Tag: Arizona

Michelle Rhee and Eva Moskowitz on School Choice

Rhee, the former chancellor of DC Public Schools, and Moskowitz, head of a NYC charter school, were asked at an event last week what they thought of the Supreme Court decision upholding  Arizona’s K-12 scholarship donation tax credit program. The program offers a dollar-for-dollar tax cut to anyone who donates to a non-profit Scholarship Tuition Organization (and the STOs then help families pay for private school tuition).

Children’s Scholarship Fund president Darla Romfo asked the question, and here’s the answer she received.

Credits for Crucifixes. Or: What’s the Matter with Kagan?

Justice Kagan’s dissent yesterday in the Supreme Court ruling upholding Arizona’s education tax credits seems to me so obviously mistaken on both the facts and the law that I feel I must be missing something. I offer my initial analysis briefly below, and if anyone can tell me if/where I’m going wrong, my e-mail address is just a Google away.

First, Kagan and her fellow dissenters express dismay at the putative novelty of the majority’s distinction between tax credits and government spending. But, more than a decade ago, this very same distinction was acknowledged by the Arizona Supreme Court in Kotternman v. Killian, and that AZ Court ruling itself cites a string of precedents from around the country supporting it. Clearly, the majority’s ruling is far from novel, and Kagan and the dissenters should know that.

Next, Kagan claims that the majority’s ruling would preclude taxpayers from suing the government for operating a program that gives tax credits exclusively to one religious group. She claims that taxpayers of other faiths would lack standing. That seems quite wrong. The pivotal issue is that taxpayers would have to show a specific personal harm resulting from the government’s actions in order to have standing. In the case of Arizona’s tax credits, as the majority acknowledged, there is no harm to taxpayers. Everyone is eligible for the credit and credits can be claimed against donations to any type of scholarship organization, of any faith or no faith. By contrast, under Kagan’s straw man example of a credit for the purchase of crucifixes, non-christian  taxpayers would suffer a specific personal harm: they would be denied the right to use the credit to purchase religious symbols of their own faith (or to buy “Who is John Galt?” posters if they happened not to be religious). This harm would be the direct result of government action–specifically, of the government’s decision to favor Christians over members of other faith groups and secular taxpayers.

A program that discriminates based on religion causes harm to taxpayers by virtue of excluding them from participation. That, in turn, is a clear equal protection violation, not to mention a violation of at least two of the three prongs of the First Amendment Lemon Test, and so such taxpayers would not only have standing to sue they would win the suit.

Again, the AZ tax credit program causes no such harm, because anyone, regardless of faith, can participate, and no one is compelled to support any kind of religious education. Why could Kagan and her co-dissenters not see this?

If the Government Gives Your Election Opponent More Money the More Money You Spend, It Burdens Your Speech

Yesterday the Supreme Court heard oral arguments in the Arizona matching-public-campaign-funding case, McComish v. Bennett, spearheaded by our friends at the Goldwater Institute and the Institute for Justice.

Here’s the background:  In 1998, after years of scandals ranging from governors being indicted to legislators taking bribes, Arizona passed the Citizens Clean Elections Act. This law was intended to “clean up” state politics by creating a system for publicly funding campaigns.  Participation in the public funding is not mandatory, however, and those who do not participate are subject to rules that match their “excess” private funds with disbursals to their opponent from the public fund. In short, if a privately funded candidate spends more than his publicly funded opponent, then the publicly funded candidate receives public “matching funds.”

Whatever the motivations behind the law, the effects have been to significantly chill political speech. Indeed, ample evidence introduced at trial showed that privately funded candidates changed their spending — and thus their speaking — as a result of the matching funds provisions. Notably, in a case where a privately funded candidate is running against more than one publicly assisted opponent, the matching funds act as a multiplier: if privately funded candidate A is running against publicly funded candidates B, C, and D, every dollar A spends will effectively fund his opposition three-fold. In elections where there is no effective speech without spending money, the matching funds provision unquestionably chills speech and thus is clearly unconstitutional.  For more, see Roger Pilon’s policy forum featuring Goldwater lawyer Nick Dranias, which Cato hosted last week and you can view here.

The oral arguments were entertaining, if predictable. A nice debate opened up between Justices Scalia and Kagan about the burden that publicly financed speech imposes on candidats who trigger that sort of financing mechanism under Arizona law. Justice Kennedy then entered the fray, starting out in his usual place — open to both sides — but soon was laying into the Arizona’s counsel alongside Justice Alito and the Chief Justice.

