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  • NLRB's BFI Decision Deserves Overturning

    September 9, 2015 4:11 PM

    Who’s the boss? That’s not often a difficult question to answer. But thanks to the National Labor Relations Board (NLRB), it’s no longer so easy. The NLRB’s recent decision in Browning-Ferris Industries overturned three decades of precedent for determining who can constitute a joint employment situation—where a party other than the direct employer of a group of workers exercises control over those workers. In doing so, the Board threw a wide variety of employment arrangements into uncertainty, including franchising, contracting, and temporary employment.

    The Browning-Ferris decision threatens to be economically damaging, and deserves attention from Congress. Today, Sen. Lamar Alexander (R-Tenn.) and Rep. John Kline (R-Minn.) introduced legislation to restore the joint employer standard that had prevailed for three decades before the NRLB unilaterally and without any compelling reason—other than to give unions bigger targets to organize—overturned it on August 27.

    Under the new standard, the Board’s majority held that a business need not prove actual or exercised control, but merely the potential for control, to qualify as a joint employer. Under the old standard, control needed to be direct and exercised; under the new standard, it no longer need be. Widely broadening the criteria of what may constitute a joint employment situation threatens to potentially ensnare businesses all across the nation in labor relationships they never expected to be in, and liable for employees they didn’t know they had.

  • Education Department Harms Innocent Colleges and Students through Illegal Title IX Mandates

    September 9, 2015 10:08 AM

    The Education Department, where I used to work, is becoming more and more extreme in how it interprets and applies federal law. Sometimes this comes at the expense of colleges: as a task force of college presidents recently noted in a report to the U.S. Senate, the Education Department frequently makes up new legal mandates out of thin air under the bogus pretense that they are required by some statute, and then imposes them on colleges, without even going through the notice and comment required by the Administrative Procedure Act.

    Sometimes, its overreaching comes at the expense of individual people. The Education Department has thumbed its nose at court rulings by creating entitlements for people who make false discrimination and harassment complaints—even though such baseless complaints can make life miserable for the victims of such false allegations (and cause serious problems for the institution they work for or attend).

    Federal judges have ruled that people who lie and file sexual harassment charges over conduct they falsely claim was unwelcome can be disciplined, in cases such as Vasconcelos v. Meese (1990). But in a recent Title IX investigation of Michigan State University, the Education Department required university officials to offer “remedies” to “Student A,” whom both it and the University found had made a false allegation of sexual assault against two students. 

    The Education Department’s strange logic was that the university did not begin proceedings against the accused students fast enough (even though it immediately kicked them out of their dorm and ordered them to stay away from the accuser).

  • Cato, CEI File Amicus Brief to Protect Donor Confidentiality and Freedom of Association

    September 8, 2015 11:43 AM

    The Cato Institute and CEI recently filed an amicus brief with the Supreme Court, urging it to stop California Attorney General Kamala Harris from making intrusive demands for the donor lists of non-profit groups.

    Federal law treats the donor lists contained in non-profits’ Form 990 Schedule B as confidential, and forbids the IRS to give them to state attorneys general. (See, e.g., 26 U.S.C. § 6104(c)(3).)

    Moreover, California statutes do not require, or even specifically authorize, the state attorney general to collect such confidential donor information from non-profits. But Harris does it anyway, demanding that non-profits give her their Schedule B’s.

    Harris’s demands were challenged by the Center for Competitive Politics (CCP), a public-interest law firm, after Harris demanded that it disclose its principal donors to the state. CCP’s challenge was rejected by a trial court and then the Ninth Circuit Court of Appeals based on the meager premise that Harris could demand this information in the name of “investigative efficiency.”

    In that case, Center for Competitive Politics v. Harris, the Ninth Circuit rejected CCP’s facial First Amendment challenge to the requirement, but left open the theoretical possibility that charities can bring an as-applied challenge if they can show that their donors would experience “threats, harassment, and reprisals” due to such disclosure. But that is small comfort: Bringing such an as-applied challenge would require a lawsuit that would cost tens of thousands of dollars in attorney’s fees, meaning that all but the largest non-profits would be unlikely to do so even if they had experienced donor harassment or reprisals against their contributors. That would result in a massive chilling effect on First Amendment associational rights.

    Moreover, Harris (whom CEI earlier rated America’s fourth-worst state attorney general) has already indicated she will not grant such as-applied exceptions to her demands for disclosure, even to charities whose donors have already faced well-documented harassment, unless a court specifically orders her to do so in response to a lawsuit.

  • Ten Major Energy Companies Support Paris Accord, But 18 Don’t

    September 8, 2015 9:22 AM

    CDP—formerly known as the Carbon Disclosure Project—this week announced in a press release that: “Disclosures from thousands of the world’s largest listed companies reveal that many of the most significant producers of fossil fuels support an international deal that will limit warming to 2 degrees as an outcome of the upcoming UN climate conference, COP-21.” However, the list of the top 28 energy companies released by CDP reveals a mixed picture.

