Colorado Supreme Court Overturns Amendment 54--As I Predicted

By Julian Dunraven, J.D., M.P.A.

Honorable Friends,

In its recent opinion , Dallman v. Ritter, the Colorado Supreme Court overturned Amendment 54 saying that it was "unconstitutionally vague, disproportional, overbroad, or otherwise infirm. Indeed, we find the Amendment’s deficiencies so pervasive that we must nullify the Amendment in its entirety."

As you may recall, Amendment 54 of the Colorado Constitution would have prevented those with no bid government contracts and their families from making campaign contributions for the duration of the contract and for two years thereafter. Supporters claimed it was intended to prevent the appearance of corruption in no bid government contracts. It was passed by voters in 2008.

If you have been a long time reader of the People’s Press Collective or Slapstick Politics, you may also recall that I advised against voting for this amendment, correctly predicting that its restrictions went too far and trampled first amendment rights. I am pleased to see that the Court agreed with me.

Never let it be said, however, the Conservatives are monolithic in their thinking. Many of my colleagues here at the PPC and other prominent conservatives supported this amendment. Though I was unable to join in their enthusiasm for the complete amendment, their stated goal of improving transparency in government is laudable. Indeed, the amendment contained one provision requiring that the state maintain a database of no bid contracts which the public can access and inspect at will. This alone would have addressed issues of transparency adequately, without any of the constitutional problems the rest of the amendment causes. It is also the section of the Amendment the Court found least objectionable. With minimal redrafting, it could be reenacted on its own. Jon Caldara of the Independence Institute has called for the legislature to do just that. Given that this was the only Amendment the voters actually passed in 2008, the legislature would be wise to heed his advice.

U.S. Supreme Court Overturns Corporate Political Spending Ban

By Julian Dunraven, J.D., M.P.A.

Honorable Friends:

Do you believe the government should determine what the media can broadcast? Do you believe the government should decide which businesses constitute “media” and which do not? This is exactly what the Supreme Court ruled on yesterday in Citizens United v. Federal Election Commission. As Justice Kennedy wrote for the conservative majority:

“The law before us is an outright ban, backed by criminal sanctions. Section 441b makes it a felony for all corporations-- including nonprofit advocacy corporations-- either to expressly advocate the election or defeat of candidates or to broadcast electioneering communications within 30 days of a primary election and 60 days of a general election. Thus, the following acts would all be felonies under §441b: The Sierra Club runs an ad, within the crucial phase of 60 days before the general election, that exhorts the public to disapprove of a Congressman who favors logging in national forests; the National Rifle Association publishes a book urging the public to vote for the challenger because the incumbent U.S. Senator supports a handgun ban; and the American Civil Liberties Union creates a Web site telling the public to vote for a Presidential candidate in light of that candidate’s defense of free speech. These prohibitions are classic examples of censorship.” 558 U.S. ___ (2010) at 20.

This law, according to the majority opinion, gives rise to “the dangerous, and unacceptable, consequence that Congress could ban political speech of media corporations,” on a whim. Even the People’s Press Collective, as private corporation not classified as traditional media, could have incurred criminal liability for advocating for or against any candidate within the statute’s time frame. Does this frighten you? It should.

The reason for this oppressive law is that it supposedly protects shareholders from being forced to fund political causes with which they disagree. It also prevents the appearance of corruption and quid pro quo arrangements between politicians and corporate interests. Finally, and most importantly, it allegedly prevents the distortion of the election process by the large accumulations of wealth held by corporations.

The Court swiftly dismissed the first two concerns. Corporate shareholders have the option of divesting if they do not like the actions of any particular company. However, even if this were not the case, limiting political speech only in the days immediately prior to an election but at no other time hardly shows a serious concern for shareholder interests. As to quid pro quo arrangements, we already have anti-bribery laws in force. Attempting to go further and prevent mere access or influence is not only impossible, it is an impediment to representative democracy itself. As it is, the law would continue to permit lobbying by those companies wealthy enough to engage in it, but prohibit other companies from engaging in fundamental political advocacy; hardly an equitable arrangement.

In his dissent, Justice Stevens argued passionately, if not plausibly, that the government has a strong interest in preventing the appearance of corruption corporate wealth can create. He further maintained that, as the First Amendment never mentions corporate entities, they should not be entitled to full speech and press protections. In fact, he maintains that corporate speech is adequately protected in the lengthy procedures set up to create 527 groups, PACs, and the cumbersome and expensive filing, reporting, and maintenance requirements such affiliations entail.

The Court maintains, however, that:

“The First Amendment does not permit laws that force speakers to retain a campaign finance attorney, conduct demographic marketing research, or seek declaratory rulings before discussing the most salient political issues of our day. Prolix laws chill speech for the same reason that vague laws chill speech: People ‘of common intelligence must necessarily guess at [the law’s] meaning and differ as to its application.’ The Government may not render a ban on political speech constitutional by carving out a limited exemption through an amorphous regulatory interpretation.” Id. at 7 (internal citation omitted).

The Court goes on to point out that corporations, as affiliations of individuals, have long enjoyed First Amendment protections. Moreover, the text of the First Amendment itself is not limited to individuals, but protects the freedoms of speech and the press in general. The Court, “rejected the premise that the Government has an interest in equalizing the relative ability of individuals and groups to influence the outcome of elections,” and stated that, “The First Amendment’s protections do not depend on the speaker’s financial ability to engage in public discussion.” Id. at 37 (internal citation omitted).

