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Ed Lasky April 20, 2011

From the man who said he would bring a gun to a knife fight, the latest ploy to cut his opponents off at their knees. This one is not based on arguments or facts, but on sheer abuse of the powers he has as President.

Kenneth Vogel [1] writes in Politico that President Obama is "considering a number of measures to compel disclosure of the kind of anonymous campaign contributions that helped finance millions of dollars of attack ads against Democrats during the 2010 elections."

These measures appear broad in scope:

Tellingly, the draft order would not apply to Democratic-allied groups that receive grants from the federal government (such as Planned Parenthood) or to unions, which bankroll so many Democratic campaigns and which have trumpeted that their spending power helped elect Barack Obama and makes them the king of the (Capitol) hill. Unions are among the biggest campaign spenders [4] in America and they give their money to Democrats. "We're the big dog," said Larry Scanlon, the head of the American Federation of State, County and Municipal Employees).

Similar efforts to compel disclosure are being made through the Securities and Exchange Commission, the FCC and through the Federal Election Commission.

While the nation reels from a faltering economy with the lowest labor force participation rate in decades, with a deficit and debt crisis that may merit a S & P downgrade of the U.S. credit rating, with a geopolitical earthquake in the Middle East, Barack Obama finds time to figure out ways to hurt his political opponents (or his "enemies" as he would characterize them).

Public disclosure of campaign contributions can lead to boycotts of companies whose executives give to political campaigns (as happened when Target [5] came under fire for its campaign contributions, when boycotts [6] targeted campaign contributors to Wisconsin Governor Scott Walker; similar efforts to punish people for their political views litter the political landscape).

Barack Obama wants to chill political speech to further his chances to win reelection. He made clear his views towards the law as decided by the Supreme Court when he crassly lambasted them last year during the State of the Union address for supporting the First Amendment in their Citizens United decision (a law he basically wants to undercut by using the powers of the Presidency in a particularly underhanded way).

Barack Obama , when he ran his campaign for state senator, had his opponents thrown off the ballots by challenging the signatures on their petitions to run. He cleared the ballot of all opponents.

He does not play fair -- and never has. That is his modus operandi. He learned everything he needed to know about politics in Cook County and he has brought its mores to Washington.

Change, yes, change; but in a wrong direction and in a way that the media would scorn had a Republican tried to derail opposition by these tactics.

[1] http://dyn.politico.com/printstory.cfm?uuid=2B85C868-C7CE-4098-B97F-1EAA7B8B302C

[2] http://www.politico.com/static/PPM187_disclosure.html

[3] http://www.brennancenter.org/blog/archives/sec_gives_shareholders_a_voice_on_corporate_campaign_spending/

[4] http://online.wsj.com/article/SB10001424052702303339504575566481761790288.html

[5] http://www.minnpost.com/politicalagenda/2011/02/18/25938/ target_changes_political_donation_policy_after_governors_race_controversy

[6] http://www.rawstory.com/rs/2011/03/15/boycott-targets-contributers-to-wisconsin-gov-scott-walker/

By Jennifer Rubin 04/27/2011

The Post [1] reports:

You’d think the ACLU would be all over this one. Imagine if the Bush administration demanded to know contractors’ political affiliations as a condition of doing business with the government. Sen. Susan Collins (R-Maine) got it exactly right in a letter signed by two dozen of her colleagues:

This move is noxious in two respects. First, from the crowd that decried Bush administration executive overreach and a propensity to "shred the Constitution," the administration’s use of an executive order as an end-around the Supreme Court’s ruling in the Citizens United case is pretty slimy stuff. David Marston and John Yoo [2] explain in a column for the Wall Street Journal:

The right at issue here, is, of course, the First Amendment.

And that’s the real problem with Obama’s approach. He’s trying to bully businesses, forcing them to disclose their political activities. What’s next, a form that asks "Are you now or have you ever been a dues-paying member of or contributor to Right to Life? Of MoveOn.org?" Marston and Yoo explain:

Gosh, you’d think all those law school deans out there (the ones who decried the government’s ability to push them around and extend recruiting access to the military before the repeal of Don’t Ask/Don’t Tell) would be livid. But no. The authors underline that point: "Imagine the outcry we’ll hear from self-described First Amendment supporters when every professor applying for a government research grant has to disclose his political donations."

The disregard for the rule of law is rather stunning, even for this crowd. But the lack of foresight is even more mind-boggling. Do liberals trust a future Republican administration to implement this edict?

