Overcriminalized.com Legislative Update

From Overcriminalized.com:

Table of Contents




New:



H.R. 1468: Honest Services Restoration Act

H.R. 1404: Fair Elections Now Act

H.R. 1389: Global Online Freedom Act of 2011

S. 754: Safe Roads Act of 2011

S. 750: Fair Elections Now Act

S. 743: Whistleblower Protection Enhancement Act of 2011

S. 727: Bipartisan Tax Fairness and Simplification Act of 2011

S. 711: Secure Water Facilities Act

S. 709: Secure Chemical Facilities Act

Updates:



S. 223: FAA Air Transportation Modernization and Safety Improvement Act



--------------------------------------------------------------------------------



H.R. 1468: Honest Services Restoration Act



Sponsor: Weiner (D - NY)



Official Title: To amend title 18, United States Code, to prohibit public officials from engaging in undisclosed self-dealing.



Status:

4/8/2011: Introduced in House

4/8/2011: Referred to House Judiciary Committee



Commentary: The 24-year-old federal "honest services" fraud statute, 18 U.S.C. § 1346, makes it a federal crime to engage in a "scheme or artifice to defraud another of the intangible right of honest services." The maximum term of incarceration for whatever conduct is deemed to violate this uncommonly broad prohibition is 20 years (30 years if the violation "affects" any financial institution). In June 2010, the Supreme Court held that the language of the "honest services" fraud statute is unconstitutionally vague and limited its reach to acts involving bribery or kickbacks. The Court rejected the government's suggestion that it construe § 1346 to include officials or employees who take action to further their own financial interests. This bill (like S. 3854 from the 111th Congress) would subject to the prohibition and penalties of § 1346 any public official or any officer or director of any publicly-traded corporation or private charity who is involved in a "scheme or artifice ... to engage in undisclosed ... self-dealing." The mental state (mens rea or "criminal intent") that the government would have to prove is essentially undefined. Like the overbroad statute that the Supreme Court struck down, the uncommonly broad definitions of "undisclosed self-dealing" in this bill include, for example, "benefitting or furthering a financial interest of ... the public official ... [or] an individual, business, or organization with whom the public official is negotiating for, or has any arrangement concerning, prospective employment or financial compensation." The maximum penalty for violations would remain 20 years of imprisonment (or 30 years if the violation "affects" any financial institution).





H.R. 1404: Fair Elections Now Act



Sponsor: Larson (D - CT)



Official Title: To reform the financing of House elections, and for other purposes.



Status:

4/6/2011: Introduced in House

4/6/2011: Referred to House Administration Committee



Commentary: This bill, which is a companion bill to S. 750, would amend the Federal Election Campaign Act (FECA) of 1971 (2 U.S.C. 431 et seq.) to set up a quasi-publicly funded system for financing U.S. House campaigns. Specifically, the bill would establish a so-called Fair Elections Fund (FEF) that would contribute $900,000 to each qualified candidate participating in the system. The FEF would be funded by future appropriations, voluntary contributions by taxpayers, and civil penalties levied against H.R. 1404 violators by the Federal Election Commission (FEC). Qualified candidates who violate the provisions of this bill would be subject to sanction by the FEC in the form of civil penalties and, in the case of "knowing and willful" violations, referral of the matter to the Department of Justice for possible criminal prosecution.





H.R. 1389: Global Online Freedom Act of 2011



Sponsor: Smith (R - NJ)



Official Title: To prevent United States businesses from cooperating with repressive governments in transforming the Internet into a tool of censorship and surveillance, to fulfill the responsibility of the United States Government to promote freedom of expression on the Internet, to restore public confidence in the integrity of United States businesses, and for other purposes.



Status:

4/6/2011: Introduced in House

4/6/2011: Referred to House Foreign Affairs Committee

4/6/2011: Referred to House Energy and Commerce Committee



Commentary: This bill would establish an Office of Global Internet Freedom within the Department of State to help protect and promote abroad the freedom of electronic information related to political, religious, or ideological opinion or belief. Additionally, H.R. 1389 would mandate that any U.S. business that creates, provides, or offers to the public for commercial purposes an Internet search engine, Internet communications services, or Internet content hosting services, adhere to "minimum corporate standards for online freedom." These standards require the protection of "personally identifiable information" in web-restricting countries, transparency regarding search engine filtering and Internet censorship in web-restricting countries, and the safeguard of U.S.-supported online content. Violations of these minimum corporate standards would be punishable by civil fines of up to $2,000,000. U.S. businesses would also be civilly liable for any violations of these standards by foreign entities that were perpetrated with their authorization, direction, control, or participation. H.R. 1389 would also authorize the imposition of criminal sanctions in situations involving the "knowing" provision of personally identifiable information to a foreign official of an Internet-restricting country when such data is given with knowledge that "providing such information will further a policy on the part of the government of such country of prosecuting, persecuting, or otherwise punishing individuals or groups on account of the peaceful expression of political, religious, or ideological opinion or belief" and when the provision of such data "leads to the death, torture, serious bodily injury, disappearance, or detention of any individual." The bill would make such criminal violations punishable by up to five years imprisonment, fines under Title 18 of the U.S. Code, or both.





S. 754: Safe Roads Act of 2011



Sponsor: Pryor (D - AR)



Official Title: A bill to amend title 49, United States Code, to require the Secretary of Transportation to establish and maintain a national clearinghouse for records relating to alcohol and controlled substance testing of commercial motor vehicle operators, and for other purposes.



Status:

4/7/2011: Introduced in Senate

4/7/2011: Referred to Senate Commerce, Science and Transportation Committee



Commentary: This bill, which is nearly identical to S. 1113 from the 111th Congress, would create a "national clearinghouse for positive controlled substance and alcohol test results of commercial motor vehicle operators" and impose a variety of testing, disclosure, and recordkeeping requirements on employers of motor vehicle operators. Violations of any of these requirements would be punishable under 49 U.S.C. §521(b) by civil fines of up to $10,000 or, for "knowing" and "willful" transgressions, criminal sanctions of up to one year imprisonment, fines of up to $25,000, or both.





S. 750: Fair Elections Now Act



Sponsor: Durbin (D - IL)



Official Title: A bill to reform the financing of Senate elections, and for other purposes.



Status:

4/6/2011: Introduced in Senate

4/6/2011: Referred to Senate Rules and Administration Committee



Commentary: This bill, which is a companion bill to H.R. 1404, would amend the Federal Election Campaign Act (FECA) of 1971 (2 U.S.C. 431 et seq.) to set up a quasi-publicly funded system for financing U.S. Senate campaigns. Specifically, the bill would establish a so-called Fair Elections Fund (FEF) that would contribute $1.25 million plus $250,000 per state congressional district to each qualified candidate participating in the system. S. 750 would also attempt to offset the excessive cost of campaign media by mandating a 20 percent reduction in broadcast rates for qualified candidates and offering such candidates up to $100,000 in media vouchers per state congressional district. The FEF would be funded by a tax on all government contractors with contracts valued at greater than $10,000,000, voluntary contributions by taxpayers, and civil penalties levied against S.750 violators by the Federal Election Commission (FEC). Qualified candidates who violate the provisions of this bill would be subject to sanction by the FEC in the form of civil penalties and, in the case of "knowing and willful" violations, referral of the matter to the Department of Justice for possible criminal prosecution.