In short, the First Amendment exists to protect the political speech of citizens, as individuals, groups, or corporations. “By taking the right to speak from some and giving it to others, the Government deprives the disadvantaged person or class of the right to use speech to strive to establish worth, standing, and respect for the speaker’s voice. The Government may not by these means deprive the public of the right and privilege to determine for itself what speech and speakers are worthy of consideration. The First Amendment protects speech and speaker, and the ideas that flow from each.” Id. at 24.

“The censorship we now confront is vast in its reach. The Government has muffle[d] the voices that best represent the most significant segments of the economy. And the electorate [has been] deprived of information, knowledge and opinion vital to its function. By suppressing the speech of manifold corporations, both for-profit and non-profit, the Government prevents their voices and viewpoints from reaching the public and advising voters on which persons or entities are hostile to their interests. Factions will necessarily form in our Republic, but the remedy of destroying the liberty of some factions is worse than the disease. Factions should be checked by permitting them all to speak, and by entrusting the people to judge what is true and what is false.” Id. at 38 (internal citation omitted).

This is as it should be. Despite this, though, the Court still upheld requirements for disclosing donors and issuing disclaimers as to who funds political advertisements. Only Justice Thomas objected to this. He points out the possible chilling effects on speech when activists target political donors with violence and intimidation, saying, “I cannot endorse a view of the First Amendment that subjects citizens of this Nation to death threats, ruined careers, damaged or defaced property, or pre-emptive and threatening warning letters as the price for engaging in core political speech, the primary object of First Amendment protection.” Id at 6 (Thomas, J., concurring) (internal citation omitted). Thus, he maintains we have still one further step to take on the road to truly free political speech.

As it stands, the Supreme Court has overturned the ban on direct corporate political advocacy. Corporations are still subject to contribution limits in candidate campaigns, as are individuals, and they must still disclose their donors and take credit for any political advertisement they produce. Nonetheless, this decision should be celebrated by anyone who still believes in the First Amendment. Here in Colorado, I am certain some enterprising company will use this decision to overturn our own state ban on direct corporate advocacy, which so closely mirrors federal law. I look forward to that day.

Colorado Supreme Court Upholds Illegals’ Privacy Rights—Correctly

By Julian Dunraven, J.D., M.P.A.

Honorable Friends,

This evening, two of my honorable friends here at the PPC, Ben DeGrow and El Presidente, have called my attention to the Colorado Supreme Court’s decision in The People v. Gutierrez, in which a 4-3 majority ruled that the state violated the 4th Amendment privacy rights of the defendant in seizing his tax records without a proper warrant showing probable cause. The defendant also happened to be an illegal immigrant. Former Congressman Tom Tancredo, as quoted in The Washington Times, is outraged by the decision and would like our honorable friends at Clear the Bench Colorado (CTBC) to add this case to their ever lengthening list of judicial offenses. Holding the judiciary accountable is a laudable goal, but also one that requires a good deal of thought to accomplish in the interest of fairness and justice. It requires more than cursory analysis and gut reactions. It requires asking whether the Court remained faithful to the Constitution. Contrary to Mr. Tancredo’s objections, I believe CTBC can point to this decision as one in which the Mullarkey majority finally acted correctly.

Facts:

First of all, it is important to understand that anyone in this country, legal or otherwise, has 4th Amendment protections. The 4th Amendment is not limited to citizens, but considered one of the basic rights of humankind. The British once made the mistake of applying its protections only to British citizens, and the colonists responded with the American Revolution. For that reason, the 4th Amendment states:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

Also, it is important to understand that the U.S. expects all people in this country to pay taxes, regardless of immigration status. To accommodate both legal and illegal immigrants who often lack Social Security Numbers (SSN), they are permitted to file taxes with Individual Taxpayer Identification Numbers (ITIN).

Now that we have clarified those basic points, allow me to give you a few facts about this case. The Weld County Sheriff’s Department investigated an undocumented immigrant named Servando Trejo on charges of identity theft. Trejo admitted to being an illegal immigrant and that he used a false name and SSN to obtain work. He further informed police that he had filed income taxes using an ITIN rather than the false SSN. He then filed his taxes through Amalia’s Tax Service in Greeley. He said that Amalia’s had helped him obtain the ITIN and implied that all illegal immigrants in the area know to use Amalia’s.

The owner of Amalia’s, told investigators that she often prepared taxes for illegal immigrants. She further speculated that most people applying for ITINs were illegal immigrants and that most of her clients using ITINs have SSNs belonging to someone else.

On the basis of this information, the police secured a warrant to search Amalia’s Tax Service for all tax returns filed in 2006-2007 with ITINs which did not match SSNs on wage earning documents such as W2 forms. They speculated that this would be an effective method to fish for those engaged in identity theft, even calling it “Operation Numbers Game.” Unfortunately, the files were not kept by date, but by client. Thus, the police seized all 5000 client files. They proceeded to examine each file, irrespective of the date limitation in the warrant. One file with a mismatch between SSN and ITIN belonged to Ricardo Gutierrez, who was subsequently charged with identity theft. He argued, however, that the police violated his 4th Amendment rights in obtaining this evidence and should be barred from using it. The Colorado Supreme Court agreed with him.

The Right to Privacy and Probable Cause:

The Court’s reasoning is fairly simple. Most people expect their tax records to be fairly confidential. After all, they contain so much information about income, investments, property, family, et cetera as to paint a fairly basic picture of our lives. We do not want just anyone to have access to that. We do not even want any government agency to have access to that at will. Thus, the 4th Amendment, bolstered by Congress’s specific legislation, ensures that our tax papers enjoy the same privacy as we would have in our own home.

