It’s shameful, but also a bit humorous: a few years ago this same Maryland passed a tax hike on its 3,000 millionaires.  Instead of bringing in more revenue, revenue actually declined because one year after the tax went into effect there were only 2,000 millionaires left to pay the tax. If at first ye don’t succeed at eating the rich, lower the definition of “rich.”  

Did these millionaires all magically disappear? Of course not—they moved.  And with many states to choose from that don’t tax income at all—including places as diverse as Florida, Texas and (ahem) Wyoming—it’s the smart move.  Although the rich can “afford” to pay more taxes because they make more money (a fine moral justification, to be sure), with their disposable income the rich pay the same amount to buy stuff as everyone else.  An extra 1% tax on $1,000,000 of income is $10,000, and even a rich person with rich tastes can take a luxury trip to New Zealand (or just about anywhere) with that kind of money.  When faced with the decision to live in Maryland and pay more or elsewhere and pay less, it’s a wonder 2,000 millionaires stayed in Maryland.  How many will leave this time?

Tax policy and fiscal policy as a whole are things that make federalism great: if you don’t like your state’s governance on these or any number of other issues, move to one of the other 49.  Alas, since the 16^th Amendment gives the federal Congress the power to tax income, which is currently at a whopping 35% for yearly income over $388,350 (and 25% for the $35K to $85K most Americans earn), their reach extends to all 50 states.  This can only be changed by serious governmental overhaul or… leaving the country.

What a crazy idea! Quasi-libertarians like me who can’t shake the coolness of certain national monuments and local projects like greenways also have distaste for the idea of renouncing citizenship.  This is America, darnit.  But that’s changed: there are now many other countries worth living in, some of them offering the same rights, protections and opportunities of the U.S. without such hefty costs to the most prosperous.  Other countries offer more protections for the rich at still less cost; un-American, sure, but true.

It shouldn’t be a surprise then that more Americans are choosing not to be Americans.  But unlike Maryland, which can’t reach too far beyond its borders, some United States Senators are a bit miffed and want to penalize former citizens.  Today Sens. Chuck Schumer and Bob Casey unveil the “Ex-PATRIOT” (how clever) Act, imposing taxes on expatriates and a 30% tax on capital gains of anyone who renounces U.S. citizenship. This proposal comes in reaction to 1,700 renunciations last year.  The most scandalous example: Facebook will soon go public, and one of its founders Eduardo Saverin recently renounced his U.S. citizenship.  This will save him millions in federal taxes. 

I am unfamiliar with tax law and the international law that will allow the feds to get away with this if the Ex-PATRIOT (seriously, enough with the acronyms Dear Leaders), but I rest assured that for the mega-rich like Saverin it will be a gigantic savings to refuse to pay the taxes and instead spend a-lot-but-still-a-lot-less retaining the best tax attorneys to fight back.

But for the rest of “the rich,” who may soon be redefined federally to match Maryland (read: anyone not on the dole?), the law could serve quite effectively to prevent renouncing citizenship. 

The communists used concrete and border guards to keep people from leaving. Schumer and Casey would use the Tax Code, leaving America looking pretty and free, but ultimately one giant Hotel California:

You can check out anytime you’d like /
but you can never leave.

The resulting article, “Ferrari Refutes the Decline of the West,” is not O’Rourke’s best work, but touches on plenty of themes we’re grappling with over three decades later:

[The car] reaffirmed my belief in America.  It may sound strange to say that a $45,000 Italian sports car reaffirmed my belief in America, but, as I said, it’s all part of western civilization and here we were in America, the apogee of that fine trend in human affairs.  And, after all, what have we been getting civilized for, all these centuries? . . . .  Why, for this!  For this perfection of knowledge and craft.  For this conquest of physical elements.  For this sense of mastery of man over nature.  To be in control of our destinies—and there is no more profound feeling of control over one’s destiny that I have ever experienced than to drive a Ferrari down a public road at 130 miles an hour. . . .  [I]f the lowly Italians, the lamest, silliest, least stable of our NATO allies, can build a machine like this, just think what it is that we can do.

