Tomorrow, the Senate Judiciary Committee will be holding a markup on S. 2428, The False Claims Amendments Act of 2021, legislation introduced by Senator Chuck Grassley (R-Iowa) and Patrick Leahy (D-Vt.). This bill would flip due process on its head by modifying the burden of proof in False Claims Act (FCA) cases so that companies would be required to prove their innocence, instead of requiring the government to prove its own case against defendants. Lawmakers should reject this proposal.

Specifically, the legislation requires defendants to disprove the plaintiff’s contention with a heightened “clear and convincing” standard of proof. In this way, the defendant’s burden to prove their innocence is higher than the plaintiff’s burden of proof to prove the defendant’s guilt. To make matters worse, this would apply retroactively to any FCA case that is pending on the date of enactment.  

FCA cases are taken up when the government suspects a company has falsely billed the government, over-represented the amount of a delivered product, or under-stated an obligation to the government.  

Adopting this new evidentiary standard ignores the views of an unanimous Supreme Court. Universal Health Servs. v. U.S. ex rel. Escobar explained that the FCA materiality element is “demanding” and “rigorous” because of its potentially penal application, detailing that the FCA “is not ‘an all-purpose antifraud statute’ or a vehicle for punishing garden-variety breaches of contract or regulatory violations.”   

In this case, the Court required the government to prove that the alleged false claim “went to the very essence of the bargain,” but imposed no additional burden on defendants in these cases. Imposing a higher burden of proof for defendants than for plaintiffs in these cases is the opposite of what the SCOTUS attempted to achieve in Escobar. 

While this amendment makes it more difficult for companies to defend themselves, it also shifts the cost of government discovery to defendants. It would require defendants to pay the government’s attorney fees and discovery costs unless the defendant proves that the information sought is “relevant, proportionate to the needs of the case, and not unduly burdensome.” As the National Law Review notes, this would “effectively require defendants to pay for the costs of government discovery in nearly every case because of the practical impossibility of proving a negative – the absence of an undue burden on the government.”  

The Grassley-Leahy bill would establish an evidentiary standard that is antithetical to both the aforementioned 2016 SCOTUS case and the principles which guide the function of our court system. If lawmakers are serious about protecting defendants’ presumption of innocence, a principle core to this country’s judicial system, they should reject this legislation. 

Today, Americans for Tax Reform led a coalition letter in opposition to Senator Elizabeth Warren's (D-Mass.) Stop Wall Street Looting Act, which is being reintroduced in the wake of the Senate Banking Economic Policy Subcommittee's upcoming hearing titled “Protecting Companies and Communities from Private Equity.”

Senator Warren's bill would increase taxes, hurt private investment, eliminate jobs, and threaten the lifesavings of countless Americans. ATR's letter was signed by 20 other organizations.

You can read the letter below or here:

October 19, 2021

Dear Senators Warren & Kennedy, 

We are writing to express our concern about the upcoming hearing in the Senate Banking Economic Policy Subcommittee titled “Protecting Companies and Communities from Private Equity.” More specifically, we are strongly opposed to legislation like Senator Warren’s Stop Wall Street Looting Act, which would increase taxes, stifle private investment, eliminate jobs, and threaten the life savings of Americans across the country. We urge the Committee to reject this legislation and any similar legislation that would harm workers, retirees, and pensioners. 

It appears that Senator Warren is using this subcommittee hearing as an opportunity to reintroduce and highlight her Stop Wall Street Looting Act, a dangerous bill that could crush thousands of businesses at a time when the economy is still trying to recover from the COVID-19 pandemic. The bill is concerning for a number of reasons: 

• Tax increases on investment: By sharply raising taxes on long-term capital gains, the bill would dampen returns of universities, startup ventures, and pensioners. Raising taxes on carried interest is part of a long-running campaign by some to raise taxes on all capital gains investment. A recent study found that raising taxes on carried interest could eliminate up to 4.9 million jobs and cost pension funds up to $3 billion per year. The bill also creates a 100% surtax on certain fees and denies legitimate interest deductions for disfavored private companies.   
    