Of course, this means that, to invade our privacy, the police need specific warrants. They cannot simply say, “We want all tax records,” and hope they find something interesting. They have to have some reasonable and specific suspicion first, and identify us as particular suspects before they go rummaging about our things. This is the nature of probable cause, and exactly what the police failed to achieve in this case. Instead, they went fishing.

The warrant the police obtained was not limited to their original suspect. They did not even limit themselves to the dates the warrant specified. They examined all files of every individual client despite the fact they had no basis to suspect any of those individuals of wrongdoing. For these reasons, the warrant was overly broad, utterly eviscerating the purposes of the 4th Amendment. No reasonable police officer could have thought such a blatant fishing expedition would be valid. If it were, police might as well start randomly inspecting homes to see if they find any evidence of illegal activity. Dreadful thought.

In the dissent, Justice Coats makes the point that the police did have probable cause to suspect that the owner of Amalia’s knowingly aided and abetted instances of identity theft if she knew some of the SSNs were false. As such, the police could have obtained a warrant to search for mismatched ITINs and SSNs which would indicate a pattern of fraud on the part of Amalia’s. This would have allowed them to conduct the search exactly as they did—but this time without violations of the 4th Amendment.

However, this is not what happened. Neither the police nor the district attorney even suggested any wrongdoing on the part of Amalia’s. They were interested only in fishing for possible but unknown wrongdoing on the part of Amalia’s unidentified clients. Justice Coats fails to recognize that fact and Justice Bender’s majority opinion is correct to distinguish it. Although a search for fraud on the part of Amalia’s Tax Services would have provided the same information as an unspecified search of unknown clients in an attempt to find evidence of wrongdoing, the former has probable cause to support it while the latter is supported by nothing but the arbitrary will of law enforcement. Though the distinction is fine, it is also of vital importance. And that, my honorable friends, is the difference between a republic of laws and the tyranny of a police state.

Child Safety Standards And The Idiocy of ABC

By Julian Dunraven, J.D., M.P.A.

Honorable Friends:

I know better. I really do. In truth, I was simply trying to be polite. Nonetheless, I opened the email from my honorable friend, clicked on the link, and suffered through a clip of ABC’s World News with Charles Gibson, a man who somehow manages to look grave while pronouncing utter rubbish.

The clip in question, "Lagging Safety Standards for Baby Products," was not news, but rather an inexcusably fear mongering advocacy piece calling for greater government regulation in response to the recent crib recall. My honorable friend sent it along to me in the hope that I could explain why the federal government does not already set strict safety standards for baby products.

Contrary to ABC’s histrionics over what it sees as a complete lack of regulation, the federal government does indeed impose rather exacting safety standards upon manufacturers and retailers of child products. The Consumer Product Safety Improvement Act of 2008 (CPSIA) stands as just one example of such regulation. This is nothing to celebrate, however. The CPSIA serves only to impose crippling costs on business, and actually undermines the safety of the children it purports to protect. All it successfully does is increase the size, scope, and power of government. Only Mr. Gibson could breathe a solemn sigh of relief over that. Sensible people should be alarmed.

The Economic Costs of Regulation

The economic costs of the CPSIA are fairly obvious. The CPSIA requires that any product intended for the use of children under age 12 must be tested by a third party and certified for safety under standards promulgated by the Consumer Product Safety Commission (the Commission). Other than prohibiting excessive levels of dangerous substances such as lead or phthalates, the CPSIA leaves it to the Commission to define and set safety standards. Once certified, a manufacturer must affix a proper label to each of its products. Even without knowing what additional testing standards the Commission will impose, this third party testing, certification, and labeling requirement imposes enormous expense.

For a large toy manufacturer such as Hasbro, these additional expenses, though irksome, are manageable. The company will simply pass the costs along to consumers, and young parents, struggling to pay bills, will marvel at the outrageous prices of baby products while no doubt cursing the "greedy" corporate executives they mistakenly blame for the cost. The consumer suffers, but the large company may survive with less profit. A small business, however, will suffer even more.

A stay at home mother who designs and creates baby bibs for her own children, then has them manufactured for public sale, will suddenly find her business faced with expensive new testing requirements for every fabric she uses, for every fastening device and material she attaches, and for any pacifier or toy she may include with the sale of such a creation. It makes no difference that she thoroughly researched the safest types of products and materials for use in her designs. She must meet the requirements of the regulations, though the cost of doing so is greater than all the revenue of her small start-up company. The time commitment alone is more than she has as a new mother. So she closes her business. Others like her are prevented from entering the market at all. Government has just set a high wealth barrier to market entry.

Regulation’s Cost to Safety

Perhaps even more worrying than the financial costs of the CPSIA, though, is the damage it does to the cause of child safety. This may seem counterintuitive given that CPSIA is intended to do the exact opposite. Make no mistake, though, the existence of the CPSIA ensures that baby products will be less safe than they would be without the CPSIA.

If the CPSIA and its like did not exist, children would not be in any imminent danger. Rather, the safety of products would be determined by the courts. If a child were injured by any given product, and the parents brought suit against the manufacturer, a judge would look to see whether the manufacturer knew, or should have known, that the product could be expected to cause injury. A judge would hold a manufacture responsible for knowing the best practices of his or her industry. Thus, even if a particular manufacturer was ignorant of a product defect or risk which others in the industry had discovered and corrected, he or she would still be held responsible in tort (and sometimes under criminal law) for failing to maintain best practices. The beauty of this system is that the safety standard is always rising as the industry gains new information. Manufacturers have great incentive to keep up with or exceed best practices as punitive damages can put them out of business and the safest products have great marketing appeal.