The United States was granted argument time to support Arizona’s law, but Justice Alito walked the relatively young lawyer from the Solicitor General’s office right into what I consider to be his (Alito’s) best majority opinion to date, the federal “millionaire’s amendment” case (paraphrasing; here’s the transcript):

Alito:  Do you agree that “leveling the playing field” is not a valid rationale for restricting speech?

US:  Sort of.

Alito:  Have you read FEC v. Davis?

Note to aspiring SCOTUS litigators: try not to finesse away direct precedent written by a sitting justice.

My prediction is that the Court will decide this as they did Davis, 5-4, with Alito writing the opinion striking down the law and upholding free speech.  Cato’s amicus briefs in this case, which you can read here and here, focused on the similarities to Davis, so I’m keeping my fingers crossed that we’ll get cited.

NB: I got to the Court too late to get into the courtroom today but live-tweeted (@ishapiro) the oral arguments from the (overflow) bar members’ lounge, which has a live audio feed. I was later informed that such a practice violates the Court rules, however – ironic given how pro-free-speech this Court is – so I will not be repeating the short-lived experiment.  (That said, you should still follow me on Twitter – and also be sure to follow our friends @IJ and @GoldwaterInst!)

Behind the Political Rhetoric Are Profound Differences

Today POLITICO Arena asks:

Post-Tucson will campaign trail rhetoric change in any discernible way? Should it change? What phrases or words should be considered out of bounds? Or is that approach a way of silencing legitimate criticism of political candidates?

My response:

Post-Tucson campaign trail rhetoric won’t change because, as Charles Krauthammer put it brilliantly in yesterday’s Washington Post, fighting and warfare are routine political metaphors for obvious reasons: “Historically speaking, all democratic politics is a sublimation of the ancient route to power – military conquest. That’s why the language persists,” why we speak of “battleground states” or “targeting” opponents.

That doesn’t mean that no charge is “out of bounds.” It’s perfectly all right for Sarah Palin to “target” 20 potential swing districts – Democrats do the same. And her use yesterday of “blood libel,” as Alan Dershowitz explains, is entirely acceptable too. What is out of bounds is the kind of scurrilous charges we’ve seen from The New York Times, the Paul Krugmans, E.J. Dionnes, Jonathan Alters, and their ilk, that the Tea Party and the political discourse around it contributed to the Arizona shooting – when there isn’t a shred of evidence to support that, and every indication that a lone mentally disturbed individual was responsible.

But far deeper issues are at play here, and they’re brought out in a penetrating piece by Daniel Henninger in this morning’s Wall Street Journal, “Why the Left Lost It.” He points first to the devastating, potentially sea-changing midterm elections – “Republicans now control more state legislative seats than any time since 1928” – which “came atop the birth of a genuine reform movement, the tea parties.” And the debt crises, state and federal, that animate the Tea Party pose a mortal threat to a liberal agenda that stretches back at least to Goldwater.

As Henninger writes, the divide between today’s left and its conservative opponents “is deep, and it will never be bridged. It is cultural, and it explains more than anything the ‘intensity’ that exists now between these two competing camps.” Read it.

Government and Violence

Radley Balko writes:

[I]t’s worth remembering that the government initiates violence against its own citizens every day in this country, citizens who pose no threat or harm to anyone else. The particular policy that leads to the sort of violence… is supported by nearly all of the politicians and pundits decrying anti-government rhetoric on the news channels this morning. (It’s also supported by Sarah Palin, many Tea Party leaders, and other figures on the right that politicians and pundits are shaming this weekend.)

I hope Rep. Giffords—and everyone wounded yesterday—makes a full recovery. It’s particularly tragic that she was shot while doing exactly what we want elected officials to do—she was making herself available to the people she serves. And of course we should mourn the people senselessly murdered yesterday, government employees and otherwise: U.S. District Judge John Roll, Dorothy Murray, Dorwin Stoddard, nine-year-old Christina Green, Phyllis Scheck, and Gabe Zimmerman.

