Freedom Line Blog

A fight is brewing in California between state regulators and local water suppliers over how to cope with mandatory water usage reductions ordered by Governor Jerry Brown.

California’s State Water Resources Control Board received more than 200 letters from cities, counties, and water districts balking at the proposed regulatory structure for monitoring compliance.

Criticisms include:

• Monthly water usage rates are “meaningless” because varying temperatures and rainfall fluctuate dramatically during the year
• Lack of credit given to water agencies that have already reduced their usage rates through local conservation programs or locally financed desalinization projects
• Farmers outside the Central Valley – the state’s agricultural hub – being treated the same as urban districts which do not get an exemption
• Failure to subject public school and college campuses to the same water use restrictions imposed on cities, since the former often are able to “override local building and zoning codes”

Everyone in California is feeling the pinch of decades’ worth of neglected improvements to water storage capacity.

Thanks to ‘green’ environmentalism, much of California may soon be brown.

H/T: L.A. Times

We at CFIF strongly support free markets and property rights.  That includes the rights of music writing and recording artists, who deserve to enjoy the fruits of their labor, which should not be affected by the means via which their creations are transmitted.  Unfortunately, however, current law leaves them with no effective rights when it comes to terrestrial radio.

We also support legislation to correct the historical anomaly that digital radio broadcasters pay royalties for the privilege of playing songs recorded after the arbitrary date of February 15, 1972, but not for pre-1972 recordings.

As we stated in June of last year, the anomaly is due to a quirk in federal law, one that has unfair consequences:

Recordings predating 1972 remain protected by a patchwork of state laws, whereas recordings after February 15 of that year going forward are covered under federal law.  That amounts to a historical idiosyncrasy, without any prevailing substantive logic.  But digital radio stations, some of which center entirely upon pre-1972 music, have capitalized on the legal aberration to simply stop paying for performance of the pre-1972 songs still covered by state laws.  Estimates of royalties lost as a result reach $60 million per year.

As a result, the Righteous Brothers’ “You’ve Lost that Lovin’ Feelin’” receives no payment, but Hall & Oats’s remake does.  The Rolling Stones’ “(I Can’t Get No) Satisfaction” is not compensated, but Devo’s remake is.  The Beach Boys get paid for “Kokomo” but not “Good Vibrations.”  This situation has also led to numerous lawsuits spanning various states, adding further legal complexity and uncertainty for artists, consumers and digital broadcasters alike.

Digital radio stations operate under privilege of federal license to broadcast, but take the position that they need not pay for pre-1972 songs that remain protected under state laws.  They profit from playing those songs, but refuse to pay accordingly.  Keep in mind that unlike contemporary performers, many of those older affected artists are no longer capable of touring, and sales of their records have diminished over the years, leaving royalties for performance of their songs as their only remaining means of continuing compensation.”

We have noted how various state courts have overturned that anomaly within their jurisdictions, but it’s time that the same fairness was extended at the federal level.

Fortunately, bipartisan legislation introduced in the House today by Rep. Marsha Blackburn (R – Tennessee) and Jerry Nadler (D – New York) aims to resolve these forms of unfairness.

Entitled the “Fair Play Fair Pay Act of 2015,” the bill would end the way in which federal law props up AM/FM radio and exempts them from paying artists for performance of their songs.  Also under the bill, digital radio stations that enjoy federal broadcast privileges would finally be obliged to provide royalties for songs recorded prior to 1972, in the same way they already pay for songs recorded after 1972, in order to maintain their licenses.

The Fair Play Fair Pay Act offers a corrective to years of unfairness in the industry, and it’s something that conservatives, libertarians and anyone who values property rights should support.

