April 2012 Archives

It's Federal Reform Quiz Time! House Republicans are pushing H.R. 5, the bill to impose federal limits on awards in medical malpractice lawsuits, despite universal opposition from conservative legal experts, Tea Party leaders, and conservative Congressmen and Senators. Let's see how closely you've been following the debates on this bill on the House floor and in committees.

1. Which Congressman introduced the opposition of Tea Party Nation founder Judson Phillips to H.R. 5 on the House floor?
A. John Boehner (Republican)
B. Eric Cantor (Republican)
C. David Dreier (Republican)
D. Maxine Waters (Democrat)

2. Which Congressman introduced Ronald Reagan's quote that tort law belongs to the states into the record on the House floor?
A. Phil Gingrey (Republican)
B. Dan Lungren (Republican)
C. Joe Pitts (Republican)
D. Sheila Jackson Lee (Democrat)

3. Which Congressman introduced the opposition to H.R. 5 of the Heritage Foundation, Randy Barnett, Rob Natelson, Ken Cuccinelli, Sens. Tom Coburn and Mike Lee, and other hardcore conservatives into the record?
A. Michelle Bachmann (Republican)
B. Fred Upton (Republican)
C. Bob Goodlatte (Republican)
D. John Conyers (Democrat)

4. Which Congressman introduced, on the House floor, the references in the Declaration of Independence and Seventh Amendment to the Constitution to protect the right to a civil jury trial?
A. Lamar Smith (Republican)
B. Steve Chabot (Republican)
C. Chuck Fleischmann (Republican)
D. Bruce Braley (Democrat)

5. In 65 printed pages recording 8 hours of debate on the floor, and in 4 hours of debate in two committees, which Founding Father and current constitutional scholar did the proponents of H.R. 5 cite or quote most often?
A. James Madison and Ted Frank
B. Thomas Jefferson and Walter Olson
C. John Adams and Hans Von Spakovsky
D. None at any time

"D" is the answer for all five questions. The positions of the conservative legal theorists and politicians named in questions 1 through 3, and references in Founding Documents to the right to a civil jury trial, were introduced entirely by Democrats.

The proponents of H.R. 5 have not referred to ANY Founding Father or current constitutional scholar throughout any of the debates on that bill. Each of the Founding Fathers named in question 5 explicitly protected that right, and each of the scholars named in that question opposed H.R. 5.

There was no constitutional authority, support or basis for the bill when it was passed by the House. No cite in the bill to the Constitution; no quote of any Founding Father; NOTHING.

There are no winners in this quiz. When the Constitution is ignored, all of us lose.

This week, House GOP leaders and two committee chairmen are forcing their Members to vote for a federal tort reform bill that their own favorite legal experts and many Republicans in Congress have said is unconstitutional. The leaders and the chairmen of the House Judiciary and the Energy & Commerce committees are forcing votes for H.R. 5, the bill to impose federal limits on awards in medical malpractice lawsuits, as a way to offset potential budget cuts of billions of dollars in spending over the next ten years. Eventually we'll see H.R. 5 on the House floor again, for the second time in two months, with House Republicans who oppose it on constitutional grounds forced to vote for it under arm-twisting by leadership.

Proponents of H.R. 5 cite an estimate by the Congressional Budget Office that enacting H.R. 5 will save somewhere between $40 and 60 billion dollars, depending on the version. I've written before about the CBO's many failures at ten-year budgeting and on its flawed methodology for calculating savings from H.R. 5. Recently, CBO admitted that its estimate of the costs of implementing Obama are was wrong by a whopping 100%. Republicans know this and cite the CBO's failures in Obamacare, yet are using its H.R. 5 estimate as a basis for pushing the bill in a budget exercise.

This exercise doesn't write an actual law and won't be even considered by the Senate. It won't save a dime in federal spending. And you won't see House Republican leaders use the alternative health care budget proposed by the Republican Study Committee, the group of over 100 conservative House Republicans, which doesn't include any tort reform. Neither will they offer Rep. Paul Broun's "OPTION Act," which is endorsed by the conservative FreedomWorks group in part because it doesn't have a "federalism problem" (their words).

