Behind The Lawsuit: Florida AG Turned To Beltway Fixture — And Old Lobbying Pal — For Health-Care Challenge

March 25, 2010 7:42 a.m.

Florida Attorney General Bill McCollum has so far served as the public face for the legal challenge to the constitutionality of health-care reform. But on the legal heavy-lifting, McCollum has had help from a top member of Washington’s conservative legal establishment and former Bush 41 White House lawyer, who once teamed up with the AG as a lobbyist.

David Rivkin, a lawyer with white-shoe DC firm Baker Hostetler, told TPMmuckraker that McCollum personally asked him to get involved with the lawsuit, once it appeared that the reform bill would indeed finally pass. “McCollum approached me on behalf of himself and several other AGs,” said Rivkin, who along with Lee Casey, another Baker Hostetler lawyer, is listed on the lawsuit as “of counsel.”Most experts, including some conservatives, have said the lawsuit — filed in Federal Court in the Northern District of Florida — has little chance of succeeding.

McCollum and Rivkin have collaborated before. The future Florida AG — whose office did not immediately make someone available to discuss the lawsuit — worked at Baker Hostetler for a few years in the middle of the last decade, and the two men teamed up to lobby on behalf of an investment management company, disclosure records show.

Rivkin, who served as an official in the Reagan administration’s Justice Department, and as a lawyer n the Bush 41 White House, denied that the effort was a GOP production. “This is not, as we see it a Republican thing,” he said, claiming that several of the 13 attorneys general to sign on to the suit are Democrats. In fact, only one, Louisiana’s Buddy Caldwell, is a Democrat. Caldwell has said that he joined because he was asked to do so by Gov. Bobby Jindal, a Republican, and he felt the effort had merit.

Rivkin told TPMmuckraker that he also was consulted recently by McMaster on possible legal responses to the “Cornhusker Kickback” — the special giveaways to Nebraska, won by Sen. Ben Nelson (D-NE), whose inclusion in he original Senate reform bill angered many.

A number of the attorneys general bringing the lawsuit — including McCollum, South Carolina’s Henry McMaster, Michigan’s Mike Cox, and Pennsylvania’s Tom Corbett — are running for governor of their states. That prompted a senior administration official to charge yesterday in a briefing with reporters that there are “a lot of politics at play here,” adding, “this is a pretty good way to get on TV.” (Nevada governor Jim Gibbons, a Republican who is running for re-election despite damaging revelations about his personal life, yesterday directed the state’s attorney general, a Democrat, to sign the Silver State on too, claiming that as governor, he is empowered by state law to do so.)

Rivkin had helped lay the groundwork for the lawsuit last September, when he and Casey wrote an op-ed in the Wall Street Journal making the case that the health-care reform bill is unconstitutional, in part because the individual mandate covers activity that can’t be defined as commercial, and therefore subject to federal regulation. That argument remains at the heart of the lawsuit.

That was hardly the first high-profile conservative cause that Rivkin has taken up. He was a prominent defender of the Bush administration’s detention and interrogation polices, as well as its lax approach to addressing global warming, and was a Republican witness in last year’s Senate confirmation hearings for Sonia Sotomayor’s nomination to the Supreme Court. Indeed, back in 1993, he argued in another Wall Street Journal op-ed that President Clinton’s health-care reform plan was unconstitutional, making a similar case to the one he makes today.

Rivkin, who emigrated to the U.S. from Soviet Russia as a child, and has written about the hardships of Communism, said he felt lucky to to have been asked to get involved. “We’re enormously gratified that we’ve been asked to work on something this interesting and this consequential,” he said of the effort to remove access to affordable health insurance for millions of struggling Americans. “You respond with a feeling of gratitude and joy.”

And he pushed back against critics of the lawsuit, some of whom have argued that because the mandate won’t go into effect until 2014, the case may be dismissed on “ripeness” grounds. “I don’t know of any good reason as to why its not adjudicable now,” he said, arguing that the policy has already been set, and states have begin to hire staff to administer the new system. “That’s happening now. It’s not happening in 2014.”

Those critics “are not really seriously thinking about it as litigators,” he said. “They’re still operating in the blogosphere. It’s just not done with the same degree of precision we do when we’re in court.”

Additional reporting by TPMDC’s Christina Bellantoni

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