(O’Rourke’s essay is reprinted in the collection Republican Party Reptile.)

This may seem a bit overoptimistic today, given our economy and government, but I believe it was at least as far out at the height of our previous great American malaise.  Indeed, as the 2012 Presidential race heats up, there has already been some commentary comparing President Obama’s latest campaign advertisement to Ronald Reagan’s “Morning in America” advertisement.   Evoking such a memory is a poor but understandable attempt on the President’s part; one would much rather plant one’s stake in 1984 than 1980, which were like day and night. Alas, it’s far more difficult to distinguish 2012 from 2008, despite the ad’s best efforts (unless you happen to own a solar company – and, on that note, check out the 13 minute mark of Carter’s speech).

But enough about political ads.  O’Rourke’s piece comes to mind this week as Porsche, the formidable (some would say more mature, certainly practical) German alternative to Ferrari (full disclosure: O’Rourke’s piece refers to them as “ass-engined Nazi slot cars”), has an advertisement for the new Porsche 911 that evokes O’Rourke’s confident swagger:

The 911 is in its 50th year of production, proclaiming itself to be “forever … the future of driving passion.”  I like that the ad shamelessly shows the awe of kids and adults over this iconic ride.  But that’s just icing on the cake: what I love is that in a fledging economy–where, unlike 1979, we have a Chevy Volt paid for with tax subsidies–Porsche claims the future and “forever the sports car” with a car that boasts an MSRP starting at $82,000. We can all dare to dream, Porsche can dare to build and–whether it be autobahns, interstates, or somewhere in between–we can aspire to great destinies. Now this is the kind of attitude I can get behind!

HSAs:

• have not controlled costs.

• have no effect on the 10% of the high risk population that accounts for 70%-80% of health care spending.

• do not increase access to care or reduce the number of uninsured.

• when combined with high deductible health plans, they lead to rationing of care based on ability to pay for high out-of-pocket costs.  They actually shift costs from the insurers to the patient.

• do not create affordable health insurance premiums.

• create another layer of administrative costs such as servicing fees paid to the financial institutions to manage the accounts which are paid by the patient and thus further reduce the money that can be spent on direct care.

• deplete funds from the insurance risk pool and general economy since HSA enrollees without health care costs are unable to use their money. The money removed from the economy leads to increased premiums, additional fees, and cuts in coverage; this contributes to our current unsustainable cycle.

• are of no use to lower income people who lack the ability to contribute to their accounts or purchase the high-priced insurance premiums.

• are an unfair tax break for people with high incomes, employers, and those with ongoing health care incurred costs.

• do not allow people choice in their own health care as the IRS determines which medical expenses are qualified for tax free reimbursement.

• do not address portability issues; employees lose their contributions when they leave their job. HSAs are usually tied to employment.

Suffice it to say, HSA’s do not address the two fundamental problems with our current health care system: small risk pools confined to state borders, and a service delivery system that removes consumers from control over spending choices.   HSAs actually function as a subsidy for health care providers. They perpetuate the current cycle of high health care and insurance costs when providers justify their pricing to pull money from private accounts set aside for their exclusive use.  And, with access to exclusive accounts, providers do not need to compete with other industries (e.g., travel, entertainment) for consumer money.   Subsidies can’t deliver on their claim to make a product affordable, at least not permanently, because they address only the supply side and presume they understand consumer demand.  They actually distort the market as they try to create greater demand through price control incentives.  Price controls are not sustainable because demand always falls off (or was never really there) leaving the supply side to raise prices as usual and customary.  All told, the performance of HSAs does not warrant continued promotion of them as a public policy mandate or as an insurance replacement. 

