Liberty Counsel’s Healthcare Lawsuit on Fast-Track to Court of Appeals

From Liberty Counsel --

Lynchburg, VA – Liberty University’s challenge to the healthcare law will now be heard by the Fourth Circuit Court of Appeals following today’s ruling by District Court Judge Norman Moon. Judge Moon found that Liberty University and two individual plaintiffs had standing to assert their constitutional claims against the individual and employer mandates in the healthcare law and that their claims were ripe for consideration. Judge Moon also held that the Anti-Injunction Act, which prohibits taxpayers from trying to enjoin the collection of taxes, does not bar the claims. He then ruled on the merits of the substantive claims, finding that Congress acted within its authority under the Commerce Clause when it enacted the mandates in the healthcare law.

That dismissal on the merits tees up the Commerce Clause challenge, along with other constitutional challenges based upon the First Amendment and a challenge under the federal Religious Freedom Restoration Act (RFRA), for an immediate appeal to the Fourth Circuit Court of Appeals in Richmond, Virginia. Liberty Counsel, which represents the plaintiffs in the suit, will be filing the appeal immediately. This will bring to the forefront the core constitutional issue in the case–whether Congress’ power under the Commerce Clause includes mandating that individuals and employers be compelled to purchase government approved health insurance under threat of monetary penalty.

Judge Moon’s ruling on the Commerce Clause claim contradicts decisions from courts in Richmond, Virginia, and Pensacola, Florida, which have denied similar motions to dismiss lawsuits against the healthcare bill. Those cases were not dismissed and are still pending in the district courts. The ruling by Judge Moon now allows Liberty University’s law suit to be the first case to reach the court of appeals on the substantive law issue.

Mathew D. Staver, Founder of Liberty Counsel and Dean of Liberty University School of Law said: “I am confident that the federal healthcare law will eventually be struck down on appeal because it is unconstitutional. Congress does not have the authority to force every American to purchase a particular kind of health insurance product. I am pleased the federal court found that Liberty University and the private plaintiffs have standing to pursue this claim. The court’s ruling on the merits of the Commerce Clause, while wrong now, puts the case on a fast track to the federal court of appeals. This ruling will expedite a final resolution of the case.”

Comments from Middleburg Hts Mayor Gary Starr & County Council-elect Dave Greenspan on proposed Sewer Rate Increase (Video)

Comments from the NEORSD, Middleburg Hts Mayor Gary Starr & County Council-elec Dave Greenspan after he NEORSD public meeting on the $3 Billion Clean Lake Project.... (H/T NotAtypicalPatriot)

Is the DISCLOSE Act sneaking up in Lame Duck Congress?

From Center for Competitive Politics --

Lobbying organizations dedicated to curbing political speech rights today renewed an effort to convince Senators to vote for a third time on a modified version of the DISCLOSE Act, a misguided campaign finance bill.

It's unclear if the Senate will vote on the DISCLOSE Act again in the already packed post-election session, but the updated version would reportedly strip out provisions of the bill that explicitly ban political advocacy.

"For months, self-styled reformers claimed that the DISCLOSE Act was simply about disclosure. Now, forced to strip out the most explicit speech prohibitions in the bill, they disingenuously insist what remains is ‘disclosure only,'" said Center for Competitive Politics Chairman Bradley A. Smith, a former FEC Chairman. "Nonetheless, groups spanning the political spectrum—from the ACLU to the U.S. Chamber of Commerce—have blasted the bill's heavy-handed and poorly-drafted disclosure and disclaimer provisions as unconstitutional restrictions."

Assuming Senate leaders simply remove the provisions of the DISCLOSE Act banning campaign expenditures of many government contractors and U.S. subsidiaries, the remaining disclosure and disclaimer provisions still substantially restrict and deter political speech.

"In unveiling the DISCLOSE Act, Sen. Chuck Schumer touted the fact that the excessive disclosure and disclaimer requirements would deter political speech," said CCP President Sean Parnell. "Whatever cosmetic changes are being considered will not change the bill's effective suppression of the voices 'reform' lobbyists wish to mute."

The pro-regulation lobby often stresses part of the Supreme Court's opinion endorsing disclosure in Citizens United v. Federal Election Commission, the January decision that lifted government prohibitions on the independent political speech of advocacy groups, businesses and unions. But the Court's opinion merely reaffirmed past decisions highlighting certain benefits of disclosure. The Court has ruled in other cases that certain limits restrict the government's ability to force private, independent groups to reveal their member and donor lists, and  the broad disclosure and disclaimer scheme in the DISCLOSE Act would be constitutionally suspect.