• Imposes new mandates: The bill penalizes private investment based entirely on the ownership structure of the underlying businesses. The legislation would impose new and onerous legal liabilities on private investors and managers that do not exist for other investors, including through a radical rewrite of the bankruptcy code. These liabilities would make it exceedingly difficult to invest in struggling businesses.   
    
• Penalizes workers & retirees: These new regulations would make it harder for pension funds to generate stronger returns for the teachers, fire fighters and public-sector workers whose retirements depend on the performance of these investments. The bill could also cost investors as much as $3.36 billion each year, with almost half of the loss accruing to pension fund retirees.   
    
• Eliminates jobs: Senator Warren’s legislation would erase anywhere from 6 to 26 million jobs from the American economy and reduce federal, state and local tax revenue by as much as $475 billion each year, according to a study by the United States Chamber of Commerce. 

As we have seen time and time again throughout history, when you tax and overregulate an activity, you get less of it. Unfortunately for workers and retirees across the country, the result of the Stop Wall Street Looting Act would hurt the livelihoods of the 11.7 million workers directly employed by private equity-backed companies. 

In 2019, when Senator Warren introduced the Stop Wall Street Looting Act, the Wall Street Journal noted that “every policy she proposes would increase government control over the private economy.” Unfortunately, the newest version of the bill stays the course. Instead of attacking private sector employers with legislation like the Stop Wall Street Looting Act, we urge the Subcommittee to focus on solutions that will empower workers.

Sincerely,

Grover Norquist
President, Americans for Tax Reform

Phil Kerpen
President, American Commitment

Krisztina Pusok, Ph. D.
Director, American Consumer Institute

Brent Wm. Gardner
Chief Government Affairs Officer, Americans for Prosperity

Ryan Ellis
President, Center for a Free Economy

Andrew F. Quinlan
President, Center for Freedom and Prosperity

Jeffrey Mazzella
President, Center for Individual Freedom

Tom Schatz
President, Council for Citizens Against Government Waste

Iain Murray
Vice President, Competitive Enterprise Institute

Matthew Kandrach
President, Consumer Action for a Strong Economy

Adam Brandon
President, FreedomWorks

George Landrith
President, Frontiers of Freedom

Garrett Bess
Vice President, Heritage Action for America

Andrew Langer
President, Institute for Liberty

Seton Motley
President, Less Government

Tom Hebert
Executive Director, Open Competition Center

Bryan Bashur
Executive Director, Shareholder Advocacy Forum

Saulius “Saul” Anuzis
President, 60 Plus Association

Jim Martin
Founder/Chairman, 60 Plus Association

Karen Kerrigan
President & CEO, Small Business & Entrepreneurship Council

David Williams
President, Taxpayers Protection Alliance

CC: Full Senate Banking Committee 

Senate Democrats are pushing a carbon tax that would increase the cost of gasoline and household electricity bills in order to raise revenue for President Biden’s multi-trillion dollar tax and spend blowout, a clear violation of Biden’s pledge to not raise any form of tax on anyone making less than $400,000 per year.

According to reporting from Politico this morning, the new push for a carbon is facilitated by Sen. Kyrsten Sinema (D-Arizona), whose opposition to other proposed tax increases has caused her Democrat colleagues to come up with additional options to pay for their progressive wish list.

Democrats are reportedly considering a carbon tax that starts around $20 per ton and ramps up every year thereafter. The Congressional Budget Office has previously estimated that a $20 per ton carbon tax would increase taxes by $1.2 trillion over a decade while the center-left Tax Policy Center found a $20 per ton carbon tax reduces the pre-tax income of households in the lowest income quintile by nearly one percent.

However, Sen. Sinema has a long and consistent voting record opposing all forms of a carbon tax, as Americans for Tax Reform documents below. If Sen. Sinema were in fact to support a carbon tax, it would be a clear reversal of her Congressional voting record to date.

