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Ramifcations of Democratic Control on
the Legal System
"Good
Counsel"
by Robert M.
Bovarnick
Forbes.com
When I listen to Barack Obama on the stump, I can't
help recall the flirty Claudio, from Shakespeare's Much Ado About
Nothing, about whom his friend Benedick
remarked: "His words are a very fantastical banquet, just so
many strange dishes."
With Obama
the clear frontrunner in the U.S. presidential election, I
figured I'd focus on some changes in the law that can be expected
under an Obama-Nancy Pelosi-Harry Reid
government--potentially one of the most liberal the country has
had in decades. (Full disclosure: I am a
registered Republican. Over the years, I
have supported candidates from both major parties, and while I
have served on the finance committee for a democratic
Congressional candidate during two election cycles, I am not a
member of any lobbying group.)
There is no question that Sen. Obama is a master orator. But,
as Sen. McCain said during the third debate, it is important to
listen carefully to what he says. In
certain unscripted moments, Obama has
given us a glimpse of his somewhat socialist leanings.
Couple that with the recent
pronouncement of House Speaker Nancy Pelosi, who has pushed to
implement a $300 billion stimulus package--on top of the $700
billion financial rescue package and the $800 billion of
additional proposed spending under an Obama
presidency--and you can see where we are headed.
With that, here are 10 troubling predictions:
Elimination of the Statute of
Limitations on Discrimination Suits
During the third presidential debate, Obama made reference to Lily Ledbetter and
the decision of the U.S. Supreme Court that, according to the
senator, denied her of her right to raise a claim for
discriminatory pay. Obama
is a lawyer and knows that the decision was not about equal pay,
but rather whether Ms. Ledbetter filed her case within the time
limitations set forth in the law.
The statute of limitations is a very
important part of the legal process. The
idea is that people who have claims against other people should
not wait indefinitely to assert them, and should not be able to
hold them over someone's head forever. When
a statute of limitations applies, it means that law suits filed after the statute of
limitations period has expired are barred and will not be heard.
It was not as if Ledbetter was not
aware of the pay difference--she worked at Goodyear Tire &
Rubber for 19 years. It wasn't until
after she retired that she decided to file the lawsuit. But the problem goes far beyond Ms.
Ledbetter and whether the statute of limitations for
discriminatory pay should be eliminated; it goes to the mindset
of whether the government should take care of the Lily Ledbetters of the world, or whether they have
a responsibility to take care of themselves. It
appears Obama isn't
afraid of letting the U.S. morph into a
"nanny state."
Elimination of Secret Ballots for
Unionization Under the
current law, once a majority of workers submit
cards requesting union certification, an election is held in
which workers vote by secret ballot on whether to ratify
unionization.
The last Congress tried to pass the
grossly misnamed "Employee Free Choice Act," also known
as "Card Check." This act
claimed to promote democracy in the workplace by taking away the
secret ballot when voting on unionization. With
the ballots open for view, union leaders would know how everyone
is voting--allowing union organizers to
strongly encourage employees into signing something they
may not want to.
The act also imposes a compulsory
arbitration scheme that would most certainly result in a massive
shift to union shops. While it passed in
the House, the act fell nine votes short in the Senate to defeat
the Republican filibuster. If there is a
supermajority in Congress, there will be no filibuster to stop
this act from becoming law.
New Bankruptcy Laws
Senator Obama would like to give
bankruptcy courts the right to reduce the principal amount due on
a loan secured by a mortgage.
Example: Say a bank lends $500,000 to a
homeowner. After the borrower can't pay
it, rather than permitting the bank to foreclose and get the
property back, the court could reduce the amount owed to the bank
to some significantly lower amount. As a
result, the bank loses out on the ability to get its own money
back. This perpetuates the mortgage
crisis.
Massive, Massive Tax Increases for
Business Owners
Obama is fond of saying that 95% of Americans will receive a
tax cut, even though a reported 38% of all Americans currently
pay no income taxes. That means nearly
four out of 10 Americans will get a nifty freebie, and that money
will come from the hiring class. (A side
beef: As a reasonably well-paid lawyer, I have always tried to
figure out why I am not considered the head of a "working
family." I work six days a week at
my day job, write this column, write a column for a newspaper and
host a radio show. Seems like work to
me.)