The practice of establishing a subsidy via tax shelters is not exclusive to the health care industry. The same thing happened with the Coverdell Education Savings Account (ESA) program.  ESAs were justified as an incentive to help parents and students save for education expenses. Distributions remain tax-free as long as they are used for qualified education expenses (tuition and fees, room and board, books, etc.).   Yet not only have education expenses remained high, we are locked in a tuition increase battle as higher education institutions seek to pull money from private accounts set aside for their exclusive use.  We cannot save enough to accommodate for the escalating prices.  ESAs haven’t delivered on their promises either.

Maybe it is time to end altogether the practice of subsidizing “good causes.”

Click here to read Regina’s latest Liberty Brief, “The Five Step Plan to Achieve National Health Care Reform.”

In the video, Al Amerdariz, a top EPA official for five states, likened the government’s strategy for compliance with that of the Roman Empire.  Like the Romans, the EPA sought to “find the first five guys they saw and they’d crucify them.”  To spread fear for its authority, the EPA would “make examples of out of people who are in this case not complying with the law.”  That’s shock and awe with a vengeance. 

 Perhaps it isn’t all that surprising to hear so remarkably dreadful comments from the chief enforcer of environmental purity these days.  This is an agency entrusted with a budget hovering from eight to ten billion dollars annually.  And it is an agency that has attacked hardworking Americans when they try to develop land in the desert, calling it a wetland, or to move dirt out of their swamp, deeming it a violation of federal environmental law. 

Justice Scalia, writing in Rapanos v. U.S., explained that those who might disturb the “waters of the United States” must go through an EPA permit process that entails more than two years of administrative delay with an average cost of $271,596 to complete the process.  And “waters of the United States” aren’t as wet as you might think.  They include swamps, desert land, and property more than 10 miles away from the nearest navigable water.  When deciding whether to grant permits (to use your land), the EPA considers such weighty factors as “aesthetics,” “the needs and welfare of the people,” and “recreation.”  Or, as Justice Scalia put it, the EPA acts with the “discretion of an enlightened despot.” 

Just this term, the Supreme Court decided Sackett v. EPA, and injected a short dose of commonsense into the EPA’s operations.  In Sackett, after years of litigation, the Court finally held that citizens have a right to bring the EPA to court over these issues instead of being trapped in administrative proceedings for years.  Now, the real battle must progress through the courts, with the Sacketts waiting all the while to build a home on their land, or what the EPA calls a “wetland.”  Give it another ten years and maybe the Sacketts can build their home.  Maybe. 

Mr. Amerdariz’s recently leaked comments expose a shocking disrespect by the federal government of our natural rights.  Founding father John Jay explained that no power on “earth has a right to take our property from us without our consent.”  Today, the EPA takes our property not through outright theft but in shackling people in the never-escapable administrative state.  Given the reach of the EPA’s authority, its continued losses in the courts, and its enormous budget, the agency’s zeal to crucify individuals for using property as they see fit is a most dangerous development.

The Wyoming Liberty Group is not afraid to stand in defense of our fundamental freedoms.  Even in the wake of a national crucifixion, a commitment to first principles and the rigorous advocacy of our constitutional rights is the surest remedy for their revival. 

A video released recently by Free Market America has gone viral, and caused quite a stir, already garnering close to two million views in under one month. What do you think?

More information.

One of the ads that Free Speech would like to run is the following radio advertisement:

President Obama opposes the Government Litigation Savings Act. This is a tragedy for Wyoming ranchers and a boon to Obama’s environmentalist cronies. Obama cannot be counted on to represent Wyoming values and voices as President. This November, call your neighbors. Call your friends. Talk about ranching.

According to two (of six) FEC Commissioners who endorsed one draft (Draft B) of an advisory opinion last Thursday, this ad is not about the Government Litigation Savings Act at all, but is instead an exhortation to vote against President Obama: 

The advertisement “goes beyond issue discussion to express electoral advocacy,” . . . asserting that President Obama “cannot be counted on to represent Wyoming values and voices as President” and concluding with a call to action “this November.”