Join CFIF Corporate Counsel and Senior Vice President Renee Giachino today from 4:00 p.m. CDT to 6:00 p.m. CDT (that’s 5:00 p.m. to 7:00 p.m. EDT) on Northwest Florida’s 1330 AM WEBY, as she hosts her radio show, “Your Turn: Meeting Nonsense with Commonsense.”  Today’s guest lineup includes:

4:00 CDT/5:00 pm EDT:  Tiger Joyce, President of the American Tort Reform Association – Fraud and Mass Tort Advertising;

4:30 CDT/5:30 pm EDT:  Tzvi Kahn, Senior Policy Analyst for the Foreign Policy Initiative – Iran;

5:00 CDT/6:00 pm EDT:  David Rivkin, Jr., Partner at Baker & Hostetler – The Senate Filibuster; and

5:30 CDT/6:30 pm EDT: Timothy Lee, CFIF’s Senior Vice President of Legal and Public Affairs – The Fight Against Net Neutrality and Congressional Litigation Reform Efforts.

Listen live on the Internet here.   Call in to share your comments or ask questions of today’s guests at (850) 623-1330.

Nearly every American that received an ObamaCare subsidy to help pay for health insurance last year got the wrong amount.

“Only 4 percent of the people who signed up for ObamaCare got the correct subsidy, so a whopping 96 percent will see their tax bill adjusted, some up and others down,” writes Betsy McCaughey. “Who would design a system that’s right only 4 percent of the time?”

The main reason for the discrepancy is that a person must estimate – i.e. guess – their entire taxable income for the next year in order to find out how much of a subsidy they qualify for under ObamaCare during enrollment season. A raise or switch to a higher paying job could be zeroed out because the government gets to “clawback” the difference. Losing a job means a fatter refund.

You can see which direction ObamaCare’s incentives point to, which provides a partial answer to McCaughey’s rhetorical question – people who penalize moving up the income ladder.

In 2006, the last time the Drug Enforcement Agency counted the number of outdoor marijuana plants in California, there were roughly 17.5 million.

Since then the number has likely increased significantly due to lack of enforcement by the Obama administration and the effective decriminalization of marijuana use by lax police departments.

Even so, as Ethan Epstein explains, if we take the 2006 figure as a baseline and add to it the fact that a marijuana plant soaks up about six gallons of water per day during its 150-day growing season, California could have saved 63 billion gallons of water since the start of the drought four years ago.

Imagine the savings if California officials got serious about curtailing illegal marijuana growing today.

If Governor Jerry Brown wants to find ways to reduce unnecessary water consumption he should start by uprooting the millions of illegally grown marijuana plants. Had the plants not been siphoning off a precious natural resource over the course of the drought, California could have saved 15 percent of the total Brown wants to recoup through rationing.

In other words, cut off the crooks before knee-capping the law-abiding.

California Governor Jerry Brown’s new water rationing edict is giving state regulators the cover they need to impose all kinds of nanny state restrictions on law-abiding citizens.

In addition to installing ‘smart meters’ on businesses and homes to monitor water usage and impose fines, the California Energy Commission is using Brown’s executive order to increase the use of low-flow appliances. Beginning in January 2016, all toilets and faucets sold in the state must conform to higher water efficiency standards.

“Wednesday’s vote also sets a 1.28 gallon maximum water flow for toilets, putting in place a limit included in a 2007 law but never formally translated into water-efficiency regulations,” reports the Sacramento Bee.

It’s hard to believe that a state so friendly to the environmental lobby as California would have failed to implement even more restrictions when it had the chance, unless doing so would be extremely burdensome and therefore unpopular. Now, however, they can simply claim an emergency and ignore the outcry.

If you are one of the estimated 800,000 Americans who purchased an ObamaCare-compliant health insurance policy for the 2014 enrollment year through Healthcare.gov – the federal exchange portal – and received the wrong tax reporting form, you now have until October 15 to file your taxes.

The Treasury Department announcement came last Friday, less than two weeks before the traditional tax filing deadline.

Credit where it’s due – this is the right call by the Obama Administration since it was the government – not taxpayers – that fouled up the process by mailing error-laden reporting forms. The six month extension relieves the pressure on taxpayers and their accountants and hopefully gives the bureaucracy enough time to fix the problem.

Nevertheless, like all of the other unilateral delays and waivers granted under ObamaCare, this development is yet another indication that the federal government bit off more than it can chew and the number one casualty is the rule of law.

As we’ve noted on multiple occasions, the cyclical economic recovery under Barack Obama is objectively the worst in recorded U.S. history.  Recessions and recoveries come and go, but never have we suffered one with declining median incomes, such low economic growth or this level of employment sluggishness.