The drawbacks to onerous disclosure have long been noted by leading campaign finance experts: "Since few aspiring censors will admit openly to their purposes, the appeal to ‘disclosure' has given them the moral authority, in public argument, that they need," prominent Democratic lawyer Bob Bauer wrote on his now-defunct blog in 2007 (Bauer now serves as White House counsel; the administration supports the bill). "This is because ‘disclosure' is a regulatory tool; it is meant to serve the government's purposes, not only or even primarily those of individual citizens in need of information... This is a large part of disclosure's work: to force outcomes, not principally to inform free voter choice."

A detailed summary of the DISCLOSE Act (and an attached memo featuring extensive point-by-point analysis) explain why remaining provisions would still undermine political speech rights:

Analysis of the 'DISCLOSE Act' (S. 3628)

Senate leaders and pro-regulation groups have reportedly called for passage of the DISCLOSE Act without § 101 and 102 of Title I, which would have banned the political speech of government contractors and U.S. subsidiaries, respectively. Major remaining provisions would restrict political speech directly and indirectly.

Coordination regulations would censor grassroots legislative advocacy and expose independent groups to frivolous complaints [Title I]

§ 103: Coordination
The DISCLOSE Act would regulate a great deal of previously-protected issue advocacy as election-related speech subject to more stringent regulation and sweeping up grassroots advocacy on legislation months before elections. Congress has no basis to order the FEC to investigate coordination so broadly. Regulating grassroots lobbying ads as coordinated communications raises constitutional problems. For example, ads asking citizens to call and tell a Senator seeking reelection to oppose filibusters would be a covered communication under DISCLOSE, yet this is the same content that gave the Supreme Court pause in its 2007 Wisconsin Right to Life opinion. Such ads are "genuine issue advocacy," not election advertising. Congress may not treat them as election-related advertising under the First Amendment. The bill would also unfairly regulate any republication of a candidate's campaign materials as a contribution to that candidate's campaign, whether or not the group actually coordinated the ad with candidate's campaign.

§ 104: Party coordination
This section would make the standard for proving coordination extremely difficult between candidates and their party committees while leaving in place a far easier standard for proving coordination between candidates and outside groups. This provision is either a covert attempt to make it easier for party lawyers to file frivolous coordination complaints against independent groups or a ham-handed attempt to even the footing between parties and upstart groups. Instead, Congress should simply remove the McCain-Feingold restrictions on party coordination to allow parties to effectively coordinate with candidates (especially considering parties must raise regulated, limited funds, there's virtually no legitimate argument that this could corrupt either parties or candidates).

Expanded definitions would radically redefine longstanding terms and burdensome disclosure and disclaimer provisions would deter political speech [Title II]

§ 201: Independent expenditures
DISCLOSE would define independent expenditures subject to reporting as including any speech that is "the functional equivalent of express advocacy," ignoring Supreme Court precedents such as Buckley v. Valeo (1976) and FEC v. Wisconsin Right to Life (2007), known as WRTL II. In that case, the Court held that to constitutionally regulate political speech, the communications must  meet both the definition of an electioneering communication (i.e., not be overly vague) and be "susceptible of no reasonable interpretation other than a call to vote for or against a particular candidate" (i.e., it could not be overly broad). The criteria that DISCLOSE would use to regulate independent expenditures is remarkably similar to the FEC's regulation at 11 C.F.R. 100.22(b), which has repeatedly been held to be unconstitutionally vague by federal courts, and is no longer enforced. The Supreme Court has allowed the regulation not only of "express advocacy," but also its functional equivalent.  However, the Court has insisted that any standard not be overly vague-it has used the term "functional equivalent" to describe non-vague standards that pass a constitutional test.  It has never suggested that the phrase "functional equivalent" itself somehow survived the vagueness concerns of Buckley

§ 202: Electioneering communications
DISCLOSE would dramatically expand the amount of regulated political speech by expanding the time frame for "electioneering communications." BCRA, which relied on extensive congressional fact-findings, defined "electioneering communications" as limited to broadcast ads run 30 days before a primary or 60 days before a general election. DISCLOSE would significantly expand this limited window to cover ads mentioning a candidate from any time starting 120 days before the general election. Congress has established no record for the proposition that ads run 120 days-four months!-before the general election are not "true issue ads." Indeed, the record of DISCLOSE includes puffy platitudes rather than any sort of factual or academic analysis.