    CDP asked the following question: “Would your organization’s board of directors support an international agreement between governments on climate change, which seeks to limit global temperature rise to under 2 degrees Celsius from pre-industrial levels in line with IPCC scenarios such as RCP2.6?” By my count, ten energy corporations answered Yes.

    The ten top energy companies that support a strong Paris Accord to reduce greenhouse gas emissions are: Anglo American, BG Group, BHP Billiton, Eni SpA, Gazprom, Repsol, Royal Dutch Shell, Sasol, Statoil, and Total. None of these is an American company.

    But CDP listed the response from 18 other companies as either “No opinion,” “Blank,” or “Non public disclosure.” These companies are: Anadarko Petroleum, Apache, BP, Chevron, China Petroleum and Chemical, Conoco Phillips, Devon Energy, Ecopetrol Sa, Exxon Mobil, Glencore, Hess, Lukoil, Occidental Petroleum, Petrochina, Petrobras, Rio Tinto, RWE, and Suncor Energy. Eight of these companies are American.

    But CDP’s survey shows that many non-energy companies support the Paris Accord: “CDP data shows that companies that have formulated an opinion on a global climate deal are overwhelmingly in support: 805 companies answer yes, versus 111 that said no. A high number of companies (1,075) state that they have no opinion, and 331 did not answer the question.”

  • CEI's Battered Business Bureau: The Week in Regulation

    September 8, 2015 8:42 AM

    A new International Trade Commission regulation gives a useful reminder of the holy trinity of price regulation: if a company charges a higher price than its competitors, it is guilty of having excessive market power over its competitors. If it charges the same price as its competitors, it is guilty of collusion. And if it charges lower prices than its competitors, it is guilty of unfairly undercutting its competitors.

    Other new regulations from last week range from cotton imports to blueberries.

    On to the data:

    • Last week, 80 new final regulations were published in the Federal Register, after 73 the previous week.
    • That’s the equivalent of a new regulation every two hours and 6 minutes.
    • So far in 2015, 2,258 final regulations have been published in the Federal Register. At that pace, there will be a total of 3,282 new regulations this year, which would be more than 200 fewer rules than the usual total of 3,500-plus.
    • Last week, 1,313 new pages were added to the Federal Register, after 1,261 pages the previous week.
    • Currently at 53,689 pages, the 2015 Federal Register is on pace for 78,037 pages.
    • Rules are called “economically significant” if they have costs of $100 million or more in a given year. Nineteen such rules have been published so far this year, none in the past week.
    • The total estimated compliance cost of 2015’s economically significant regulations ranges from $1.32 billion to $1.41 billion for the current year.
    • 188 final rules meeting the broader definition of “significant” have been published so far this year.
    • So far in 2015, 379 new rules affect small businesses; 55 of them are classified as significant. 
  • UN Climate Negotiators Make Slow Progress in Bonn

    September 8, 2015 8:11 AM

    Another week of UN climate negotiations ended in Bonn, Germany, on 4th September with expressions of mild optimism that progress was being made from negotiators and environmental groups. The most upbeat assessment came from Dan Reifsnyder, co-chairman of the negotiations and a senior U. S. State Department official. Reifsnyder said: "We've achieved an enormous amount of clarity in this session."

    The World Resources Institute said in a press release: “In Bonn, countries made important progress in crafting the core architecture of the global agreement. Negotiators had meaningful discussions on key elements, such as whether to regularly ramp up countries’ commitments and set long-term goals to phase out emissions and enhance climate resilience.”

    Informal negotiations will continue behind the scenes throughout the fall, but only one more official session is currently scheduled before the 21st Conference of the Parties (COP-21) convenes in Paris on 30th November. That session is set for Bonn from 19th to 23rd October. The Paris Accord, a new international climate agreement to replace the Kyoto Protocol, is supposed to be signed before COP-21 ends on 11th December.

  • President Obama Uses Alaska as a Backdrop for Climate Agenda

    September 8, 2015 7:23 AM

    President Barack Obama followed up his disgraceful speech in Las Vegas last week with an insulting tour of Alaska, which included another disgraceful speech, from Monday, 31st August, through Wednesday, 2nd September. In his speech to the Arctic Conference in Anchorage, the President claimed that “[F]ew things will disrupt our lives as profoundly as climate change. Few things can have as negative an impact on our economy as climate change.”

    The President’s speech was full of high-sounding sentiments as well as the usual junk science and even junkier economics, but he couldn’t resist a few low blows: “So the time to heed the critics and the cynics and the deniers is past. The time to plead ignorance is surely past. Those who want to ignore the science, they are increasingly alone. They’re on their own shrinking island.”

    President Obama used Alaska as a backdrop for his climate agenda, while carefully avoiding sights of any of the damaging effects of his policies on Alaskans. He did not visit King Cove in the Aleutians, where the refusal of the Department of the Interior to allow building an eleven-mile road to the nearest town with access to medical care endangers the lives of its residents whenever bad weather makes helicopter and boat travel impossible. He did not visit the site of the proposed Pebble Mine, which the EPA is blocking. He did not visit the coastal plain of the Arctic National Wildlife Refuge, where he adamantly opposes oil production.

