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Earlier this week, I wrote this post about Greta van Susteren’s prediction of the King v. Burwell ruling. She predicted that the Supreme Court would rule against continuing the subsidies because the plain language is clear that only people who bought insurance through exchanges established by the state were eligible for subsidies. Let’s assume for the sake of this discussion that that’s what happens.

Then what?

Republicans fear that they’ll get blamed for the collapse of Obamacare. They shouldn’t. They should rejoice that the Supreme Court has struck down the heart of Obamacare. After a minute of rejoicing, they should then announce that they’re submitting a bill that includes the following features:

  1. The policies that people liked but couldn’t keep will again be considered QHPs, aka Qualified Health Plans.
  2. States would be given the option of either a) staying with Obamacare as it’s currently written, b) crafting their own version of a health care exchange or c) creating a hybrid that combines the best features that aren’t part of Obamacare with the best features of Obamacare.
  3. The new GOP bill would temporarily extend the subsidies 120 days so that states and the federal government can put something to replace Obamacare with.

Just saying that people can return to buying the policies that they were forced out of by Obamacare is reason for celebrating. Remember how upset people were when they got kicked off their policies that they liked? I do. They weren’t upset. They were furious and/or worried sick. Some saw it as a matter of life or death … because it was:

Everyone now is clamoring about Affordable Care Act winners and losers. I am one of the losers.

My grievance is not political; all my energies are directed to enjoying life and staying alive, and I have no time for politics. For almost seven years I have fought and survived stage-4 gallbladder cancer, with a five-year survival rate of less than 2% after diagnosis. I am a determined fighter and extremely lucky. But this luck may have just run out: My affordable, lifesaving medical insurance policy has been canceled effective Dec. 31.

My choice is to get coverage through the government health exchange and lose access to my cancer doctors, or pay much more for insurance outside the exchange (the quotes average 40% to 50% more) for the privilege of starting over with an unfamiliar insurance company and impaired benefits.

It’s time to parade victims of Obamacare in front of the cameras. Let’s start with Edie Littlefield Sundby, who sarcastically wrote that she had the “privilege of starting over with an unfamiliar insurance company and impaired benefits.” Next, let’s put Jim Hoft in front of the camera to tell his story about how his supposedly substandard policy saved his life.

President Obama will undoubtedly tell Congress that he won’t re-litigate the ACA. The RNC should start the ads described earlier in this post the minute President Obama essentially says it’s his way or the highway. Here’s what the first ad should say:

NARRATOR: President Obama says he won’t re-litigate the Affordable Care Act.
EDIE LITTLEFIELD-SUNDBY: Where do I go to get my old policy that I loved dearly and that literally saved my life? President Obama, will you really stand in the way of me getting my old policy back? Sign the Republicans’ bill that would let me buy my old policy again.

That ad alone would get Democrats wobbly. Even if President Obama would veto the bill, how many Democrats in the House and Senate that are up for re-election would vote to sustain President Obama’s veto?

It’s time that Republicans grew a pair. They’re playing 3 aces like a pair of deuces.

During Tuesday night’s Off the Record segment, Greta van Susteren made a rare prediction:

Here’s what she said:

GRETA: First, some Law 101. When 2 parties dispute a statute, here Obamacare, the Court must first decide who’s right. The Court first looks at the plain wording of the statute. If it’s plain, that’s the end of it. The Court rules on the plain words. If the wording, however, is somehow confusing or ambiguous, the Court then goes beyond the words to decide the case. What did the lawmakers intend when they wrote the confusing language? So now, the Obamacare statute and the words. It says “people are eligible for subsidies if they obtained health coverage quote ‘through an exchange established by the state.'” Now that’s plain. To get a subsidy, you have to be in one of the states that set up an exchange, not in the other 34 states that rely on the federal exchange. So I think the Supreme Court will rule against Obama.

Tons of ink has been used to talk about the Republicans’ dilemma if the Supreme Court rules that the IRS can’t give subsidies to people who bought insurance through HealthCare.gov. I’m not often critical of Republicans but I’m upset with them this time. Republicans have a bunch of ideas that, if put together in a piece of legislation, would be a significant improvement over Obamacare. Sen. Bill Cassidy put a plan together, which is the topic of this article:

Cassidy’s bill proposes a way forward following the Supreme Court’s decision in King v. Burwell, which is expected by the end of June. The case will decide whether the majority of health exchanges, which are run by the federal government, are legally allowed to provide subsidies.