§ 211-213: Expanded disclosure requirements
DISCLOSE would impose duplicative and vague disclosure burdens. Campaign finance law already requires the reporting of independent expenditures above $250 and contributions for the purpose of funding independent expenditures above $200. Similarly, expenditures of and contributions for electioneering communications over $1,000 must be disclosed. Furthermore, 527 organizations, regulated by the IRS, must disclose all contributions and expenditures of over $1,000.

Low disclosure thresholds threaten donors to controversial causes and grassroots groups
DISCLOSE would infringe on the rights of private association recognized by the Supreme Court in NAACP v. Alabama by threatening to disclose all donors to a group regardless of whether the donor intended to have their donation used for independent expenditures or electioneering communications. "Contributions of any size to political communications that are wholly independent of any candidate for office have not been shown to contribute to official corruption. Accordingly, disclosure of such donations serves no legitimate public purpose," the American Civil Liberties Union recently explained in a letter opposing the DISCLOSE Act. "Unfortunately, the DISCLOSE Act would wipe away such donor anonymity—most notably, that of small donors to smaller and more controversial organizations, even when those donors have nothing to do with that organization's political speech."

Disclosure of transfers exempts unions
DISCLOSE would impose draconian disclosure burdens on donations made from one organization to another, including those not made with the intent of supporting independent expenditures. However, DISCLOSE would exempt many transfers among affiliate organizations, principally benefiting labor unions.

Unequal treatment of speakers: the ‘Shotgun Sellout'
DISCLOSE includes a "NRA exemption" that removes only a handful of large, well-established 501(c)(4) organizations from certain disclosure requirements. Exempting these favored groups from the burdensome disclosure requirements creates a two-tiered system of favored and disfavored speakers, and will only serve to hinder genuine grassroots and local political movements that lack access to expensive campaign finance attorneys. This provision is likely unconstitutional.

Separate fund option unworkable
The Citizens United decision reaffirmed the right of corporations and unions to engage in independent expenditures using general treasury funds. The intent of this legislation is to circumvent that ruling.  Lacking the ability to do so directly, it tries to stifle it as much as possible with a completely unworkable "separate fund" option. The legislative language allows for corporations and unions to set up separate accounts from which to make political expenditures and heavily regulates what must be disclosed from the money transferred to that fund. If a corporation chooses to accept this alternative, it must make expenditures from only that fund-forever. The result of this provision is to force corporations, including many tax-exempt organizations, to choose between two options that have each been found unconstitutional by the Supreme Court. These groups can either disclose all members and donors, a requirement that the Court ruled was unconstitutional in NAACP v. Alabama, or restrict political spending to a "Campaign-Related Activity Account," a type of PAC and thus an impediment the Supreme Court held in Citizens United could not be constitutionally imposed on a group making independent expenditures.

§ 214: Disclaimer requirements
The DISCLOSE Act would impose disclaimer requirements on broadcast ads that would be comical were it not for the extreme burden on free speech imposed. The requirements could effectively cut in half the amount a group could say in a 30-second ad, demonstrating an extreme hostility to independent speech. [Again, large, nationally prominent 501(c)(4) groups such as the Sierra Club would be exempt].

Forced disclaimers by top donors amount to compelled speech
DISCLOSE would force a group's leader to make a "Stand By Your Ad" (SBYA) statement. Current law already requires a verbal disclaimer for independent ads. No valid informational purpose would be served by replacing this simple disclaimer with two bulky disclaimers. The disclaimers would be "so burdensome they would either drown out the intended message or discourage groups from speaking out at all," the ACLU noted. Citizens and organizations would be forced to engage in government-required speech, and a very real possibility exists that donors to organizations would be forced to state publically that they "approve" of a particular commercial when in fact they may have little interest or may even oppose the particular expenditure. This is because the bill does not limit identification of "major funders" to those who give or were solicited to support independent expenditures, but also includes persons or groups that give to an organization's general treasury.

Harsh treatment of independent groups as compared to candidates
Unlike the voluntary SBYA disclaimers for candidates (which came with the incentive of lower ad rates) created by McCain-Feingold, the SBYA disclaimers in the DISCLOSE Act would be mandatory and would likely face constitutional challenge as government dictation of a speaker's message.