S. 743: Whistleblower Protection Enhancement Act of 2011



Sponsor: Akaka (D - HI)



Official Title: A bill to amend chapter 23 of title 5, United States Code, to clarify the disclosures of information protected from prohibited personnel practices, require a statement in nondisclosure policies, forms, and agreements that such policies, forms, and agreements conform with certain disclosure protections, provide certain authority for the Special Counsel, and for other purposes.



Status:

4/6/2011: Introduced in Senate

4/6/2011: Referred to Senate Homeland Security and Governmental Affairs Committee



Commentary: This bill would amend Chapter 23 of Title 5, U.S. Code, to pare back and eliminate many of the restrictions that have been read into the language of the Whistleblower Protection Act (WPA) by the U.S. Court of Appeals for the Federal Circuit and the Merit Systems Protection Board (MSPB). In addition, S. 743 would expand the scope of the WPA to cover new groups of employee whistleblowers, including employees of the Transportation Safety Administration and various entities within the intelligence community. The bill would also make it easier for the MSPB to issue final orders imposing disciplinary action against individuals who commit a prohibited personnel practice. Currently, the MSPB may punish violators by issuing orders permitting "removal, reduction in grade, debarment from Federal employment for a period not to exceed 5 years, suspension, reprimand, or an assessment of a civil penalty not to exceed $1,000." S. 743 would maintain that same penalty framework, but permit the MSPB to take disciplinary action against individuals who undertake a prohibited personnel practice where activities "protected under [5 U.S.C.] section 2302(b)(8), or 2302(b)(9) (A)(i), (B), (C), or (D) [are] a significant motivating factor, even if other factors also motivated the decision ... to take, fail to take, or threaten to take or fail to take a personnel action."





S. 727: Bipartisan Tax Fairness and Simplification Act of 2011



Sponsor: Wyden (D - OR)



Official Title: A bill to amend the Internal Revenue Code of 1986 to make the Federal income tax system simpler, fairer, and more fiscally responsible, and for other purposes.



Status:

4/5/2011: Introduced in Senate

4/5/2011: Referred to Senate Finance Committee



Commentary: This bill is nearly identical to S. 3018 from the 111th Congress, which was also introduced by Senator Wyden. S. 727 would make a number of substantive changes to the tax code, including increasing the penalties for several offenses involving attempted tax evasion, willful failure to file tax returns, and willful failure to pay taxes due. Under current law, section 7201 of Title 26, U.S. Code, prohibits the willful attempt to evade or defeat a tax. Violations of this provision are currently punishable by fines of up to $100,000 for individuals and $500,000 for corporations, imprisonment for up to five years, or both. S. 727 would increase those penalties to fines of up to $500,000 for individuals and $1,000,000 for corporations, imprisonment for up to ten years, or both. Under current law, section 7203 of Title 26, U.S. Code, makes it a violation for those who are required to pay estimated tax to fail to make a return, keep records, supply information, or pay the estimated tax. S. 727 would increase the criminal fine for violating § 7203 from $25,000 to $50,000 for individuals. In addition, the bill would add a subsection to § 7203 creating the offense of aggravated failure to file, which would consist of failing to make a return for any three taxable years out of any period of five taxable years if the aggregate liability is $50,000 or more or where the failure to make a return involves income "attributable to an activity that is a felony under any State or Federal law." The offense of aggravated failure to file would be a felony punishable by up to five years imprisonment, a fine of $250,000 for individuals and $500,000 for corporations, or both. S. 727 would also increase the criminal penalty for violating section 7206 of Title 26, U.S. Code, which covers fraud and false statements related to tax returns, tax statements, and other tax documents. The bill would increase the available criminal penalties under § 7206 to a maximum of five years of imprisonment (from three years), fines of $500,000 for individuals (from $100,000) and $1,000,000 for corporations (from $500,000), or both.





S. 711: Secure Water Facilities Act



Sponsor: Lautenberg (D - NJ)



Official Title: A bill to amend the Safe Drinking Water Act and the Federal Water Pollution Control Act to authorize the Administrator of the Environmental Protection Agency to reduce or eliminate the risk of releases of hazardous chemicals from public water systems and wastewater treatment works, and for other purposes.



Status:

3/31/2011: Introduced in Senate

3/31/2011: Referred to Senate Environment and Public Works Committee



Commentary: This bill, which is nearly identical to S. 3598 from the 111th Congress, calls on the Administrator of the Environmental Protection Agency (EPA) to promulgate new regulations establishing risk-based performance standards for the security of public water systems that serve more than 3,300 people or otherwise present a security risk. S. 711 and the regulations promulgated in accordance with it would also protect certain information from disclosure, including any data associated with water system vulnerability assessments, documents associated with audits or inspections of covered systems, or documents relating to a security threat or breach. "Whoever discloses protected information in knowing violation of the regulations" promulgated in accordance with this bill would be subject to criminal sanctions of up to one year imprisonment, fines under Title 18 of the U.S. Code, or both. If the person who unlawfully discloses protected information is a federal officeholder or employee, that person would also be subject to removal from federal office or employment.





S. 709: Secure Chemical Facilities Act



Sponsor: Lautenberg (D - NJ)



Official Title: A bill to enhance the security of chemical facilities and for other purposes.



Status:

3/31/2011: Introduced in Senate

3/31/2011: Referred to Senate Homeland Security and Governmental Affairs Committee



Commentary: This bill, which is nearly identical to S.3599 from the 111th Congress, would modify and make permanent the authority of the Department of Homeland Security to regulate security practices at chemical facilities throughout the United States. Specifically, S. 709 would require the risk-based designation and ranking of chemical facilities that possess "substances of concern" or meet other criteria established by the Secretary of DHS. The bill would also protect from disclosure certain information associated with the designation and ranking process, including information related to the assessment of the vulnerability of a chemical facility, documents that relate to an audit or inspection of a covered chemical facility, and documents relating to a security threat or breach of security. "Any person" who discloses protected information "in knowing violation of the regulations" promulgated in accordance with S. 709 would be subject to criminal sanctions of up to one year imprisonment, fines under Title 18 of the U.S. Code, or both. If the person who unlawfully discloses protected information is a federal official or employee, that person would also be subject to removal from federal office or employment.





S. 223: FAA Air Transportation Modernization and Safety Improvement Act



Sponsor: Rockefeller (D - WV)



Official Title: A bill to modernize the air traffic control system, improve the safety, reliability, and availability of transportation by air in the United States, provide modernization of the air traffic control system, reauthorize the Federal Aviation Administration, and for other purposes.