The CPSIA changes all that. Under the CPSIA, the Commission sets industry standards by law. That then becomes the minimum safety level, and as long as a manufacturer meets the legal standards for its products, it cannot be held liable for the injuries its products may cause. The industry may, in fact, develop best practices far in excess of the safety standard set by law. However, as these standards are more costly and the law does not require them, many manufacturers will not use them in the production of their goods. While the Commission will attempt to issue regulations modified for industry development, it cannot possibly keep pace. It is but one underfunded government agency charged with setting standards for millions of baby products in the industry. Inevitably, its regulations will lag by many years. That is the sole point ABC correctly reported. The government, acting through the Commission, cannot possibly set safety standards as exacting or as efficiently as the industry itself through the proper operation of our court system and the market.

ABC and Mr. Gibson seem to think government must involve itself in everything we do for our own good—especially to protect the children. As I hope you see here, though, further government regulation of child safety standards actually leaves our children more vulnerable while imposing crippling costs on our small businesses. Just ask yourself: do you want the products your child uses to be subject to the highest standards the market and toy industry can offer? Or do you really want to leave your child’s safety at the bottom of a federal bureaucrat’s inbox?

　

　

　

Hate Crimes: Killing Both Liberty and Equality

By Julian Dunraven, J.D., M.P.A.

Honorable Friends:

Stunned. Appalled. Deeply saddened. Angry. I remember feeling all of these emotions as I watched the tragic story of Matthew Shepard’s brutal slaying unfold in the media back in 1998. It was with great satisfaction that I watched the conviction and incarceration of his murderers. I thought that would be the end of it. Unfortunately, I forgot that a terrible emotional tragedy often leads to a terrible legal tragedy.

Yesterday, a friend called to gush happily that President Obama just signed new hate crimes legislation into law, which includes sexual orientation in its protections. He was surprised that I did not share his enthusiasm and wondered how someone who supports gay rights could fail to be pleased by this outcome. In truth, I support equal rights for all individuals. I believe every individual has the right to determine the nature and type of their intimate relations, their associations, and how to use and dispose of their own property without government interference. Because of this, I have often supported gay rights efforts. However, what right does hate crimes legislation protect?

Hate crimes legislation does not protect any right whatsoever. On the contrary, it is a prohibition. But what exactly does it prohibit? Certainly, it does not prohibit any action. Indeed, we already have a comprehensive body of law prohibiting assault, battery, murder, rape, et cetera. Hate crimes legislation does not add to this list. Rather, it criminalizes the thoughts of the defendant committing these already established crimes.

My honorable friend argued that our legal system already imposes greater or lesser punishments based on a defendant’s mental state, so I should not be overly concerned with this addition to our legal process. This is not entirely accurate, though. Consider the following two cases:

In the first case, John and Eric are playing hockey. At the end of the game, John manages to steal the puck right out from under Eric’s nose and score the winning goal. In a fit of blind rage, Eric leaps upon John and beats him to death with his hockey stick.

In the second case, John and Eric have just attended a lively Political Science class at their college, where John expressed several views Eric detested. Determining that John should be taught a lesson, Eric hid in some bushes and ambushed John as he walked back to his apartment. He then proceeded to beat John to death.

Under our legal system, Eric committed murder in both of these cases. However, in the first case, he flew into a blind rage where passion, not reason, guided his actions. Consequently, we impose a lesser penalty than in the second case, where he clearly plotted the crime and intended to commit murder. Thus, our legal system judges the defendant’s mental state of intent. We do not normally criminalize his thoughts.

Now consider the same two cases, but assume that John is gay and Eric is homophobic. Has anything really changed? Is John any more dead, or Eric any guiltier of murder than in the first two cases? No. Under hate crimes laws, however, Eric is guilty of having thoughts and values the government finds objectionable, and so his punishment is increased. This is why hate crimes legislation is so dangerous. It presumes to regulate that which should be beyond the reach of any government: our thoughts and values. That is not where the danger ends, though. Perversely, hate crimes legislation also means that, as a gay man, John’s life is more valuable to society than the lives of other men who may be straight, and thus do not share John’s increased legal protections. This is not Justice. It is patently immoral.

A society of equals cannot exist when the laws unequally value lives. A free society cannot exist where a government has the right to criminalize thought. While I agree that homophobic people are ridiculously small minded and hateful, I cannot bring myself to criminalize their thoughts and values on that subject. I remember all too well the days when homosexuals and anyone sympathetic to them was viewed by governments and society as perverse, deviant, and indeed, criminal. This reasoning applies to any hate crimes legislation, whether it is intended to protect race, religion, ethnicity, sex, or sexual orientation. The right to determine ones own values and thoughts, however objectionable others may find them, is fundamentally necessary to maintain a free society and public discourse. Contrary to what my honorable friend mistakenly believed, anyone who supports gay rights, or indeed any individual rights, should not be celebrating the expansion of hate crimes legislation; they should be trying to repeal these legal abominations entirely.

No group of people can gain acceptance through force of law. They only succeed in destroying their own liberties and becoming the oppressors they once fought. They should instead endeavor to maintain equal rights for all, and rely on persuasion to alter the opinion of their fellow citizens.

If there is such a thing as a Devil, I doubt he ever appears in flames with cloven hooves and frightening horns. It seems to me he would be beautiful and seemingly benign. In our society, the greatest devil of all is the government. Hundreds of smiling men and women, in both Congress and the executive branch, frequently offer to solve all our problems with a seemingly benign law or regulation. All it costs is our liberty and equality, the soul of the United States.

Obama’s Affordable Health Choices Act of 2009: What You Don’t Know May Kill You

By Julian Dunraven, J.D., M.P.A.

