Real Campaign Finance Reform: Legislating Through General Rules.

In a series of decisions on campaign finance legislation, the Roberts Court has made it clear that Congress cannot solve the enduring political issues of undue or unequal influence in politics by restricting speech. Now that legislatures are aware this option is no longer on the table, they are under more pressure to find other solutions.  Importantly, Congress could constrain undue influence by legislating through rules of general applicability.

Under a regime of generality,  Congress would disable itself from handing out money, lucrative projects, or regulatory relief to designated individuals or small groups. Such strictures would make corruption less likely and indeed eliminate the kind of influence which seems most undue. Decisions that that can be framed in terms of general rules are more likely to be aimed at the public good than at the provision of favors.

In fact, Congress recently moved toward legislating through general rules by eliminating earmarks. 

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The Politics of Moral Outrage

shutterstock_136213418Moral outrage, when it is not fatuous, is politically potent. Vivid examples of politicians and commentators in full-throated, red-faced attacks against malignant motives and vicious political acts come easily to mind for all but the most apolitical. In some cases these outbursts are reactions against assaults on how things are or have been—on the decent order of things as inherited. But any honest observer must acknowledge that the more successful production of moral outrage has issued from those seeking fundamental transformation.

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Democracy in Decline: The Book and the Blurb

This post is a book notice with a twist.

Democracy in declineThe book is Democracy in Decline: Steps in the Wrong Direction (2014), by James Allan. Professor Allan (can I call him Jim?) is a law professor at the University of Queensland, and his book argues in compelling, commonsensical terms that, as the title suggests, democracy is being quietly but steadily shunted aside, not in marginally democratic countries but in the United States, Canada, England, Australia, and New Zealand. “[M]ost of the blame for that declining trend,” Jim argues,

can be laid at the feet of our top judges . . .; at the feet of the expanding reach and purview of international law . . .; at the feet of jurisdiction gobbling supranational organizations; at the feet of various elite groups in society (including lawyers’ bodies, top public servants, academics, those in NGOs, the mainstream media, and of course the top judges) who not only wink at this trend but who actively promote it, preferring where possible to ignore, disdain and override the beliefs, values and wishes of the majority of their fellow citizens . . ..

Sounds pretty plausible to me.

The twist has to do with the back cover. My copy, which Jim was kind enough to give me, and which was published in Australia by Connor Court Publishing, has a blurb from Mark Steyn, which says among other things: “This is an important book that charts free nations’ beguiling seduction into soft tyranny.” Evidently, though, the version published in Canada, the UK, and the US, by McGill-Queen’s University Press, has removed the Steyn blurb. (See here and here.) Jim is unhappy about this. I would be too; I’d be delighted if one of my books generated praise from Mark Steyn. But who knows? Maybe the publisher is doing what it can to promote the book by providing a bit of supporting evidence for the book’s thesis and for Steyn’s comment?

The Invasion of Iraq: A Change in My Position

In a series of posts, I hope to explain why I made a mistake by supporting the U.S. invasion of Iraq in 2003.  While I initially favored the invasion and continued to support it for many years, recently I have come to the conclusion that I was wrong. My reason is not among those that people usually give for opposing the war.  Instead, I believe that, had our government and political system been competent, the venture could have provided enormous net benefits. Unfortunately, our government is not competent. My mistake was placing too much faith in government – a serious mistake for a libertarian.

To set the stage, I should explain a little about the evolution of my views about foreign policy. After I became a libertarian, I soon became convinced of the noninterventionist views of Murry Rothbard, which coincided in many ways with the New Left. But I did support the Strategic Defense Initiative (or “Star Wars”), which after all involved defense, not intervention.

After a time, my views developed a bit, so that I came to accept aspects of Ronald Reagan’s view that the United States could support other groups, such as the Contras, who were fighting tyrannical governments.  Such support would not involve U.S. intervention except in very limited ways.

I held those views for many years and therefore opposed the U.S. intervention in the former Yugoslavia. I did support the U.S. intervention in the first Gulf War. My justification was that it involved assisting a country that had been invaded, concerned significant U.S. interests, and had limited objectives. I especially agreed with George H. W. Bush’s decision not to pursue the war into Iraq on the ground that the American people would not support the type of engagement that would be necessary to sustain a restructuring of the government.

Thus, at the time of 9/11, I had moderate classical liberal views on foreign policy. I generally favored nonintervention, except where there was an exceedingly strong case for involvement and where it could be accomplished without excessive difficulty.

