barton, the senior Republican on the House panel, predicted he would prevail with an amendment to include nuclear power and “clean coal” as alternative sources of energy that will have to be used more by electric utilities under the bill.

A refresher: Two types of arbitration are subject of policy discussions these days in Congress and on this blog.

• Binding arbitration: As proposed in the Employee Free Choice Act, binding arbitration would impose the equivalent of a two-contract — work rules, salaries, benefits — on businesses and unions if negotiations over first contract negotiations continue past 120 days. These terms would be mandated by a government-appointed, outside arbitrator.
• Pre-dispute arbitration: The common practice, including in many consumer contracts, that provide for non-judicial venues for resolving contract disputes. Business groups generally support this sort of arbitration, because it leads to quicker and less expensive outcomes by keeping the disputes out of the courtroom, away from attorneys whose seek to ring up billings, awards and settlements.

The American Association for Justice — the trial lawyers lobby — HATES pre-dispute arbitration, and has made killing it one of their lobbying priorities. Accordingly, Sen. Russell Feingold (D-WI) last week introduced S. 931, the Arbitration Fairness Act, a bill that bans predispute arbitration in business contracts with consumers. (Opening statement, text.) The legislation is the Senate companion to H.R. 1020 introduced by Rep. Hank Johnson (D-GA). (More rom the Green Bay Press-Gazette)

Just in time for the Senate bill, the American Association for Justice released a new opinion survey claiming that the public dislikes binding arbitration. The AAJ-led Fair Arbitration Now Coalition also held a news conference announcing the survey conducted by the Democratic polling outfit, Lake Research Partners, but it’s a laughable example of a survey that found what it set out to find. From the news release:

“The findings show clearly that Americans strongly oppose forced arbitration, and they see the Arbitration Fairness Act as a remedy. Not only is there real intensity to this view, but it traverses traditional partisan divides,” said Lake Research Partners President Celinda Lake. “Forced arbitration clauses – which are buried in the fine print of employment and consumer contracts – are another example of corporations taking advantage of ordinary Americans. The public supports the Arbitration Fairness Act because equal justice under the law is a core American value.”

Our emphasis.

The head of the Federal Trade Commission has announced new senior positions in the FTC, including a top post for a former top lawyer with the anti-business Naderite group, Public Citizen, who then migrated to the legal professoriat at Georgetown Law. No practical experience in business? Become a business regulator!

From the FTC, a news release, “FTC Chairman Jon Leibowitz Appoints Senior Staff“:

David C. Vladeck, who will serve as Director of the Bureau of Consumer Protection, has been a Professor of Law at Georgetown University Law Center, teaching federal courts, government processes, civil procedure, and First Amendment litigation. He co-directed the Center’s Institute for Public Representation, a clinical law program for civil rights, civil liberties, First Amendment, open government, and regulatory litigation. Vladeck previously spent almost 30 years with Public Citizen Litigation Group, including 10 years as Director. He has argued a number of First Amendment and civil rights cases before the U.S. Supreme Court, and more than 60 cases before the federal courts of appeal and state courts of last resort.

From the Public Citizen blog, Consumer Law and Public Policy:

Needless to say, we think this is really terrific news. David is a tenacious advocate for consumers and is taking up this important post at a time when strong leadership and enforcement on consumer protection issues is sorely needed. Congratulations to David!  The full announcement–listing the other five appointees, including the heads of the agency’s antitrust, economics, and policy planning divisions–is posted after the jump.

From the US PIRG Consumer Blog, “Vladeck to FTC, great choice.”

Great news. New FTC Chair Jon Leibowitz has selected constitutional scholar and consumer advocate David Vladeck to head the FTC Bureau of Consumer Protection. David’s been teaching at Georgetown Law for a while and before that was a longtime public interest attorney at Public Citizen. This is great news for consumers who want a fair marketplace and bad news for corporate criminals and those who support lax enforcement of the consumer laws. I will do a longer blog from a real computer. — From the Blackberry, in Baltimore.

From AdAge, “FTC Names Consumer Advocate to Lead Consumer Protection Bureau“:

“We expect Mr. Vladeck will vigorously pursue, with Chairman Leibowitz’s support, a serious consumer-protection agenda,” Jeff Chester, executive director of the advocacy group Center for Digital Democracy, said in an e-mail and blog post. He cited financial products, privacy, online advertising, and food marketing to children and adolescents as areas that “will now get the intellectual and strategic attention they deserve” at the FTC.

Unfortunately, the various “consumer groups” make no distinction between a “consumer protection” agenda and a “business is nefarious” and “let’s raise costs to the consumers” agenda.

The Center for Progressive Reform has the fullest biography we’ve seen of Professor Vladeck, “one the nation’s foremost public interest litigators.”

Incredible. And how arrogant. Despite thousands of first-person reports of businesses closing up shop, children’s books being destroyed, thrift stores deprived of used clothes and toys, mini-bikes and kids bikes being made illegal, some “consumer activists” regard the Consumer Product Safety Improvement Act as a success.