Status:

1/27/2011: Introduced in Senate

1/27/2011: Placed on Senate calendar

2/2/2011: Amended by the Senate

2/3/2011: Amended by the Senate

2/8/2011: Amended by the Senate

2/15/2011: Amended by the Senate

2/16/2011: Amended by the Senate

2/17/2011: Amended by the Senate

2/17/2011: Cloture invoked in Senate by yea-nay vote

2/17/2011: Senate passage with amendments by yea-nay vote

4/7/2011: Measure incorporated as amendment to other legislation



Commentary: This authorization bill would modify the approved funding levels and scope of a wide array of programs associated with the Federal Aviation Administration (FAA) and the national air traffic control system. Of the 108 proposed amendments to the legislation, five (S. Amendments 8, 29, 58, 67, and 85) seek to add new criminal penalties to the federal code. Three of those amendments (S. Amendments 8, 58, and 85) have been agreed to by the Senate and added to the language of S. 223. Senate Amendment 8 authorizes criminal punishment for any individual who "knowingly aims the beam of a laser pointer at an aircraft in the special aircraft jurisdiction of the United Stated, or at the flight path of such an aircraft." The sanction for such behavior would be up to five years imprisonment, fines under Title 18 of the U.S. Code, or both. Senate Amendments 58 and 85, on the other hand, permit criminal punishment for the unauthorized recording and distribution of any images produced using "advanced imaging technology during the screening of an individual at an airport, or upon entry into any building owned or operated by the Federal Government." Violators of this prohibition would be subject to criminal sanctions of up to one year imprisonment, fines under Title 18 of the U.S. Code, or both. [Ed. note: The language of S. 223 has been incorporated whole cloth as an amendment to the House version of the FAA Air Transportation Modernization and Safety Improvement Act (H.R. 658), which was recently passed by the House and was referred to the Senate. This Senate amended version of H.R. 658, which includes the criminal penalties described above, passed by unanimous consent. At present, the Senate insists on its amendment and has requested a conference committee to resolve differences between the two pieces of legislation.]

Draconian Energy Policies Will Never Die

From The CATO Institute:

Draconian Energy Regulation Will Never Die




by Patrick J. Michaels

















This article appeared on Forbes.com April 14, 2011.





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Sure, global warming policy seems off of the political radar, but it is still in the air, homing fast and true on your pocketbook via the stealth technology of the courts and the EPA. It will never be shot down.



Many would like to believe that cap-and-trade, carbon dioxide taxes, or simple command-and-control regulation went into a coma when the Senate failed to pass any companion legislation to the House's American Clean Energy and Security (ACES) Act, which squeaked through 219-215 on June 26, 2009. And then, the myth goes, it died in the House blowout last November.



The reasoning in support of this is pretty straightforward. Almost every close House race in 2010 was won by a Republican. In the Senate, the dogfights all went Democrat. The difference between the two? The House passed ACES while the Senate twiddled down the clock.







Patrick Michaels is senior fellow in environmental studies at the Cato Institute and author of Climate Coup: Global Warming's Invasion of our Government and our Lives, which comes out April 22.



More by Patrick J. Michaels



This would all be correct if we were true to our Constitution, which established a federal government of profoundly limited power, granted great authority to the states, and, perhaps most important, limited the executive branch to mainly to "take Care that the Laws be faithfully executed" (Article II). But, as my Cato Institute colleague Roger Pilon so eloquently points out, we live in a modern "Executive State" where a massive amount of power has been delegated from Congress to myriad agencies (such as EPA) where unelected, lifelong careerists, with the approval and support of the Executive Branch regulate our lives where legislators fear to tread, or, more accurately, are too chicken-bleep to tread.



And, thanks to the judicial tradition of deference to the expertise of these agencies, the courts have actually encouraged the growth of this constitutional miscarriage.



And so it goes with global warming. When ACES was under consideration, two inconvenient truths became apparent: it was the most draconian, intrusive piece of non-wartime legislation ever passed, and, even if dozens of nations that had commitments under the U.N.'s Kyoto Protocol on global warming adopted and fulfilled it, the amount of global warming that would be prevented would be, within any reasonable time horizon, too small to even measure.



Draconian? How about, a mere 38 years from today, ACES would grant the average american the per capita carbon dioxide emissions of 1867? Futile? How about reducing global warming by about 0.07°C per 50 years, even with the participation of all those Kyoto nations?



And so, as carbon dioxide regulation died in the Senate, it was reborn via the Supreme Court and the EPA.



In its 2007 decision, Massachusetts v. Environmental Protection Agency the Court reversed its policy of deference to agencies and instead inserted itself smack in the middle of the political debate on global warming. The majority (5-4) opinion, authored by Justice Stevens, did so in its first words: "A well-documented rise in global temperatures has coincided with a significant increase in the concentration of carbon dioxide in the atmosphere. Respected scientists believe the two trends are related."



From that statement, which is devoid of any policy implications, the Court went on to command the EPA to move forward. The court could have also stated that there are plenty of "respected scientists" who believe that the future warming trend, while likely, has been grossly overestimated in magnitude and impact.



Specifically it directed the EPA to determine whether or not carbon dioxide was a "pollutant," endangering human health and welfare, and, if it found that to be the case, then it must regulate it under the Clean Air Act Amendments of 1990. Forget that the authors of that law, such as Michigan's John Dingell, have stated that the Act was never intended to regulate greenhouse gases.



And so, not surprisingly, on Dec. 7, 2009, the EPA found indeed that carbon dioxide is a pollutant, endangering our health and welfare, and soon after began to propose regulations, beginning with fuel economy standards, but certainly not ending until it is no longer "endangering." They based this largely on two reports on climate change, one from the United Nations' Intergovernmental Panel on Climate Change and the other by the U.S. Climate Change Science Program. Both claim to be authoritative and comprehensive.



Ah, but can't Congress simply tell the EPA that it cannot regulate greenhouse gases? Sure, but the Senate fell 10 votes short on this last week. And even if it did pass, the president would surely veto it. It will be a hot day at the South Pole when there are 67 votes to override.



Of course, we could change presidents, right? In that eventuality, the EPA will have to somehow undermine the authority of our own Climate Change Science Program in order to reverse its endangerment finding.



Fat chance of that not winding up in court — the same courts that got us into this mess in the first place. Regulations will stand until scientists stand up, which will be never, as long as there is such funding gold in them thar hills of global warming.



Do not kid yourself. Draconian regulation of energy — which touches almost every aspect of our daily lives — is not dead. It is, in fact, immortal.

New York Welcomes The Un-Happy Meal

From Town Hall:




Julie Gunlock



New York Welcomes the Unhappy Meal

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Parents have many responsibilities. Getting the kids up and ready for school, making sure they do their homework and practice proper manners. Parents manage carpools, play-dates and sleepovers; they sooth scraped knees, bruised heads and injured feelings. But perhaps the most basic thing a parent does is feed their children. Feeding a child means more than just spooning mashed carrots into a baby’s mouth or preparing a simple peanut butter and jelly sandwich for a toddler. It requires a firm constitution when children demand a meal mom and dad might not consider healthy.



Most parents deal with these demands by simply saying “no” to the pestering child, but apparently this is a feat too difficult for parents -- at least according to one New York City council member.



Taking a page from the San Francisco ban on toys in McDonalds’ Happy Meals, New York City Councilman Leroy Comrie just announced his plan to introduce a bill to ban fast food restaurants from using these “predatory marketing techniques” unless they meet “certain satisfactory nutritional requirements.”



Of course, Comrie is just the latest public official to jump on the anti-Happy Meal bandwagon. San Francisco passed its own ban last year despite there being no evidence that these bans result in children and parents making healthier food decisions. And there’s the rub: What seems to escape Comrie and the rest of the food nannies is that something else comes with these toys—yummy food that kids love. French fries, chicken nuggets, hamburgers--these items taste good to kids (and adults). Kids will still clamor for these appealing items, even if a toy isn’t included.