All this is just a lust for cash. It's solely an exercise in bashing trial lawyers to fill a budget hole and to attract campaign contributions from "Big Medicine." Constitutional rights and the expert opinions of the Randy Barnetts of the world don't matter to the GOP Establishment forcing Members into the vote by not offering real health care reform. The so-called savings will be used to prevent real cuts in wasteful programs.

The final question is whether Tea Party activists, whom the leaders need to keep their positions, will see through this charade and withhold their help this November in enough races to at least send a signal. That awareness should be our next step.

Columnist Timothy Carney of the Washington Examiner, who has a strong following among conservatives, has followed the "K Street Republicans vs. Tea Party" for several years and wrote again about the conflict last week. And Carney identifies some of the practical points of conflict between the two groups: "The GOP establishment rallies industry donors behind the Republican seen as stronger in November. A deeper reason: The revolving-door clique of K Street and Capitol Hill operatives needs Republicans elected to upper chamber who are likely to play ball."

That's all true, but it's not complete. Industry-side Republicans just see the world differently than people like me and Tea Party allies, such as Judson Phillips or Jenny Beth Martin, who lead and populate the grassroots Tea Party groups, or Rob Natelson and Randy Barnett, who write about the constitutional bases for rolling back Obamacare and limiting the size of the federal government. The pro-Wall Street or U.S. Chamber types, such as the Koch brothers' groups and lobbyists, don't really see the imperative to radically reduce the size and scope of the mechanisms created over the past 50 years to regulate the everyday activities of the American people. They would be perfectly satisfied if the EPA, CPSC, and FDA were forever oriented to be pro-business. They don't care about the historical or constitutional arguments by the Founding Fathers for the right to a civil jury trial. That side of the Republican Party "talks the talk" of limited government but actually fights for federal pre-emption of state laws and courtrooms in almost every aspect of commerce, from products liability law to medical malpractice lawsuits to financial services regulation. That's the difference I see. I'm as pro-business as any of the Kochs towards taxes (too high), overt federal regulation that kills job creation (too much), Obamacare (the worst) and so on. We just fundamentally see the role of the civil jury trial and state courtrooms very differently. The Seventh and Tenth Amendments never enter into their discussions. That's why they argue for H.R. 5, a federal medical malpractice bill, with no citation to any recent constitutional scholarship, while I can point to the writings of numerous respected scholars and like-minded Republicans who know that bill is unconstitutional.

And not all politicians or groups who proclaim themselves as "Tea Party" are really Tea Partiers. The Club for Growth, one such "Tea Party group" named in the Carney article, has asked prospective candidates for their views on federal tort reform and, I assume is for that concept, regardless of its unconstitutionality. Numerous Republican politicians who pass themselves off as "Tea Partiers" or "constitutional conservatives," starting with many Congressional Republican leaders, are pro-federal tort reform in order to bash trial lawyers and collect campaign contributions from business. It's an old habit that dies hard.

Fortunately a growing number of Republican politicians, at all levels of government, are recognizing the reality that federal power isn't unlimited and all ten amendments in the Bill of Rights are worth protecting in law. I've personally seen a number of Republican politicians take a step back from the tort reform agenda and re-evaluate their position upon reading statements by experts they admire, such as Randy Barnett or Sens. Coburn and Lee. The mission for those of us seeking constitutional consistency inside the Republican Party is to persevere, support and convert those open to rational discussion, and recruit candidates to support limited government and constitutional rights before they become committed otherwise. And we have to differentiate between the phony and the real constitutional conservatives.

In a special memorandum issued to House Republicans this week, the four senior House Republicans (Reps. Boehner, Cantor, McCarthy and Hensarling) laid out their plan for implementing a ten-year federal budget under Rep. Paul Ryan's plan and that would avoid cuts in national security and certain domestic programs. In so doing, they thoroughly trashed the concept of state sovereignty over their own judicial systems, and ignored real budget reforms that save far, far more than would their beloved federal medmal limits bill, H.R. 5, the bizarrely named "HEALTH Act." Anyone with a true allegiance to the Constitution and Bill of Rights should see this plan as a death knell of states' rights, delivered by House Republican leadership as a diktat to the Congressmen.

