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Judicial Activist Florida Governor Candidate Pays Tenther to Attack Health Care Bill

McCollum in simpler times

The headlines say that Florida Attorney General and Republican candidate for governor Bill McCollum is leading the suit to declare health care unconstitutional, and indeed his is the first signature on the complaint (.pdf). But McCollum and his office won’t be doing much on the suit. McCollum has hired a Washington, D.C. lawyer, David Rivkin of the giant law firm Baker Hostettler, at heaven-knows-what cost to Florida taxpayers.

Rivkin has been advertising for this lawsuit. Last September, he co-authored an editorial in the Wall Street Journal arguing that the mandated purchase of insurance is a violation of the Tenth Amendment. Baker Hostettler should make enough money off the case to establish Rivkin’s rainmaker status and his bonus.

Why hire Rivkin? Why not use people in the Florida AG’s office to do this case? It would be a lot cheaper, as McCollum’s Democratic opponent, Alex Sink, says in a new campaign blast:

“Bill McCollum is using our tax dollars to pay one of his old lobbying colleagues who is now his lawyer for this frivolous lawsuit,” Sink said. “Proving once again that he will consistently play Washington politics and look out for his own interests, instead of the best interests of Floridians.”

The New York Times has experts saying this suit isn’t likely to succeed, giving added weight to Sink’s waste assertion. But before we call this another example of wingnut welfare, here’s a story.

In the late ’70s, I worked for the Tennessee Attorney General. A crusading Assistant United States Attorney, Larry Parrish, went on a porno tear. He won some cases, including a conspiracy charge against Harry Reems of Deep Throat. When that case was overturned on appeal, he worked to change Tennessee’s porno law. The state AG is required to defend the constitutionality of all laws, so the inevitable lawsuit came to us to defend. A group of us gathered in the office of the Chief Deputy, a clever and resourceful guy, and after a couple of silly jokes, we began the task of figuring out how we could defend the case without embarrassing ourselves. We eventually came up with some defenses and even a way of justifying parts of the law. The Chief Deputy took our work to the State AG.

The AG was a smart and politically astute guy. He realized that if he lost the suit, as seemed certain, the true believers behind the law would blame him for inadequately defending it. He decided to hire Parrish as a special deputy to defend the case. In those days, there were limits on what the AG could pay, which reduced the waste of taxpayer dollars. Parrish lost, Tennessee won. [Leech v. American Booksellers Association, Inc., 538 S.W. 2d 738 (Tenn. 1978).]

Eventually, Parrish went into private practice, but he continued his crusade. In the mid-’90s, he worked on a case involving topless bars. He was informally (and apparently improperly) appointed to assist the Memphis DA with the understanding that he would be paid by private sources. Parrish got over $300,000 from a “private non-profit organization that supports law enforcement efforts in opposition to obscenity….” [Cooper v. Parrish, 203 F.3d 937 (6th Cir. 2000). Para. 38 et seq.] This article says it was a whole lot more.

Now we have Rivkin, who has persuaded Florida politicians to pay him to handle a healthcare lawsuit based on his experimental Tenth Amendment claims. When Democrats do this, it’s judicial activism. How about it, McCollum: are you a judicial activist, a provider of wingnut welfare, or just a common politician willing to waste Florida’s money to pander to the crazies in your state?

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