Who Exactly Is Running This Country?

My latest musings involve our legislative processes both at the State and Federal level.  My lobbyist friends may not like what follows. There was time, not long ago when our legislators owed their fealty to their constituents and to their party.  It now seems that loyalties are owed more to special interests than their constituents.  I have three examples for your consideration.

At the last Western Stock show, I sat down at a table with a lobbyist I have known for many years.  He told me he was meeting his client and that I would also enjoy meeting her.  The client was our Governor’s point person who chaired the committee which finds Colorado citizens to serve on Boards and Commissions. When I asked why this committee needs a lobbyist, I was told that the Governor needed a person at the legislature to lobby for his appointments.  So as a taxpayer, I am paying for a lobbyist to communicate with elected representatives to approve other citizens to serve on largely non-paying boards and commissions in case special interest groups might object.   Just recently I read in the Denver Post that the Secretary of State announced that he had neither the budget nor personnel to regulate the lobbying industry.  The legislature did pass a body of regulations to govern lobbyists but right now it barely serves to register the lobbyists and see to it that they pay their nominal registration fees.  Everyday we see the work of lobbyists whether it is over rain barrels, sales of wine in grocery stores or the ban on marijuana edibles.  Could it be that we have abandoned our Republic for a body of special interest handmaidens called lobbyists who have little to no oversight?

The second example is at the Federal level. Surprisingly there is strong bipartisan support for the Sentencing Reform Act of 2015.  The bipartisan support is composed of a coalition of strange bedfellows.  It unleashes the lobbying forces of the nation’s most prominent conservative and progressive organizations, over 200 in number, to bring about sentencing reform. The legislation is, however, being held up by, a small but apparently equally strong lobbying force of a special interest group out to protect business in general and the financial industry specifically, from white collar crime prosecution.  The amendment would require an element of proof (mens rea, a conscious awareness of one’s actions) in all white-collar collar prosecution.  This special interest group wants to insert this unrelated provision in the Sentencing bill to mostly protect a small group of corporate executives.  So we have another example of a legislative body deferring to a special interest rather than the constituency at large.

Just one more example of lobbying abuse in DC.  There is an army of lobbyist regularly appearing before and supplying information to the various agencies charged with providing detailed regulation to enforce acts of Congress.  I often hear the argument made of overregulation that strangles business and innovation.  Perhaps we should consider reforming the administrative process and relieving the administrative agencies from lobbying pressures.

These are just a few examples of how I believe our legislative process is being overrun with special interest and lobbyists.  What are your thoughts on our current state of the state relating to these matters?

Food For Thought: State of the State, Volkswagon and Tax Extenders

As the cold months are upon us, I find I have a bit more time to sit and ponder. Here are a few items for you to think about should you find yourself in the same position:

In a recent poll conducted by Politico, Colorado came out pretty well.  It was ranked the 6^th strongest state.  The criteria included the following: Annual per capita income ($31,674); percentage of unemployed (3.5%); percentage below poverty level (12%); home ownership (63.9%): percentage of high school grads (90.5%); life expectancy (80) with Infant deaths/1000 (4.79).  Denver was also just recently ranked the 8^th most future ready city.  Tell me, in your businesses, are you experiencing the same positive trending?

In a recent tour of the country, the CEO of Volkswagen said, after California rejected its remediation plan, that his Company did not lie to the EPA; it was a technical misunderstanding…  In my previous newsletter I suggested that perhaps criminal sanctions might be in order.  I think in a court of law, the CEO’s recent statement could be a pivotal moment in a trial.

Congress has just finished passing The Tax Extension bill.  There are tax breaks for certain special interests with strong lobbying influence.  Interestingly, over the years, tax extenders have grown in popularity.  The very first tax extender bill was passed in 1988.  There were 8 provisions.  By 1992, there were 12. This year there are 50 provisions, costing $85 billion.  One reason for tax extenders is that line item inclusion in the budget requires lawmakers to consider the 10-year cost of the provision.  Tax extenders are usually passed for one or two years.   

