Senator Grassley's "Lawsuit Abuse" Bill:  Bad Diagnosis, Worse Medicine

March 06, 2012 2:22 pm ET by David Lyle

In a recent Des Moines Register op-ed, Senator Chuck Grassley (R-IA) misdiagnoses a principal cause of the nation's economic struggles ("frivolous lawsuits") and offers a supposed cure, the Lawsuit Abuse Reduction Act (LARA), which could have side effects worse than any theoretical good it might do. The threat of lawsuits is not holding back the economy, as polls show that small businesses rank potential lawsuits near the bottom of their list of concerns regarding the economic outlook. Furthermore, judges have made clear that rules currently in place streamline litigation and give them the tools they need to deter meritless lawsuits more effectively than LARA would.

In the op-ed, "Put Brakes on Frivolous Lawsuits," Senator Grassley writes that "billions of dollars are wasted on frivolous lawsuits that siphon money away from job creation. Frivolous claims also clog an already burdened legal system and delay the resolution of lawsuits that have merit."

But when pollsters ask business people what their problems are, they give a different answer. Polls conducted on behalf of business organizations demonstrate that potential lawsuits are a minor-at-best concern. Only five percent of small businesses said "litigation" was the issue posing the greatest threat to their business in a 2011 Small Business Outlook Survey produced for the U.S. Chamber of Commerce by Harris Interactive. The option "none of these," chosen by 18 percent of respondents, was far ahead of litigation. A similar poll of U.S. Chamber small business members released in January 2012 produced almost the same result, with only six percent of respondents identifying litigation as the biggest issue facing them. In addition, small business owners ranked "costs and frequency of lawsuits/threatened suits" near the bottom (65th out of 75 possible choices) in a 2008 National Federation of Independent Business (NFIB) survey that ranked the biggest threats facing small business owners. In the face of this polling by the Chamber of Commerce and NFIB, LARA seems to be a solution in search of a problem.

But is LARA really a solution at all? Judges - the people with the greatest incentive to see truly frivolous lawsuits eliminated, while suits with merit go forward - think that it would do more harm than good. The Judicial Conference's Committee on the Rules of Practice and Procedure, the body charged by the federal judiciary with monitoring and advising on the procedural rules that govern the courts, opposes LARA. It does so because the bill would return the procedural rules for the federal courts (specifically Rule 11, which deals with sanctions for frivolous conduct) to an earlier version of the rule that existed before reforms were put in place in 1993. Federal judges, having lived under both versions of Rule 11, want to keep the reforms in place, and not turn back the clock to the pre-reform era as LARA would do.

A summary of The Committee on the Rules of Practice and Procedure's analysis of LARA is below the fold.

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Romney Seeks, Receives Endorsement From NRA's Nugent

March 02, 2012 5:37 pm ET by Matt Gertz

On his Twitter feed this afternoon, Washington Times columnist and National Rifle Association board member Ted Nugent announced that after "a long heart&soul conversation" with Mitt Romney today, he has decided to endorse the former Massachusetts governor.

Nugent tweet

In apparently seeking out the endorsement of Nugent, Romney has linked himself to a man with a long record of inflammatory and offensive comments.

Notably, during an August 21, 2007, concert, while brandishing what appeared to be two assault rifles, Nugent said, "hey Obama, you might want to suck on one of these, you punk," adding, "hey Obama, he's a piece of shit, I told him to suck on my machine gun." He went on to say that while he was in New York, "I said, 'hey Hillary [Clinton], you might want to ride one of these into the sunset, you worthless bitch."

Nugent has also called Clinton a "two-bit whore," referred to the Muslim community as "rude and stupid," said "[i]f it was up to me, if you uttered the word 'gun control,' we'd put you in jail," and called the Democratic Party the "modern-day slave master" to low-income Americans.

The NRA will be featuring Nugent in their voter registration campaign. The group has yet to endorse in the Republican primary, but executive vice president Wayne LaPierre has said that they are "all in" with regard to defeating President Obama in what LaPierre called "the most dangerous election of our lifetimes."

Honoring Our Troops By Denying Them Basic Legal Protections

February 21, 2012 3:10 pm ET by David Lyle

America's military tradition provides that our service members will not leave a fallen comrade behind. Politicians are quick to invoke and associate themselves with this legacy of honorable sacrifice, and pledge that nothing is too good for our troops. In reality, though, in too many ways America's military men and women are celebrated when on the battlefield, and neglected on the homefront. The media is quick to chronicle their heroism, but slow to uncover the mistreatment they too often encounter at home, as exemplified by the notorious Walter Reed Army Medical Center scandal, which festered for years before the media and Army were finally galvanized to address the unacceptable conditions. Homeless veterans, the returned troops most in need of help, often receive little more than lip service from politicians.    

