Mutable ACLU v. Immovable Cato

The ACLU has modified over the last decade two important positions on civil liberties. Historically its position had been that limiting contributions to political campaigns was unconstitutional. In 2010 it shifted to support “reasonable” limits on contributions to political campaigns.  Strikingly, the ACLU in 2013 then failed to file any brief at all in McCutcheon v. FEC, which challenged aggregate limits on contributions. These limits prevented citizens from expressing support for individual candidates, even when those individual contributions were of modest size.

Second, in 1993 ACLU President  Nadine Strossen enthusiastically supported the Religious Freedom Restoration Act.  Later the ACLU, as David Bernstein reported, continued to support legal exemptions for reasons of religious conscience, but opposed subsequent bills providing for across-the-board exemptions  because of fear that they would interfere with anti-discrimination laws.  The ACLU today supports the bill to override the Hobby Lobby even though the  decision did not involve an anti-discrimination law.

In contrast, CATO, the premier libertarian think-tank, has been relentlessly consistent in its views on domestic policy, opposing infringements on both civil rights and property rights alike. The consistency has continued despite some unfortunate recent squabbles about the structure of its leadership.

The difference between the mutability of ACLU and the constancy of Cato underscores important truths about both the nature of liberty and politics.

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Here the People (are supposed to) Rule

ClintonAs she hawks her new book, Mrs. Clinton is saying provocative things. Her assertion that “American political system is probably the most difficult, even brutal, in the world” has raised eyebrows across the country.

In a world in which violent coup d-etat are still relatively common in many parts of the world, that’s a striking claim. American politicians are toppled by elections, not by violence. The parties hurl invective at each other, not ordinance. As John Adams reflected to Thomas Jefferson in 1823, “I should like to see an election for a President in the British empire or in France or in Spain or in Prussia or Russia by way of experiment. We go on pretty well—for we use no other artillery than goose quills: & our ink is not so deleterious as language & grape.”*

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A Jurisprudence to Grow the State

There are striking parallels in how the left-liberals treat constitutional liberty in political and religious expression. First, their positions in both areas are premised on a kind of faux neutrality that masks consolidation of their own power. As I have discussed, in campaign finance, left-liberals seek to eliminate the undue influence of the rich, regardless of their viewpoint. What this “neutrality” ignores is that by restricting the influence of some powerful citizens, it effectively expands the influence of other powerful groups who substantially affect the political climate and are not similarly constrained. These powerful  are most importantly, the mainstream media, academia and the entertainment industry that are predominantly—indeed in most cases—overwhelming left- liberal.

Similarly, in religious liberty, left-liberals want to restrict the capacity of religious organizations to project their views, as reflected, for instance, in their opposition to school vouchers available to religious schools. It is true that preventing religious schools from using vouchers treats all religions equally but it privileges a secular civic life. A government school can and frequently does have a secular creed that is some mixture of environmentalism and a particular take on the concept of state mandated diversity.  It is much more hospitable to reinforcing  a state-centered view of the world than a religious school.

A second point of comparison is the hostility of left-liberals to the rights of corporations.

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Originalism and McCutcheon Part III: Does Congress Have Power to Regulate Campaign Contributions?

For the first two posts in this series, see here and here. My last post on originalism and McCutcheon will address whether Congress has the power to pass laws that restrict campaign contributions. This is a complicated area and one that I have not studied. So take what I say with some caution. There are at least two issues: regulations of campaign contributions as to congressional elections and as to presidential elections. (One might, of course, draw further distinctions, such as those relating to contributions to political parties or for primaries.) As to congressional elections, the Constitution allows Congress to regulate “the Times,…

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Originalism and McCutcheon: Part II — Possible Alternative Bases for Protecting Contributions

In my first post, I discussed how one might conclude that the meaning of “abridging the freedom of speech” could cover laws that prohibited or restricted gifts earmarked for purposes of speech. In this post, I want to discuss a couple of alternative ways that one might use to protect such campaign contributions: (1) freedom of association and (2) contributions as the speech of the contributor. While I believe the arguments in my first post provide possible ways of protecting certain campaign contributions under the original meaning of the First Amendment, I am skeptical that either of these alternatives provide…

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Supply-Side Campaign Reform

Just once, it would make some professor’s constitutional day to read the lead paragraph of a news report on a Supreme Court decision and see high-level judicial reasoning (who thought what) rather than bottom-line ox-goring (who lost what) taken seriously. Wednesday, when the Court’s decision in McCutcheon v. FEC was announced, was not that day.

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Taking Down D’Souza and Other Abuses of Power

In 2004 leftwing filmmaker Michael Moore released his film Fahrenheit 9/11, a searing attack on the legitimacy of George Bush’s election to the presidency in 2000, and his handling of events before, during, and after the terrorist attack of September 11, 2011 on the World Trade Center. Moore was unequivocal in his stated hope that the movie would “help unseat a president.”

Fahrenheit 9/11 was produced by Moore’s production company Dog Eat Dog Films, a corporation. At the time – before the Supreme Court decision in Citizens United v. Federal Election Commission—it was illegal for corporations to spend money “in connection with any election to any political office,” and illegal for an officer of a corporation to consent to such an expenditure.

Imagine if fourteen months after the election, Moore had been indicted by a Bush-appointed federal prosecutor for violating the prohibition on corporate spending. Imagine if Moore was arrested, cuffed, criminally charged for his activities, had his passport confiscated, and bail set at $500,000–what would have been the reaction from the America’s liberals? Of the press? Of Senator Barack Obama?

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Is Money Speech?

One of the arguments made against treating spending during campaigns as protected by freedom of speech is that money is not speech.  In this neat, two minute video, Eugene Volokh explains that even though money is not speech, spending during a campaign should still should be protected.

Curbing Campaign Cash

Curbing Campaign Cash

The next Liberty Law Talk is a conversation with Paula Baker about her new book, Curbing Campaign Cash. You might recall former FEC Commissioner Brad Smith's review of the book in this space. Smith observed that Baker's book uncovers for the reader the perennial tale of campaign finance legislation and its many untoward consequences that distort a system of fully competitive elections. "Before Super PACs, McCain-Feingold, “soft money,” and the Keating 5; before Watergate, and even before Teapot Dome, there was the Michigan Senate race of 1918. . . . one of the nation’s most contested elections and earliest campaign…

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Friday Roundup, February 15th

Don't miss the current podcast with Randy Simmons on his recently updated book, Beyond Politics: The Roots of Government Failure. Simmons, in this discussion, challenges the iron-clad belief that government rules and regulations live and move in rational operation, having their being serving the commonweal 24/7. Instead, Simmons provides a comprehensive way to think about the giant suck of political reality. Getting off the campaign finance merry-go-round: The Books section this week features former FEC Commissioner Bradley Smith reviewing Curbing Campaign Cash by Paula Baker. Garett Jones at Econ Log: Is that a government purchase or are you getting transfer payments? Inspired by…

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