That said, I long for the day that our political and media figures get as indignant about innocent Americans killed by their own government—killed in fact, as a direct and foreseeable consequence of official government policy that nearly all of those leaders support—as they are about a government official who was targeted by a clearly sick and deranged young man. What happened this weekend is not, by any means, a reason to shunt anti-government protest, even angry anti-government protest, out of the sphere of acceptable debate. The government still engages in plenty of acts and policies—including one-sided violence against its own citizens—that are well worth our anger, protest, and condemnation.

The worst outcome would be for all dissent to become suspect. “Anti-government” is a concept used, essentially, to stifle debate, by conflating reasonable criticisms with the actions of lunatics. Both — of course! — are “anti-government,” and both are therefore guilty. It should be obvious what sort of agenda this furthers: Everything “government” is good.

Rep. Jeff Flake to Appropriations

In-coming House Speaker John Boehner’s endorsement of Rep. Jeff Flake (R-AZ) for a seat on the chamber’s appropriations committee means that it’s probably a done deal. Flake is one of the few policymakers who actually lives up to the fiscal conservative label. Thus, Flake’s appointment to a committee that many members think only exists to increase spending on special interests would be welcome news.

Boehner also endorsed a suggestion from Rep. Jeff Kingston (R-GA), who has mounted a dark-horse campaign to chair the appropriations committee, to create a subcommittee focused on investigating federal programs. Flake would chair this subcommittee, and according to a release on his website, he has already lined up worthy targets like Head Start and farm subsidies.

How much success will Flake have within the committee?

The New York Times quotes Flake as boldly saying, “It has been a favor factory for years, and now it is going to become a slaughterhouse.” At the same time, Flake acknowledged to Politico that putting a few anti-spenders on appropriations isn’t going to be enough:

Flake said the conservatives that Boehner wants to get on the committee will be “marginalized” if they’re scattered throughout the panel.

“It’s not enough just to have a few going on the committee,” he said. “They could be dispersed among the subcommittees that are forgotten.”

I recently warned the House Republican leadership against serving tea party voters re-heated meatloaf by allowing old-school spenders to dominate the committees. Getting Jeff Flake on appropriations is a step in the right direction, but his appointment can’t be a token gesture. Anti-spenders like Flake will need support from their leadership to succeed because they sure won’t be making friends with the big-spending old bulls.

How Do I Overturn Thee? Let Me Count the Ways

Tomorrow morning, the United States Supreme Court will hear one of the most important education cases in a generation: the appeal of a 9th Circuit ruling that would cripple or end Arizona’s k-12 scholarship tax credit program.

As you’d expect, commentators aren’t sure how the Supreme Court will ultimately rule: it may decide to overturn the 9th Circuit on the merits of the case, or it could overturn the 9th Circuit on the grounds that the plaintiffs never had standing to sue in the first place. Heck, there might even be people who think SCOTUS will uphold the lower court’s ruling… can’t actually find anyone who thinks that, but they could be out there… somewhere.

On the merits, the law and evidence are clear. Arizona’s program allows private individuals to donate to non-profit k-12 scholarship organizations and get a tax credit when they do–much as federal tax deductions are available for donations to non-profit charities. Since federal deductions for donations to religious organizations are Constitutional, the same applies to the credits in the AZ case. Respondents (those trying to kill the program) didn’t marshal a serious argument to the contrary. In fact, one of the cases they cite actually eviscerates their own argument, as I noted in Section II (b) of the Cato Institute Winn brief co-written by Ilya Shapiro and myself.

The rest of Respondents’ merits arguments are equally ineffectual, not only taking a form (relying on a moving statistical target) that has already been explicitly rejected by the Supreme Court in Zelman and elsewhere, but actually being wrong on the facts as well (see Section IV of the Cato brief linked above).

But while I’ve been exclusively focused on the merits of the case, it seems that the legal experts defending Arizona’s tax credit program have been arguing that the Respondents (originally, the Plaintiffs) never had a right to sue in the first place (“standing”), because they cannot show, in the context of Supreme Court precedents, how they have been harmed.

Both the SCOTUS blog’s reporter and independent experts seem to think the Court will overturn the 9th Circuit on the standing issue before even considering the merits, and I’m confident that the Court will overturn on the merits if it ever gets that far.

If the ruling comes down in either of those ways, modern education tax credit programs will retain their perfect record of never having been overturned by a court–a record not enjoyed by any other private school choice policy. The reason that is so very important is explained in the final section (V) of our Cato brief.