Honorable Friends:

Yesterday, the people of Denver demonstrated that they have far more sense than their Congresswoman does when 700 of them rallied on the State Capitol steps to voice their opposition to President Obama’s health care bill.

The President has been working hard in recent weeks to persuade us that such opposition is unfounded. In his recent prime time press conference, he soothingly told us that this legislation would help reduce the costs of health care. He went on to assure us that we would all be able to keep our current health care plans and would not be forced onto government programs. In conclusion, he promised that health policy would be free from congressional meddling, as it would be overseen by a nonpartisan committee of medical experts whose recommendations would have to be accepted or rejected in their entirety by Congress. He said all of this with a straight face. None of it is true.

As a former Constitutional Law instructor, Mr. Obama knows that Congress’s legislative authority cannot be limited in such a way. Had Mr. Obama actually read the text of the bill, he also would have known that it allows people to keep their own health care plans only so long as they stay with their current plans. If they try to change their plans, they are indeed forced onto the government’s program. He certainly knew, though, that the Director of the Congressional Budget Office, Douglas Elmendorf, estimated that the bill actually increases costs of health care and enlarges the federal deficit by billions of dollars.

Denver Representative Diana DeGette, apparently a very credulous person and far too busy to read the 1000+ pages of the bill for herself, has taken the President at his word and maintains that there is a need to pass the bill immediately. Unfortunately, the arguments she uses to support the urgent need for legislation are rooted almost entirely in myths about our health care system; myths Dr. Clifford S. Asness easily and entertainingly debunks in his essay, “Health Care Mythology.” Fortunately, the American people are not so easily duped.

Money Morning and Stephen Hyde both point out some of the most egregious financial problems with this bill. As Hyde asserts, “The bill requires virtually all employers to offer minimum health benefit plans that far exceed anything most of them offer today.” This will necessarily increase insurance costs. As Money Morning shows, it also has a more devastating aspect. Under the legislation, any business that cannot afford to provide the extensive coverage the bill requires will be taxed up to 8% of its payroll. This will almost immediately result in severe wage reductions and layoffs as businesses attempt to defray that cost. This hardly seems like the best idea as the nation struggles for economic recovery. Yet, this is not the worst the bill has to offer.

Peter Fleckstein (aka Fleckman), has diligently combed through the legislation and assembled a brief, line-by-line cheat sheet. His full analysis, “The HC Monstrosity-All 1,018 Pages,” can be found at his blog. While somewhat cursory, Mr. Fleckstein successfully highlights some alarming details in the legislation. To list just a few, the bill provides for:

• Nationwide government access to our private healthcare and financial records, as well as our bank accounts.
• Exemption from judicial review of the prices government sets on health care.
• Government wage controls over physicians, as well as limitations on physician ownership of hospitals and other health care providers.
• Mandates for end of life care and consultations without benefit of legal counsel.
• Government interference in marriage counseling and childcare.
• Government appointed standards and rationing for what treatments we may receive.
• No private option if you leave your current insurance carrier.

These are just a few of the many devilish details hidden within Mr. Obama’s Affordable Health Choices Act. It seems unlikely that any sane person, after reading this bill, could support its passage. That may be exactly why Mr. Obama and the Democratic leadership in the House and Senate wanted to push it through so quickly.

The American people need to know the horrors contained within this bill. Health care represents 20% of our economy. That economy is now suffering a soft depression. If we truly desire health care reform, we deserve much better than what Mr. Obama is offering. This bill’s financial aspects alone have the potential to drive us into an unbearably hard depression, to say nothing of the damage it does to personal liberties. We cannot afford to make such massive changes to such a large portion of our economy with so little knowledge or time to review. All concerned Americans should contact their congress people and demand an end to this abominable and irresponsible legislation.

Clear The Bench Colorado Launches Judicial Non-Retainment Initiative

A followup to BlueCarp's earlier post--Clear the Bench Colorado launches anti-retainment campaign targeting Colorado Supreme Court justices who value partisanship above the rule of law:

The Colorado Supreme Court has trampled our Constitution one too many times…

This is a rogue court, populated with partisan “justices” with no respect for justice or the rule of law.

This partisan court violated accepted legal practice in ignoring the “findings of fact” of the trial court which heard the case and ruled (correctly) on the unconstitionality of the mill levy tax rate freeze.

The majority on the court is apparently incapable of interpreting the plain language of the Colorado Constitution (including TABOR) which “specifically says voters must approve ‘any new tax, tax rate increase, mill levy above that for the prior year … or a tax policy change directly causing a net tax revenue gain to any district.‘”

The court’s majority is also apparently incapable of interpreting the plainly expressed will of the people, who previously “crushed a ballot amendment [32] in 2003 that would have frozen property tax rates.”

It is time to remind the court’s majorityof their responsibility to the rule of law, the state Constitution, and the will of the people.

John Andrews has more:

"We are a nation that has a government, not the other way around." Reagan's words speak defiance to statism, but they are only as true as we make them. The 2010 election is Coloradans' chance.

Supreme Court justices Mary Mullarkey, Michael Bender, Alex Martinez and Nancy Rice will be up for another 10-year term. Poor stewards of the law since they last faced voters in 2000, all four deserve dismissal. Whether they're retained or bounced will signal how much we cherish liberty.

Voting judges into office ended here in the 1960s. Gubernatorial appointments replaced the unseemly spectacle of jurists soliciting campaign funds. No court can overrule us, nor need we explain why. In this, at least, we're still sovereign.

Capriciousness isn't justified. "Prudence will dictate" avoidance of political changes "for light and transient causes," the Declaration of Independence cautions. But terminating a dishonest judge is warranted, and so is termination for breach of trust. Mullarkey, Bender, Martinez and Rice have failed their constitutional trust.

