Tag: First Amendment

Our Tax Dollars Are Being Used to Lobby for More Government Handouts

The First Amendment guarantees our freedom to petition the government, which is one of the reasons why the statists who wants to restrict or even ban lobbying hopefully will not succeed. But that does not mean all lobbying is created equal. If a bunch of small business owners get together to lobby against higher taxes, that is a noble endeavor. If the same group of people get together and lobby for special handouts, by contrast, they are being despicable. And if they get a bailout from the government and use that money to mooch for more handouts, they deserve a reserved seat in a very hot place.

This is not just a hypothetical exercise. The Hill reports on the combined $20 million lobbying budget of some of the companies that stuck their snouts in the public trough:

Auto companies and eight of the country’s biggest banks that received tens of billions of dollars in federal bailout money spent more than $20 million on lobbying Washington lawmakers in the first half of this year. General Motors, Chrysler and GMAC, the finance arm of GM, cut back significantly on lobbying expenses in the period, spending about one-third less in total than they had in the first half of 2008. But the eight banks, the earliest recipients of billions of dollars from the federal government, continued to rely heavily on their Washington lobbying arms, spending more than $12.4 million in the first half of 2009. That is slightly more than they spent during the same period a year ago, according to a review of congressional records.

…big banks traditionally are among the most active Washington lobbying interests in the financial industry, and the recession has done little to dent their spending. …Since last fall, companies receiving government funds have argued that none of the taxpayer money they were receiving was being spent on lobbying.

…American International Group, the insurance firm crippled by trades in financial derivatives that received roughly $180 billion in bailout commitments, closed its Washington lobbying shop earlier this year. AIG continues to spend money on counsel to answer requests for information from the federal government, but the firm said it does not lobby on federal legislation.

The most absurd part of the story was the companies claiming that they did not use tax dollar for lobbying. I guess the corporate bureaucrats skipped the classes where their teachers explained that money is fungible.

The best part of the story was learning that AIG closed its lobbying operation, though that does not mean much since AIG basically now exists as a subsidiary of the federal government. The most important message (which is absent from the story, of course) is that the real problem is that government is too big and that it intervenes in private markets. Companies would not need to lobby if government left them alone and/or did not offer them special favors. Indeed, that was the key point of my video entitled, “Want Less Corruption: Shrink the Size of Government.”

The Roberts Revolution to Come

As I mentioned yesterday, the U.S. Supreme Court surprised many people by ordering a reargument in the case of Citizens United v. Federal Election Commission. Specifically, the Court called for the parties to the case to address the question of overruling Austin v. Michigan Chamber of Commerce.

The Court decided Austin v. Michigan Chamber of Commerce in 1989.  The state of Michigan had prohibited corporations from spending money on electoral speech. In the case in question, the Chamber of Commerce wished to pay for an advertisement backing a candidate for the House of Representatives. The Chamber took this action on its own and not in tandem with the candidate or his party.  Paying for the ad was a felony under Michigan law.

A majority of the Court in 1989 said the Michigan law did not violate the First Amendment. However, the majority had a problem. Previous cases permitted limits on funding electoral speech only in pursuit of a compelling state interest: the prevention of quid pro quo corruption or its appearance. The Court had also ruled that independent spending by groups could not corrupt candidates.

So the majority needed a novel rationale for approving Michigan’s suppression of speech. The majority concluded that speech funded by corporations would distort the democratic process and that the state could prohibits such outlays to prevent harms done by “immense wealth.” In other words, the Austin majority tried to redefine “corruption” as “inequality of influence.” That revision had its own set of problems. Buckely v. Valeo, the Ur-decision in campaign finance, had excluded equality as a compelling state interest justifying regulation of campaign finance.

It is easy to see why the Buckley Court had rejected equality of influence as a reason for restricting political speech. Imagine Congress could prohibit speech that had “too much influence.” But how could that be determined? A majority in Congress would be tempted to suppress speech that threatened the power of that majority.  Paradoxically, the equality rationale would strengthen those who already held power while vitiating representative government. The First Amendment tries to prevent that outcome.

In last year’s decision in Davis v. FEC, the Court again rejected the equality rationale for campaign finance laws.  More and more the Austin decision is looking like bad law.

Justices Kennedy and Scalia, both current members of the Court, wrote dissents in Austin. Justice Thomas has called for Austin to be overruled in other contexts.  Neither Justices Roberts nor Alito is likely to vote to uphold Austin (or the relevant parts of McConnell v. FEC for that matter). But it would seem that either or both of them were unwilling to strike down a precedent without a formal hearing. That hearing will come on September 9 with a decision expected by Thanksgiving.

Almost six years after the Court utterly refused to defend free speech in McConnell v. FEC, the Roberts Court may be ready to vindicate the First Amendment against its accusers in Congress and elsewhere.