Draft B goes even farther in its analysis, concluding that the ending tag line is “an obvious non sequitur, and no reasonable person could conclude that the advertisement actually encourages listeners to ‘[t]alk about ranching’ in ‘November’ rather than advocating against President Obama.”  Ben Barr, WyLiberty’s senior counsel, responded to this during the first hearing two weeks ago (around the 27:30 mark in audio of the hearing):

Wyoming is home to 943 million dollars in agricultural economy . . . Eleven thousand farms, averaging 2,700 acres. “Talk about ranching?” Absolutely. That is the predominant agricultural ranching state; it is a message of dire importance for the clients to be able to get out and talk about that issue. It may seem silly to those living in the Beltway. You may laugh out loud about it.  But for people living in Wyoming who want to speak out, these are dramatically important issues.

One FEC commissioner reiterated a bit of this reasoning last Thursday.  Ironically, on that very day the news media (which doesn’t need to register and report before it speaks—go figure) gave great coverage to the story of a proposed Department of Labor rule that would have prohibited children under 18 from working in “country grain elevators, grain bins, silos, feed lots, stockyards, livestock exchanges and livestock auctions”, even on farms or ranches run by their own family.  Indeed, while the FEC was reading the tea leaves to divine what Free Speech would really mean when it says “talk about ranching,” this far more pressing issue than the Government Litigation Savings Act was boiling over.  The media could cover it, and pundits with access to the media could opine on it (and they did- quite successfully), but a small grassroots group like Free Speech? They’re too bogged down in the administrative process over an old issue to even consider tackling a new one.

The FEC has now issued three proposed advisory opinions for Free Speech, and a fourth is likely to follow that will show which ads a majority of the commission can agree on.  The application of 100.22(b) is bewildering: Free Speech can’t figure it out, us attorneys can’t figure it out, and now it’s clear that the FEC can’t figure it out.

The Martin case has become cause célèbre for many issues.  Perhaps the most dunderheaded is whether Florida’s “Stand Your Ground” law is allowing for vigilante justice, or, as Paul Krugman flatulently summarizes, “lets you shoot someone you consider threatening without facing arrest.”  It is highly unlikely that the specifics of standing one’s ground will get more than a cursory reference by Zimmerman’s defense team, if that:  the fight between Zimmerman and Martin was, by all accounts so far, a nonstop engagement.  Without a pause in the action it’s very hard to even raise the question of whether Zimmerman had a “duty to retreat,” which is what Stand Your Ground laws address.  This case will likely come down to whether Zimmerman was the aggressor or acted in self-defense, and, if the latter, whether self-defense was reasonable.  I don’t believe even the illustrious Krugman objects to common law self-defense, but perhaps he’s trying to add a Nobel Peace Prize to his Nobel collection.

While the Stand Your Ground arguments are falling by the wayside (the news cycle can only say it so many times), others are busy adding Trayvon Martin to the anti-gun cause. 

Now that we’re over a decade past 9/11 (the day that I believe nearly shut down the anti-gun lobby and that continues to severely cripple it), the anti-gun lobby has started to voice itself again.  In a recent New Yorker piece, Jill Lepore chronicles the shootings of Trayvon Martin as well as school shootings in Ohio and California.  In cliché New Yorker fashion, she approaches lawful gun possession by viewing it as, at best, déclassé (something done by hicks who lack the advanced sensibilities of New Yorkers) or, at worst, fearful and ignorant (well, ditto).  I give Lepore credit for actually visiting a shooting range and taking a shooting lesson, but even such open-mindedness does not dispel her holier-than-thou attitude:  “It feels like a clubhouse, except, if you’ve never been to a gun shop before, that part feels not quite licit, like a porn shop.”  A model of objectivity.