The justices up for renewal are poster kids for the "living constitution" racket of legislating from the bench in disregard of the written text. Under Chief Justice Mullarkey, as The Denver Post's Vincent Carroll wrote after last month's TABOR ruling, "the Colorado Supreme Court seems to think that it is . . . free to redefine words however it likes." Let's answer their abuse of judicial review with electoral review and retire them.

Clear the Bench Colorado--bookmark it.

Berg v. Obama Denied Certiorari

By Julian Dunraven, J.D., M.P.A..

(For earlier posts on this case click here.)

Honorable Friends:

The U.S. Supreme Court has declined to hear Berg v. Obama. Despite this denial, there is still a chance it may be heard by the Third Circuit Court of Appeals, where it is still pending. Berg reports that his brief is due by 20 January 2009. Ironically, that is inauguration day. Though it saddens me to say so, as this case will not even be heard, much less resolved, by the time Obama is sworn into office, I cannot imagine any court would presume to review the qualifications of a sitting president. Thus, I do not expect that there will be any further developments in this case. As such, the question of Obama’s constitutional qualifications falls to the U.S. Senate. The Senate has accepted Obama as fully qualified for office, and he will thus become the next President of the United States on January 20th.

Could Obama Be Disqualified From The Election? The Federal Courts Will Decide

By Julian Dunraven, J.D., M.P.A.

(For updated information on the Motion to Dismiss, click here)

Honorable Friends,

For those of you unaware, Pennsylvania attorney Philip J. Berg has filed suit in the U.S. District Court for the Eastern District of Pennsylvania alleging that Barack Obama is not eligible for the Office of the President because Obama lost his U.S. citizenship when his mother married an Indonesian citizen and naturalized in Indonesia. Berg further alleges that Obama followed her naturalization and failed to take an oath of allegiance when he turned 18 years old to regain his U.S. citizenship status. The case is Berg v. Obama.

It sounds crazy, I know. It becomes even stranger when you realize that Berg is a lifelong Democrat, the former Democratic Chairman of Montgomery County, Pennsylvania, an 8-year member of the state democratic committee, and former Deputy Attorney General of Pennsylvania. This is not a simple crank, and after reviewing the court documents, I believe the case is fairly strong, and has amazing implications.

It revolves around Article II Section 1 of the U.S. Constitution which provides in pertinent part that:

“No person except a natural born citizen, or a citizen of the United States, at the time of the adoption of this Constitution, shall be eligible to the office of President; neither shall any person be eligible to that office who shall not have attained to the age of thirty five years, and been fourteen Years a resident within the United States.”

To better understand the case, I recommend reading the complaint, Obama’s Motion to Dismiss, Berg’s Response in Opposition to the Motion to Dismiss, and Berg’s Motion for Summary Judgment. You can also read news about the case or donate to the cause by visiting Berg’s webpage.

Of course, the case is still developing and it is doubtful there will be any resolution before the election. If Obama loses the election, the case may be deemed moot and dismissed. If he wins, however, and Berg turns out to be correct, it would mean that we not only elected a man unqualified to hold office under the Constitution – we would have elected an illegal immigrant, who would then be disqualified from serving.

You might be wondering how our officials could have missed something so major. It is easy to do though if you think about it. Obama’s mother certainly used to be an American citizen. When he returned to the U.S. from Indonesia, how many government officials would even think to ask, “While away, did you or your parents happen to renounce your U.S. Citizenship?” It simply would not happen. Our officials would have proceeded as if Obama was a child of a U.S. Citizen. No one would know the truth unless he or his mother willingly revealed the information, or unless they were specifically examining Obama’s background in great detail.

I cannot even imagine the pressure this judge must be feeling, along with the Justices of the Supreme Court who will ultimately hear the appeal. Can you begin to hear the enraged screams of the rioters? Our courthouses will have to turn themselves into fortresses.

El Presidente and I will certainly be keeping a close watch on this fascinating case and provide updates as it develops. For now, however, I will leave you with the most interesting part of Berg’s argument thus far, taken from his Response in Opposition to the Motion to Dismiss and appended below.

* * * * * * * * * *

Even if Obama was, in fact, born in Hawaii, he lost his U.S. citizenship when his mother re-married and moved to Indonesia with her Indonesian husband. In or about 1966, when Obama was approximately five (5) years old, his mother, Stanley Ann Dunham, married Lolo Soetoro, a citizen of Indonesia, whom she had met at the Hawaii University, and moved to Indonesia with Obama. Obama lost his U.S. citizenship, when his mother married Lolo Soetoro, and took up residency in Indonesia. Loss of citizenship, in these circumstances, under U.S. law (as in effect in 1967) required that foreign citizenship be achieved through “application.” Such type of naturalization occurred, for example, when a person acquired a foreign nationality by marriage to a national of that country. Nationality Act of 1940, Section 317(b). A minor child follows the naturalization and citizenship status of their custodial parent. A further issue is presented that Obama’s Indonesian stepfather, Lolo Soetoro, either signed an acknowledgement acknowledging Obama as his son or Lolo Soetoro adopted Obama, giving Obama natural Indonesia citizenship which explains the name Barry Soetoro and his citizenship listed as Indonesian.