My favorite is the provision promoted by Senator McConnell of Kentucky: it allows depreciation of race horses over 3 years rather than 7.  For those of you in small business, there is the bonus depreciation extender.  It allows businesses to write off a large share of investment in new equipment by immediately taking an expense deduction up to $500,000 (indexed for inflation) for new equipment.  Another extender would allow startups that are not profitable to qualify for a tax credit for research and development. 

In my humble opinion, special interests win out again.  How do we even it out? How about balancing it out with a higher earned-Income tax credit, increased child tax credits, subsidies for people who wanted to move in search of work and exemption of the first $20,000 in earnings from the Medicaid payroll tax?

If you have any interest in following up on a tax extender that might benefit you, please call me. I look forward to it.

Should corporations that break laws in a significant manner be allowed to exist?

The recent corporate scandals at Volkswagen and thePeanut Butter Corporation got me thinking about just when it was that corporations got constitutional rights. The answer is that over time, our Supreme Court has incrementally granted Corporations certain Constitutional rights, mostly in controversial political situations. Corporations are creatures of state statues, whose sole purpose is to provide for an association dedicated to making profit. Those statutes grant them certain rights such access to the courts to sue and be sued. Corporate existence is dependent on complying with law and paying fees and taxes. Corporations would not exist but for their statutory creation.

While some complain about corporations paying extraordinary taxes, they are well represented by their influence on regulatory and administrative agencies and lobbying efforts in congress. Shareholders have been told that these expenses are a necessary cost of doing business and a legitimate expense against profits. 

Two recent Supreme Court cases newly granted corporations the right of free speech (Citizens United) and religious rights (Hobby Lobby). There are 8 other cases that in one way or another grant corporations constitutional rights. How do corporations deserve our precious citizen's inalienable rights given that their very existence was granted by a state legislature? 

 

Going back to status for the moment, if corporations are statutorily created creatures subject to law, and if they violate the law in a significant way, should they be allowed to continue in existence? Corporations have not been granted a fifth amendment right against self-incrimination. Corporate Records and testimony by corporate executives should be totally available to prosecutors. In the Volkswagen Case, the facts are not yet out, but it would appear likely that the creation and installation of this software device was not an act of negligence. It was intentional. The Peanut Butter Corporation produced its a food product in plants known to be unsanitary and resulted in death and serious illness to many consumers. Corporations can's go to jail, so why should these two corporations, having committed or alleged to have committed felonious acts be allowed continued existence? Wouldn't the threat of ending a corporation's existence send a message? 

 

Your thoughts?

I look forward to hearing from you. 

 

Sincerely,

 

Len Goldstein
Attorney at Law

Is There A Way? Development Versus Impact

In one of my very first blogs, I talked about the "need to make a difference" as a strong motivator to stay engaged in the practice of law.  In the last blog, I mentioned my local governmental committee work and hinted at the battle between a developer's special interest and protecting the community assets of the Highline Canal trail and open space.  The developer has now presented to both the Parks and Trails Committee and the Planning and Zoning Committee.  One committee has recommended in favor and the other recommended against.

I have taken up the battle against a part of the development that puts a vehicular bridge carrying construction and local traffic in the way of a trail over which 100,000 people per year hike.  There are alternatives but other neighbors object to increased traffic, or the developer objects to the increased costs. I am deeply involved and will continue the good fight.

That being said, it is interesting to compare our local neighborhood fight to what is going on in Washington.  Polarization seems to prevail over compromise. So in our local case, you are either in favor of the development or against it.  One of my neighbors said it well when she said, while she would prefer the open space, she understands the rights of a landowner to develop a piece of land in a way that does not harm others. 

Is there a centrist or compromise position that allows development but minimizes harm?  I tend to be a centrist.  The Centrist position seems to repel many on the hard left or right but I think common sense should prevail over ideological positions.  I tend to think the commonwealth should prevail over special interest.  So... I will continue the good fight that will hopefully result in a solution that benefits all.  What are your thoughts on this topic? I truly am soliciting your feedback on this one so email me and let me know where you stand. 