Fast food restaurants are already voluntarily altering their menus so that customers have healthier choices. McDonalds now offers apple slices, yogurt and oatmeal on their menu. At Burger King, customers can order a veggie burger as well as a variety of salads and grilled chicken sandwiches. The entire fast food industry has been experimenting with oils that don’t contain trans-fats to get ahead of trans-fat bans and many fast food restaurants post the calories contained in each item—some even directly on many of the food containers.



And, of course, parents can stop their children from eating unhealthy fast food by not giving them the money to purchase these meals. But that's not enough for the nation’s food nannies, who want government to step in and do parents’ job. The engine behind most of these proposed regulations is the Center for Science in the Public Interest—which last year made a media splash by announcing it would sue McDonalds for daring to give your kids a free toy (the nerve!). And they’ve followed through with the suit.



In December, CSPI and California mother Monet Parham filed suit against McDonalds Corporation because the company “exploits very young California children and harms their health by advertising unhealthy Happy Meals with toys directly to them.”



Talking about the lawsuit, Parham explained the harrowing ordeal she faces saying no to her children’s constant demands for McDonalds: “Needless to say, my answer was no, and as usual, pouting ensued and a little bit of a disagreement between us. This doesn’t stop with one request. It’s truly a litany of requests.” Does anyone truly believe that Parham’s children won't still demand french fries, even when packaged without a toy?



Parham captures perfectly how the CSPI views parents: spineless, weak, and at the mercy of children and advertisers. While the CSPI might try to portray itself as being on the side of these poor overwhelmed moms and dads, the truth is the CSPI has nothing but contempt for parents. They view parents as hapless creatures, incapable of making sound decisions about when—and when not—to give their children a treat. American parents everywhere should recoil from this kind of government paternalism.



I, however, feel a little sorry for Parham. Someone needs to get her a Happy Meal.















Tags: Government Regulations , Personal Responsibility









Julie Gunlock

Julie Gunlock is a senior fellow at the Independent Women's Forum.

Chicago Kids: Get Your Hands Off My Lunchbox!

From Town Hall:




Kyle Olson



Chicago Kids: Get Your Hands Off My Lunchbox!

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No wonder Chicago Public Schools have a dropout rate near 50%: now the government school system is telling kids what to eat.



Fearing that mother’s lunches will be inferior to bureaucrats’, Chicago schools are now banning lunches brought from home. And kids ain’t happy about it. The Chicago Tribune reports:



Fernando Dominguez cut the figure of a young revolutionary leader during a recent lunch period at his elementary school.



"Who thinks the lunch is not good enough?" the seventh-grader shouted to his lunch mates in Spanish and English.



Dozens of hands flew in the air and fellow students shouted along: "We should bring our own lunch! We should bring our own lunch! We should bring our own lunch!"



Fernando waved his hand over the crowd and asked a visiting reporter: "Do you see the situation?"



The last thing failing schools should be worrying about is what kids are eating for lunch. With miserable track records at educating children, how can we expect them to get nutritional needs right?



Government schools do not run our lives. Some things should still be sacred including, yes, a home-packed lunch.



This is further proof that government-run education is failing and it’s why kids are leaving it in droves for educational options that work.

















Kyle Olson

Kyle is founder and CEO of Education Action Group Foundation, a non-partisan non-profit organization with the goal of promoting sensible education reform.

Academic Mission Or UCLA Speech Code?

From Town Hall:




Debra J. Saunders



Academic Mission or UCLA Speech Code?

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If you think that academia is not the exclusive playground of the academic left, consider the fate of UCLA epidemiologist James Enstrom.



In 2008, Enstrom thought that a report on the health effects of diesel emissions presented by the California Air Resources Board was faulty. As it turns out, CARB's nitrous oxide emission estimates were overstated by 340 percent. Enstrom and others had trouble believing that a Ph.D. statistician would make up some of CARB's findings. They dug around and found that CARB researcher Hien Tran had falsely claimed to have a doctorate in statistics from UC Davis. In fact, Tran had a master's degree from UC Davis, but his doctorate came from an unaccredited school.



CARB has since scaled back the diesel regulations it had previously approved -- although spokesman Stanley Young asserts that the policy change "was not related to the research" -- which officials have maintained were overestimated because of calculations made prior to the recession. CARB did demote Tran and cut his monthly pay by $1,066 to $7,899 per month.



Enstrom didn't fare as well.



In February 2010, after renewing his research grants regularly since 1976, UCLA notified Enstrom that he had lost his funding. Unlike Tran, he would be out of a job.



A July 2010 memo later informed Enstrom that Department of Environmental Health Sciences faculty had determined his work did not meet department requirements and "your research is not aligned with the academic mission of the Department."



Not aligned with the academic mission? That reads like academic-speak for: politically incorrect. Enstrom has little doubt that UCLA cut his cord because he was a CARB whistle blower. Worse, his 2005 study on the health effects of fine particulate matter essentially found that the diesel exhaust has slight, if any effect, on premature death.



"The timing is almost unmistakable because I had essentially no problems for a position that started July 1, 1976," Enstrom told me over the phone. "This is extremely dangerous for academic freedom and scientific integrity."



Enstrom has been fighting his sacking. Last week, the university held hearings on his case. The university won't comment, citing privacy issues.



The Foundation for Individual Rights in Education has taken up Enstrom's cause in the name of academic freedom. FIRE Vice President of Programs Adam Kissel explained, "We don't know who's right or wrong on the science, but we know that everyone has a right to challenge one another on the quality of the science if they do it in good faith."



CARB research chief Bart Croes said Enstrom's fine-particulates health study was not "inconsistent with ones we've used in our work," but he saw "deficiencies" in Enstrom's methodology. Some critics suggest that while his study aligned with other research, and has been cited by the U.S. EPA, his test group was too old; besides, Enstrom is too stingy with caveats and too activist in his interpretations.



Maybe the critics are right. Or maybe that's how they always go after conservatives. It's not simply that they disagree, it's that the scientist in question doesn't meet this hallowed academic standard that is rarely if ever applied to left-leaning scientists/activists. They believe in academic freedom, but that doesn't mean they should have to tolerate dissent.

















Debra J. Saunders





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Overcriminalized.com Legislative Update

From Overcriminalized.com:

Table of Contents




New:



S. 678: Economic Espionage Penalty Enhancement Act

Updates:



S. 216: Food Safety Accountability Act of 2011



--------------------------------------------------------------------------------



S. 678: Economic Espionage Penalty Enhancement Act



Sponsor: Kohl (D - WI)



Official Title: A bill to increase the penalties for economic espionage.