Obama admits in his book, “Dreams from my father” Obama’s memoir (autobiography), that after his mother and Lolo Soetoro were married, Lolo Soetoro left Hawaii rather suddenly and
Obama and his mother spent months in preparation for their move to Indonesia. Obama admits when he arrived in Indonesia he had already been enrolled in an Indonesia school and his relatives were waiting to meet him and his mother. Lolo Soetoro, an Indonesian State citizen, could not have enrolled Obama in school unless Lolo Soetoro signed an acknowledgement acknowledging Obama as his son, which had to be filed with the Government. Under Indonesian law, when a male acknowledges a child as his son, it deems the son, in this case Obama, as an Indonesian State citizen. Constitution of Republic of Indonesia, Law No. 62 of 1958 Law No. 12 of 2006 dated 1 Aug. 2006 concerning Citizenship of Republic of Indonesia, Law No. 9 of 1992 dated 31 Mar. 1992 concerning Immigration Affairs and Indonesian Civil Code (Kitab Undang-undang Hukum Perdata) (KUHPer) (Burgerlijk Wetboek voor Indonesie) states in pertinent part, State citizens of Indonesia include: (viii) children who are born outside of legal marriage from foreign State citizen mother who are acknowledged by father who is Indonesian State citizen as his children and that acknowledgment is made prior to children reaching 18 years of age or prior to marriage; Republic of Indonesia Constitution 1945, As amended by the First Amendment of 1999, the Second Amendment of 2000, the Third Amendment of 2001 and the Fourth Amendment of 2002, Chapter X, Citizens and Residents, Article 26 states, “(1) Citizens shall consist of indigenous Indonesian peoples and persons of foreign origin who have been legalized [sic] as citizens in accordance with law. (2) Residents shall consist of Indonesiancitizens and foreign nationals living in Indonesia.”

Furthermore, under the Indonesian adoption law, once adopted by an Indonesian citizen, the adoption severs the child’s relationship to the birth parents, and the adopted child is given the same status as a natural child, Indonesian Constitution, Article 2.

The laws in Indonesia at the time of Obama’s arrival did not allow dual citizenship. If an Indonesian citizen married a foreigner, as in this case, Obama’s mother was required to renounce her U.S. citizenship and was sponsored by her Indonesian spouse. The public schools did not allow foreign students, only citizens were allowed to attend as Indonesia was under strict rule and decreed a number of restrictions; therefore, in order for Obama to have attended school in Jakarta, which he did, he had to be a citizen of Indonesia, as the citizenship status of enrolled students was verified with Government records.

Obama was enrolled by his parents in a public school, Fransiskus Assisi School in Jakarta, Indonesia. Plaintiff has received copies of the school registration, attached as EXHIBIT “4”, in which it clearly states Obama’s name as “Barry Soetoro,” and lists his citizenship as Indonesian. Obama’s father is listed as Lolo Soetoro, Obama’s date of birth and place of birth are listed as August 4, 1961 in Hawaii, and Obama’s Religion is listed as Islam. This document was verified by television show Inside Edition, whose reporter, Matt Meagher, took the actual footage of the school record. At the time Obama was registered the public schools obtained and verified the citizenship status and name of the student through the Indonesian Government. All Indonesian students were required to carry government identity cards, or Karty Tanda Pendudaks, as well as family card identification called a Kartu Keluarga. The Kartu Keluarga is a family card which bears the legal names of all family members.

Since Obama’s birth was legally acknowledged by Lolo Soetoro, an Indonesian citizen, and/or Obama was adopted by Lolo Soetoro, which the evidence attached hereto supports, Obama became an Indonesian citizen and bears the status as an Indonesia natural child (natural-born). For this reason, Obama would have been required to file applications with the U. S. State Department and follow the legal procedures to become a naturalized citizen in the United States, when he returned from Indonesia. If Obama and/or his family failed to follow these procedures, then Obama is an illegal alien.

Regardless of whether Obama was officially adopted, (which required a Court process), by his Indonesian stepfather, Lolo Soetoro, or his birth was acknowledged (which only required the signing of a birth acknowledgement form), by Lolo Soetoro, one of which had to occur in order for Obama to have the name Barry Soetoro and his citizenship status listed as “Indonesian”, in either and/or both cases Obama’s name was required to be changed to the Indonesian father’s name, and Obama became a natural citizen of Indonesia. This is proven by the school records in Jakarta, Indonesia showing Obama’s name as Barry Soetoro and his citizenship as Indonesian. Again, the registration of a child in the public schools in Jakarta, Indonesia was verified with the Government Records on file with the Governmental Agencies.

The Indonesian citizenship law was designed to prevent apatride (stateless) or bipatride (dual citizenship). Indonesian regulations recognize neither apatride nor bipatride citizenship. In addition, since Indonesia did not allow dual citizenship neither did the United States, Hague Convention of 1930.

In or about 1971, Obama’s mother sent Obama back to Hawaii. Obama was ten(10) years of age upon his return to Hawaii.

As a result of Obama’s Indonesia “natural” citizenship status, there is absolutely no way Obama could have ever regained U.S. “natural born” status, if he in fact ever held such. Obama could have only become naturalized if the proper paperwork was filed with the U.S. State Department, in which case, Obama would have received a Certification of Citizenship.

Plaintiff is informed, believes and thereon alleges Obama was never Naturalized in the United States after his return. Obama was ten (10) years old when he returned to Hawaii to live with his grandparents. Obama’s mother did not return with him, and therefore, unable to apply for citizenship of Obama in the United States. If citizenship of Obama had ever been applied for, Obama would have a Certification of Citizenship.

