Maryland False Claims Act Referendum, Part Two
This is the second of a two-part post on the mini-referendum that took place on the Maryland False Claims Act recently.
In the 2014 legislative session, Brinkley prevented passage of the Maryland False Claims Act of 2014 by using a procedural maneuver to avoid a vote before the full Maryland Senate, where it would have certainly passed. His opponent in this primary — a current member of the Maryland House of Delegates named Michael Hough — had supported the Maryland FCA of 2014 in the House of Delegates.
At the conclusion of the first post, I left off by saying that it seemed to me that now-former state Sen. Brinkley was digging his own grave when he decided to make the Maryland FCA a center-piece of his campaign strategy. I say this because FCA legislation is common-sense stuff that has proved wildly popular with Republicans and Democrats, not to mention their constituents. And lets not forget the federal False Claims Act was amended in the late-1980s in response to wide-spread public outrage over $600 toilet seats and $3,000 coffee makers. So the first sign that Brinkley was in trouble was the fact that he was not running from his anti-FCA agenda but appeared to be running on his anti-FCA agenda.
But when Brinkley started trotting out the think-tanker wing of the Republican party in an effort to connect with Republican voters, it was pretty clear to me that he was in finished. Specifically, Brinkley made an op-ed piece by a Cato Institute think-tanker named Walter Olson a centerpiece of his campaign strategy. Long story short, Brinkley lost. Badly.
But today, I want to take a look at Walter Olson’s anti-FCA op-ed in the Baltimore Business Journal entitled “Anti-fraud legislation in Maryland could have unintended side effects.”
A Look At Olson’s main argument — if false claims act laws are so “controversial” why do all of the most business-friendly states have them?
There are in fact no real arguments in Olson’s piece, so we will take a look at the half-truth around which his article is based. I am talking about his reference to the false claims act laws as “controversial.” I call this a half-truth because strictly speaking it is true if he is talking only about Maryland which has struggled every year since 2010 to pass a simple piece of legislation that will return millions of dollars to its public fisc.
But if we look at the national picture, we see that that FCA legislation is quite uncontroversial on the federal and state levels nearly everywhere else, and it enjoys broad bipartisan support. It was masterminded by the likes of Sen. Charles Grassley (R-IA) and signed into law by President Ronald Reagan. Perhaps most important for our topic here, we would not be having this conversation at all had President George W. Bush not signed the Deficit Reduction Act of 2005. That is because the DRA of 2005 created important (and considerable) financial incentives for states to pass state-level false claims laws that match the federal false claims act.
False claims legislation may be controversial in Maryland, but it should be left to the reader whether that says more about Maryland than it does about false claims legislation. A list of states where such laws have not been controversial, by the way, reads just like a list of business-friendly states, and legislators in states like Virginia, Texas, Florida, New Hampshire, North Carolina, and Delaware (to name just a few) had little or no trouble passing a law that would put millions of dollars more into their budget.
I have traveled to Annapolis to testify in favor of false claims legislation every year since 2010 when the O’Malley administration made it a priority. And every year, I have asked those legislators and lobbyists opposed to FCA laws to respond to one simple question – if false claims laws are such a bad idea, why do all of the most business-friendly states have them? I am still waiting for an answer.
If, on the other hand, we turn this analysis on its head and look at a list of states that, like Maryland, have struggled with this basic legislation year after year, we see that Maryland find herself in a curious group, and one to which she surely does not belong. Her companions would be states like Ohio and West Virginia – in other words, states plagued by chronic dysfunction, corruption and mismanagement at every level.
In any event, I hope this example of the mini-referendum that took place on false claims act legislation will catch the attention of other legislators in other places who might be tempted to listen to the messages of anti-FCA advocates like the Chamber of Commerce and various think-tankers….
And congratulations once against to Del. Michael Hough — soon to be Sen. Michael Hough!