From The National Law Journal, “Consumer bill sets off a furor“:

“Any legislative fixes at this point would be very premature,” said Public Citizen’s [Christine] Hines. “The most important issue right now is for Nancy Nord to be replaced. She was never a huge supporter of the law from the time of the year-long negotiations.”

Hines said the other commissioner, [Thomas] Moore, agrees that congressional intervention now would be premature.

“At this point, because there is so much difficulty at the agency in terms of agreement, the agency has taken a strict constructionist view of some of the language in the law,” said Hines. “I believe the new law gives the agency the authority to issue reasonable regulations. We still feel it has enough authority to address business concerns and to ensure that products are safe. The 2007 recalls and the uproar about unsafe products on the market tend to get lost in this debate.”

So nice that Public Citizen is now the official spokesman for Commissioner Moore.

But Nord and Moore have voted the same way on the last 23 votes. Replace Nord with a permanent chairman — as she herself has requested — and there’s no indication the commission will do anything differently.

Rick Woldenberg of Learning Resources Inc., a forceful advocate for CPSIA reform, responded recently to a hatchet job in ConsumerReports.org, which misrepresented a pro-reform rally and made the same, weak case as the Naderites at Public Citizen. Rick wrote:

Finally, you also mischaracterize the remarks of the Rally speakers as endorsing YOUR view that Nancy Nord is at fault for the delays and failures to issue exemptions that you assert. I do not recall Ms. Nord’s name or role being mentioned during any speech, and she was certainly not a focus of the day’s events. Speaking for myself, I do not agree with your statement at all, and would observe that the data shows that Acting Chairman Nord and Comm. Moore have voted 2-0 in their last 23 decisions. It is hard to understand the reasons behind the finger pointing at Ms. Nord or at Republicans in general if the Commissioners are apparently acting in bipartisan unison. Is it because attacks on Ms. Nord make a nice diversion from an examination of the law itself?

Yes. Yes it is.

A news release from Public Citizen, advocates of the full-bore implementation of the Consumer Product Safety Improvement Act.

Their headline: “Attack on New Product Safety Law Fails; Lawmakers Should Block Future Attempts to Weaken Measure”

Our version: “Attack on Small Business, Thrift Stores, Children’s Books and Economic Activity Succeeds; Lawmakers Should Block Future Attempts to Change Jobs-Killing Law.”

Sub-hed: “No More Dirt Bikes for Kids — Good! Why Should They Have Any Fun?”

UPDATE (1:30 p.m.): Thrift stores clear their shelves.

Hat tip, Walter Olson at Overlawyered, “Thrift stores, the day after,” which recounts similar reaction all across the country.

We anxiously await the news release, “Public Citizen hails removal of children’s coats from cold-weather thrift stores.”

UPDATE Fixed the real/fake headlines. Bad editing.

The Consumer Product Safety Commission late Friday announced a one-year stay of the Consumer Product Safety Improvement Act’s enforcement of requirements for testing of products that will be used by children. (News release.) The action, coming in the wake of a full-scale revolt by small manufacturers of toys, garments and other children’s products, provides very little relief.

CPSC Acting Chairman Nancy issued a statement in conjunction with the stay. This excerpt make it clear that everyone’s still on the hook:

The action we are taking today puts in place a limited “time-out” so that the Commission and the Congress can address the issues with the law that have become so painfully apparent. The stay will give the CPSC time to develop and issue rules defining responsibilities of manufacturers, importers, retailers, and testing labs. It will give the Commission time to rule on exemptions andexclusions from the lead provisions and develop and put in place appropriate testing protocols. It will give staff time to develop an approach to component parts testing, given the ambiguity of the statute on this point.

It is important to clearly understand what the stay does and does not do. The stay of enforcement of the testing and certification provisions will give some temporary and limited relief to small manufacturers, home-based businesses and crafters who cannot comply with the law without incurring substantial testing costs. However, the stay does not relieve them of complying with the underlying requirements enacted by Congress and which go into effect on February 10, 2009, dealing with lead, phthalates and a number of other toy standards. Any changes to these requirements will need to be addressed by Congress.

The Consumer Product Safety Improvement act also empowered state attorneys general to enforce the CPSIA’s provisions, so an ambitious AG could still wreak havoc by targeting manufacturers of children’s products, or products used by children, or products that may come in contact with children. To which the CPSC says, “The Commission trusts that State Attorneys General will respect the Commission’s judgment that it is necessary to stay certain testing and certification requirements and will focus their own enforcement efforts on other provisions of the law, e.g. the sale of recalled products.”

That’s placing a lot of trust in the restraint of politicians.

Bottom line, the CPSC’s action provides no legal protection for manufacturers of products requiring testing and really just confuses the issue.

Let’s get moving, Congress.