DISCLOSE would hamper effective and prompt judicial review [Title IV]

§ 401: Judicial review
The judicial review rules proposed in the DISCLOSE Act fail to follow the precedent set in McCain-Feingold, which allowed for expedited review and shortened the time between the filing of a suit alleging that enforcement of the act was in violation of constitutional rights and a final judgment on the issue by the courts. Even with the expedited schedule for challenges to BCRA, many groups were forced to wait years before having their right to speak vindicated by the courts. Citizens United, of course, wished to speak during the early part of 2008, but did not get a final ruling until January of 2010, well after the opportunity to speak had expired. The lack oxpedited appeal, combined with jurisdictional requirements that make it difficult for smaller groups to challenge the Act, seem tailor-made for those seeking partisan advantage and facing potentially difficult election cycles in 2012 and beyond.

The Center for Competitive Politics is a nonpartisan, nonprofit group dedicated to protecting First Amendment political rights. CCP seeks to promote the political marketplace of ideas through research, litigation and advocacy.

NEORSD Public Meeting for Sewer Rate Increase (Video)

H/T & thanks to NotATypicalPatriot for filming the NEORSD Public Meeting on November 17, 2010. 

This was one of the public meetings hosted by the Northeast Ohio Regional Sewer District (NEORSD) regarding the proposed 300% Sewer Rate Increase for 63 communities in the N/E Ohio area.  This tax is being forcefully imposed on the residents by the NEORSD to pay for EPA mandated upgrades under the proposed $3 Billion Clean Lake Project for compliance with the Clean Water Act.  This particular sewer rate increase is separate & above the proposed Storm Sewer Tax being sought by the NEORSD.

Join us and several other Tea Party & Liberty groups in supporting Middleburg Hts Mayor & NEORSD Board Member Gary Starr request that a 1yr moratorium be put in place on any sewer rate increase. For our Action Alerts on contact info and who to call please click the following; Action Alert 1 / Action Alert 2.

And to the Republic, for which it stood

We have all pledged allegiance to the flag of the United States of America. But what is a flag? It is mere thread, stitching and colored dye. It is a mere symbol. What we are pledging allegiance to is the Republic! The Republic, for which the flag once stood.

John Adams wrote, “A republic is an empire of laws, not men.” A republic’s ruler is the law; its ruler is the rule of law. And no law is more supreme in this land than the U.S. Constitution; its subjects are princes and paupers alike.

Yet we have elected representatives to our federal government whose first official act of office is to lie. They place their hand upon the holy bible, and make the most sacred of oaths to defend the Constitution against all foes, both foreign and domestic. Yet they turn around, almost immediately, and break it. They are the domestic foes.

Beware the representative who comes to you touting a staunchly conservative voting record, giving lip service to the Constitution. What you should instead hear is, “I am perfectly willing to discharge my duty to uphold the constitution when politically and ideologically expedient.”

If the tea party movement is to be about anything, it must be about restoring the Republic; it must be about reestablishing the Constitution as the supreme law of the land. But here forth lies our challenge: We must be as willing to oppose unconstitutional legislation or action rooted in conservative ideology, as we are willing to oppose unconstitutional legislation or action rooted in liberal ideology. If not, we are no better than they are. If not, the Constitution will continue to be relegated to a mere relic, and we shall forever be an empire of men, not law.

Several Lawmakers are invested in TSA Scanners

While those wanting to fly are having their rights abused by being forced to make a choice between being felt up by a stranger or zapped by human microwaves, it appears some lawmakers have a vested interest in these abuses...

From Center for Responsive Politics --

A handful of federal lawmakers are invested in one of the companies behind the controversial full-body scanning machines now in more than 60 U.S. airports. The individual investments are worth thousands, and in some cases tens or hundreds of thousands, of dollars.

According to a Center for Responsive Politics review of the most recent personal financial disclosure filings, eight members of Congress -- three Democrats and five Republicans -- owned at least $2,000 worth of stock in L-3 Communications, which is one of the two main contractors involved in the full-body scanning machines.

Sen. John Kerry (D-Mass.) disclosed possessing the most stock in L-3 Communications -- with a minimum investment of at least $500,000 and a maximum value of $1 million. The L-3 Communications stock is fully owned by his wife, Teresa Heinz, according to federal financial disclosure reports.

Members of Congress file annual personal financial disclosures detailing their assets and liabilities, as well as those of their spouses and dependent children. These forms also allow lawmakers to describe the value of their holdings and debts in broad ranges, so it's impossible to know exactly how much the holdings of Kerry's family, or any other lawmaker's household, are worth.

Republican Reps. Michael Castle (R-Del.) and Michael McCaul (R-Texas) both disclosed possessing between $16,002 and $65,000 worth of L-3 Communications stock in 2009.