Below are five instances Sen. Sinema voted against a carbon tax and the regulation of carbon emissions.

1.  2013 – Sinema votes to block the Obama Administration from unilaterally implementing a carbon tax.

In 2013, Sinema was one of twelve House Democrats voting in support of an amendment to the REINS Act (Regulations From the Executive in Need of Scrutiny Act of 2013) that required the Administration to receive approval from Congress before implementing a carbon tax.

Notably, the amendment backed by Sinema inserted language into the bill that stated, “as a tax on carbon emissions increases energy costs on consumers, reduces economic growth and is therefore detrimental to individuals, families and businesses, the REINS Act includes in the definition of a major rule, any rule that implements or provides for the imposition or collection of a tax on carbon emissions.''

2.  2016 – Sinema votes in support of Steve Scalise’s anti-carbon tax resolution

As a member of the House of Representatives in 2016, Sinema voted in support of Republican Whip Steve Scalise’s anti-carbon tax resolution. Sinema was one of six House Democrats that joined with House Republicans in support of  H.Con. Res.89, which stated “a carbon tax will fall hardest on the poor, the elderly, and those on fixed incomes,” and “a carbon tax will increase the cost of every good manufactured in the United States.”

3.  2018 – In the midst of her Senate campaign, Sinema again votes in support of the Scalise anti-carbon tax resolution

In July of 2018, while she was in the heat of a tight election for her current Senate seat, Sinema again voted in support of Republican Whip Steve Scalise’s anti-carbon tax resolution. Sinema was one of seven Democrats that joined with House Republicans in support of H.Con.Res.119 which stated “a carbon tax will mean that families and consumers will pay more for essentials like food, gasoline, and electricity,” and “American families will be harmed the most from a carbon tax.”

4.  April 2021 – Sen. Sinema introduces legislation to prevent the regulation of livestock emissions

Sen. Sinema and Sen. John Thune (R- South Dakota) introduced legislation in April to prevent the EPA from regulating carbon and methane emissions from livestock production.

“Cutting unnecessary regulations frees Arizona cattlemen from costly permit fees and keeps prices affordable for Arizona families,” said Sinema in a press release accompanying the introduction of her legislation.

A carbon tax would be levied on agricultural emissions, including those from livestock production and require regulation from the EPA.  

5.  August 2021 – Sen. Sinema votes to prohibit new methane requirements on livestock

In August, Sinema voted in favor of an amendment to “establish a deficit-neutral reserve fund relating to prohibiting or limiting the issuance of costly Clean Air Act permit requirements on farmers and ranchers in the United States or the imposition of new Federal methane requirements on livestock.”

Americans for Tax Reform opposes any effort to impose a carbon tax and urges Sen. Sinema to maintain her long and consistent record opposing a carbon tax.

Across the country, states have depleted their unemployment insurance funds responding to the massive job losses precipitated by last year’s lockdown-driven economic downturn. Some states have since replenished these trust funds, but lawmakers in most states still need to take action to do so, otherwise businesses will be hit with payroll tax hikes that make it even more expensive to hire new workers.  

The Tax Foundation notes that “states have paid out $175 billion in unemployment benefits since the start of the pandemic, with the federal government providing an additional $660 billion.” Because of this, “taking debt into account, state trust funds now have a negative aggregate balance of -$11 billion and are $115 billion shy of minimum adequate solvency levels.” 

Fortunately for governors and lawmakers in these states, they have approximately $95 billion in federal cash from the American Rescue Plan Act (ARPA) available to them that can be used to refill unemployment insurance (UI) trust funds and repay UI related federal debt. However, instead of using federal aid to replenish these funds, governors in several states would rather foot the bill through payroll tax hikes. 

As the Illinois Policy Institute note, "the two ways states can fund their trusts are by either increasing employer payroll taxes or cutting benefits for the unemployed.” 