For more, see Walter Olson’s post at Overlawyered.com. He comments:

This is, in general, very good news, but two problems need to be pointed out. One is that the action may be vulnerable to legal challenge as violating the CPSC’s legal obligations to regulate, and in particular to enforce CPSIA’s terms faithfully. As if to confirm that danger, prominent “consumer” groups — that is, the same groups that pushed CPSIA through to enactment and have vocally defended the law ever since — issued a letter this afternoon digging into their position that there’s nothing wrong with the law and that Congress should not revisit it. (Consumers Union, Public Citizen — the latter, it will be recalled, being the group whose David Arkush wrote last month “I haven’t heard a single legitimate concern yet” about the law.)

In other developments, Sen. Jim DeMint (R-SC) announced he will introduce a bill to fix the CPSIA’s excesses. His news release is here.

In a post below we note Public Citizen’s mendacious attack against a new nuclear power plant in Maryland. Of course, nuclear energy is not the only source of electricity the group rejects.

From the Energy Information Adminstration, a pie chart of electricity generation in 2006.

Public Citizen opposes nuclear power, so that’s 19.4 percent gone.

The group absolutely hates coal, so that’s 49 percent eliminated.

The oil companies are anathema, which means another 1.6 percent gone.

So in Public Citizen’s America, 60 percent of current electricity generation is unacceptable.

That’s a very cold, very dark, very poor America. 

From today’s Washington Post, “Coalition Challenges Proposed 3rd Reactor“:

A coalition of environmental organizations filed legal challenges this week against the proposed third nuclear reactor at Calvert Cliffs.

The group told the Nuclear Regulatory Commission that the problems with UniStar Nuclear Energy’s application to build a reactor at the Lusby site include the concurrent review of the reactor design and the license application; the storage and disposal of radioactive waste; and foreign partnerships involved in the project.

“We are basically trying to point out the inadequacy of the application itself. The issues we are raising will demonstrate that this is both an economically and environmentally bad deal for Maryland,” said Allison Fisher, energy organizer for Public Citizen’s Energy Program.

So, no concurrent review of reactor and license application because government cannot do two things simultaneously? The efficiency apparently poses a threat; a 10-year approval process is much easier to derail than a five or four-year process.

No local, on-site storage of nuclear waste, either. And since Public Citizen opposes the Yucca Mountain Nuclear Repository for long-term, offsite storage, that effectively rules out any nuclear power.

And foreign partnerships are objectionable because…lousy French. They use nuclear power.

You can read Public Citizen’s news release here, which includes a warning about the Chesapeake Bay being unable to bear even more nuclear discharge. Well, yes, in reality nuclear plants don’t discharge radioactive waste, but…

You see a lot of alarmism and misstatement come from the environmentalist, anti-growth activists, but this one is a remarkably consistent piece of work.

Judging by the flurry of committee action, looks like there will be a congressional vote this year on at least one anti-arbitration bill. The Senate Judiciary Committee today is marking up S.2838, Fairness in Nursing Home Arbitration Act, which would vitiate arbitration provisions in nursing home contracts.

On Tuesday, the House Judiciary Subcommittee on Commercial and Administrative Law reported out three anti-arbitration bills, including the House version of the nursing home legislation, H.R. 6126. The Naderific group, Public Citizen, issued a news release praising the action as an “important step toward protecting American consumers from companies that would take away their access to the courts.”

The bill attacking arbitration in nursing home contracts is the wedge legislation that the plaintiffs’ bar wants to employ to overturn arbitration in all sorts of contracts. They want to bring back the good old days of always going to court, no matter whether the client’s interest is being served.

You remember those good old days? Here’s a reminder from Kelley Rice-Schild, testifying in June on behalf of the American Health Care Association and National Center for Assisted Living. Rice-Schild is executive director of the Floridean Nursing & Rehabilitation Center:

In the late 1990’s, the long term care profession was subject to excessive liability costs, which were exacerbated by an increasingly litigious environment. As a result, operators of nursing facilities and assisted living residences were forced into making difficult decisions including potential closure or divestiture of facilities, and corporate restructuring. In addition to pursuing state and national tort reform legislative initiatives to enable facilities to continue to operate and provide essential long term care services in a difficult environment, the profession sought alternatives to traditional litigation including arbitration. This trend was especially true in states such as Arkansas, Texas, and my home state of Florida, where state laws fostered an exponential growth in the number of claims filed against long term care providers – even those with a history of providing the highest quality care.

As a result, there was an explosion in the cost of obtaining insurance to protect operators from the risks associated with a tort environment that often encouraged unsubstantiated claims against long term care providers. This trend included significant advertising – including highway billboards – to encourage consumers to sue their long term care provider. Even following the passage of tort reform legislation in Florida in 2001, insurance is not widely available and for most operators unaffordable, which forced several companies to no longer provide care and services to the frail elderly in my home-state.

Ah, the good old days — except for residents of long-term care facilities or their families.