Unfortunately, today’s unemployment report brought additional bad news and only serves to further cement Obama’s disastrous legacy.  Economists expected 250,000 new jobs for the month of March, but we only saw 126,000, the lowest since 2013:

The 126,000 increase was weaker than the most pessimistic forecast in a Bloomberg survey, and followed a 264,000 gain a month earlier that was smaller than initially reported, the Labor Department in Washington said.  The median forecast in a Bloomberg survey of economists called for a 245,000 advance.

‘There’s really no way to sugarcoat this.  This is a soft print all the way around, no matter how you slice it,’ said Omair Sharif, rate sales strategist at Newedge USA LLC in New York.  ‘It seems that it’s corroborating that the U.S. definitely hit a soft patch in the first quarter.'”

Making matters even worse, the labor participation rate continued it’s decline to 62.7%, the lowest since 1978, before women fully entered the U.S. workforce.

The unprecedented weakness of the economy under Obama establishes the backwardness of his policies.  Although he and his supporters remain unwilling to internalize the obvious lesson that lower taxes and less federal regulation lead to a stronger economy, the American electorate fortunately maintains the opportunity to do so as 2016 brings the opportunity to select new leadership.

Daniel Payne at The Federalist has a must-read article explaining the perverse and punitive feature of ObamaCare that allows the federal government to “clawback” subsidy amounts from eligible recipients.

“If you’re flat broke at the beginning of the year and accept tax credits from ObamaCare for several months, then find a high-paying job with health insurance halfway through the year and make enough money to put yourself over the subsidy threshold, you’ll owe back every penny of those subsidies you received come tax season, even though you had no money when you received them,” writes Payne.

ObamaCare’s critics have warned that the law would discourage people from getting better paying jobs for fear of losing their health insurance subsidy. In practice, it looks like the penalty on work could be even worse.

Today, Reuters ran the following headline claiming that Republican governors opposed to ObamaCare are really just a bunch of hypocrites: “Exclusive: Republican White House hopefuls attack Obamacare but take money”.

The evidence offered is a combined $352 million in federal grants that GOP governors Rick Perry (TX), Scott Walker (WI), Bobby Jindal (LA), and Chris Christie (NJ) applied for and won under the terms of ObamaCare. Lest any reader miss the theme of the article, the author writes, “Aides [to each governor] told Reuters they saw no contradiction in applying for these grants while criticizing the law as a whole.”

The aides – and by extension, the governors – are absolutely correct. According to the Reuters report, many of the grant programs predate the passage of ObamaCare, and the ones that originated with the controversial health care law are not connected to either the excessively expensive health insurance exchanges or the Medicaid expansion – the two policy devices loathed by fiscal conservatives. As a matter of policy then, there is nothing inconsistent about wanting to repeal a law to get rid of its bad elements while supporting parts that have no connection to them.

As if to walk back from its misleading headline, the Reuters piece says that “It’s not clear whether the Republican governors now considering running for the White House would protect these programs if they won the November 2016 presidential election.” Except that it is clear. So far, none of these governors have indicated that in repealing ObamaCare they would refuse to reinstate the non-controversial grant programs. Therefore, it’s reasonable to assume that these programs are safe.

Attention-grabbing headlines are necessary in the news business, but only if they’re true. The next time Reuters wants to ding GOP politicians for hypocrisy, it needs to bring much better evidence than this.

The Obama administration got a rare piece of good news today when the U.S. Supreme Court declined to overturn a Ninth Circuit Court of Appeals decision upholding part of ObamaCare.

The case, Coons v. Lew, is an Arizona-based challenge to the Independent Payment Advisory Board (IPAB), the 15-member group of experts empowered to reduce Medicare spending below a certain threshold.

In declining the plaintiffs’ appeal, the Supremes did not in any way indicate that this case is without merit. Rather, it may have been filed too early. Courts are typically loathe to strike down parts of laws that have yet to go into effect. IPAB won’t be making any decisions until 2019 at the earliest.