This article, and the entire idea of adding Trayvon Martin to the anti-gun cause, trips over itself. First, Lepore notes:

In size, speed, efficiency, capacity, and sleekness, the difference between an eighteenth-century musket and the gun that George Zimmerman was carrying is roughly the difference between the first laptop computer—which, not counting the external modem and the battery pack, weighed twenty-four pounds—and an iPhone.  

Zimmerman’s pistol was certainly more reliable, more easily concealed and carried more rounds than eighteenth-century muskets.  But Zimmerman fired one shot at Martin, the same number of rounds that pistols could fire well before Columbus sailed to the New World, and well before the Second Amendment was written.  Although the massacre at Virginia Tech and the recent shootings Lepore discusses other than Trayvon Martin implicate the so-called “modernity argument,” such was not one of the aspects of Martin’s death.

But nitpicking aside, the bigger picture is far more disturbing.  As I noted before, we do not know whether or not Trayvon Martin was murdered or killed in self-defense, but it is foolhardy to enlist Martin’s memory for the anti-gun cause when he may very well be another example of exactly why ordinary Americans should be able to own and carry firearms.  If Martin did pin Zimmerman to the ground and repeatedly punched him in the face, Zimmerman was fully within his rights to shoot Martin in the chest.

If Zimmerman is acquitted or the charges against him are dismissed, gun control platitudes around Trayvon Martin will, to put it mildly, backfire. If anti-gun sensibilities stretch so far that ordinary Americans are meant to cower in fear and submit to those with more physical strength and the will to wield it, gladly taking a beating now and then for the lofty cause of what Lepore terms “civilian life,” I welcome the anti-gun lobby back into public discourse.  There’s always room for another court jester.

These regulations are put out by the Federal Election Commission, which drafts them based on laws passed by Congress.  Why can’t citizens just follow laws passed by our elected representatives, you ask?  I have no idea, and as an attorney I assure you this question only becomes more baffling with experience.

That said, I am pleasantly surprised to discover that this year’s regs are 550 pages.  Yes, friends, this is still about 549 pages too long, since the First Amendment could be cropped and centered nicely onto one page.  Howver, this is 9 pages shorter than last year’s regulations. 

Regulations? Shorter? A minor miracle!

It is possible that the margins, spacing, and/or font was adjusted this year to make more economical use of all that paper coming out of D.C. But if that’s not the case, if indeed the plethora of losses the FEC has experienced at the courts over the past few years is leading to even just a few less regulations over constitutionally protected activity. . . it’s a good start.

This morning the FEC’s open meeting is scheduled to addres our advisory opinion request on behalf of Free Speech. When it comes to grassroots advocacy, we stand with the First Amendment, and that means less regulations, more free speech.  

June is, of course, the anticipated month when the Supreme Court of the United States (SCOTUS) will rule in the landmark case HHS v. Florida regarding the constitutionality of the Patient Protection and Affordable Care Act, aka ObamaCare.   The following conclusions summarize three days of oral arguments before the nine Supreme Court justices on March 26, 27 and 28, 2012.  In summing up the three days, constitutional law experts say:

• Kansas Attorney General, Derek Schmidt, said, “I feel better the states are going to prevail today than I did when arguments began.”
•  Carrie Severino, a former Supreme Court Clerk to Clarence Thomas, concluded: “[I]t’s a good week for defenders of the Constitution at the Supreme Court. After Tuesday’s arguments, there is hope that the individual mandate would be declared unconstitutional.”  
• Ilya Shapiro of the Cato Institute said, “I’m coming out of this week feeling very good” and that “[t]he Court will easily get past the [Anti Injunction Act], probably strike down the individual mandate, more likely than not taking with it all or most of the rest of the law (including the Medicaid expansion),” though “trying to predict the Supreme Court isn’t a science—but I’m coming out of this week feeling very good.”
• Virginia Attorney General Ken Cuccinelli, the first to file suit challenging the law, said, “[i]f you had to lay odds now, I think the most likely outcome in this case … is that they will take it up, the individual mandate, I think, will be held unconstitutional—I’m still cautiously optimistic about that—and I think they may rip the whole law out.”