Status:

3/30/2011: Introduced in Senate

3/30/2011: Referred to Senate Judiciary Committee



Commentary: This bill would amend 18 U.S.C. § 1831(a) to increase the maximum criminal penalties for acts of economic espionage. Currently, subsection 1831(a) prohibits individuals from "knowingly" committing a wide range of acts associated with the misappropriation of trade secrets for the benefit of any foreign government, foreign instrumentality, or foreign agent. Violations of these provisions are punishable by criminal sanctions of up to 15 years imprisonment, fines under Title 18 of the U.S. Code, or both. S. 678 would increase the maximum term of incarceration available under § 1831(a) from 15 years to 20 years. The bill also instructs the U.S. Sentencing Commission to "review its guidelines and policy relating to a two-level enhancement for economic espionage" and consider amending such guidelines to: (1) "apply the two-level enhancement to the simple misappropriation of a trade secret"; (2) "apply an additional two-level enhancement if the defendant transmits or attempts to transmit the stolen trade secret outside of the United States and an additional three-level enhancement if the defendant instead commits economic espionage (i.e., he/she knew or intended that the offense would benefit a foreign government, foreign instrumentality, or foreign agent)"; and (3) "provide when a defendant transmits trade secrets outside of the United States or commits economic espionage, that the defendant should face a minimum offense level."





S. 216: Food Safety Accountability Act of 2011



Sponsor: Leahy (D - VT)



Official Title: A bill to increase penalties for certain knowing and intentional violations relating to food that is misbranded or adulterated.



Status:

1/27/2011: Introduced in Senate

1/27/2011: Referred to Senate Judiciary Committee

3/31/2011: Mark up in the Senate Judiciary Committee

3/31/2011: Ordered to be reported with an amendment in the nature of a substitute by Senate Judiciary Committee

3/31/2011: Reported to Senate with an amendment in the nature of a substitute by Senate Judiciary Committee

3/31/2011: Placed on Senate calendar



Commentary: This bill would create new criminal offenses under Title 18 of the U.S. Code for certain violations of the Food, Drug, and Cosmetic Act (21 U.S.C. § 321 et seq.). Specifically, S. 216 would criminalize food violations of subsections 301(a), (b), (c), and (k) of the Food, Drug, and Cosmetic Act (codified at 21 U.S.C. § 331) that a person engages in "knowingly and intentionally to defraud or mislead" and "with conscious disregard or reckless disregard of a risk of death or serious bodily injury." Such violations would subject an individual to criminal sanctions of up to ten years imprisonment, fines under Title 18 of the U.S. Code, or both. S. 216 has a slightly more protective criminal-intent (mens rea) requirement than S. 3767 from the 111th Congress (Senator Leahy's 2010 version of the legislation). However, the new bill still authorizes redundant criminal punishment for acts that are already criminalized under 21 U.S.C. §§ 331 and 333. Under current law, violations are punishable by up to three years imprisonment, up to $10,000 in fines, or both when they involve an "intent to defraud or mislead" on the part of the defendant. [Ed. note: The amended version of S. 216 that the Senate Judiciary Committee reported out for consideration by the full Senate redresses most of the redundancy problem described above.]





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Regulatory Dysfunction

From The American Thinker:

April 07, 2011


Regulatory Dysfunction

By Jerry Shenk







Government costs us more than the taxes we pay (and the money we borrow), because taxes do not include the cost of regulatory compliance. Compliance costs are built into the price of goods and services purchased by American consumers and businesses.





If we are to emerge from recession, America's business regulatory burden must be reassessed.





In a 2008 review of the cost of government regulations entitled Ten Thousand Commandments, Wayne Crews of the Competitive Enterprise Institute estimated that the cost of government regulations to businesses and, ultimately, to consumers was $1 trillion or more annually. Regulations added 70,000 pages to the Federal Register. Regulatory costs almost matched all corporate profits in 2007 and were seven times higher than the 2007 budget deficit. Crews wrote that "Federal environmental, safety and health, and economic regulations cost hundreds of billions of dollars every year over and above the costs of official federal outlays."





In a 2008 article in US News, Matthew Bandyk wrote:







How would you spend $7,647? That's how much the average business in this country with under 20 employees loses a year for each of its employees because of federal regulations. [T]he chief counsel for advocacy at the Small Business Administration, testified ...before the House Committee on Small Business about ways his office is trying to reduce the $1.1 trillion burden that federal regulations place on businesses. Sullivan also noted that this burden falls disproportionately on smaller businesses. In 2004, the cost of regulations for businesses with more than 500 employees was $5,282 per employee.





Guess who's paying those costs.





Regulatory costs are de facto taxes on consumers, a drag on the national economy, and, because of their impact on household budgets, impose costs that stall families and local economies as well.





A high American jobless rate, a lagging economy, and inflation all demand that the seemingly constant increase of government regulation must be reversed. Not only does regulation create artificial inflation by increasing the costs of the products we buy, the business resources necessary for compliance eventually elbow out actual production. Small businesses, especially, are hurt by the costs of compliance. As the engine of American job creation, small businesses need regulatory relief, not more regulations.





Sarbanes-Oxley, an "accountant accountability" regulatory bill, was a hastily passed overreaction to the auditing failures which resulted in the Enron scandal. Ironically -- but not surprisingly -- the regulatory reaction to Enron's auditors' failures have had unintended consequences. Sarbanes-Oxley has benefited the huge accounting firms that make many millions in fees for conducting the business audits the law requires. By placing onerous requirements on public companies, SarbOx has created a money machine for those who audit them. Despite media and political demands to "manage" the big accounting firms after Enron collapsed, the passage of Sarbanes-Oxley made the same accounting firms big winners.





It isn't just the cost of outside auditors that has increased. Every regulated business loses productivity because executives and company employees are required to spend time assembling and certifying the data necessary to meet regulatory requirements. Head count and associated internal costs are increased simply to meet compliance standards. Scott McNealy of Sun Microsystems called Sarbanes-Oxley "buckets of sand in the gears of the market economy."





Here's an example closer to the average consumer: In 2007, more than a year before bailing out two of them, Congress inflicted $85 billion in new regulatory costs on the Big Three American automobile manufacturers by mandating a 40 percent fuel-efficiency increase by 2020. Those costs will be passed through to car buyers. Members of Congress told us that an increase in the CAFE standard was a benefit, despite the fact that it will increase the costs of automobiles and reduce their safety. The bailouts themselves will cost American taxpayers more than $85 billion.





Legislation isn't the only regulatory problem source. Regulation by unelected-bureaucratic fiat must be stopped. In December, 2010 the US Department of the Interior assumed the authority to declare public lands "Wild Lands," a usurpation that will allow the agency to control development of domestic energy resources. At a time when the cost of energy is skyrocketing, allowing the government one more tool to impede energy exploration and production is overkill.





Also in December, the federal Environmental Protection Agency declared plant-sustaining CO2 a greenhouse gas, intending to regulate electric generating plants and oil refineries. Cap-and-trade failed in the Congress, but the EPA would implement cap-and-trade by regulatory means.





These are but a few examples of excessive federal regulatory micromanagement. What should be done about regulation? Finding and electing more business-savvy politicians would be best. But the business-savvy are busy running businesses.





If we want to increase real income and economic living standards for Americans, ensure a strong currency, and improve international trade balances, we must, among other priorities, make sure the free-market private sector is by far the largest and fastest growing share of the national economy. Getting the government out of the way of business and industry is central to American competitiveness in world markets.





The economy and consumers would benefit from the organization of applicable industrial business review boards to work with congressional representatives to overhaul current regulations with an eye to removing the frivolous and leaving practical, responsible regulations either modestly revised or untouched.