Cassidy, a doctor who unseated Mary Landrieu (D., La.) last November, narrowly focused his bill to be a response to a ruling in favor of Burwell, which would take away subsidies in states that are operated by the federal exchange. Only 13 states operate their own health insurance marketplaces, since the $205 million Hawaii exchange announced it would fold and be taken over by the federal government.

The Patient Freedom Act would give states the option of keeping Obamacare by establishing a state-based exchange, or using existing funding to provide tax credits to create Health Savings Accounts (HSAs) for the uninsured, averaging $1,500 per person.

“We are trying to give the state an option other than setting up an Obamacare exchange,” Cassidy said. “The president, I’m sure, will make it easy [to set up a state exchange], because he wants his law to take root,” he said. “If we don’t have a better plan, it will take root.”

If states chose Cassidy’s option, they could do away with various mandates under Obamacare, including the individual and employer mandates and requirements for minimum essential coverage. The legislation would also equalize tax treatment, and require health providers to publish cash prices for services reimbursed from an HSA.

While there are certain to be parts of Sen. Cassidy’s bill that we don’t like, this bill should get a committee hearing. Amendments should’ve been offered to improve the bill. That would prove that Republicans are interested in solving problems, not just complaining about problems.

The American people know the complaints. They’ve made those complaints themselves. What Americans insist upon is a solution. Republicans should get behind this legislation ASAP. Committee hearings should start next week. If a Republican senator who’s running for president starts complaining or grandstanding, Mitch McConnell should highlight that senator’s grandstanding and tell them that it’s this legislation. Period. If they won’t be team players, Senate leadership should make it known that they’ll blow up that senator’s presidential campaign.

This isn’t a situation for political gamesmanship. It’s a situation that demands leadership and solutions. The American people deserve that much.

Finally, a group of ideas isn’t a solution. They’re a collection of theories. It’s time for Republicans to put on their big boy pants and provide solutions. Carpe diem.

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I’m jumping for joy over Ryan Winkler’s impending resignation from the House of Representatives:

Fifth-term Rep. Ryan Winkler of Golden Valley said he will resign this summer and move to Brussels. The Harvard-educated lawyer said his wife, Jenny, landed a new executive position with an international hotel chain that is owned by a Minnesota company.

I’d like to personally thank Rep. Winkler’s wife for removing that particular pain from my backside. I’m more than grateful.

In the Legislature, Winkler revels in jabbing Republicans with unrelenting, sharp-tongued rhetoric.

“I’m going to miss things like passing the minimum wage increase far more than I’m going to miss the back and forth in the Legislature,” Winkler told The Associated Press, adding that his wife’s opportunity was too big to pass up. “I’d rather have a great experience with my family than argue with Republicans all day.”

That’s understandable. In the legislature and committee, he frequently got his ass handed to him in debates. While Rep. Winkler was irreverent, he wasn’t particularly smart. The difference showed up in June, 2013:

His penchant for a good zinger sometimes got the best of him. Winkler apologized in 2013, for a tweet criticizing U.S. Supreme Court Justice Clarence Thomas as “Uncle Thomas” that drew national attention and cries of racism. He said it wasn’t intended to be racially derogatory.

I wrote this post to highlight Rep. Winkler’s disgusting action. Here’s what he initially tweeted:

Here’s Rep. Winkler’s ‘apology’:

“I did not understand ‘Uncle Tom’ as a racist term, and there seems to be some debate about it. I do apologize for it, however,” he said.

Here’s what I said then:

That’s BS. Rep. Winkler graduated with a B.A. in history from Harvard University in 1998. If Rep. Winkler thinks that we’ll buy the fact that he didn’t learn about Uncle Tom’s Cabin, Harriet Beecher Stowe’s classic from 1852, he’d better think again.

Good riddance. Minnesota is getting rid of a first class jerk.

This weekend, after he met with Raul Castro, President Obama continued his hate America tour, declaring that he was “very aware of the fact that there are dark chapters in our own history.”