  • Workers Deserve Labor Law Reform

    September 4, 2015 2:30 PM

    Unions use Labor Day as an occasion to remind workers of their past good deeds and deploy their usual rhetoric claiming to have workers’ best interests at heart.  

    In theory, labor unions represent workers in order to secure better working conditions and compensation, but unions don’t always work that way. Unfortunately, unions always negotiate one-size-fits-all contracts that make them the sole representative of those workers. Besides bargaining for contracts that are not responsive to all workers’ needs, labor unions commonly advocate for more coercive power that harms worker rights.

    Unions use their vast political funds to advance legislation and regulation that keep in place an outdated system of exclusive representation where workers lose autonomy in contract negotiations at organized workplaces—ensuring that individual workers have no right to negotiate with management over working conditions, pay, or benefits.

    And if workers take issue with a union’s inept collectively bargained contracts or political activity that does not align with their beliefs, unions commonly resort to using intimidation tactics that keep workers under their control and political clout to advance public policy that does the same.

    Unions have access to employees’ personal information available to them through the new ambush election rule, which compels employers to provide employees’ contact information to union organizers, including personal cell phone numbers, email addresses, and work schedules—without an opt-out provision for those who prefer not to share their personal data.

  • More Punishment for Thrifty Seniors from Federal Medicare Laws

    September 2, 2015 2:25 PM

    If two couples make almost the same amount of money, should one of them be charged $2,000 more in Medicare Part B premiums? Logically, no, but to the federal government, the answer is sometimes “yes.” This problem will get worse in 2016, and much worse by 2018.

    Under federal law, an elderly couple can be charged thousands extra annually for Medicare premiums if their income goes up by just a few dollars (which can occur because they saved their money, and thus have more savings account interest or investment income). That’s because Medicare premiums suddenly jump by big amounts at certain income levels, rather than rising gradually the way your taxes do when your income rises.

    Now, these arbitrary income cliffs will get even worse due to a quirk in federal law. As the Fiscal Times notes in “Millions Facing a Hefty Increase in Medicare Premiums in 2016,”

    Nearly a third of the roughly 50 million elderly Americans who depend on Medicare for their physician care and other health services could see their premiums jump by 52 percent or more next year. That’s because of a quirk in the law that punishes wealthier beneficiaries and others any time the Social Security Administration fails to boost the annual cost of living adjustment. . . .

    an estimated 15 million seniors, first-time beneficiaries or those currently claiming dual Medicare and Medicaid coverage will see their premiums jump from $104.90 per month to $159.30 for individuals . . .Higher-income couples would pay multiples of that increase.

    As Reuters notes, even before this quirk jacks up rates, the economic punishment for earning a few extra dollars is already slated to increase dramatically due to the recently passed “doc fix” legislation to raise more revenue for Medicaid providers (known as the Medicare Access and CHIP Reauthorization Act of 2015):

    Affluent enrollees already pay more for Medicare. Individuals with modified adjusted gross income (MAGI) starting at $85,000 ($170,000 for joint filers) pay a higher share of the government's full cost of coverage in Medicare Part B and Part D for prescription drug coverage. This year, for example, seniors with incomes at or below $85,000 pay $104.90 per month in Part B premiums, but higher income seniors pay between $146.90 and $335.70, depending on their income.

    The [“doc fix” law] will shift a higher percentage of costs to higher-income seniors starting in 2018 for those with MAGI between $133,500 and $214,000 (twice that for couples). Seniors with income of $133,000 to $160,000 would pay 65 percent of total premium costs, rather than 50 percent today. Seniors with incomes between $160,000 and $214,000 would pay 80 percent rather than 65 percent, as they do today.

    As Valley News notes, this economic punishment for earning a few extra dollars will now rise further due to the ironically named “hold harmless” provision in federal law. “High-income retirees . . .will be hit hard. . . . Affluent seniors already pay more for Medicare Part B and also Part D for prescription-drug coverage. . . . ‘When you combine it all, it's looking pretty ugly,’ says Sharon Carson, a retirement strategist at J.P. Morgan Asset Management.”

  • How to Fix Regulation without Representation

    September 2, 2015 1:35 PM

    Before it departed for its August recess, the House passed the Regulations from the Executive In Need of Scrutiny (REINS) Act. It would require Congress to hold votes on all new agency regulations costing at least $100 million per year, and would limit agency’s ability to regulate unilaterally.

    In a piece over at The Hill’s Congress Blog, Wayne Crews and I make the case for the reconvening Senate to pick up the baton and also pass REINS:

    There is an urgent need to free consumers, entrepreneurs and small businesses from the costs and hurdles associated with federal red tape. The REINS Act would be an excellent anchor for reform, allowing Congress to clean out obsolete rules and strengthen rulemaking disclosure and oversight. REINS deserves both a vote in the Senate and to reach President Obama’s desk. If the president vetoes it, it’ll be up to him to explain why Americans should be controlled by agency bureaucrats rather than the people they elected to represent them in Congress.

    Read the whole thing here.


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