As usual, the issue is whether IPAB is constitutional. “Its decisions cannot be overridden by Congress without a super-majority and cannot be challenged in court,” explains a report in Politico. If that sounds like near monarchial power for an unelected bunch of experts, well, this is the Obama administration after all.

For now, IPAB is a dormant legal issue. Time will tell if it becomes a political rallying cry in next year’s presidential election.

In an interview with CFIF, Professor John Eastman, the Henry Salvatori Professor of Law & Community Service at Chapman University and Founding Director of the Constitutional Jurisprudence Clinic, discusses whether Ted Cruz can serve as president if he was born in Canada and the Texas immigration case challenging President Obama’s Executive Fiat.

Listen to the interview here.

Lee:  2016: Obama’s Presidency Has Decimated His Own Party
Ellis:  ObamaCare’s Fault: IRS Overworked, Understaffed Going into Tax Season
Malkin:  The NAACP’s Fomenters of Fear
Shapiro:  The Secret Life of Barack Obama

Podcast:  Work for Welfare and the IRS’ Looming Controversial Rules
Jester’s Courtroom:  Crafting a Lawsuit

Editorial Cartoons:  Latest Cartoons of Michael Ramirez
Quiz:  Question of the Week
Notable Quotes:  Quotes of the Week

If you are not already signed up to receive CFIF’s Liberty Update by e-mail, sign up here.

Mark your calendars because today the Fifth Circuit Court of Appeals granted the Obama administration’s plea to grant a fast-track appeal of a lower court decision blocking a controversial amnesty program for illegal immigrants.

The next stop on the constitutional carousel occurs April 17, when lawyers from the Texas Attorney General’s office representing 26 states square off against counterparts from the federal government. At issue will be whether to overturn a district court order halting implementation of an executive action granting work permits and deportation waivers to an estimated five million people in the United States without authorization.

Granting the fast-track petition doesn’t necessarily mean that the Fifth Circuit – widely considered the most conservative jurisdiction of the federal judiciary – will side with the Obama administration. More likely, it’s a courtesy gesture to the executive branch acknowledging that a resolution to this dispute is needed sooner rather than later. Even still, a final decision could take months to appear and both sides have indicated they will litigate all the way to the Supreme Court to vindicate their position.

In the end, what today’s announcement probably means is that the Supreme Court will hear an appeal next fall instead of the following spring. Just in time for presidential primary season.

Below is one of the latest cartoons from two-time Pulitzer Prize-winner Michael Ramirez.

View more of Michael Ramirez’s cartoons on CFIF’s website here.

Gaming is an issue traditionally governed at the state level, and rightfully so.  Under our federalist system, such questions are best resolved according to what the citizens of individual states – our “laboratories of democracy” – prefer.  What fits the citizens of Nevada may differ from what fits the citizens of New Hampshire, and vice-versa.

Unfortunately, some in Congress who typically demonstrate better political and policy judgment hope to impose a blanket, nationwide, one-size-fits-all prohibition of online gaming upon all 50 states.  The proposed bill failed in the last Congress, but this week on Capitol Hill its ill-advised reincarnation will be the focus of a Congressional hearing.  Nothing has changed over the past year to suddenly justify a bill that we opposed in its first iteration:

The so-called Restoration of America’s Wire Act (H.R. 4301 in the House and S. 2159 in the Senate), which wouldn’t ‘restore’ the Wire Act to its original meaning but rather significantly expand its reach contrary to the Fifth Circuit and Justice Department rulings, aims to impose a de facto prohibition on online gaming in all 50 states and thereby increase federal regulatory power.  Proponents claim that the new bill would protect children and problem gamers, but the more realistic consequence would be shutting down existing law-abiding companies and driving commerce toward criminal sites and unaccountable overseas entities less interested in restricting minors or problem gamers.

The better option is to maintain existing law, which rewards law-abiding domestic companies and ensures greater safety and security.  And as noted above, the proposed legislation would grossly violate the concepts of state sovereignty, free-market principles and individual consumer freedom.  The last thing we need right now is even more federal regulation of states and legal commerce, particularly within the flourishing Internet sector.”