There’s no doubt that this nation has seen dark chapters during its history. While the darkest of those dark chapters is either the Civil War or the bombing of Pearl Harbor, not all of this nation’s darkest chapters involve war. The Obama administration is one of those dark chapters.

Betraying Israel is a sad chapter in US history. President Obama has frequently betrayed Israel, whether it’s through revealing Israel’s sensitive nuclear secrets or by sending his political operatives to Israel to defeat Israel’s sitting prime minister. Frankly, betraying Israel is betraying the United States’ Judeo-Christian heritage.

Frequently ignoring the Constitution is another instance where the Obama administration has led the United States into a dark chapter in our nation’s history. No other administration has had the Supreme Court rule unanimously against their power grabs thirteen times. That’s a record that’s as likely to get broken as Cy Young’s 511 victories as a pitcher.

Negotiating a nuclear proliferation treaty with Iran, which is what John Kerry’s framework really is, is a betrayal of our allies in the region. That’s before talking about how it establishes Iran as the regional superpower. That’s before talking about how it endangers our national security by pumping new money into Iran’s coffers to support regional and worldwide terrorist attacks.

That’s before highlighting this foolish statement:

“The cold war has been over for a long time and I’m not interested in battles that have been over frankly, before I was born,” President Obama stated.

It’s stupid for President Obama to insist that the Cold War is over. Putin’s on the march, gobbling up huge parts of neighboring countries. Further, I’m interested in hearing him explain how the Berlin Wall fell in 1989, when he was 28 years old. Perhaps he didn’t notice because he was too busy selling cocaine?

The only potential positive that might come out of the Obama administration is the stench that will remind us we’ve survived a national nightmare of incredible intensity.

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Judge Andrew Hanen refused to lift his temporary hold on President Obama’s executive action, saying that the DOJ hasn’t “shown any credible reason for why this Directive necessitates immediate implementation.” Here are the arguments both sides are making:

The coalition of states leading the challenge filed its lawsuit to overturn Obama’s executive actions, which would prevent as many as 5 million people who are in the U.S. illegally from being deported. The states, led by Texas, argue that the action is unconstitutional and would force them to invest more in law enforcement, health care and education. The injunction is intended to stall Obama’s actions while the lawsuit progresses through the courts.

Justice Department attorneys argue that keeping the temporary hold harms “the interests of the public and of third parties who will be deprived of significant law enforcement and humanitarian benefits of prompt implementation” of the president’s immigration action.

First, it isn’t likely that the Obama administration will win this fight. If I were putting out odds, I’d say the administration’s odds of winning was less than 15%. That’s enough to stop the DOJ’s request dead in its tracks. Second, Judge Hanen’s statement that the DOJ hasn’t “shown any credible reason for why this Directive necessitates immediate implementation” is a rather chilly statement. (Ed Morrissey’s post explains why the relationship between Judge Hanen and the DOJ is frosty.)

Hanen issued his initial injunction believing that neither of those orders had taken effect. About a month later, the Justice Department confirmed that more than 108,000 people had already received three-year reprieves from deportation and work permits, but DOJ attorneys insisted the moves were made under 2012 guidelines that weren’t blocked by the injunction. The DOJ apologized for any confusion, but Hanen seemed unconvinced during a hearing last month and threatened to sanction the attorneys.

He wrote Tuesday that while the federal government had been “misleading” on the subject, he would not immediately apply sanctions against the government, saying to do so would not be “in the interests of justice or in the best interest of this country” because the issue was of national importance and the outcome will affect millions of people.

“The parties’ arguments should be decided on their relative merits according to the law, not clouded by outside allegations that may or may not bear on the ultimate issues in this lawsuit,” Hanen wrote.

I’m not a lawyer but I can’t imagine it’s a good thing for a judge to say that “the federal government had been ‘misleading'” the judge. I’ve got to think that the appellate court won’t be impressed with the DOJ’s actions.

I’d be very surprised if the Supreme Court doesn’t a) hear this case and b) rule against the administration.

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Just when I thought it was safe to listen to former State Sen. Steve Murphy again, he said something strikingly stupid. Friday night on Almanac’s Roundtable, Indiana’s RFRA law was brought up. Here’s what Murphy said:

I really don’t think nationally that we need any laws like that.

