Archive for March 22nd, 2010

Free Speech Extends to Colorado

In other news, the Colorado Supreme Court ruled today on the questions presented to it by the Governer and Secretary of State in light of the Citizens United case:

Pursuant to Section 3 of Article VI of the Colorado Constitution, the Governor submitted two interrogatories to the Colorado Supreme Court on February 9, 2010, concerning whether various provisions of Article XXVIII of the Colorado Constitution were unconstitutional in light of the United States Supreme Court’s decision in Citizens United v. FEC US 130 S. Ct. 876 (2010).

The supreme court answered both interrogatories in the affirmative. It held that to the extent section 3(4) of article XXVIII of the Colorado Constitution makes it unlawful for a corporation or labor organization to make expenditures expressly advocating the election or defeat of a candidate, it violates the dictates of the First Amendment of the United States Constitution. Similarly, it held that, to the extent section 6(2) of article XXVIII of the Colorado Constitution makes it unlawful for a corporation or a labor organization to provide funding for an electioneering communication, it violates the dictates of the First Amendment of the United States Constitution.

The uncertainty having been cleared up, this will no doubt be the green light for the House State, Veterans, and Military Affairs Committee to take up the bill providing for public funding of political campaigns.  With my luck, they’ll take it up over Yom Tov.

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Political Effect of the Lawsuit

Despite the fact that this is a legal decision, not a political one, I do believe that it will have at least one positive political effect.

Go ahead, tell me you didn’t feel deflated last night.  No, you’re lying.  I read your comments on Facebook and on the blogs and on the newspaper sites.  I know what you were thinking: France called, they want their statue back.

Now, tell me you don’t at least have a little hope that we can pull back from the precipice.  That week-long planned media celebration of historic achievements is stopped cold, even before the bill is signed into law.

Tell me you don’t feel better now than you did 4 hours ago.

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Mandate This!

The Colorado legislative Republicans held a press conference this afternoon to announce that they had sent a letter (text below the fold) to Attorney General John Suthers, asking him to join with other states’ attorneys general in challenging the constitutionality of the individual health mandate here in Colorado.  Jon Caldara of the Independence Institute joined them, making an impassioned plea and invoking, as he has recently and reluctantly, his heroic son who has undergone 9 life-saving surgeries in his 5 years.  The legislators also pointed out a number of bills that the current Democrat majority has killed this session, including, reviewing new health care manates for cost and individual deductibility of health insurance.

The presser went on for a little over 20 minutes, so it’s in three segments:

For the record, the legislators were quite clear that they were signing sending the letter, and had not coordinated with the Attorney General in advance.  In fact, I saw the letter delivered with mine own eye, since I had headed over to the Law Office for…

About 90 minutes later, Attorney General John Suthers announced that he would, in fact, be joining the lawsuit.   The lawsuit not only challenges the constitutionality of the individual mandate, but also of the IRS enforcement of that mandate, the fine they’d be able to impose, under the guise of a tax.  While the Congress can regulate insterstate commerce, it can’t regulate commercial inactivity, which is what this bill tries to do.  In addition, the legislation mirrors what the Democrats here in Colorado have done by labeling “taxes” to be “fees,” in this case, labeling a fine a “tax” in order to give jurisdiction to the IRS.  As Randy Barnett points out, this essentially would give Congress the power to regulate anything, and the IRS power to enforce it.  Moreover, the tax, even as a tax, would violate Article I Sections 2, 8, and 9, which provide that any direct tax has to be proportional to a state’s population, not tied to an individual’s economic (in)activity.

Regardless, this collective action is almost certainly only the first of many that will be filed, both by the states and by third parties.

I hate to turn this into a media criticism piece, but the fact that Congress can’t regulate anything, and that the IRS can’t enforce it seemed to be unexplored territory for the other reporters in the room.  One lady tried twice to understand why this was different from the state requiring auto insurance (hint: the federal government isn’t a state, and there’s an action tied to car insurance, i.e. operating your car; merely being a breathing citizen isn’t sufficient justification for mandating interstate commerce, or punishing the refusal to participate in a market.

Second prize goes to Eli Stokol of Fox 31, who left the room convinced that this was a political decision, because thus far, only Republican attorneys general were involved.  The notion that the lack of participation by Democrats could be just as political apparently didn’t register.  Also, there are very liberal Democrats who don’t buy the mandate (so to speak) for a slightly different reason, that the government can’t force you to buy a private product, such as professor Tom Russell of the University of Denver School of Law.  (Mr. Russell ran in last election’s primary for HD-6, as it happens.)

Young Mr. Stokol also asked why, if the 10th Amendment were applicable, why it hadn’t broken through in discussion before.  The answer is that it has, and that if he had showed up having done his homework and done any sort of reading on the legal matters on display he’d know that.

The videos of the presser are here.

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