FEBRUARY 06, 2015
Someone on Capitol Hill has taken notice of the lawsuit we filed last fall challenging members of Congress who are taking advantage of health benefits they are not entitled to claim. That someone is Sen. David Vitter (R-La.) who now chairs the Small Business & Entrepreneurship Committee. As a prominent figure in the new Republican majority, Vitter is well-positioned to investigate and expose illegal maneuverings that make it possible for elected officials, and their staff members, to obtain perks and benefits that are not available to average Americans. In response to “smoking-gun” documents uncovered by your Judicial Watch, Vitter has initiated his own separate investigation into the Washington D.C. Small Business Health Exchange and the special exemption that was created for Congress that oversteps and ignores the clear language of the law.
As you are well aware from our previous updates, at least 12,359 members of Congress, congressional staffers, and their spouses and dependents currently purchase health insurance in D.C.’s Small Business Exchange even though Congress far exceeds D.C. law’s 50-employee limit for participating in the exchange. That’s why we filed a lawsuit in October on behalf of Kirby Vining, a D.C. taxpayer, against the D.C. Health Exchange Authority. In a court filing, the D.C. government conceded that, under D.C. law, the U.S. Congress is not permitted to obtain insurance through the District’s Small Business Exchange. But members of the political class, true to form, do not believe the rules apply to them. How do we know?
Our lawsuit cites applications filed by the U.S. House of Representatives and Senate with the D.C. Exchange Authority. The applications, which were obtained through a Freedom of Information Act (FOIA) request, show that the House and Senate claimed to have only 45 employees each. They also show that the House and Senate attested to having “50 or fewer full-time equivalent employees.” Congress employs upwards of 20,000 people. D.C. law limits participation in the exchange to small businesses having fewer than 50 full-time employees. The applications also falsely state that the House and Senate are “local/state governments.”
As part of his investigation, Vitter is calling on the D.C. exchange and the financial clerks from both the U.S. Senate and the U.S. House to release information describing how the U.S. Congress was classified as a small business. The language of the federal Affordable Care Act, widely known as ObamaCare, does not permit an employer contribution for anyone purchasing a health plan on the exchange unless they are purchasing the plan as an employee who is part of a small business.
The text of Vitter’s letter to congressional officials is available here. You can see how our efforts are beginning to rattle some cages and break information loose. Here is just brief snippet from Vitter’s very blunt, scathing letter to the congressional culprits:
As each of you is aware, on October 15, 2014, Judicial Watch filed a lawsuit against the District of Columbia Health Benefit Exchange Authority regarding its decision to allow Congress to participate in D.C.’s Small Business Exchange. In its complaint Judicial Watch cites several applications filed by the U.S. House of Representatives and U.S. Senate that misrepresented material information including fake names, the number of full-time equivalent employees, and a definition of Congress as a “state/local government. These documents, that have been made public, prove that someone within Congress knowingly falsified information in order for Congress to keep their Obamacare subsidy. We need to know who, immediately, so we can fix this injustice and eliminate the unfair practice. Under the Employer Information section of the D.C. Health Link application, the Primary Business address indicates that the Office of the Clerk of the U.S. House of Representatives (House Clerk) and the U.S. Senate Disbursing Office (Senate Disbursing) were responsible for submitting these applications.
That’s your JW helping to apply all the right pressure points. Our educational efforts are spurring additional efforts of accountability out the U.S. Senate. Senator Vitter deserves kudos and thanks for his work especially since his cause is unpopular in Congress – where far too many members and staff are too happy to receive benefits in violation of the law. (By the way, Sen.Vitter has had some ethics issues in the past for which he has been rightly criticized by JW and others.)
And what a nice change of pace for Congress – an investigation into its own misconduct! Senator Vitter told The Times Picayune:
“Allowing Congress — which employs nearly 16,000 individuals — to determine itself as a ‘small business’ doesn’t pass the common sense test…We need to know exactly how and why this was allowed to happen, so we can fix this injustice and eliminate Washington’s Obamacare Exemption. Washington insiders should be forced to live under Obamacare just like the rest of America without a special taxpayer funded subsidy.”