Obama's tax plan would hit the bottom line of small businesses in
a number of ways. First, because a solid majority of small business owners are
taxed at the personal income rate, any moderately successful
business (with an income of as little as $165,000 a year) could
face a higher tax liability.
Second, Obama's
plan phases out certain tax deductions, thus raising rates
imposed on this group by another 1.5 percentage points. Third, the plan would increase the highest
marginal tax rate by four percentage points, to 39% from 35%. Fourth, the plan would eliminate the cap on
income subject to payroll taxes, which would also affect owners
of small businesses.
Bottom line: The federal tax on small
business could be as much as 45%--and that's
before state and local taxes.
A Global Poverty Initiative
Obama has taken heat for not having sponsored any significant
legislation. But last December, he was
one of the sponsors of the Global Poverty Initiative. Its goal: to reduce--in the span of 25 years
(from 1990 to 2015)--by one-half the proportion of people
worldwide who live on less than $1 per day.
The estimated cost to the U.S.:
an additional $845 billion over 13 years on top of existing
foreign aid, currently at $300 billion. This
amounts to a tax of more than $2,000 on each man, woman and child
in the United
States. It
seems that Obama not only wants to
redistribute wealth among U.S. citizens, he
also has a mind to make this country the cash register for the
world.
Increased Involvement in the Mortgage
Crisis
It is well-established that the current
financial crisis has its roots in the Community Reinvestment Act
of 1977. Amended in 1993 under the Clinton
administration, the act aimed to prevent banks from merging or
expanding unless they agreed to lend to riskier credit holders.
In 1994, Obama was the attorney in a
class-action case against Citibank, demanding that the bank
approve an equal percentage of minority and non-minority
mortgage loan applicants.
The result: Banks underwrote more
sub-prime loans. You know what happened
next.
Nationalized Health Care
On his Senate Web site, Obama writes: "In the 2008 campaign,
affordable, universal health care for every single American must
not be a question of whether, it must be a question of how." He also has said, "If I were
designing a system from scratch, I would probably go ahead with a
single-payer system."
Translation: The government pays health
care bills with tax dollars.
A single-payer system would look a lot
like Medicare. Employers would either
provide a federally approved level of health benefits to their
workers or pay a tax to help finance the national health plan.
The plan would also offer subsidies to
certain small businesses to entice them to offer coverage. It would create a refundable tax credit for
employers who secure a "quality" health plan for their
employees and cover a "meaningful" share of premiums. As for what constitutes a small business, a
quality health plan, or a meaningful share of premiums, we just don't know.
Net Neutrality
A purely neutral information network is one that would treat all
content that traveled across it equally--no one data packet would
be prioritized above another. Obama believes the government should be in
charge of the priorities on the Internet, rather than let the
market decide.
The basic issue of net neutrality is whether the Internet is a
public utility. If the answer is yes,
then many people would assume that it is subject to regulation on
par with what exists for water, natural gas, telephone and
electrical service. It appears Obama wants the government to have control
over the Internet, just as it does with telephone service.
Dubious Stewardship on the Supreme
Court
Everyone recognizes that the next
president will most likely appoint up to three new Supreme Court
justices. While most people rightfully
focus on Roe v. Wade (a decision I agree with), by most accounts,
a President Obama would take a much
different approach to his judicial appointments.
Last year, Obama
stressed the importance of understanding "what it's like to
be poor, African-American, gay, disabled or old.
And that's the criteria by which I'm going to be selecting
my judges." He went on to say that
95% of cases can be judged on intellect, but that the other 5%
are the most important ones.
"In those 5% of cases, you've got to look at what is in the
justice's heart, what's their broader vision of what America
should be."
Might Obama
be looking to appoint judges who are more interested in
legislating from the bench rather than interpreting the Constitution? It's not a stretch.
During the last week of the baseball
season, I went to a Phillies game. I bought a large bucket of garlic fries. They tasted great going down--it was only
later that I got sick. And that's
precisely what worries me about an Obama
presidency: His words sound good going down--but once they've
been digested, I fear we will all get very, very sick.
Copyright Forbes.com
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