Industries, trades, and businesses should have voices in the future regulatory atmosphere in which they do their business. But we should proceed with some caution. Large corporations sometimes encourage regulation. Regulations that raise compliance costs which large businesses can manage are encouraged to disadvantage smaller competitors. It's essential that the small business community, the segment of American business least able to absorb the costs of regulations and most hurt by them, be well-represented in the end formulations of regulatory structures.





Businesses should follow the rules, but the rules must make sense.

The Senate's EPA Showdown

From The Wall Street Journal and TEA Party Patriots:

REVIEW & OUTLOOKMARCH 28, 2011.The Senate's EPA Showdown


Democrats face a moment of truth on regulatory cap and trade..

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The Environmental Protection Agency debate lands in the Senate this week, amid the makings of a left-right coalition to mitigate the agency's abuses. Few other votes this year could do more to help the private economy—but only if enough Democrats are willing to buck the White House.



This moment arrived unexpectedly, with Majority Leader Harry Reid opening a small business bill to amendments. Republican leader Mitch McConnell promptly introduced a rider to strip the EPA of the carbon regulation authority that the Obama Administration has given itself. Two weeks ago, Mr. Reid pulled the bill from the floor once it became clear Mr. McConnell might have the 13 Democrats he needs to clear 60.



The votes are now due as soon as tomorrow, and Mr. Reid is trying to attract 41 Democrats with a rival amendment from Senate Finance Chairman Max Baucus. The Baucus plan is a political veneer that would exempt some farms and businesses from the EPA maw but at the cost of endorsing everything else. The question for Democrats is whether their loyalties to President Obama and EPA chief Lisa Jackson trump the larger economic good, not to mention constituents already facing far higher energy costs.



The story of how we arrived at this pass begins in 1999, when Clinton EPA chief Carol Browner floated the idea that carbon dioxide could be regulated as a pollutant under the 1970 Clean Air Act and its later amendments. The Bush Administration rejected Ms. Browner's theory, in part because Congress kept rejecting statutory language to that effect.



Several states and green groups sued, and the question reached the Supreme Court in 2006. With Massachusetts v. EPA, a 5-4 majority broadly rewrote the definition of "pollutant," but it also narrowly held that "EPA no doubt has significant latitude as to the manner, timing, content, and coordination of its regulations" (our emphasis). In other words, the Court created new powers via judicial invention but left their use to the discretion of the executive branch.



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Ohio Sen. Sherrod Brown

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The Obama Administration moved to exploit this power by threatening that the EPA would make a carbon "endangerment finding" if Congress didn't pass a climate bill. This threat was potent for the simple reason that the Clean Air Act's intrusive command-and-control systems were never written or meant to address an emission as ubiquitous as carbon dioxide. It's like trying to perform surgery with a butter knife, and Mr. Obama hoped that the pain would force industry to beg for cap and tax. The EPA went ahead with its endangerment ruling, but cap and trade failed in the Senate last year anyway.



The EPA now claims its carbon regulation is compelled by the Supreme Court, as if Congress can't change the law, as well as by "science," as if Congress is a potted plant. Someone even disinterred former Republican EPA Administrators William Ruckelshaus and Christine Todd Whitman to claim in the Washington Post last week that Congress would somehow be voting against "environmental progress."



But a vote for the McConnell amendment, which would permanently bar the EPA from regulating carbon unless Congress passed new legislation, is justified on democratic prerogatives alone. Whatever one's views of Massachusetts v. EPA or climate science, no elected representative has ever voted on an EPA plan that has often involved the unilateral redrafting of plain-letter law.



A vote to overrule the EPA is also needed to remove the regulatory uncertainty hanging over the economy. This harm is already apparent in energy, where the EPA is trying to drive coal-fired power out of existence. The core electricity generation that the country needs to meet future demand is not being built, and it won't be until the EPA is bridled. This same dynamic is also chilling the natural gas boom in the Northeast, and it is making U.S. energy-intensive industries less competitive world-wide.



As the EPA screws tighten, the costs will be passed along to consumers, with the same damage as a tax increase but none of the revenues. Eventually, the EPA plan will appreciably lower the U.S. standard of living. Hardest hit will be the middle-American regions that rely on coal or heavy industry, though the EPA bulldozer will run over small businesses too. The Clean Air Act, once the carbon doomsday machine has been activated, won't merely apply to "major" sources of emissions like power plants or factories. Its reach will include schools, farms, hospitals, restaurants, basically any large building.



Which brings us to this week's Senate votes. Democrats to watch will be Sherrod Brown (Ohio), Bob Casey (Pennsylvania), Tim Johnson (South Dakota), Tom Carper (Delaware), Mary Landrieu (Louisiana), Kent Conrad (North Dakota), Amy Klobuchar (Minnesota), Claire McCaskill (Missouri), Jim Webb (Virginia), Ben Nelson (Nebraska), Carl Levin and Debbie Stabenow (Michigan) and John Rockefeller and Joe Manchin (West Virginia). All of them have been publicly critical of the EPA, and, not incidentally, most of them face a tough re-election.



The White House and Mr. Reid will offer phony alternatives to keep 41 Democrats in the corral. The Baucus amendment is the classic Beltway trick of trying to provide political cover while not solving the problem. Mr. Rockefeller is sponsoring a two-year delay before the EPA rules take effect, but that will merely defer the problem.



The McConnell amendment is one of the best proposals for growth and job creation to make it onto the Senate docket in years. If Mr. Obama is intent on defending the EPA's regulatory assault, then the least Senate Democrats can do is force him to defend his choices himself.

Big Government Vs. The Internet

From The Heritage Foundation:

Big Government Vs. the Internet




Following his party's devastating losses last November, President Barack Obama made clear that where his party could no longer legislate, it will regulate. Just a month later, America saw his words become action when the Federal Communications Commission (FCC) voted to issue new rules regulating the Internet, even though courts and Congress have stood in opposition to its actions. Tomorrow, the House of Representatives is poised to voice its opposition to the FCC's unmitigated power grab and will vote on a resolution to block the FCC's rules, sending a powerful message that enough regulation is enough, and the FCC should keep its hands off the Internet.



The policy the FCC is trying to enact is known as "net neutrality," an unfortunately vague code word for government regulation of the Internet. Supporters of net neutrality will tell you the regulation is necessary to keep the Internet "free and open" and to prevent corporations from "throttling" network speeds, making it faster to download some things, slower to download others. And, in this doomsday, apocalyptic, dystopian future, only the FCC can save the day with more and more government regulations.



FCC, stay home, the reality is much different. FCC commissioner Robert McDowell, who opposes the net neutrality policy, explains that the policy isn't needed, and regulation by the FCC can lead to even greater problems, such as rival Internet providers attacking each other in hopes of getting them regulated:



Everybody wants an open Internet that enhances freedom, but that's what we have today. We already have enough consumer protection laws on the books to cure many of the hypothesized fears (that some see). The goal should be to make the market more competitive.



All we are going to do with this FCC decision is clog up the courts and increase billable hours for lawyers; litigation will supplant innovation.



So how does that affect consumers? The Heritage Foundation’s James Gattuso explains:



The net result [of net neutrality]— a slower and more congested Internet, and more frustration for users. Even worse, investment in expanding the Internet will be chilled, as FCC control of network management makes investment less inviting. The amounts at stake aren't trivial, with tens of billions invested each year in Internet expansion.



