Do we have to rely on the likes of Nancy Pelosi and Maxine Waters to warn us of legislation that the Tea Party Caucus should be opposing on our behalf?  Because that’s exactly what happened recently on “patent reform” – the America Invents Act that Obama signed into law on Sept 16, the day after his big “Jobs” speech to the joint session of Congress.   The measure passed the House on June 23, and passed the Senate with a collegial vote of 89-9 on September 8.

Now I realize that many readers here may have a knee-jerk reaction similar to mine: that if Pelosi and Waters are against it, then I am surely for it.  Alas, in this instance, it turns out that Pelosi and Waters were right, and the Tea Party Caucus was wrong.  Why do I assert that the Tea Party Caucus and its leader Michele Bachmann were wrong when exactly half the caucus (including Bachmann herself) voted to defeat the measure?  Because they did not warn us of the dangers contained in the bill.

Credibility for the Tea Party Caucus is waning fast.   Even Politico notes that…

Only 15 of the 80 freshman House Republicans have signed up for Minnesota Rep. Michele Bachmann’s Tea Party Caucus, accounting for a quarter of the 60 official tea party Republicans in the House . . . the full set of Tea Party Caucus members voted with the party position more often than folks who don’t identify with the group.

As Neil Stevens noted a couple of days ago, the legislation was a very bad idea.  Yet even Stevens failed to plumb the full depths to tell us just how bad this bill is.  Besides being a “jobs bill” for patent attorneys, the bill also has several measures that will very probably prove unconstitutional.

The poisonous part of the America Invents Act is Section 18 which erects a new protected class (Banks and Wall Street firms who must pay royalties on patented electronic payment processing technology).   This new protected class, if they have challenged a patent in court and lost, will now be able to return to the USPTO to get that same patent overturned or withdrawn.  After the patent holder has already won in court!

I think it’s bad policy (unconstitutional?) to allow the executive branch to overturn a high federal court.  And this measure only applies to patents issued to the electronic payments processing industry.  Talk about another payoff from Congress to Big Banks and Wall Street!  Allowing the executive branch to confiscate private property from the patent holder who thought he’d just had due process,  when a high federal court upheld his patent, sounds very much like something the constitution protects us from?  Something protecting us from the confiscation of our property without due process?  Or when due process in the courts succeeds in protecting the property for the owner, having the executive confiscate it anyway?

Yet while violating one clause of the fifth amendment, the bill attempts to satisfy the next clause “without just compensation” by appropriating taxpayer funds to make the violated patent-holder whole (the CBO scored this cost at $1 billion).   So the bailout for the Big Banks and Wall Street firms is not just the technology royalties they escape, but taxpayer funds required to pay the  inventor the settling damages.  Allowing the executive branch to overturn a high federal court sounds to me like a violation of the separation of powers doctrine.  So it looks to me like a “two-fer” for “unconstitutionality”.

And, of course, as the USPTO withdraws patents that the courts had just upheld, more high-paying jobs will be lost in the electronic payments processing industry, innovation and entrepreneurship will be stifled, causing even more jobs to disappear. (disclosure: I have worked and innovated in the electronic payment processing industry for 17 years.  I hold provisional patents, but not in that industry.)

How long will it take until such “protections” are extended from the Big Banks/Wall Street industries to other industries that can afford K Street lawyers?

Ms. Bachmann, thank you for your vote against this measure, but why didn’t you, or anybody in your caucus, sound a loud warning to the Tea Party that this measure was about to gain passage?  I know you are working hard to gain the Republican Presidential nomination, but if that that takes priority over helping to protect our constitution, then you have signaled to us something we desperately needed to know about you.  Thank you for that, at least.

Ms. Bachmann, if you wish to restore credibility to your Tea Party Caucus, then you can lead the fight to repeal  Section 18 of the America Invents Act.   One of the three major Tea Party planks is to vigorously observe the US Constitution.  We expect the Tea Party Caucus to warn us of measures that could prove unconstitutional, just as we expect our Senators to resist collegial votes on those same measures.

The full Tea Party Caucus vote roster on HR1249 is below:

Representative – HR 1249 Vote
Robert Aderholt (AL-4) n
Todd Akin (MO-2) n

Rodney Alexander (LA-5) y
Michele Bachmann (MN-6) n
Joe Barton (TX-6) y
Roscoe Bartlett (MD-6) n
Gus Bilirakis (FL-9) n
Rob Bishop (UT-1) n
Michael Burgess (TX-26) n
Paul Broun (GA-10) n
Dan Burton (IN-5) n
John Carter (TX-31) y
Howard Coble (NC-6) y
Mike Coffman (CO-6) n
Ander Crenshaw (FL-4) y
John Culberson (TX-7) y
John Fleming (LA-4) y
Trent Franks (AZ-2) n
Phil Gingrey (GA-11) ??
Louie Gohmert (TX-1) n
Tom Graves (GA-9) n
Ralph Hall (TX-4) y
Gregg Harper (MS-3) y
Wally Herger (CA-2) y
Pete Hoekstra (MI-2) ??
Lynn Jenkins (KS-2) y
Steve King (IA-5) y
Doug Lamborn (CO-5) n
Blaine Luetkemeyer (MO-9) y
Cynthia Lummis (WY) n
Kenny Marchant (TX-24) n
Tom McClintock (CA-4) n
Gary Miller (CA-42) y
Jerry Moran (KS-1) y
Sue Myrick (NC-9) y
Randy Neugebauer (TX-19) y
Mike Pence (IN-6) y
Ted Poe (TX-2) y
Tom Price (GA-6) y
Denny Rehberg (MT) n
Phil Roe (TN-1) y
Ed Royce (CA-40) n
Steve Scalise (LA-1) y
Pete Sessions (TX-32) y
John Shadegg (AZ-3) ??
Adrian Smith (NE-3) n
Lamar Smith (TX-21)  y
Cliff Stearns (FL-6) y
Todd Tiahrt (KS-4)  ??
Zach Wamp (TN-3) ??
Lynn Westmoreland (GA-3) y
Joe Wilson (SC-2) ??