There is yet another way in which our government treats America's military personnel as second-class citizens and denies them vital protections that the rest of us enjoy. Thanks to a series of misguided Supreme Court decisions and Congress' failure to fix the problem, our nation routinely leaves behind our servicemembers in their time of greatest need. For unlike other Americans, our legal system often denies active duty U.S. servicemembers the right to meaningful compensation when they suffer injuries as a result of the wrongful acts of others.  

The "Feres doctrine," an obscure legal rule that the Supreme Court created more than 50 years ago prohibits servicemembers from bringing suits against the federal government arising from matters "incident" to their service. As Professor Jonathan Turley of the George Washington University School of Law has documented, no matter how egregious the wrongdoing — an Army surgeon leaving a 30-by-18-inch towel marked "Medical Department U.S. Army" in a soldier's abdomen — or attenuated from core military functions mdash; a civilian whitewater rafting outfitter sending off-duty sailors on a Navy-sponsored outing down an unsafe river — servicemembers lack the basic right to sue their employer for compensation from injury that other Americans enjoy. Instead they and their survivors are limited to modest veterans' death or disability benefits no matter how grievous the injury or monumental the wrongdoing that caused it.

Rather we leave them and their family members behind to pick up the pieces as best they can, without adequate compensation for themselves or accountability for the wrongdoer. This already unacceptable situation threatens to get much worse, as in the coming weeks a federal judge is expected to rule in a case that could greatly expand the scope of the Feres doctrine to include injuries suffered by family members of active duty personnel.

Americans are largely ignorant of these policies. With few exceptions, the media has left the story to specialty publications such as The Military Times and Professor Turley's blog. As a result, Congressional Republicans have been able to block efforts to fix the problem and restore fairness for military personnel. Similarly the government has faced little scrutiny for taking a position that could expand the rule's coverage and compound its injustice.

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Republican Senator Suggests House GOP Budget Would Have Dismantled Medicare

February 10, 2012 3:13 pm ET by Jamison Foser

Lending support to critics of the budget that House Republicans voted for last year, Sen. Olympia Snowe (R-ME) suggests it would have dismantled Medicare:

Obviously, the original Ryan plan had some serious issues," she said. "I certainly believe in reforming the Medicare program in a way that would keep it intact. I have a very-high-percentage population that are seniors in Maine."

This isn't the first time Snowe has affirmed Democratic criticism of the GOP budget. When Snowe announced her decision to vote against the House GOP budget last year, she said the plan would privatize Medicare, adding that its handling of Medicaid would "encourage a race to the bottom":

Snowe said she doesn't like Ryan's plan to gradually turn Medicare into a system where beneficiaries buy their coverage from private health insurance plans, using a set payment that could mean their out-of-pocket costs increase. Snowe also said that while she agrees on providing states more flexibility with how to administer Medicaid, she does not agree that it is a good idea to turn it into a totally state-run block grant program.

"I am going to vote no on the budget because I have deep and abiding concerns about the approach on Medicare, which is essentially to privatize it," Snowe said, noting that Maine has a high percentage of elderly residents. [...]

[S]he opposes the Ryan proposal to block grant Medicaid because she is afraid that would result in many states around the country simply cutting needed services to save money, a "race to the bottom," Snowe said.

"The states are the great laboratories," Snowe said. "But we also have an overall obligation to serve specific populations under Medicaid. We don't want to encourage a race to the bottom."

New York Post: Iranian Nuclear “Engineers Basically Needed Killing”

February 10, 2012 12:36 pm ET by Media Matters Action Network

In an editorial, the New York Post endorses the assassination of civilian Iranian nuclear scientists, adding that the terror group U.S. officials recently confirmed as conducting the attacks might be "far more deserving of a Nobel Peace Prize than a certain president of the United States we could mention." From the February 10, 2012 edition of the Post:

How's this for astonishing: NBC News is reporting that Israeli spies have been involved in the assassinations of five Iranian nuclear scientists.

So far, not so bad. We'd say the engineers basically needed killing.

But here's the astonishing part: The source for the story apparently is the Obama administration - albeit through anonymous leaks.

The network claims that Israel used members of the Mujahedin-e Khalq (MeK), a dissident group the United States classified as a terrorist group in 1998, to ice the engineers.


So who cares whether the MeK is a designated terror group? (Britain and the European Union already removed it from their lists, and there is pressure on America to do the same.)

And isn't Iran itself the leading exporter of terrorism in the world?

Let's be frank: Were the MeK to play the critical role in derailing an Iranian bomb, it would be far more deserving of a Nobel Peace Prize than a certain president of the United States we could mention.

So why is the administration making such details public?