Case in point: MetroPCS, a wireless company that offers low-cost, prepaid cellular plans for consumers who don't want a long-term contract. The company offers a $40 per month plan for customers on its slower 2G wireless network and, to sweeten the deal, provides compressed versions of YouTube videos to its customers who otherwise couldn't receive streamed videos with their service. Thanks to the FCC's rules, MetroPCS is now facing a complaint for violating net neutrality. Its crime? Devising a low-cost way to provide fast, efficient wireless services to its customers. So much for innovation in the marketplace.



The need for regulation of the Internet aside, the FCC doesn't even have the legal authority to enact these regulations. Like any federal agency, the FCC can only issue regulations if Congress delegates it the power to do so. Though the FCC has the power to regulate telecommunications, it hasn't been granted the power to regulate the Internet. Last year, the U.S. Court of Appeals ruled that the FCC's attempt to regulate the Internet was outside the scope of its authority. That didn't stop the FCC, though. It went ahead and issued new regulations anyhow.



That regulatory overreach is unfortunately all too common in the Obama administration. From the FTC to the FCC, the EPA to HHS, an alphabet soup of agencies are issuing a spiderweb of regulations touching all corners of American life. The food we eat, the cars we drive, and now the Internet we surf are all subject to regulations by unelected bureaucrats.



The Internet is one of the Obama administrative state's next targets. Congress, thankfully, has taken note – this time. But Americans must take note, too, and heed their president's promise. What he can't do by law, he will do by regulation. And once enacted under the cover of night, such regulations are not easy to untangle.

Overcriminalized.com Legislative Update

from Overcriminalized.com:

Table of Contents




New:



H.R. 1196: Loophole Elimination and Verification Enforcement (LEAVE) Act

H.R. 1183: Suzanne Gonzales Suicide Prevention Act of 2011

S. 633: Small Business Contracting Fraud Prevention Act of 2011

S. Amendment 253:

Updates:



S. 216: Food Safety Accountability Act of 2011



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H.R. 1196: Loophole Elimination and Verification Enforcement (LEAVE) Act



Sponsor: Miller (R - CA)



Official Title: A bill to remove the incentives and loopholes that encourage illegal aliens to come to the United States to live and work, provide additional resources to local law enforcement and federal border and immigration officers, and for other purposes.



Status:

3/17/2011: Introduced in House

3/17/2011: Referred to House Judiciary Committee

3/17/2011: Referred to House Oversight and Government Reform Committee

3/17/2011: Referred to House Administration Committee

3/17/2011: Referred to House Financial Services Committee

3/17/2011: Referred to House Homeland Security Committee

3/17/2011: Referred to House Ways and Means Committee

3/17/2011: Referred to House Natural Resources Committee



Commentary: This bill is nearly identical to H.R. 994 from the 111th Congress, which was also introduced by Rep. Miller. Like its predecessor, H.R. 1196 would prohibit assisting, encouraging, directing, or inducing a person to enter, reside in, or remain in the United States "knowing or in reckless disregard of the fact that such person" is an illegal alien. The bill would also prohibit an individual from assisting, encouraging, directing, or inducing a person "to enter the United States at a place other than a designated port of entry ... regardless of whether such person has official permission or lawful authority to be in the United States" when they do so knowingly or in reckless disregard of the fact that such person is a legal or illegal alien. In addition, H.R. 1196 would criminalize the transporting, moving, harboring, concealing, or shielding from detection of a person either inside or outside the United States when the violator does so knowingly or in reckless disregard of the fact that such person is an illegal alien. The bill also proscribes conspiracy or attempt to commit any of the above violations. In instances not involving the motivation of financial gain, violations of these offenses would be punishable by criminal sanctions of up to five years imprisonment, fines under Title 18 of the U.S. Code, or both. In instances involving the motivation of financial gain, violations of these offenses would be punishable by criminal sanctions of up to 20 years imprisonment, fines under Title 18 of the U.S. Code, or both. Repeat offenses or violations involving more than one alien would subject violators to a statutory mandatory minimum sentence of three years imprisonment. Additional mandatory minimums exist for violations involving the transportation of aliens in a "crowded, dangerous, or inhumane manner" (five years imprisonment), serious bodily injury to any person (seven years imprisonment), suspected terrorist activity (10 years imprisonment), or death (10 years imprisonment). H.R. 1196 also asserts jurisdiction outside the territory of the United States over all of the conduct covered by its criminal offenses.





H.R. 1183: Suzanne Gonzales Suicide Prevention Act of 2011



Sponsor: Herger (R - CA)



Official Title: A bill to amend Title 18, United States Code, to prohibit the use of interstate commerce for suicide promotion.



Status:

3/17/2011: Introduced in House

3/17/2011: Referred to House Judiciary Committee



Commentary: This bill is nearly identical to H.R. 853 from the 111th Congress, which was also introduced by Rep. Herger. Like its predecessor, H.R. 1183 would prohibit the knowing use of facilities of interstate or foreign commerce "to teach a particular person how to commit suicide, knowing that the person so taught is likely to use that teaching to commit suicide," or "to provide a particular person with material support or resources to help such person commit suicide, knowing that the person is likely to use the support to commit suicide." Violations of these provisions would be punishable by criminal sanctions of up to five years imprisonment, fines under Title 18 of the U.S. Code, or both. If an offense results in the death of any person, a violator would also be subject to criminal sanctions of up to life in prison, fines under Title 18 of the U.S. Code, or both. [Ed. note: This bill's prohibitions, aside from any constitutional infirmities, would probably not have prevented the suicide of the bill's namesake, who researched suicide methods online before killing herself in 2003, because the reference sources she consulted were not directed at a "particular person."]





S. 633: Small Business Contracting Fraud Prevention Act of 2011



Sponsor: Snowe (R - ME)



Official Title: A bill to prevent fraud in small business contracting, and for other purposes.



Status:

3/17/2011: Introduced in Senate

3/17/2011: Referred to Senate Small Business and Entrepreneurship Committee



Commentary: This bill would amend several sections of the Small Business Act to broaden the applicability of the penalties and remedies available to the Small Business Administration (SBA) in its punishment of specified misrepresentations and deceptions. Specifically, S. 633 prohibits individuals from "misrepresent[ing] the status of any concern or person as a small business concern, a qualified HUBZone small business concern, a small business concern owned and controlled by socially and economically disadvantaged individuals, a small business concern owned and controlled by women, or a small business concern owned and controlled by service-disabled veterans." Likewise, the bill prohibits (1) "us[ing] the services of a business other than the business awarded the contract or subcontract to perform a greater percentage of work under a contract than is permitted by regulations issued by the" SBA and (2) "willfully participat[ing] in a scheme to circumvent regulations issued by the [SBA] governing the percentage of work that a contractor is required to perform on a contract." Violations of these provisions would be punishable under 15 U.S.C. § 645(d)(2), which allows for the following penalties: (1) criminal sanctions of up to 10 years imprisonment, a fine of not more than $500,000, or both; (2) administrative remedies prescribed by the Program Fraud Civil Remedies Act of 1986 (31 U.S.C. § 3801 et seq.); (3) suspension and debarment as specified in subpart 9.4 of Title 48 of the Code of Federal Regulations; and (4) a prohibition on "participation in any program or activity conducted under the authority" of the Small Business Investment Act of 1958 (15 U.S.C. 661 et seq.). S. 633 also creates a separate (and seemingly redundant) suspension and debarment provision for business concerns that "willfully and knowingly" misrepresent that they are small business concerns "owned and controlled by service-disabled veterans."