The last section of the memo is titled, "Reforming the Medical Liability System," and it begins by condemning state supreme courts: "Many state supreme courts have judicially nullified reasonable litigation management provisions enacted by state legislatures... " So the leaders apparently don't have much respect for the state judges selected or elected under the state constitutions. But state legislators don't get any respect either, with the leaders stating later in that section, "Further, abusive state tort laws drive what is known as 'defensive medicine,'..." Well, those state tort laws don't just drop out of the sky; they're enacted by the elected representatives of the people under state constitutions.

So, in a little more than a page, the House GOP leaders tell the 50 states and the people who elect the state legislators that they're all idiots unworthy of governing themselves. It's the arrogant, Washington-know-it-all attitude on open display, exactly what the House Republicans were elected to replace under the Capitol dome.

And in between those two quotes is another one, the Big Lie about H.R. 5: "The HEALTH Act also does not preempt any state law that otherwise caps damages." EVERY constitutional scholar who has studied and written on the bill, from Randy Barnett and Rob Natelson and the Heritage Foundation to Ted Frank and Walter Olson, has concluded otherwise. In almost 8 hours of debate on the House floor, and several more this week in the House Judiciary Committee, proponents of H.R. 5 haven't been able to point to ONE, just ONE current scholar who believes that H.R. 5 protects or respects state laws.

The leaders' utter disregard for the Constitution, buttressed with their extraordinarily hypocritical stand against Obamacare on constitutional grounds, is the reason why a small but increasing number of House Republicans are vocally rebelling against the leaders' insistence on H.R. 5. They know that federal tort reform is as violative of states' and individual rights as Obamacare, as both are based on the overly broad, Wickard v. Filburn interpretation of the Commerce Clause and the Necessary and Proper Clause.

These Members also realize that the pittance supposedly saved by H.R. 5, now estimated at $41 billion over ten years (under 1% of the total budget for that period), is dwarfed by Rep. Ryan's own proposal to change Medicare and Medicaid, where the real health care dollars are spent. He estimates his plan would save hundreds of billions of dollars. Whether you agree with that proposal or not, it's an option defended by the senior House Republican on the federal budget.

But House GOP leaders won't propose or defend that plan. Instead, it's full speed ahead on the road to federal control of state courtrooms.

Mitt Romney will be the Republican nominee for President, but he can't stop the "Washington GOP" from putting him in an untenable position on various issues. For instance, Republicans in both houses have introduced bills which would protect all oil companies, domestic and foreign, from any liability for deadly accidents from the rig to final distribution. The sponsors of the bills (the Senate's "Domestic Fuels Act," S. 2264, and the House companion bill, the "Domestic Fuels Protection Act," H.R. 4345) want us to believe - they guarantee - that the bills would not discharge Big Oil, including Big Foreign Oil, from deaths and injuries due to negligence. But the language of the bills say otherwise. For instance,

1. As long as a storage tank meets new EPA regulations or guidelines, no entity can be held liable under any federal, state, or local law.

2. The bills give complete immunity to all fuel corporations if a claim is based on the fuel being put into an engine. This immunity extends to every entity on the petroleum chain of commerce, including entities that design, manufacture, sell, distribute or store fuel, fuel additives, blend stocks, vehicles, engines, and non-road equipment.

3. These bills wipe out state and federal consumer protection laws and state product liability laws. Even if injured consumers prove that the product is dangerous and defective and caused catastrophic harm, the manufacturers and retailers will be completely immune, even if they intentionally or recklessly expose consumers to serious health risks.

