Note: See Jack Abramoff grilled by CNN’s Soledad O’Brien Thursday morning at 7:30 am Eastern.
Lobbyists tend to see opportunity in what others view as calamity. I know, because I did.
During the decade I was a lobbyist in Washington, I would often examine legislation to discover hidden business opportunities. When Congress forbade an activity, some businesses would inevitably prosper providing an alternative service. Sometimes, ambiguity in legislative language would create loophole advantages for entrepreneurs. As a lobbyist, one of my jobs was to be one step ahead of the game; to discover the opportunities created, sometimes by congressional error, and provide that valuable information to those in the business or foundation sector that could benefit. Usually, the opportunities were minor and somewhat ambiguous, but sometimes a lobbyist would strike gold.
Last week, Chief Justice John Roberts published the lobbyist equivalent of an El Dorado treasure map. It may not have been the intention, but his majority opinion in the Obamacare case could ignite some of the most aggressive lobbying campaigns America has ever seen.
In what many consider to be Roberts’ attempt to make his court more popular with the mainstream media and the liberal establishment, the chief justice channeled Harry Houdini and delivered an opinion so replete with legalistic legerdemain that many constitutional scholars are still scratching their heads in wonder.
At its core, the Roberts decision declared the health-care mandate to be a tax, ignoring the histrionic palpitations of the Obamasphere to the contrary. Indeed, out of sheer political panic, the president’s minions continue to insist that the mandate is a penalty, not a tax, but to no avail. His political consultants understand that, if and when the American people come to realize that the health-care tax is likely to impact many in the so-called “99 percent,” Obama could suffer at the polls in November.
Indeed, since this tax is almost laser-focused on the group least likely to afford or purchase these insurance policies – healthy young people – the political implications for the president could be devastating. If he is unable to replicate the enthusiasm that drove youth turnout in 2008, he will have lost a vital voter bloc. But, if young people wake up too soon to the crushing financial blow the Obamacrats have sent their way, the messianic political figure of 2008 could be facing electoral Gotterdammerung in 2012.
The political machinations of a presidential campaign are interesting to lobbyists, but not really vital to their business calculus. In fact, when I was a lobbyist, I marveled as to how many of my competitors could not have cared less who was president of the United States. Their focus was on Congress. So, whether Obama sinks into the abyss or not is really only of sporting interest in most of the lobbying world. Sure, there are some who importune the executive branch with great effect – Solyndra’s efforts in this regard are the envy of chicanerous lobbyists everywhere. But, for the most part, lobbyists lobby Congress. Moreover, if the executive branch is relatively unimportant in the lobbying world, the judicial branch is positively irrelevant. Thanks to the Affordable Care Act decision, however, that could change.
Inherent in the decision to render the mandate a tax is an ominous implication. For the first time in our nation’s history, the court has given sanction to the notion that the government can tax inactivity. In the past, our tax laws were aimed at the fruits of our labors. When we prospered, the state prospered. Putting aside the morality and efficacy of these fiscal extractions, they were based entirely on our citizens efforts and production. Our actions. Now, thanks to the Roberts decision, the state no longer needs to wait for activity to take its cut. It can now tax inactivity.
In the past, Congress could not enact penalties for inaction under the Commerce Clause of the Constitution, and that is still true. But, mirabile dictu, it now has the ability to tax a citizen for inaction. The first to suffer these new taxes will be the young and healthy, but, folks, in the immortal words of Al Jolson, you ain’t seen nothin’ yet.
Malicious bureaucrats and esurient lobbyists have long craved the ability to regulate and control the ordinary economic activity of our nation, those money pots previously beyond their jurisdiction. As a consequence of Chief Justice Roberts’ magnus opus, their party begins. Gone will be the days of constitutional objections to the expansion of government control. Feckless and reckless congressmen, on the payroll of diabolical lobbyists, need merely to avail themselves of the newfound taxing authority to justify a greatly expanded invasion of our lives.
Lobbyists sapient enough to understand the consequences of the Roberts decision are already conferring with clients that desire to use the federal government as a competition stifler and market protector. You don’t have to be a Nostradamus to predict taxes for those not installing certain kinds of solar panels on their roofs, particular security software on their computers or specific GPS devices in their cars. How high will be the tax for not enrolling in Acme Diversity Training seminars? How about a federal tax on those loafers not installing the favored low-flow shower head? The possibilities are endless. And when government possibilities are endless, the lobbyists swarm.
There is a reason three of the top five wealthiest counties in our nation border our nation’s capital. It’s because the federal government is the only entity in our nation that grows under any and every circumstance. Until Chief Justice Roberts decided to cross to the liberal side of the Force, there was a limit to this growth. Sure, since the court misinterpreted the Commerce Clause in 1936 to comport with Franklin Delano Roosevelt’s desire to control everything that moved across the fruited plain, the feds have been busy arrogating to themselves all power possible; but now, for the first time, they have the power to tax and regulate us into action.
In creating this new capacity, John Roberts has become an unwitting hero on K Street. Perhaps he’ll be their consensus candidate for the 2016 nomination?