S. Amendment 253:



Sponsor: Snowe (R - ME)



Official Title:



Status:

3/28/2011: Introduced in Senate



Commentary: This amendment is proposed for S. 493 (SBIR/STTR Reauthorization Act of 2011), and is nearly identical in substance to S. 633, which was also introduced by Senator Snowe. This amendment would modify several sections of the Small Business Act to broaden the applicability of the penalties and remedies available to the Small Business Administration (SBA) in its punishment of specified misrepresentations and deceptions. Specifically, S. Amendment 253 prohibits individuals from "misrepresent[ing] the status of any concern or person as a small business concern, a qualified HUBZone small business concern, a small business concern owned and controlled by socially and economically disadvantaged individuals, a small business concern owned and controlled by women, or a small business concern owned and controlled by service-disabled veterans." Likewise, the amendment prohibits (1) "us[ing] the services of a business other than the business awarded the contract or subcontract to perform a greater percentage of work under a contract than is permitted by regulations issued by the" SBA and (2) "willfully participat[ing] in a scheme to circumvent regulations issued by the [SBA] governing the percentage of work that a contractor is required to perform on a contract." Violations of these provisions would be punishable under 15 U.S.C. § 645(d)(2), which allows for the following penalties: (1) criminal sanctions of up to 10 years imprisonment, a fine of not more than $500,000, or both; (2) administrative remedies prescribed by the Program Fraud Civil Remedies Act of 1986 (31 U.S.C. § 3801 et seq.); (3) suspension and debarment as specified in subpart 9.4 of Title 48 of the Code of Federal Regulations; and (4) a prohibition on "participation in any program or activity conducted under the authority" of the Small Business Investment Act of 1958 (15 U.S.C. 661 et seq.). S. Amendment 253 also creates a separate (and seemingly redundant) suspension and debarment provision for business concerns that "willfully and knowingly" misrepresent that they are small business concerns "owned and controlled by service-disabled veterans."





S. 216: Food Safety Accountability Act of 2011



Sponsor: Leahy (D - VT)



Official Title: A bill to increase penalties for certain knowing and intentional violations relating to food that is misbranded or adulterated.



Status:

1/27/2011: Introduced in Senate

1/27/2011: Referred to Senate Judiciary Committee

3/31/2011: Mark up in the Senate Judiciary Committee



Commentary: This bill would create a new criminal law under Title 18 of the U.S. Code for certain violations of the Food, Drug, and Cosmetic Act (21 U.S.C. § 321 et seq.). Specifically, S. 216 would criminalize food violations of subsections 301(a), (b), (c), and (k) of the Food, Drug, and Cosmetic Act (codified at 21 U.S.C. § 331) that are engaged in "knowingly and intentionally to defraud or mislead" and "with conscious disregard or reckless disregard of a risk of death or serious bodily injury." Such violations would subject an individual to criminal sanctions of up to ten years imprisonment, fines under Title 18 of the U.S. Code, or both. S. 216 has a slightly more protective criminal-intent (mens rea) requirement than S. 3767 from the 111th Congress (Senator Leahy's 2010 version of the legislation). However, the new bill still authorizes redundant criminal punishment for acts that are already criminalized under 21 U.S.C. §§ 331 and 333. Under current law, violations are punishable by up to three years imprisonment, up to $10,000 in fines, or both when they involve an "intent to defraud or mislead" on the part of the defendant.





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Making Congress Vote On Rules Would End Shell Game

From The Heritage Foundation:

Making Congress Vote on Rules Would End Shell GamePublished on March 24, 2011 by James Gattuso
Should Congress be held accountable for the regulatory policies of the federal government?



U.S. Representative Geoff Davis and Senator Rand Paul, both Kentucky Republicans, think it should. They have proposed legislation to force all members of Congress to vote yes or no on major rules that affect business and the economy.



Called the REINS Act, a tortured acronym for “Regulations from the Executive in Need of Scrutiny,” the Davis-Paul proposal is no arcane procedural change. It would change the way regulations are made.



By increasing Congress’s accountability for regulatory policy, it would end a shell game for responsibility that members have long played.



Congress, of course, has always had the constitutional authority to set regulatory policy. The thousands of rules and regulations adopted each year originate from the powers delegated by Congress to agencies. Those powers can always be revoked or modified by legislation.



In 1996, Congress created expedited procedures for voiding proposed rules by ensuring an up-or-down vote in the House and the Senate on “resolutions of disapproval.”



Yet the Congressional Review Act has been used only once to stop a rule, and that was a decade ago, when a Labor Department rule on ergonomics was turned back. One problem is that a resolution of disapproval, like all other legislation, must be signed by the president, and few presidents are keen on reversing the work of their own appointees.



Plausible Deniability



The dirty little secret on Capitol Hill is that most members of Congress don’t really want responsibility over rule making. They get to have it both ways: They can take credit for enacting popular but vague legislation, then plausibly deny responsibility for the specific implementing regulations that follow.



The result is power without accountability -- a useful result politically, an abysmal one for policy making.



The REINS Act would end this game by requiring every major rule, defined as those with an economic effect of $100 million or more a year, to be specifically approved by both the House and Senate to take effect. And the president would have to sign the measure. Any defeat along the way: The rule goes down.



By forcing a vote on each new rule, members face greater accountability back home for the resulting policy. And it eliminates the president’s ability to insulate his administration’s rules from challenge.



Weight of Regulation



Critics say this is a ruse to gum up the regulatory works. Reviewing all these rules would be too burdensome for Congress, they say.



In fact, there are a few dozen major regulations issued each year, hardly an undue burden. And who will explain to the business owner straining under the weight of regulation that Congress just doesn’t have time to determine if those regulations are necessary?



Critics also argue that the REINS Act would displace regulators’ “expert” judgment with political decision making. Sidney Shapiro of the nonprofit Center for Progressive Reform writes that congressional action “is likely to be nakedly political, reflecting the raw political power of special interests,” while agency actions “are backed up with reasonable policy determinations.”



Outside of political science textbooks, that’s not how government works. Regulators have their own special interests and political agenda, and they are hardly objective. If you doubt that, spend an hour at the Federal Communications Commission and watch the lobbyists flow in and out.



Different Perspectives



This is not to say regulators and Congress should see the world in the same way. Since they must regularly face the voters, members of Congress will have a different perspective than appointed regulators. Some rules will be turned back as unacceptable.



That’s not a flaw in the process, it’s a feature. No rule should be adopted if the American people, as represented by Congress, don’t agree that it’s necessary.



This hardly tilts the playing field against regulation. Very often, popular sentiment favors regulation. And congressional approval would be required for all major rule changes, even those by conservatives seeking to lessen private- sector burdens.



Requiring congressional approval of new rules wouldn’t be the impenetrable roadblock that opponents claim. Nor is it the panacea for excessive regulation that some proponents hope for.



Increasing Congress’s role in, and accountability for, regulatory policy making is a commonsense step forward.



James Gattuso is senior research fellow in regulatory policy for The Heritage Foundation.



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