Once again, the Washington GOP is trying to force legislation through the Congress that would ignore and crush the states' rights to run their own civil litigation systems and compromise Americans' 7th Amendment right to a civil jury trial. Additionally, I don't understand why the Washington GOP wants to extend total immunity to foreign oil companies, especially Hugo Chavez' nationalized oil company, which Chavez uses to raise revenues for his nefarious ventures and to crush democracy in Venezuela.

The Washington GOP has trapped its new Presidential nominee by forcing him to defend a special protection bill for Hugo Chavez and domestic oil companies while Americans are being hammered by record-high gas prices. I'm as pro-oil production as any Republican, and Republicans have already aggressively pursued legislation to promote increased oil production in the U.S. These bills are unnecessary and unwise, both legally and politically.

The inside-the-Beltway mentality that values campaign dollars over states' rights is about to strike again. The chairman of the House Judiciary Committee, Rep. Lamar Smith of Texas, is about to force fellow Republicans, for the third time, to vote against the 7th and 10th Amendments and for H.R. 5, the federally imposed limit on awards in medical malpractice lawsuits, which is based on the same interpretation of the Commerce Clause as Obamacare and is just as unconstitutional. Not only that, but he's doing it to claim that his committee is contributing billions of dollars of "savings" for the federal budget, based on CBO estimates. That's the same CBO that missed the Obamacare budget estimates last year by a mere 100% and has a lousy long-term record of estimating budget savings over ten years. None of that matters to Chairman Smith, who's apparently trying to convince "Big Medicine" that they should funnel their campaign contributions to Republicans.

Chairman Smith couldn't quote a single constitutional scholar, Republican President or Founding Father for federal tort reform just three weeks ago in 8 hours of debate on the House floor over H.R. 5. Again he ignores states' rights, promotes constitutional hypocrisy, and uses phony CBO numbers - that's conservative leadership? It will be interesting to see what committee members Reps. Ted Poe, Louis Gohmert, James Sensenbrenner and Steve King do about Chairman Smith's push, since all four refused to vote for H.R. 5 on the floor.

This hasn't been lost on one Tea Party leader, Judson Phillips of Tea Party Nation, who slammed Chairman Smith by name last week in a column titled, "Washington Games." Mr. Phillips urged Chairman Smith to claim real savings in Washington waste and wrote, "Instead, Lamar Smith wants to play the usual Washington game. He wants to use his position to punish those he disagrees with, pass legislation that is every bit as unconstitutional as Obamacare, while ignoring the real issues of out of control spending that we face."

Games, indeed.

Lynn Derbyshire, national spokesperson for the hundreds of family members of our servicemen killed in the 1983 bombing of the Marine barracks in Beirut, Lebanon, was interviewed yesterday by Terry Lowry, host of the "What's Up" radio program. That program is heard daily on twelve radio stations and on Sirius Family Talk Radio, Channel 131. Ms. Derbyshire's brother, Vincent Smith, was among the 241 servicement killed in the bombing in October 1983. She discussed the bombing of the barracks by Iranian-sponsored terrorists, the court judgment for $2.6 billion obtained against Iran by the families and the attachment of an Iranian account with $1.8 billion in funds, and the efforts to enact a bill in Congress (H.R. 4070 in the House and S. 2101 in the Senate) to punish Iran for its terrorism and assist the families. Ms. Derbyshire discussed the opposition to the bills by a Wall Street institution, DTCC, which in effect is siding with Iran. The Shariah Finance Watch blog has opined that DTCC's opposition "should amount to treason."

Ms. Derbyshire and the families urge all Americans to contact their Congressmen and Senators to ignore DTCC's opposition and support the bills.