President Obama did Israel no favors when he pressured it to join his love-peace-and-harmony nuclear summit in 2010, undermining a basic pillar of Israel's security - its undisclosed nuclear program.


Israel teams with terror group to kill Iran's nuclear scientists, U.S. officials tell NBC News

NBC Details How Easy It Is To Buy Guns "No Questions Asked"

February 09, 2012 12:19 pm ET by Matt Gertz

This morning on NBC's Today, national investigative correspondent Jeff Rossen presented the results of his hidden-camera investigation exposing how simple it is for anyone — even dangerous criminals — to legally purchase firearms, including assault weapons, without undergoing a background check.

As Rossen details, "at gun stores, you have to get a background check before you can buy a weapon. But online, in most states, anyone from law-abiding citizens to dangerous criminals, even terrorists, can get just about any weapon they want, no questions asked."

Rossen's undercover investigation contacted several private sellers online and met with them in mall parking lots to complete the sales. Purchases included a tactical assault rifle and a 50-caliber sniper rifle, which can shoot down aircraft during takeoff and landing and are a weapon of choice for Mexican drug cartels. In some cases, the sellers completed the sales after the investigator informed them that he probably could not pass a background check.

NBC's report echoes a similar investigation by New York City targeting illegal online gun sales.

Rossen points out that there is legislation before Congress that would "close this loophole and require background checks for all gun sales, even online. But that bill has been sitting in committee for nearly a year." Rossen is referring to the Fix Gun Checks Act of 2011, sponsored by Sen. Chuck Schumer (D-NY) in the Senate and Rep. Carolyn McCarthy (D-NY) in the House.

Rossen also notes the gun lobby's role in stopping the bill from moving forward: "The NRA says it opposes the bill because it has 'many serious flaws,' but wouldn't comment about online gun sales. In the past, the NRA has fought background checks for any private sales."


Senate Republicans' Lamest Attack Yet

February 08, 2012 3:01 pm ET by Jamison Foser

Sen. Tom Coburn

Senators Tom Coburn (R-OK), Orrin Hatch (R-UT) and eight of their GOP colleagues have come up with the lamest complaint about the Patient Protection and Affordable Care Act yet: They're upset — or pretending to be upset — that the Department of Health and Human Services touts "free" care available to patients as a result of the law.

In a letter to HHS Secretary Kathleen Sebelius, the senators write:

We write today to express our serious concerns that the Department of Health and Human Services (HHS) and Centers for Medicare and Medicaid Services (CMS) are falsely marketing specific services provided through Medicare and private health plans as "free" due to the enactment of the Patient Protection and Affordable Care Act (PPACA). [...]

Reports, press releases, and statements published by HHS and CMS have repeatedly called preventative services provided by Medicare "free." [...]

Calling these services "free" is highly misleading. While it is true that these preventative services are available without co-pays to seniors due to the changes in medicare in PPACA, because there is no such thing as a free lunch, these provisions are not free. They are paid for by taxpayers who fund a large chunk of the medicare program directly through paying general tax revenues. [...]

We find it highly ironic that last year you sent a very public letter to insurers attacking their supposed "misinformation," yet you continue to approve such misleading communications materials for HHS and CMS.

Even for Coburn and Hatch, this is remarkably inane. The references to free preventive care they complain about obviously mean that the care is — as they acknowledge — free to patients, not free to the government, or that nobody anywhere pays for them in any way. That's a standard use of the term "free" — free to the recipient. How standard? Well, here's Tom Coburn using the word that way in his October 25, 2011, "Pork Report":

Welfare for the wealthy: Federal program provides free meals regardless of family income. 

By the (nonsensical) standard Coburn set in his letter to Sebelius, this statement is misleading. Those meals aren't free; they are "paid for by taxpayers." It is "highly ironic" that Coburn would send a "very public letter" to Sebelius attacking her "misleading communications materials" when he himself has used precisely the same word in precisely the same way.

When Coburn, Hatch, and their colleagues are done mindlessly nitpicking HHS' use of the word "free," maybe they'll turn their attention to the nation's grocery stores, which for years have gotten away with highly misleading "Buy One, Get One Free" advertising. In order to avoid the wrath of these very serious senators, grocers should probably go ahead and change their signs to read "Buy One, Get One Subsidized By Your Purchase Of The First Item, As Well As Other Purchases You Make Now That We've Lured You Into The Store, Not To Mention The Purchases Of Your Fellow Shoppers, Past, Present, And Future."

Rep. Issa's Phony Concern For American Workers

February 08, 2012 12:26 pm ET by Jamison Foser

In using the House Oversight and Government Reform Committee he chairs to criticize a lack of "transparency" in political activity by unions but ignoring similar issues relating to corporate political activity, Rep. Darrell Issa (R-CA) demonstrates that he is concerned less with "freedom of choice in our democracy" than with undermining organized labor's ability to combat the political influence of big business.