Our goals in the lawsuit are fairly straightforward. On behalf of Mr. Vining, we are asking the Court to:
a) declare the House and the Senate’s participation in the Small Business Exchange to be unlawful; (b) enjoin Defendants from continuing to allow the House and the Senate to participate in the Small Business Exchange, or at a minimum, from expending further taxpayer funds on the House and Senate’s participation in the Small Business Exchange; (c) issue a writ of mandamus ordering [District officials] to deny the House and the Senate further participation in the Small Business Exchange . . .”
As Senator Vitter points out, our initial lawsuit highlighted the fraud behind Congress’s illegal participation in Obamacare. Incredibly, our cause was bolstered by the defendants in their response to our lawsuit.
On November 7, 2014, the Exchange Authority filed a Motion to Dismiss in which it clearly admits that the law does not allow Congress to participate in its Small Business Exchange. Here’s the key paragraph:
The Health Benefit Exchange Authority was created by the District of Columbia Council under the ACA, and authorized to operate a SHOP Exchange [“Small Business Health Options Program”] in the District through which qualified small businesses could access health coverage for employees. By limiting the SHOP Exchange to “small employers” with an “average of not more than 50 employees during the preceding calendar year,” D.C. Code 31-3171.01 prevents Congressional enrollment in the D.C. Shop Exchange because Congress does not fall within the definition of “small employer.”
On December 12, 2014, we filed an Opposition to the Motion to Dismiss on behalf of Vining. The D.C. Exchange then filed a Reply to the Opposition on December 22, 2014. So, the legal battle continues to rage. The court has scheduled a status conference on February 27, so we may know whether the case will proceed or not soon. You can rest assured that your JW will continue to go to toe-to-toe with the D.C. government that is undermining the rule of law. In the meantime, you might want to check with your local congressman and senators about what they think about the fraud now being committed to provide illegal health insurance to Congress. You can point them to our documents and demand accountability.
That’s where we are now. But it is heartening to note that action in the U.S. Senate now converge with our own. The Louisiana Republican has fought persistently for a vote on his proposed legislation to end what he appropriately describes as the “ObamaCare Exemption.” As he pushes for reform on Capitol Hill, we will continue to fight in court.
Well this one doesn’t come as a surprise, but it does demonstrate that justice delayed can be justice denied. We have just obtained new internal documents from the Department of Justice (DOJ) that show how the IRS Office of the Chief Counsel worked to delay a meeting between an IRS employee and DOJ and FBI investigators about the Obama IRS abuse and harassment of Tea Party and conservative groups and individuals who were in the way of Barack Obama’s reelection effort.
To help you with a timeline, it was in May 2013 that the Treasury Inspector for Tax Administration (TIGTA) released an audit report confirming that the IRS used “inappropriate” criteria to identify, hamstring, and handcuff conservative organizations that stand in opposition to Team Obama. Put simply, the agency violated the First Amendment rights of countless Americans just as Obama sought reelection. As further confirmation of the criminality of Obama’s IRS abuse, in 2014, Lois Lerner, the former Director of the IRS Exempt Organizations Unit that was “suppression central” for the tax agency, was held in contempt of Congress after refusing to testify at a congressional hearing about the agency’s witch hunts. (The Holder Justice Department has yet to prosecute this contempt charges.)
This latest batch of emails, which were released in response to just one of our several FOIA lawsuits against the DOJ, provide the first window into the criminal investigation of the alleged IRS abuses. The emails detail the involvement of the DOJ’s Public Integrity Section, which JW was first to expose as being part of a scheme to work with the IRS to prosecute groups and individuals critical of the Obama administration. The documents show the IRS scandal is only getting worse and that the IRS Counsel’s office, which is operated by an Obama appointee, has been, once again, stonewalling any serious investigation.
For starters, the emails show that on June 12, 2013, the lawyer for a cooperating IRS employee witness in Cincinnati complained to a Justice Department prosecutor about the IRS Counsel’s office delaying approval of a meeting between the IRS employee and Justice Department prosecutors:
…we find it amazing that they didn’t immediately respond giving us the green light to meet with you.