Unfortunately for Illinois taxpayers, their governor seems set on paying the state’s UI debt through the former, even though there are billions in federal funds available that could be tapped as an alternative to higher taxes on employers. Illinois took out a $4.2 billion federal loan last year to refill its unemployment fund. Illinois last month missed the deadline to repay this debt, “which leaves Illinois taxpayers on the hook to pay $60 million in annual interest on that loan,” notes IPI. notes IPI.  

Similarly in New Jersey, it was recently reported that “Gov. Phil Murphy remains noncommittal about using federal COVID relief money to offset millions of dollars that New Jersey small businesses must pay to replenish the state’s Unemployment Insurance (UI) fund.”.  

New Jersey has $6.2 billion in federal aid available, more than enough to cover the $885 million needed to replenish the fund. With the economic hardships brought on by the lockdowns and record unemployment levels, higher taxes are the last thing businesses need. To raise taxes instead of using readily available ARPA funds is inexcusable.  

In contrast to Illinois and New Jersey, where Democratic governors are declining to use readily available federal funds to replenish UI funds instead of resorting to state tax hikes, lawmakers in Texas are refilling their UI trust fund and pay off day with the federal funds that ARPA made available to the state. Before the Texas Legislature’s special session ended early this morning, the lawmakers approved Senate Bill 8, which applies more than $7 billion in federal funds toward the state’s UI trust fund. Unlike in Illinois and New Jersey, Texas lawmakers are using ARPA funds for their designed purpose and avoid employer tax hikes in the process.  

Raising taxes to refill the unemployment funds is inexcusable when state lawmakers and governors have billions in federal funds that can and should be used for that purpose. Congress sent states hundreds of billions of dollars to help them pay for pandemic-related expenses. For state officials not to use those funds to refill their UI funds, and to raise taxes instead, is a betrayal of taxpayers. As the aforementioned states are demonstrating, some states, like Texas, will take the optimal approach, while states like Illinois and New Jersey will serve as examples of what not to do, just as they do with so many other policy matters.  

Unfortunately for Illinois taxpayers, their governor seems set on paying the state’s UI debt through the former, even though there are billions in federal funds available that could be tapped as an alternative to higher taxes on employers. Illinois took out a $4.2 billion federal loan last year to refill its unemployment fund. Illinois last month missed the deadline to repay this debt, “which leaves Illinois taxpayers on the hook to pay $60 million in annual interest on that loan,” notes IPI. notes IPI.  

Similarly in New Jersey, it was recently reported that “Gov. Phil Murphy remains noncommittal about using federal COVID relief money to offset millions of dollars that New Jersey small businesses must pay to replenish the state’s Unemployment Insurance (UI) fund.”.  

New Jersey has $6.2 billion in federal aid available, more than enough to cover the $885 million needed to replenish the fund. With the economic hardships brought on by the lockdowns and record unemployment levels, higher taxes are the last thing businesses need. To raise taxes instead of using readily available ARPA funds is inexcusable.  

In contrast to Illinois and New Jersey, where Democratic governors are declining to use readily available federal funds to replenish UI funds instead of resorting to state tax hikes, lawmakers in Texas are poised to refill their UI trust fund and pay off day with the federal funds that ARPA made available to the state.  

The Texas legislature is advancing Senate Bill 8, which applies more than $7 billion in federal funds toward the state’s UI trust fund. Unlike in Illinois and New Jersey, Texas lawmakers are preparing to use ARPA funds for their designed purpose and avoid employer tax hikes in the process.  

Raising taxes to refill the unemployment funds is inexcusable when state lawmakers and governors have billions in federal funds that can and should be used for that purpose. Congress sent states hundreds of billions of dollars to help them pay for pandemic-related expenses. For state officials not to use those funds to refill their UI funds, and to raise taxes instead, is a betrayal of taxpayers. As the aforementioned states are demonstrating, some states, like Texas, will take the optimal approach, while states like Illinois and New Jersey will serve as examples of what not to do, just as they do with so many other policy matters.