  

I look forward to hearing from you. 

Sincerely,

Len Goldstein
Attorney at Law

A Treasure Trove of Malapropisms

Now here is a fun job. Two lawyers Charles Savilla and Lee Lorenz have amassed a treasure trove of malapropisms from actual trial transcripts and put them into several books called Disorder in the Court.  This sample will tickle your funny bone.

ATTORNEY: What was the first thing your husband said to you that morning?
WITNESS: He said, 'Where am I, Cathy?'
ATTORNEY: And why did that upset you?
WITNESS: My name is Susan!
_______________________________
ATTORNEY: What gear were you in at the moment of the impact?
WITNESS: Gucci sweats and Reeboks.
____________________________________________
ATTORNEY: Are you sexually active?
WITNESS: No, I just lie there.
____________________________________________
ATTORNEY: What is your date of birth?
WITNESS: July 18th.
ATTORNEY: What year?
WITNESS: Every year.
_____________________________________
ATTORNEY: How old is your son, the one living with you?
WITNESS: Thirty-eight or thirty-five, I can't remember which.
ATTORNEY: How long has he lived with you?
WITNESS: Forty-five years.
_________________________________
ATTORNEY: This myasthenia gravis, does it affect your memory at all?
WITNESS: Yes.
ATTORNEY: And in what ways does it affect your memory?
WITNESS: I forget.
ATTORNEY: You forget? Can you give us an example of something you forgot?
___________________________________________
ATTORNEY: Now doctor, isn't it true that when a person dies in his sleep, he doesn't know about it until the next morning?
WITNESS: Did you actually pass the bar exam?
____________________________________
ATTORNEY: The youngest son, the 20-year-old, how old is he?
WITNESS: He's 20, much like your IQ.
___________________________________________
ATTORNEY: So the date of conception (of the baby) was August 8th?
WITNESS: Yes.
ATTORNEY: And what were you doing at that time?
WITNESS: Getting laid.
____________________________________________
ATTORNEY: She had three children, right?
WITNESS: Yes.
ATTORNEY: How many were boys?
WITNESS: None.
ATTORNEY: Were there any girls?
WITNESS: Your Honor, I think I need a different attorney. Can I get a new attorney?
____________________________________________
ATTORNEY: How was your first marriage terminated?
WITNESS: By death.
ATTORNEY: And by whose death was it terminated?
WITNESS: Take a guess.
___________________________________________
ATTORNEY: Can you describe the individual?
WITNESS: He was about medium height and had a beard.
ATTORNEY: Was this a male or a female?
WITNESS: Unless the Circus was in town I'm going with male.
_____________________________________
ATTORNEY: Is your appearance here this morning pursuant to a deposition notice which I sent to your attorney?
WITNESS: No, this is how I dress when I go to work.
______________________________________
ATTORNEY: Doctor, how many of your autopsies have you performed on dead people?
WITNESS: All of them. The live ones put up too much of a fight.
_________________________________________
ATTORNEY: ALL your responses MUST be oral, OK? What school did you go to?
WITNESS: Oral.
_________________________________________
ATTORNEY: Do you recall the time that you examined the body?
WITNESS: The autopsy started around 8:30 PM.
ATTORNEY: And Mr. Denton was dead at the time?
WITNESS: If not, he was by the time I finished.
____________________________________________
ATTORNEY: Are you qualified to give a urine sample?
WITNESS: Are you qualified to ask that question?
______________________________________
And last:
ATTORNEY: Doctor, before you performed the autopsy, did you check for a pulse?
WITNESS: No.
ATTORNEY: Did you check for blood pressure?
WITNESS: No.
ATTORNEY: Did you check for breathing?
WITNESS: No.
ATTORNEY: So, then it is possible that the patient was alive when you began the autopsy?
WITNESS: No.
ATTORNEY: How can you be so sure, Doctor?
WITNESS: Because his brain was sitting on my desk in a jar.
ATTORNEY: I see, but could the patient have still been alive, nevertheless?
WITNESS: Yes, it is possible that he could have been alive and practicing law.