But whether or not June brings an end to the federal health care act, what is our “Plan B” to continue with health care reform efforts?  Americans know we cannot continue to operate our health care system as we do currently.

In our latest Liberty Brief, Wyoming Liberty Group has developed a “Plan B.”  It is a Five Step Plan that addresses all of the essential problems with health care (government involvement, employer mingling, public funding, over-regulation and a misunderstanding of the economics of health care) in one sequential process. The sequence clarifies the relationship between each step, distinguishes between free-market and essential government functions and identifies state and federal steps needed to set the process in motion. 

We can correct mistakes made when we entangled health insurance with employment, and health care with entitlements. Americans will be put back in control of their health care decisions as we free ourselves from federal overreach that has left us with poor outcomes, limited health care options and states in fiscal crises due to dependency on federal funds. 

We do not need a federal law for health care reform.  We can do it one state at a time.

Click here to download the brief.

Click here for an executive summary.

The uproar around Rove centers on his comments about what the Constitution has to say about these efforts.  Rove correctly stated,  “We’ve seen this before” – referencing the push by southern attorneys general in the 1950s to make NAACP membership lists public so as to intimidate people from joining or donating.  Some in the legal mainstream call that analogy absurd because “African Americans, Jews and sympathetic Christians were literally losing their livelihoods, losing their homes, losing their jobs, and losing their lives because of their participation in the civil rights movement.” They assert that because no one is “being blown up in the middle of the night,” somehow conservative groups would not be injured by disclosure.  Not so. 

As a first principle, citizens should not have to demonstrate broken bones, blown up homes, and loss of life just to protect their constitutional rights.  What happened in the south proves a horrible reminder of this – for any American.  It simply doesn’t matter if you find yourself in a loose affiliation of millionaires and billionaires or if you are a street protester with the NAACP.  You still count under the Constitution. 

Under existing precedent, including NAACP v. Alabama and Brown v. Socialist Workers’ 74, citizens must show verifiable bloodied noses before having their rights to political anonymity protected.  Sadly, these same protections haven’t been extended to instances where conservative groups fought for a traditional definition of marriage and risked their lives and livelihoods to do so.  But why would we demand that a person must first sacrifice his life just to demonstrate his constitutional rights are somehow worthwhile?

There’s more to the rub about political intimidation.  Today’s political environment isn’t exactly one where business leaders feel safe joining with or contributing to political efforts.  Steve Wynn, CEO of Wynn Resorts, explained he’s “afraid to do anything in the current political environment in the United States.”  Both Wynn and his customers say they are “frightened of this administration.”  Then there’s Henry Juszkiewicz, CEO of Gibson Guitars, whose plants were raided by the Department of Justice due to suspicious Indian wood, who reasons that the “Obama Justice Department wants us to just shut our doors and go away.”  More examples abound:  the Boeing debacle and the all out assault on the Koch brothers to name a few. 

In the midst of one of the most competitive recent electoral seasons, we would do well to step back from the public controversy and ask what really matters.  What John Adams wrote in 1765 in his Dissertation on the Cannon and the Federal Law seems particularly appropriate today:

Let us dare to read, think, speak, and write.  Liberty cannot be preserved without a general knowledge among the people, who have a right, an indisputable, divine right, to that most dreaded and envied kind of knowledge.  I mean of the character and conduct of their rulers. . . . Be not intimidated, therefore, by any terrors, from publishing with the utmost freedom whatever can be warranted by the laws of your country; nor suffer yourselves to be wheedled out of your liberty by any pretense of politeness, delicacy, or decency.  These, as they are often used, are but three different names for hypocrisy, chicanery, and cowardice.

 Adams’ brave instruction, “Be not intimidated,” carries equal strength today.  Because the right of free speech and association acts as a guardian for every other right, we must exercise special vigor in protecting it today for paupers and billionaires alike.