So, that’s not a very encouraging sign.
The DOJ prosecutor wanted to know who the contact in the IRS Counsel’s office was and wrote back, “Let’s talk in am if they don’t get back to you. Thanks.”
Though investigators wanted to meet quickly, the emails show it was nearly a month before the unnamed IRS employee met to proffer evidence to two Justice Department prosecutors, two FBI officials, and an investigator from the Treasury Inspector General for Tax Administration. The proffer session seems to have taken place in the IRS’s Cincinnati office on July 11, 2013, and included the IRS employee’s attorney, who the documents suggests works at the Cincinnati area law firm of Adams, Stepner, Woltermann & Dusing, PLLC. The documents detail that the proffer took place after a Garrity immunity waiver was secured for the IRS witness. This matters because Garrity immunity assures the right of public employees not to be compelled to incriminate themselves.
And why is the Obama DOJ is quick to give an Obama IRS employee immunity one of the most significant scandals of the Obama era? One can’t have confidence in this decision-making because the Obama Justice Department has a massive conflict of interest that undermines public confidence in its ability to pursue justice in this matter.
The most obvious conflict is evident in the fact that the DOJ’s Public Integrity Section was investigating the IRS scandal only a month after it reached out to Lois Lerner about prosecuting targeted tax-exempt entities!
And then there is Barbara Bosserman, who is an attorney at the Civil Rights Division who has been reported to be leading the IRS investigation at DOJ. She’s not exactly, a detached dispassionate figure here. According to Federal Election Commission records, Bosserman contributed $6,750 to Obama’s campaigns and the DNC from 2004 to 2012, including 12 separate contributions to Obama for America between 2008 and 2012. As I told you last week, the Obama administration is desperately fighting us in federal to cover up even the most basic information about her role in the investigation.
Then there’s William J. Wilkins, the chief counsel for the IRS, who is a political appointee of President Obama’s. Wilkins was a former Democratic staffer in the U.S Senate, a donor to Democratic candidates and committees, and was a lobbyist for several years. Guess which office is key in the ongoing IRS cover-up that Judicial Watch is successfully fighting through multiple federal lawsuits? The IRS Counsel’s office. And guess whose lawyers are representing and defending the IRS cover-ups in these same federal lawsuits? The Justice Department! All with your tax-dollars, of course.
Recall that the May 14, 2013, Treasury Inspector General report that revealed that the IRS had singled out groups with conservative-sounding terms such as “patriot” and “Tea Party” in their titles when applying for tax-exempt status details that the “Chief Counsel” was involved in the IRS’s Tea Party and conservative targeting.
In this second “rolling production,” the DOJ also released 34 pages of heavily redacted emails, while admitting that it had reviewed 938 pages of responsive records related to its contacts with the IRS concerning the criminal prosecution of targeted tax exempt entities.
The DOJ claimed that 904 pages were exempted from release for one of the following reasons: a) contains tax return information; b) deliberative process and attorney work-product privilege; and c) unwarranted invasion of personal privacy of third parties. An additional 55 pages are currently being reviewed by the FBI for processing and response.
Despite these redactions, the new documents do provide us with important details and insight into what DOJ officials were examining and the nature of the documents it wanted from the IRS witness in question here.
On July 12, 2013, the DOJ attorney (whose name is blacked out) emails:
We appreciate receiving the time line related to the “TAG spreadsheet” and “BOLO” that [REDACTED-BLACKED OUT] prepared. As we stated, that time line will be covered by the proffer agreement she Executed yesterday.,,,
we would also appreciate obtaining the email communications that you obtained from [REDACTED-BLACKED OUT] pertaining to the 501(c)-application issues we discussed yesterday, i.e., the public allegations that the IRS “targeted” certain groups based on their political viewpoints, in particular groups associated with the ‘Tea Party.” As I explained yesterday, due to the filter procedures we have in place, could you please divide the communications into two groups, those dated before and those dated on or after March 1, 2012? To the extent practical, the emails dated on or after March 1, 2012, should be placed in a sealed envelope or otherwise clearly separated from the first batch (i.e., if they are scanned and emailed, please do so in separate files). To the extent any of these applications contain taxpayer information, return information, and/or taxpayer return information, the Department of Justice and the FBI have referral authority under 18 U.S.C. 6103(h) to view this information by virtue of our participation in a joint investigation with TIGTA.