Issa previews today's hearing, titled "The Right to Choose: Protecting Union Workers from Forced Political Contributions":

Every worker should have the choice to decide whether their money is taken from their paychecks and used to fund political activity.   When this occurs, a worker should also have the right to know how their money is spent.

Individual freedom and personal choice are cornerstones of our democratic government-they are also at the heart of union participation in America. [...]

Because of recent court decisions and a systematic effort by the Obama Administration to reduce union transparency and reporting requirements, union workers do not currently know how much of the money from their paycheck dues is being funneled to SuperPACs or used for other political activity.

On Twitter, Issa has framed the hearing as an attempt to protect workers from being "forced to donate to a politician they don't support":

Rep. Darrell Issa tweets

Issa expresses no such concern about corporate political activity. When a corporation spends money on political activity, that's money that it has because of the work of its employees, and money that could otherwise go to employee salaries. But Darrell Issa doesn't think employees have a right to choose whether or not the fruits of their labor are used to support politicians they don't like.

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Rep. Huelskamp Thinks "Religious Freedom" Only Applies To His Beliefs

February 07, 2012 3:38 pm ET by Jamison Foser

Rep. Tim Huelskamp

Rep. Tim Huelskamp (R-KS) provides some of the clearest evidence you'll ever see that many conservatives fundamentally do not understand what "religious freedom" means:

In addition to ensuring that chaplains will not be coerced to perform or participate in any duty, rite, ritual, ceremony, service or function that is contrary to their own conscience, moral principles, or religious beliefs or those of their faith group, the Military Religious Freedom Protection Act will ensure ... that military facilities or other property owned by the Department of Defense cannot be used to perform a marriage or marriage-like ceremony involving anything other than the union of one man with one woman.

Sure enough, Section 3 of Huelskamp's "Military Religious Freedom Protection Act" reads in full:


A military installation or other property owned, rented, or otherwise under the jurisdiction or control of the Department of Defense shall not be used to officiate, solemnize, or perform a marriage or marriage-like ceremony involving anything other than the union of one man with one woman.

That's an explicit prohibition on the use of military facilities for religious ceremonies that recognize the union of a same-sex couple. Several churches already allow the blessing of same-sex unions, including the Episcopal Church and the Evangelical Lutheran Church in America, and it's only a matter of time before more follow in their footsteps. But such ceremonies would be banned under Huelskamp's "Religious Freedom Protection Act." Allowing DOD facilities to be used for religious ceremonies involving "one man with one woman" but disallowing their use for religious ceremonies involving two men or two women is the exact opposite of protecting religious freedom.

Mitt Romney's Working-Class Whites Problem

February 07, 2012 10:27 am ET by Jamison Foser

Mitt Romney

President Obama's so-called "Jewish Problem" has received a great deal of attention, with headlines like "Why Obama Is Losing the Jewish Vote" appearing regularly, even though the president is likely to win a comfortable majority among Jewish voters this fall. Obama's purported "Hispanic problem" faces similar factual hurdles.

Maybe, then, it's time for attention to turn elsewhere: Mitt Romney's problem with working-class white voters, a key part of the Republican coalition in recent elections. As the Washington Post's Greg Sargent notes, these voters aren't too happy about the fact that Mitt Romney pays a very low tax rate on the millions of dollars he makes every year: 

[A] big majority of blue collar whites, 67 percent, says that Romney's not paying his fair share in taxes, suggesting Obama's emphasis on tax fairness may be helping him make some headway in winning them back.

The Washington Post-ABC News poll Sargent referred to also found that 49 percent of whites who earn less than $50,000 a year think of Romney's wealth as a "negative because it suggests he benefited from opportunities that are not available to most people," compared to just 40 percent who see it as a "positive because it suggests he has achieved the American dream." White non-college graduates are split roughly evenly on questions of whether Romney did more to create or cut jobs in his business career and whether his wealth is a positive or a negative.

And last week, in the wake of Romney's statement that he isn't concerned about the poor, the Pew Research Center noted that "57% of lower-income Republican and Republican-leaning voters said the government does too little for poor people." (Pew didn't break the data down by race, but given that the vast majority of Republican voters are white, it's safe to conclude that lower-income white Republicans think the government does too little for the poor.)

Romney's business career is central to his campaign. (It has to be — he has only four years of experience in elected office, during which he compiled a record he prefers to run away from.) It's a crucial part of his economic message. But working-class whites, whose votes he needs in large numbers, don't seem to see his wealth as a positive, don't think he pays enough taxes, and disagree with his view of government help for the poor.

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