That isn’t just strikingly stupid. It’s frightening that a politician wouldn’t know that Bill Clinton signed RFRA into law in 1993 or that it passed the House unanimously and the Senate with overwhelming bipartisan support. Further, it’s frightening that a politician wouldn’t remember that RFRA was cited by Justice Samuel Alito’s majority opinion in the Burwell v. Hobby Lobby decision:

The Religious Freedom Restoration Act of 1993 (RFRA) prohibits the “Government [from] substantially burden[ing] a person’s exercise of religion even if the burden results from a rule of general applicability” unless the Government “demonstrates that application of the burden to the person—(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” 42 U. S. C. §§2000bb–1(a), (b). As amended by the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), RFRA covers “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” §2000cc–5(7)(A).

Simply put, the government can’t force people to act against their religious beliefs unless the government can offer a compelling reason for restricting a person’s religious rights. Even if the government can provide a compelling reason for limiting a person’s religious beliefs, the government’s solution must be “is the least restrictive means of furthering that compelling governmental interest.”

Earlier in the segment, Ember Reichgott-Junge said that “the Religious Right” is wise in not introducing RFRA legislation. I’d just recommend Sen. Reichgott-Junge read John Hinderaker’s post about RFRA. Specifically, she should read this part of John’s post:

The hysterical reaction to Indiana’s law can only be described as insane. As we noted here, there is a federal RFRA that governs federal laws, 19 states have their own RFRAs, and ten other states have adopted the “strict scrutiny” standard of the Indiana statute by judicial opinion. Governor Dayton is perhaps unaware that Minnesota is one of those ten states. Hill-Murray Fed’n of Teachers v. Hill-Murray High School, 487 N.W.2d 857, 865 (Minn. 1992); State v. Hershberger, 462 N.W.2d 393, 398 (Minn. 1990).

Remember that these are prominent former DFL state senators. When they’re sworn in, they swear an oath to “support the Constitution of the United States, the constitution of this state and to faithfully discharge the duties of his office to the best of his judgment and ability.” It’s impossible to support the US Constitution if you don’t know what’s in it.

Finally, Sen. Murphy is the guy who said that he wasn’t trying to hide tax increases in his transportation bill. He’s also famous for saying this:

“Everything is fun and games until someone gets an eye poked out, and the governor just poked out my eye by vetoing this bill,” said Sen. Steve Murphy, DFL-Red Wing. “I think that is a clear indication he wants a train wreck at the end of session. He wants the Legislature to fail, and he wants to blame us.”

Steve Murphy and Ember Reichgott-Junge’s ignorance of the Constitution and major Minnesota court cases are frightening, especially considering the fact that the DFL is the party that thinks government is the dispenser of good things. Frankly, these DFL has-beens couldn’t support the Constitution they wore to uphold.

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Scott Pruitt, Oklahoma’s attorney general, distinguished himself in writing this op-ed in the Wall Street Journal. This paragraph is especially inspirational to this federalist:

Declining to establish a state exchange allowed Oklahoma to voice its strong political opposition to the Affordable Care Act as a whole, as well as to make a statement that it wanted neither the large-employer mandate nor the individual mandate to have effect within its borders. That was the trade-off. Oklahoma declined the premium tax credits, but freed itself of those mandates, and that was a choice the state was happy to make.

The states aren’t imbeciles that need the federal government’s protection from themselves. They’re co-equal sovereign governments quite capable of making decisions for themselves. In the early 1990s, the federal welfare programs were out of control. States like Arkansas, Massachusetts, Michigan and Wisconsin started experimenting on welfare. First, they got waivers from HHS giving them the authority to experiment.

Thanks to their experimentation, they improved millions of people’s lives.

Another point worth making is that the ACA, aka Obamacare, is an experiment in anti-federalism. Rather than letting states experiment, President Obama pushed a one-size-fits-all plan down our throats. Scott Pruitt and Oklahoma asserted their rights to make their own decision as allowed by the ACA. It might be that Oklahoma made the wrong decision but it’s their decision to make. The fact that they made an informed choice is proof that they weren’t coerced.