We don’t know why the emails needed to be filtered. And we don’t know what the witnesses shared with investigators. We do know this “investigation” is an ugly mess and it is no surprise that, after nearly two years, the criminal investigation of the Obama IRS by its co-conspirators at the Obama Justice Department is a farce.
If you’re a state election official tasked with updating and reconfiguring election practices to combat voter fraud, you can expect to be maligned a “racist” regardless of how laudable and honorable your intentions might be. Those who play this race card are lately using the so-called “disparate impact” theory to attack state laws that, for instance, require some type of photo or other identification in order to vote. In October, the U.S. Court of Appeals for the Fourth Circuit issued an opinion that enjoined North Carolina from eliminating same-day voter registration and out of precinct voting based on the dubious notion that any changes to election law that impact minorities in a “disproportionate” manner are contrary to federal law.
We have joined with Alliance Educational Foundation (AFF) in the filing of an amicus curiae brief with the United States Supreme Court in opposition to this bizarre ruling from the Fourth Circuit.
Under the theory of “disparate impact,” which is at the heart of the controversial Fourth Circuit opinion, a defendant can be held liable for discrimination for a policy that merely statistically disadvantages a specific minority group even if that negative impact was neither foreseen nor intended. The more broadly accepted view by courts under Section 2 of the Voting Rights Act says that a violation occurs only when voting practices are motivated by a discriminatory intent and that any incidental racially disparate impact of a voting law is not sufficient on its own to prove a violation. (We’ve done much work battling this “intellectually impoverished” racial theory, most recently in another amicus brief, again with our AEF partner, before the Supreme Court.)
In our amicus, we argue that the Fourth Circuit’s ruling restricts Section 2 to only those claims made by minority voters. This would mean that once a determination is made that relatively greater proportion of minority voters supposedly prefers an electoral procedure, that procedure cannot be changed by a state legislature:
Amici believe that the decision by the U.S. Court of Appeals for the Fourth Circuit raises important issues of federal election law which should be heard by this Court. In particular, amici are concerned that the Fourth Circuit’s ruling, if allowed to stand, will undermine voter confidence in the integrity of elections, enshrine a new race-based standard in Section 2 of the Voting Rights Act, and guarantee, as a practical matter, that no state will make changes to its electoral laws, whether to ensure electoral integrity or for any other reason, if those changes will in some way disproportionately affect minority voters.
The consequences attached to the Fourth Circuit’s radical restructuring of Section 2 are difficult to overstate, which is why this must be settled by the U.S. Supreme Court. For starters, the ruling does not require voters to show that they face a burden that is substantial or beyond their practical control. Instead, voters challenging election procedures under Section 2 need only establish a racially disproportionate impact – and almost every statute will have such an impact – plus a general history of discrimination, regardless of whether it can be tied to the loss of any particular electoral opportunity. The Fourth Circuit also imports a new, race-based element into the enforcement of Section 2. The only way to give meaning to the requirement that a racially disproportionate impact must be linked to “social and historical conditions” relating to discrimination is to assume that this refers to our lamentable national history of discrimination against blacks and other racial minorities.
If so, then a corollary of this requirement is that white voters can never successfully allege a claim of “vote denial” under Section 2. Yet no court has ever held that Section 2 is race-based in this way. To the contrary, successful vote denial claims have been brought on behalf of white voters.
This logic-free racial “disparate impact” analysis behind the attack on election integrity laws is behind harassing litigation not only in North Carolina, but also in Wisconsin, Ohio, and Texas.