Furthermore, Obama traveled to Indonesia, Pakistan and Southern India in 1981. The relations between Pakistan and India were extremely tense and Pakistan was in turmoil and under martial law. The country was filled with Afghan refugees; and Pakistan's Islamist-leaning Interservices Intelligence Agency (ISI) had begun to provide arms to the Afghan mujahideen and to assist the process of recruiting radicalized Muslim men--jihadists--from around the world to fight against the Soviet Union. Pakistan was so dangerous that it was on the State Department's travel ban list for US Citizens. Non-Muslim visitors were not welcome unless sponsored by their embassy for official business. A Muslim citizen of Indonesia traveling on an Indonesian passport would have success entering Indonesia, Pakistan and India. Therefore, it is believed Obama traveled on his Indonesian passport entering the Countries. Indonesian passports require renewal every five (5) years. At the time of Obama’s travels to Indonesia, Pakistan and India, Obama was twenty (20) years old. If Obama would have been a U.S. citizen, which he was not, 8 USC §1481(a)(2) provides loss of nationality by native born citizens upon "taking an oath or making an affirmation or other formal declaration of allegiance to a foreign state...after having attained the age of eighteen years”, in violation of 8 U.S.C. §1401(a)(1) Since Lolo Soetoro legally acknowledged Obama as his son and/or adopted Obama, Obama was a “natural” citizen of Indonesia, as proven by Obama’s school record attached as Exhibit “4”.

Guest Column: Supreme Court Unleashes Legal Beast To Trouble Colorado's 2nd District

By Julian Dunraven, J.D., M.P.A.

I have never liked campaign finance reform laws. The notion that one can take the influence of money completely out of politics seems, at best, woefully naive and, at worst, ridiculously absurd. Nonetheless, in so many ways our lawmakers and activists continue to try. After they finish attempting to put all sorts of fetters on the evil beast of our political system, the Supreme Court inevitably comes by and proceeds to cut about half the restraints. Of course, this simply creates a very angry beast that has to lurch clumsily about using only one leg and one arm. And people wonder why campaign regulations are always such a disaster. Well, the Supreme Court has, yet again, taken its judicial scissors to the latest Congressional fetter: the Millionaire Amendment of the Bipartisan Campaign Reform Act (BCRA). And yes, the beast is already crashing about angrily.

Let me try to sum up the bizarre laws at issue in very brief terms. Between the meddling of Congress and the stilted reasoning of the Court, the government may impose limits on how much money people may contribute to any given campaign, but not on how much money the campaigns can spend. Also, there is no limit to how much an individual candidate can contribute to his campaign. The reason for this is that money is speech. Contributions may be limited because they still express the message of support for a candidate but, in being limited, also prevent corruption or the appearance thereof. However, the candidate is free to use as much of his own speech/money to promote his cause as he wants. To limit that would be to limit his speech too directly.

Naturally, this creates an advantage for rich candidates. They can spend their own money without limit while a poorer candidate, who may have rich friends, cannot get as much money out of those friends because of the campaign contribution limits. Thus, Congress passed the so called Millionaire Amendment so that if a rich candidate used enough of his own money, the contribution limits for the poorer candidate would be near tripled while the contribution limits for the richer candidate would remain the same. This would continue until the two candidates had eliminated the financial difference between them.

Now, though, Justice Alito, writing for the majority, has declared in Davis v. Federal Election Commission that this balancing scheme is unconstitutional. Apparently, this imbalance does not directly limit speech, but creates a substantial penalty for a rich candidate who chooses to exercise his right to speech robustly (i.e. spend a lot of his own money and trigger the provisions of the amendment). Thus, the Court has declared that the law must go.

Naturally, the government has objected that this means that rich candidates will once again have a huge advantage in elections given the contribution limits. The Court is aware of this. However, Justice Alito reminds us all that it was Congress who created this problem in the first place with its bizarre attempts to regulate campaign contributions. Congress also has the power to fix this situation. He recommends:

If the normally applicable limits on individual contributions and coordi nated party contributions are seriously distorting the electoral process, if they are feeding a “public perception that wealthy people can buy seats in Congress,” Brief for Appellee 34, and if those limits are not needed in order to combat corruption, then the obvious remedy is to raise or eliminate those limits. But the unprecedented step of imposing different contribution and coordinated party expenditure limits on candidates vying for the same seat is antithetical to the First Amendment.

In my own humble opinion, Congress would be well advised to adopt Justice Kennedy’s recommendations from his dissenting opinion in Nixon v. Shrink Missouri Government PAC, 528 U.S. 377 (2000). He pointed out that all of these attempts to limit the flow of money just serve to create problems or push it underground where there is virtually no accountability or transparency (such as 527 groups). Thus, he suggests that, rather than limiting contributions or expenditures, Congress should simply require that all contributions be reported and made public. Certainly, the internet is more than capable of providing instant access to this information for anyone who wants to know. In that way, the public could judge for themselves whether a candidate was too beholden to any particular donor or interest group and vote accordingly. Now there is a novel thought: trusting the voters to make decisions themselves.

For those of you interested in what the dissent had to say, Justice Stevens seems to think there is nothing at all wrong with this imbalanced scheme. Indeed, he goes so far as to contend that Congress should limit both contributions and expenditures. It seems he feels that if the campaigns were forced to spend less, then the quality of their message would be forced to improve and he would not have to ensure watching so many of these annoying and repetitious political advertisements on television any longer. It is rare that a Justice so plainly expresses his personal opinions and tastes as a matter of law. Preventing the Court from being populated by others who feel at liberty to do so may be the single most important reason to elect John McCain as our next president—despite the fact that he is partially responsible for saddling us with these nightmarish campaign laws in the first place.

In the meantime, we shall watch the beast of our current system flail about in the 2nd Congressional district where the millionaire idiot author of Colorado’s ethics debacle, Jared Polis, just triggered the now unconstitutional amendment and his opponents, Joan Fitz-Gerald and Will Shafroth, are left without the benefit of the increased contribution limits it would have provided them.