The attack by Al Qaeda on 9/11 presented a new challenge. I supported the initial war in Afghanistan as a direct response to the attack. But I never believed we could establish any type of democracy there – the Afghan society was not ready for it. I just favored keeping the Taliban and Al Qaeda out of power.

Then in 2003, George W. Bush (with congressional authorization) invaded Saddam Hussein’s Iraq – an invasion I supported. In my next posts, I explain why and why I have changed my mind.

Achieving America’s Peace: A Conversation with Angelo Codevilla


Angelo Codevilla comes to Liberty Law Talk to discuss his latest book To Make and Keep Peace Among Ourselves and with All Nations. Our conversation focuses on Codevilla’s main argument that American statesmen increasingly fail to understand the nature and purpose of statecraft: the achievement of peace. So what does it mean to achieve America’s peace? To do so, Codevilla insists, requires concrete evaluation of the means and ends necessary to protect American interests. This requires particular judgments about power, interests, and the practial reality we are confronted with. Our practice, for well nigh a century, has been to speak in glittering generalities about America’s role in the world as a force for democratic and humanitarian progress, refusing to recognize the unwieldy consequences that result from applying abstract ideals in a Hobbesian environment. The refusal to be frank about how military victory must be used to achieve a peace on American terms not only produces unending conflicts with no clear idea of victory, but also leads to deep reverberations in domestic politics as coalitions form around perceived patriotic and traitorous courses of action. Post 9/11 politics, anyone?

We also explore what Codevilla perceives as the failures of our major schools of foreign policy. The neoconservative believes that an aggressive America must give a shove to the forces of global democratic progress, while the internationalist has a similar end in view but wants to secure it by reducing American power in the world, harnessing and moralizing our power and interests through an array of multilateral institutions and treaties.  In a different vein, the realist assumes that all nations have the same kinds of interests and pursue the same goals regardless of the ideological cast of regimes and governments. All three approaches have been tried repeatedly, but, Codevilla argues, America’s interests have not been secured. Even though our nation wins its battles and wars, we lose our peace. Where then to look for wisdom in the practice of successful statecraft? That is where the conversation begins.

A Focus Group on Originalism

These are the best of times and the worst of times for originalism. On the positive side, originalism has never been so discussed in the legal academy and, in the modern era, never have originalist arguments been taken so seriously on the Supreme Court. On the negative side, originalism has never been so fragmented with so many competing justifications and such fundamental differences in the methods for ascertaining the meaning of particular provisions of the Constitution.  And, as Steve Smith, has written in these pages, some originalists believe that the judiciary has such a large role to play in choosing how to make operational constitutional provisions deemed radically indeterminate that originalism seems no longer to create any restraints on the judiciary—one of its original, and, in Steve’s view, salutary functions.

Some of the current discontents of originalism may be an inevitable consequence of its success.  Academics do not succeed by parroting the old theories, but by minting new ones: the multiplication of justifications and methodologies for originalism is the inevitable result. But this academic economy of theorizing does not mean that originalism has not greatly been greatly enriched from being pushed and pulled by ambitious professors of varying ideologies.  The most salient questions about both the persuasiveness of originalism and its practice are clearer than they were in the days when it functioned as a theory of judicial restraint. And despite the differences among originalists,  originalists of various views are far less likely to talk past one another than were constitutional theorists of the past who began from utterly  incompatible premises.

Over the weekend, I met with group of mostly young  academics to talk about some of the internal debates within originalism.  What I heard would have cheered Steve Smith.

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Martha Bayles Responds to “Instead, We Played Music”

It is gratifying to see such an appreciative review of my book Through a Screen Darkly from Robert Reilly, who is a tough critic of the usual discourse about U.S. public diplomacy. Especially pleasing is the attention he pays to the contributions of the many veteran public diplomats I interviewed. He was one of them, and I learned more about the topic from these individuals than I possibly could have from any book.

Nonetheless, I hope that neither Mr. Reilly nor your readers will be put off by a little pushback.

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From the Rule of Law to the Triumph of the Will


shutterstock_203668402The arguments by which the Obama administration is countering lawsuits that seek to limit Obamacare subsidies to participants in “exchanges” established by states—a limit that is specified in the Obamacare law itself—have raised the outcome’s stakes. Administration officials argue that the plain, unmistakable, uncontested language of the Affordable Care Act (ACA) is less important than what they want the law to mean, and that hewing to its words would deprive millions of people of the subsidies that the administration had granted them regardless of those words. Therefore the courts should enforce what the administration wants rather than what the law says.

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