In addition, several other states are considering new election integrity measures involving a variety of issues, including the measures discussed in North Carolina. The National Conference of State Legislatures (NCSL) reports that 14 state legislatures considered either new photo or voter ID laws or amendments to existing laws in 2014. Just since the start of 2015, New Mexico, Nebraska, and Nevada have introduced plans to adopt new voter ID laws. You can expect “disparate impact” challenges to these measures. The NCSL also reports that state utilization of early voting and same-day registration procedures are in constant flux. At present, every time one of those statutes is altered or repealed, a violation of the Voting Rights Act could be alleged unless the Supreme Court takes a stand.
Importantly, the brief before the Supreme Court confirms that minority turnout increased markedly in the November general election.
In a December 2014 piece in the Wall Street Journal, Judicial Watch’s Election Integrity Director Bob Popper, who served as the Deputy Chief of the Voting Section of the Civil Rights Division of the U.S. Justice Department from 2008-13, details important facts about minority turnout and the “voter ID” law in North Carolina:
Attorney General Eric Holder asserted that the state’s new laws would restrict “access and ease of voter participation” and “would shrink, rather than expand, access to the franchise.”
One [taxpayer-paid] expert in the Justice Department lawsuit claimed that more than 200,000 black voters, along with 700,000 white voters, would be “burdened” in an off-year election. Another expert concluded that particular provisions “will lower turnout overall” and “will have a disparate impact on African-American voters.”
Those predictions were not borne out. The 2014 elections were the first test of the impact of North Carolina’s new laws, including a “soft rollout” of its voter-ID requirement—under which poll workers asked voters if they had ID and if not, to acknowledge the new requirement in writing. Board of Elections data showed that the percentage of age-eligible, non-Hispanic black residents who turned out to vote in North Carolina rose to 41.1% in November 2014 from 38.5% in November 2010.
The percentage of black registrants voting increased to 42.2% from 40.3% in the same period, and the black share of votes cast increased to 21.4% from 20.1%. The absolute number of black voters increased 16%, to 628,004 from 539,646.
In 2013, both houses of the North Carolina legislature passed the Voter Information Verification Act (HB 589) popularly known as the “voter ID law,” overhauling the state’s election laws. This sensible reform put North Carolina in the sights of Eric Holder and activists such as Al Sharpton, who was part of anti-voter ID meeting at the Obama White House with Eric Holder and other like-minded activists in the racial-grievance industry. Sharpton subsequently told MSNBC that based upon what he heard at the “unprecedented” meeting, he expected action regarding North Carolina “when this governor signs the bill.”
Sure enough, on September 30, 2013, as per Al Sharpton’s assurance after his meeting at the Obama White House, the DOJ (following on lawsuits by the NAACP and the League of Women Voters) filed its complaint, asking the court to require federal pre-clearance before the state could enforce the HB 589 provisions.
A lower court had rejected the DOJ-led efforts to stop the law, leading to a review by the Fourth Circuit, which ruled against North Carolina just prior to the November 4, 2014, elections. North Carolina immediately asked the Supreme Court for a temporary stay of the Fourth Circuit’s ruling. The Supreme Court granted the stay, allowing North Carolina’s election integrity rules to be used for the November 4 election.
Now, North Carolina is asking the Supreme Court to review the Fourth Circuit’s ruling on the merits so it can be properly overturned.
Loretta Lynch, President Obama’s nominee for U.S. Attorney General, has made it clear she approves of lawsuits the DOJ has filed against states like North Carolina to block voter ID and other election reform efforts.
Separately, Judicial Watch exposed how the DOJ paid $70,000 to an expert to testify in the North Carolina litigation that black voters are “less sophisticated” than white voters. The DOJ expert, political scientist Charles Stewart, also alleged that black voters tended to be “less educated” and “less attuned to public affairs.”
This week Eric Holder boldly asserted that his corrupted Justice Department was free of political corruption. You can see from this one Update that this is laughable. And as J. Christian Adams, another former Obama DOJ civil rights attorney points out:
President Obama and General Holder are crying wolf about threats to voting rights. They want to renew federal power over state elections and to keep their political allies in the government fully employed. They must believe Americans will believe anything.
Until next week…