And Rep. Judy Biggert (R-Ill.) was the member of Congress with the next most valuable holdings in L-3 Communications, worth between $15,001 and $50,000.

Here is a table of all eight lawmakers whose 2009 personal financial disclosure forms, which were filed in May, noted holdings in L-3 Communications, along with the minimum and maximum value of these holdings, according to the Center's research.

• Sen. John Kerry (D-Mass) --  $500,001 to $1,000,000

• Rep. Mike Castle (R-Del) -- $16,002 to $65,000

• Rep. Michael McCaul (R-Texas) -- $16,002 to $65,000

• Rep. Judy Biggert (R-Ill) -- $15,001 to $50,000

• Rep. Ron Klein (D-Fla) -- $1,001 to $15,000

• Rep. Robert Scott (D-Va) -- $1,001 to $15,000

• Sen. John Kyl (R-Ariz) -- $2,173

• Rep. Kenny Marcharnt (R- Texas) -- $2,086

The government's investment in full-body scanners has broadened since the "underwear bomber's" failed terrorism attempt last Christmas. Days later, L-3 Communications was awarded a $165 million contract for the machines, and another company, RapiScan, was also awarded a $173 million contract.

Both companies have seen significant jumps in their federal lobbying expenses since just a few years ago, and both are employing officials with well-heeled government connections, as OpenSecrets Blog previously reported.

For instance, RapiScan utilizes the services of Michael Chertoff, the secretary of Homeland Security under Republican President George W. Bush. And former Republican Sen. Alfonse D'Amato (R-N.Y.) and Linda Daschle, the wife of former Senate Majority Leader Tom Daschle (D-S.D.), are both actively lobbying for L-3 Communications

The Healthcare Bubble

Buying tech stocks with no consideration of price fueled the .com bubble. Buying real estate with no consideration of price fueled the housing bubble. Buying healthcare with no consideration of price is fueling the bubble no one is talking about.

It is easy to spot bubbles looking backward. It is more difficult to see bubbles yet unpopped. I contend our healthcare system is in a huge bubble. Here is why:

People generally prefer their salary in the form of dollars, not goods or services. They want to be paid in cash, not in toilet paper, oil changes or Hamburger Helper. Given this, why do employees receive healthcare benefits from their employers?

Our federal tax code allows for employer-provided healthcare benefits to be tax-exempt. In other words, you don’t have to pay taxes on healthcare if your job provides it, but you do if you buy healthcare on your own. This tax policy alters the natural preference to be paid in salary, to instead be paid in healthcare.

What we get from our employers is called health ‘insurance,’ but it is anything but. Insurance is defined as “the equitable transfer of the risk of a loss from one entity to another, in exchange for a premium.” Common examples that fit this definition are homeowner’s insurance, which pays out in the event of fire, and car insurance, which pays out in the event of an accident. Yet health insurance pays for everything from routine doctors visits to Viagra. This is not a transfer of risk in exchange for paying a premium; it is a third party buying your healthcare so you don’t have to pay taxes on it.

While this allows healthcare consumers to purchase their healthcare tax free, it has the unintended consequence of stripping price signals from the patient’s decision-making process. This turns health insurance into the equivalent of an all-you-can-eat buffet where consumers gorge themselves with no consideration of cost. When was the last time you selected a doctor based on price? What about a prescription drug? Do you even know what the real prices of these things are?

How does this translate into a bubble? Let’s put all the pieces together.

The bubble is blown like this: Our tax structure creates the incentive for people to get as much of their healthcare through employer-provided benefits; with people getting as much of their healthcare through employer-provided benefits, consumers do not price shop their healthcare services; with consumers not price shopping their healthcare services, there is no sensitivity to rising prices; with no sensitivity to rising prices, prices spiral out of control; with prices spiraling out of control, a system is created that is completely artificial, exorbitantly expensive, and not built on market forces. This is a bubble.

All bubbles burst. It is not a matter of if, but when.

The bubble will burst like this: As healthcare continues to become more and more expensive, employers will no longer be able to afford to provide their employees benefits; with employers no longer able to provide their employees benefits, less people will have their healthcare paid for by a third party; with less people having their healthcare paid for by a third party, there will be more consumers responding to price signals in the healthcare market; with more consumers responding to price signals in the healthcare market, the existing system will begin to crack due to the infiltration of market forces; with the infiltration of market forces, America's healthcare system will be shown to be wholly uneconomic and will collapse on itself.

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