You can listen to the interview in four segments, linked below:

Segment One: The bombing and impact on families

Segment Two: The court judgment against Iran

Segment Three: The frozen Iranian funds & DTCC's opposition

Segment Four: The legislation and calls to Congress

Rep Paul Broun of Georgia is a unique Republican. He's a doctor who has always bucked his fellow Republican doctors in Congress by opposing federal tort reform as an unconstitutional infringement upon states' and individual rights. He's a Tea Party hero for his strong, uncompromising stands against the growth of the federal government and the individual mandate in Obamacare. When House leadership pushed H.R. 5, the bill combining limits awards in medical malpractice lawsuits with another bill to repeal a key section of Obamacare, Rep. Broun drafted amendments to kill the unconstitutional tort reform and attracted the co-sponsorship of Rep. Lee Terry, another longtime Republican opponent of federal tort reform. Parliamentary tricks by leadership kept the amendments from being considered by House Republicans on the House floor, but Rep. Broun's move was supported by conservatives such as the Tea Party Patriots and the founder of Tea Party Nation, the Heritage Foundation, the National Conference of State Legislators, and conservative and libertarian scholars. Rep Broun gave notice at the time that he was going to propose a health care reform plan that wouldn't replace the unconstitutional Obamacare with another unconstitutional idea.

Now Rep. Broun has proposed H.R. 4224, the "Offering Patients True Individualized Options Now Act." or the "OPTION Act." Tea Party groups are hailing it as a true alternative to Obamacare, in part because it doesn't violate principles of federalism. Avik Roy, conservative columnist and health care policy analyst, describes it in full in Forbes, and I urge 7th and 10th Amendment advocates to read it and forward it to friends and allies and support Dr. Broun. You can see Dr. Broun discuss the OPTION Act on a video on his website.

There is ONE bill in the U.S. Senate that takes $1.8 billion of Iran's funds stored in a U.S. account and reserves them to compensate Iran's American terrorism victims. The Iran sanctions bill now under consideration by the Senate has one special section, co-sponsored by Senators Mark Kirk and Robert Menendez and supported by Senators of both parties. Section 503 would compensate the American victims of Iranian terrorism and keep Iran from using the funds to build nuclear weapons and fund terrorism. But a big Wall Street firm is working behind the scenes to stop the Senate from helping the victims. The families of our servicemen killed or wounded by Iranian terrorism need your help!

Some history: Iranian terrorists killed 241 of our servicemen, and injured many more, in the 1983 bombing of the Marine Corps barracks in Beirut, Lebanon. For years, the 1300 survivors and families of those killed have sought justice in American courts for that attack, and were ultimately awarded a judgment in federal court of over $2.6 billion against Iran. Their attorneys then identified and attached an account of $1.8 billion in Iranian central bank funds in a bank in NYC to satisfy that judgment. Then the families of the servicemen killed in the 1996 Iranian bombing of the Khobar Towers in Saudi Arabia won a judgment and now stand to share in that account.

But without special legislation, the order freezing the funds could be lifted, possibly enabling Iran to recover the money. Lynn Smith Derbyshire, whose brother was killed in the barracks bombing and is now national spokesperson for the Beirut Marine families, says, "The Government of Iran will continue to do everything it can to hurt Americans. We see no reason to enable Tehran's campaign of terror. Allowing the Iranian Government to get this frozen money back would do just that." Section 503 of the Iran sanctions bill, which is numbered S. 2101, was approved by the Senate Banking Committee on February 2 and awaits Senate floor action.

But a Wall Street powerhouse, the Depository Trust and Clearing Corporation ("DTCC"), opposes Section 503 and is trying to kill it behind closed doors. DTCC works with financial institutions from around the world to ensure that financial transactions clear smoothly and quickly. But one of DTCC's business partners is Clearstream, a European financial institution at the heart of the transfer of Iran's funds into New York City. Intentionally or not, DTCC is, in effect, trying to help Clearstream recover the $1.8 billion in Iran's funds, by sending high-priced Washington lobbyists into Congressional offices to "amend" the bill. Their "amendments" could actually kill the families' pursuit of justice and enable Iran to recover the $1.8 billion.

It's time for the Senate to shut the door on DTCC and support the families of our terrorism victims. No other bill before the Senate actually takes Iran's money and reserves it for Iran's American victims. The Beirut Marine families are urging Americans to contact Senators to support Section 503 of S. 2101 without DTCC's "poison pills" and approve it in the Senate quickly.