[1] http://www.washingtonpost.com/blogs/federal-eye/post/gop_senators_ask_obama_to_drop_disclosure_order_for_contractors/2011/04/26/AFNkocwE_blog.html

[2] http://online.wsj.com/article/SB10001424052748704132204576284630941397792.html

Sens. Mike Enzi (R-WY) and Orrin Hatch (R-UT) have led the opposition in the Senate to the President Obama’s nomination and subsequent recess appointment [1] of the former SEIU and AFL-CIO counsel Craig Becker to the National Labor Relations Board. The NLRB’s outrageous complaint against The Boeing Company [2] this week for expanding operations in South Carolina proves their point: Becker’s appointment has contributed to a radicalized NLRB that has abandoned its quasi-judicial role for pro-labor activism.

The Senators issued a news release in February [3] as members of Senate Health, Education, Labor, and Pensions Committee urging President Obama to withdraw his latest nomination of Becker made in January [4].

Our emphasis. They called it, didn’t they?

As a recess appointee, Becker can continue to serve without Senate confirmation through the end of 2012. Meanwhile, NLRB Chairman Wilma Liebman’s term expires Aug. 27, 2011 [5].

Rumors are circulating of President Obama nominating Becker to Liebman’s five-year term. if Senate Republicans continued to block Becker’s nomination (a safe bet), the President might then recess appoint him to the vacancy.

No Senate confirmation hearings have been scheduled for Becker, Solomon or President Obama’s nominee to fill a Republican vacancy on the board, Terence F. Flynn, current counsel to NLRB Member Brian Hayes (a Republican).

[1] http://www.whitehouse.gov/the-press-office/president-obama-announces-recess-appointments-key-administration-positions

[2] http://www.nlrb.gov/news/national-labor-relations-board-issues-complaint-against-boeing-company-unlawfully-transferring-

[3] http://help.senate.gov/newsroom/press/release/?id=c25f1821-089d-4a53-aefe-32496cebac3f&groups=Ranking

[4] http://www.whitehouse.gov/the-press-office/2011/01/26/presidential-nominations-sent-senate

[5] http://www.nlrb.gov/who-we-are/board/wilma-b-liebman-chairman

[7] http://m.whitehouse.gov/the-press-office/2011/01/05/president-obama-announces-more-key-administration-posts-1511

[8] http://www.scribd.com/doc/53489994/NLRB-Boeing-Complaint

[9] http://clerk.house.gov/evs/2011/roll075.xml

On Wednesday, President Obama’s union-controlled National Labor Relations Board issued a complaint against the Boeing Company that, if ruled in the union and NLRB’s favor, may prove to have far-reaching consequences across the American business landscape. Ultimately, the outcome to this case will state whether or not America has, in fact, become entirely hostile to business (and the jobs they provide). The complaint was issued by the NLRB’s Acting General Counsel (the same one who threatened to sue South Carolina and three other states over the states’ secret-ballot initiatives) and is set to go to hearing on June 14th before an administrative law judge in Seattle. … At issue, according to the NLRB, is whether Boeing violated federal labor law by deciding to transfer a second airplane production line from a union facility in the state of Washington to a non-union facility in South Carolina for "discriminatory reasons."

Senator Lindsay Graham [R-SC] issued a blistering statement which also speaks to the broader principles at stake for American businesses (and jobs):

Senator Jim Demint [R-SC] also issued a similar statement with respect to the politics of pull likely at play:

By Fred Lucas Thursday, April 28, 2011

(CNSNews.com) – The National Labor Relations Board is seeking an unprecedented expansion of powers in a lawsuit to overturn voter-approved constitutional amendments in at least two states guaranteeing the secret ballot for union elections, South Dakota Attorney General Marty Jackley said.

The NRLB contends it is perfectly within the agency’s jurisdiction to bring a "preemptive" lawsuit against the states.

The agency announced it would move forward with litigation against the states of South Dakota and Arizona to strike the laws from the states that voters approved last November to guarantee employees have the right to vote via secret ballot on whether to form unions at their workplace. The states of South Carolina and Utah passed similar amendments to their constitutions.

"Many lawyers will tell you it [the secret ballot] is an implied right within their state constitutions," Jackley told CNSNews.com.

"But this made it clear this is going to be an explicit right, a fundamental right, guaranteeing the right to the secret ballot for a variety of things: For elected officials such as myself, for the referendum process or ballot initiatives, and for employment representatives. That certainly has been the touchiest point with the AFL-CIO that had filed that initial state court lawsuit," Jackley added.

The AFL-CIO in South Dakota sought to prevent the measure from going to the ballot after it was passed by the legislature. The South Dakota Supreme Court ruled the measure could go to voters.

The ballot measure passed in the four states by wide margins in November. In Arizona, 61 percent of voters approved the measure. In South Carolina, 86 percent of the voters backed the secret ballot amendment. In South Dakota, 79 percent of the voters approved the amendment, and in Utah the initiative was approved by 60 percent of voters.