In the original Obamacare lawsuit NFIB vs. Sebelius, the Supreme Court ruled that Medicaid expansion was unconstitutional because the ACA didn’t give the states of opting out of Medicaid expansion. The fact that Oklahoma said no, according to Pruitt, made their decision based on the trade-off of not getting IRS subsidies in exchange for not dealing with the individual and employer mandates. That’s a rational choice, something that wasn’t there with Medicaid expansion.

Third, this sort of federal program isn’t antithetical to federalism, it is federalism. As we explained in our amicus brief to the court, this carrot-and-stick approach is found in dozens of federal programs sprinkled throughout the United States Code. The states are not children that the federal government must paternalistically “protect” from the consequences of their choices by rewriting statutes. In our constitutional system, states are free to make decisions and bear the political consequences, good or bad, of those choices.

Frankly, I’d rather trust decisions made at the state level than decisions made by a DC politician or bureaucrat. In fact, it wouldn’t take more than a nanosecond or 2 to make that decision for me.

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Dylan Scott’s article about what might happen if the Supreme Court invalidates health insurance subsidies being paid to people who bought insurance through HealthCare.gov is fascinating. For instance:

What leeway does the ACA itself give the administration? It seems self-evident that the states currently using the federal exchange would be required to do something, to “establish” their own exchanges, and the Health and Human Services Department therefore couldn’t just decree that all exchanges are state-based. States also probably need to do more than, say, sign a piece of paper declaring their exchange state-based.

“Now you could perhaps define the word ‘established’ down. HHS might be tempted to do so,” Bagley said. “But at the minimum, that kind of move from the administration would be sure to provoke a prompt legal response.”

There’s an additional problem not cited in the article. Specifically, state-established exchanges are part of Section 1311:

(d) Requirements
(1) In general

An Exchange shall be a governmental agency or nonprofit entity that is established by a State.

Changing that language requires legislation, which Mitch McConnell might agree to in exchange for other concessions:

That also extends to Congress, which as Bagley and Jones both noted, could correct the problem with ease by amending the law to allow tax credits on the federal exchanges. “Congress could fix this with a stroke of the pen,” Bagley said. “I could write the statute in a single sentence.”

But nobody is really expecting that. Incoming Senate Majority Leader Mitch McConnell said earlier this month that SCOTUS could “take down” Obamacare in the King case and that would open up the opportunity for “a major do-over.”

“If that were to be the case, I would assume that you could have a mulligan here, a major do-over of the whole thing,” he said, in comments flagged by the Washington Post’s Greg Sargent.

While the administration might be willing to do a lot to save the law, an emboldened Republican Congress seems unlikely to settle for anything less than major concessions, as McConnell suggests. So a fix in Washington doesn’t appear in the cards.

It’s interesting that Democrats fear a Washington fix because that would require them making major concessions in exchange for those subsidies. In other words, DC Democrats are most afraid of actually improving the ACA.

That’s insane on a multitude of fronts, starting with the fact that the ACA is a weighty millstone around their political necks. Democrats got crushed in 2010 and 2014 because of the ACA. Despite experiencing those historical thumpings, Democrats don’t want to change the ACA. It’s their right to commit political suicide.

Talking Points Memo’s article shows that they’re either hallucinating or they’re thinking words don’t have meanings. They’re talking about possibilities about how to skirt the Supreme Court’s ruling should they rule against the administration:

The specter of the Supreme Court gutting Obamacare and putting health coverage for millions of people at risk is back in a very real way, with the justices taking up the lawsuit that would prohibit tax subsidies from being given to people in the 36 states that use the federal health exchange, HealthCare.gov.

But while the White House has been publicly mum about how it would address that worst-case scenario, policy experts have told TPM that there could be ways for the Obama administration to get around such a ruling.

The specifics would need to be worked out, but the crux is this: States could continue to use HealthCare.gov as their technical backdrop, but they would be considered state-based exchanges. That would allow the law’s tax subsidies to keep flowing, even if the Supreme Court were to invalidate them on the federal exchange, as the lawsuit’s plaintiffs argue it should.

That might work with the Nevada and Oregon exchanges but it won’t fly with the 36 states that refuse to create a state-run exchange. Apparently, that didn’t dawn on these geniuses until later in the article:

“One such scenario would be for HHS to effectively deem all of the exchanges to be state-based, but continue operating them through HealthCare.gov,” Caroline Pearson, vice president at Avalere Health, an independent consulting firm, told TPM earlier this year. On Thursday, she added that the legal grounds for such a move would be “uncertain,” however.