Proponents have even attempted to rig the hearing to exclude opposition voices.  But regardless of parliamentary shenanigans, the bottom line is that this is an ill-advised bill.  Conservatives and libertarians should strongly oppose this intrusion into individual states’ rights and consumer freedom, and contact their elected representatives to make their preference clear.

Not one to wait his turn, today U.S. Senator Ted Cruz (R-TX) became the first person to announce he is running for the presidency.

The first-term senator declared his ambition during a speech at Liberty University, the world’s largest Christian university and the symbolic epicenter for the conservative grassroots Cruz is trying to represent.

In the Age of Obama, Cruz’s red meat speech seems almost like a throwback to the days when conservatives were unabashed in their support for the three-legged stool of the movement’s issues: social, economic, and national security.

If you’re looking for a candidate to double-down on first principles, Cruz might be the one.

Though his pre-announcement polling numbers haven’t been stellar, Cruz will be working hard to move the needle higher now that he is officially in the race to replace Barack Obama.

Welcome to the job interview, Senator. We look forward to hearing more from you.

Join CFIF Corporate Counsel and Senior Vice President Renee Giachino today from 4:00 p.m. CDT to 6:00 p.m. CDT (that’s 5:00 p.m. to 7:00 p.m. EDT) on Northwest Florida’s 1330 AM WEBY, as she hosts her radio show, “Your Turn: Meeting Nonsense with Commonsense.”  Today’s guest lineup includes:

4:00 CDT/5:00 pm EDT:  Patrick Hedger, Policy Director of American Encore – Preserving the Work Requirement for Welfare Act and Proposed IRS Rules to Police Nonprofits;

4:30 CDT/5:30 pm EDT:  Michael Brickman, National Policy Director at the Thomas B. Fordham Institute – “Free Community College”;

5:00 CDT/6:00 pm EDT:  Jason Kimbrell, Leslie Coleman and Leah Taylor, Santa Rosa County Chamber of Commerce – Excellence in Business and Leadership Conference; and

5:30 CDT/6:30 pm EDT:  Professor John Eastman, Director, Center for Constitutional Jurisprudence, Henry Salvatori Professor of Law and Community Service, Chapman University Dale E. Fowler School of Law – Texas Immigration Case.

Listen live on the Internet here.   Call in to share your comments or ask questions of today’s guests at (850) 623-1330.

James Pethokoukis of AEI argues that the new House GOP budget puts too much emphasis on cutting the deficit and not enough on increasing economic growth.

“Indeed, the entire thrust of the budget seems to be that the federal debt is America’s biggest problem,” he writes. “But where’s the evidence? Low interest rates are hardly signaling investor alarm. And not only is the federal debt issued in U.S. dollars, our currency is the world’s reserve. The U.S. is not Greece. The big economic danger here isn’t a debt-driven financial crisis. It’s chronic slow growth from having to sharply raise taxes if we don’t restructure entitlements in a way that promotes saving and work.”

Of course, House budget writers do intend to reform entitlement spending drivers like Medicare and Medicaid – and eventually, one hopes, Social Security. So from at least this standpoint Pethokoukis and the House Budget Committee seem to be in agreement that structural fixes are needed to get entitlement spending on a sustainable trajectory.

What seems to divide them, however, is the motivation for doing so. For the budget drafters it may be containing and reducing an exploding deficit. For Pethokoukis and others, it’s kick-starting the economy to generate more wealth up-and-down the income ladder.

One of these two motivations will ultimately decide what conservative entitlement reform looks like. It will be interesting to see which prevails in the run-up to 2016.

If you didn’t have health insurance last year, could afford it (according to ObamaCare), and don’t have a waiver from the individual or employer mandate, you will be getting a notice from the IRS this year that you owe Uncle Sam some money.

Apparently, this will be a surprise to a lot of people.

“A Kaiser Family Foundation poll released Thursday found that while slightly more than half of respondents were aware the penalty kicks in this year, one in five think it goes into effect next year, roughly one in six say they don’t know when it goes into effect, and one in 10 believe it was rolled out last year,” reports the Washington Examiner.

Look for ObamaCare’s unpopularity to increase even more after Tax Day.