NLRB acting General Counsel Lafe Solomon told the four attorney generals in an April 22 letter, "I have directed my staff to initiate lawsuits in federal court seeking to invalidate Arizona Constitutional Article 2 S. 37 and South Dakota Constitutional Article 6 S.28 as preempted by operation of the NLRA [National Labor Relations Act] (29 U.S.C. 151) and the Supremacy Clause of the United States Constitution (U.S. Const. Art. VI., cl. 2). I expect that they will do so shortly."

Solomon said it would not be efficient to take action against all four states at this time, leaving the door open for future suits against South Carolina and Utah.

"We adhere to our position that all four state constitutional provisions are preempted and reserve the right to initiate a suit against the other two states at the appropriate time," Solomon continued.

The effort at the state level was in response to the proposed Employee Free Choice Act, a bill backed by congressional Democrats and President Barack Obama that never passed. This bill would have allowed secret-ballot elections in union organizing to be replaced with a system in which union organizers ask workers to sign a card, and once a majority signs, the union is recognized.

Opponents of the act say it opens the door for union organizers to pressure and intimidate employees. Advocates for the bill say that management intimidates workers from voting in the secret ballot elections, and attempt to block the elections from even taking place – thus the card check system is necessary.

Under the 1935 National Labor Relations Act, private-sector employees have two ways to choose a union, according to an NRLB news release. Employees may vote in a secret-ballot election conducted by the NLRB, or they may persuade an employer to voluntarily recognize a union after showing majority support for one. The board contends the amendments violate the second provision.

While he will be advocating for his state’s right to implement constitutional amendment, Jackley will also challenge the NLRB’s authority to even bring the lawsuit.

"If you look at historic case law dealing with the National Labor Relations Board it typically deals with labor disputes involving an employee and a business, and it doesn’t involve a federal appointed board trying to undo the democratic process of a state’s voters to challenge a state’s constitution," Jackley said. "I understand that just because there isn’t a case that deals with that doesn’t mean they can’t do it, but this is an unprecedented expansion of this board’s powers and authority."

The NRLB right to take such action has been upheld in court, said Nancy Cleeland, NRLB director of public affairs.

"This action is far from unprecedented," Cleeland told CNSNews.com in a statement. "The board’s authority to initiate preemption lawsuits was upheld by the U.S. Supreme Court in a 1971 case called NLRB v. Nash-Finch Co. Since that time the Board has initiated or participated in a number of preemption actions against states, which are detailed in a fact sheet on our website. Such preemption lawsuits give effect to the Supremacy Clause of the U.S. Constitution, which expressly applies to state statutes and state constitutional provisions."

The action by the NLRB is simply political, as Obama and the Democrats could not push card check through the legislative process, said Katie Gage, executive director of the Workforce Fairness Institute, an advocacy group opposed to card check laws.

"The Obama administration was not able to deliver, so it is using its National Labor Relations Board and any other group of unelected bureaucrats it can in time to deliver labor for the president’s reelection campaign," Gage told CNSNews.com. "They look at it as their mission to partner with big labor unions to force people into labor unions. Workers rights to vote on the secret ballot are something that affects people’s everyday lives."

The current method for workers to form a union in a particular workplace in the United States is a sign-up then an election process. In that, a petition or an authorization card with the signatures of at least 30% of the employees requesting a union is submitted to the National Labor Relations Board (NLRB), who then verifies and orders a secret ballot election. Two exceptions exist. If over 50% of the employees sign an authorization card requesting a union, the employer can voluntarily choose to waive the secret ballot election process and just recognize the union. The other exception is a last resort, which allows the NLRB to order an employer to recognize a union if over 50% have signed cards if the employer has engaged in unfair labor practices that make a fair election unlikely.

Under the proposed Employee Free Choice Act (EFCA), if the NLRB verifies that over 50% of the employees signed authorization cards, the secret ballot election is bypassed (the votes of the individual employees will become public) and a union is automatically formed. Introduced in the U.S. Congress in 2005 and reintroduced in 2007[1] and 2009[2], the EFCA provides that the NLRB would recognize the union's role as the official bargaining representative if a majority of employees have authorized that representation via majority sign-up (card check), without requiring a secret ballot election.[3] Under The EFCA, if over 30% and fewer than 50% of employees sign a petition or authorization cards, the NLRB would still order a secret ballot election for union representation.

[1] H.R. 800, 2007 in 110th Congress

[2] H.R. 1409, introduced 3/10/2009 in 111th Congress

[3] The 2007 bill was passed by the House on March 1, 2007. The act had majority support in the Senate, but was never voted on due to the threat of a Republican-led filibuster.