Every bill that’s signed into law, especially lengthy, complex statutes like the ACA, contain a list of definitions specific to that legislation. Section 1311 of the ACA establishes how state-run exchanges are created. This part is vital:

SEC. 1311. AFFORDABLE CHOICES OF HEALTH BENEFIT PLANS.
(a) ASSISTANCE TO STATES TO ESTABLISH AMERICAN HEALTH BENEFIT EXCHANGES.—
(1) PLANNING AND ESTABLISHMENT GRANTS.—There shall be appropriated to the Secretary, out of any moneys in the Treasury not otherwise appropriated, an amount necessary to enable the Secretary to make awards, not later than 1 year after the date of enactment of this Act, to States in the amount specified in paragraph (2) for the uses described in paragraph (3).
(2) AMOUNT SPECIFIED.—For each fiscal year, the Secretary shall determine the total amount that the Secretary will make available to each State for grants under this subsection.
(3) USE OF FUNDS.—A State shall use amounts awarded under this subsection for activities (including planning activities) related to establishing an American Health Benefit Exchange, as described in subsection (b).

This is vital in the context of HHS “effectively deem[ing] all of the exchanges to be state-based.” Section 1311, paragraph (3) specifically talks about the grants from HHS to each of the states. The states must use that money to create their exchanges. Since 36 states didn’t accept grants from HHS under Section 1311, paragraph (3), that means the exchange is federally run.

Technically, Oregon and Nevada took HHS grant money. Therefore, they’re technically classified as state-run exchanges. Wyoming and Wisconsin, by contrast, didn’t accept 1311 grants from HHS. Therefore, those states’ exchanges aren’t state-run exchanges.

Simply put, that means any attempt by the Democrats to change the clearly-written definitions in the ACA will likely be quickly rejected by the Supreme Court. It’s further proof that Democrats put their ideology ahead of doing what’s right for the nation.

Yesterday, I got an email alert about a lawsuit filed by the Center for Competitive Politics challenging the constitutionality of another provision of McCain-Feingold. Here’s the heart of the matter:

The Independence Institute wishes to run two ads: one asking Colorado Senators Mark Udall and Michael Bennett to support a federal sentencing reform bill, and one asking citizens to contact Colorado Governor John Hickenlooper and urge him to initiate an audit of the Colorado Health Benefit Exchange. The McCain-Feingold law, along with a similar state statute, effectively prevents the group from raising money for the ads.

“This situation shows the damage to free speech caused by carelessly written campaign finance laws,” said David Keating, president of CCP. “Instead of advocacy on an important public issue, there will be silence. That’s unacceptable under the First Amendment, and is the reason why we filed this lawsuit.”

Prior to the passage of Obamacare, McCain-Feingold was the worst legislation in the last half century. I can’t even say that the intent behind McCain-Feingold was good. Its effect was to protect incumbents while limiting political speech.

There’s nothing honorable about either thing.

Here’s what McCain-Feingold does to issue advocacy:

Colorado and federal law treat speech about public issues as campaign speech whenever a candidate is mentioned in a broadcast ad within 60 days of the general election. Groups must either file public reports with personal details about donors who have provided funds for the ads, or refrain from speaking. The result is what First Amendment advocates call a “chilling” effect on advocacy, depriving the public of important speech about issues of public importance.

Here’s why disclosure in these instances is frightening:

Donors and speakers have many reasons to protect their privacy. Some fear retaliation from government officials who disagree with them. Others fear physical harm or threats to themselves and their families, vandalism to their property, loss of jobs, or boycotts of their business if they support unpopular views.

Over half a century ago, the Supreme Court ruled in NAACP v. Alabama that not disclosing donors to issue advocacy groups was constitutionally protected. Imagine the fury that the KKK would’ve visited upon the people supporting the NAACP.

While the threats are different today, the threats are just as real. Instead of fearing the KKK, these days, issue advocacy groups have to worry about the Justice Department, the IRS and other agents representing weaponized government.

It’s time to eliminate another disgusting part of McCain-Feingold. The sooner it’s eliminated, the better.

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