Judge Sonia Sotomayor’s Philosophy of Judging

Judge Sonia Sotomayor of the 2nd Circuit Court of Appeals has been mentioned as a possible Supreme Court nominee.  She also has been caught on tape explaining her view of a judge’s role.  Reports the Washington Post:

As White House press secretary Robert Gibbs put it, Obama is looking for “somebody who understands how being a judge affects Americans’ everyday lives.”

Congressional conservatives have reacted anxiously to that qualification, fearing that it means a nominee who is more interested in making the law than in interpreting it.

One possible candidate for the seat, Judge Sonia Sotomayor of the U.S. Court of Appeals for the 2nd Circuit, appeared to walk close to that line in a video that emerged yesterday. Sotomayor would be the first Latino and the third woman to serve on the high court.

Speaking at Duke University in 2005, Sotomayor said, “All of the legal defense funds out there, they’re looking for people with court of appeals experience” because “the court of appeals is where policy is made.”

She then sought to soften the statement, adding lightly, “I know this is on tape and I should never say that, because we don’t make law, I know. Um, okay. I know. I’m not promoting it, I’m not advocating it.” The audience laughed as she brushed off the statement, perhaps sarcastically.

Making policy.  Yes, it is indisputable that that’s what judges often do.  But is that what they are supposed to do? 

President Barack Obama seems to think so, when he talks about the importance of “empathy” in judges.  (With whom do I empathize in this First Amendment case:  the U.S. Attorney General or the New York Times?  I vote for the Times!)  However, the Senate might want to debate this issue before approving someone to fill Justice David Souter’s vacancy, especially if the nominee shares the president’s apparent view that empathy is a substitute for jurisprudence in interpreting the law and Constitution.

Free Speech v. The Federal Election Commission

The so-called Citizens United case offers the Supreme Court a chance to severely curtail the free speech abuses of the Federal Election Commission. John Samples, Director of the Cato Institute’s Center for Representative Government, Institute for Justice Senior Attorney Steve Simpson and George Mason University law professor Allison Hayward weigh in. You can subscribe to Cato’s YouTube videos here and our Weekly Video podcast here.

Justice Scalia Makes Sense; Law Professor Responds by Instructing Class to be a Collective Jerk

In January, Justice Antonin Scalia made some remarks about privacy at the Institute of American and Talmudic Law. The AP reported:

Scalia said he was largely untroubled by such Internet tracking. “I don’t find that particularly offensive,” he said. “I don’t find it a secret what I buy, unless it’s shameful.”

He added there’s some information that’s private, “but it doesn’t include what groceries I buy.”

In response to this commonsensical provocation, Fordham University law professor Joel Reidenberg had his class compile a 15-page dossier on Scalia, “including his home address, the value of his home, his home phone number, the movies he likes, his food preferences, his wife’s personal e-mail address, and ‘photos of his lovely grandchildren.’”

Reidenberg apparently sent the file to Justice Scalia, eliciting this response:

I stand by my remark at the Institute of American and Talmudic Law conference that it is silly to think that every single datum about my life is private. I was referring, of course, to whether every single datum about my life deserves privacy protection in law.

It is not a rare phenomenon that what is legal may also be quite irresponsible. That appears in the First Amendment context all the time. What can be said often should not be said. Prof. Reidenberg’s exercise is an example of perfectly legal, abominably poor judgment. Since he was not teaching a course in judgment, I presume he felt no responsibility to display any.

Being a jerk to Justice Scalia didn’t help Professor Reidenberg make his point, whatever it may be.

According to the Above the Law blog, Reidenberg believes that “technological constraints should be built into the infrastructure of online networks in recognition of users’ privacy rights.” He may also think the Nile should flow the other direction, but having his students dig up graves in Egypt won’t advance that cause.

The Government Shouldn’t Tilt The Speech Playing Field in Its Own Favor

New Hampshire passed a law prohibiting the transfer of doctors’ prescription history to facilitate drug companies’ one-on-one marketing — a practice known as “detailing” — because it believes detailing drives up brand-name drug sales and, in turn, health care costs.  The state knew that the First Amendment prevented it from banning detailing itself, so it made the practice more difficult indirectly. 

Yet data collection and transfer is protected speech — think academic research, or the phone book — and government efforts to regulate this type of speech also runs afoul of the First Amendment.  See, e.g., Solveig Singleton, “Privacy as Censorship: A Skeptical View of Proposals to Regulate Privacy in the Private Sector” (Cato Institute Policy Analysis No. 295).  New Hampshire also engages in gross viewpoint discrimination: it exempts insurers’ efforts to persuade doctors to use generic drugs, and runs an “academic detailing” program to discourage brand-name drug use.

Remarkably, the First Circuit reversed a district court ruling that had invalidated the statute as unconstitutional, somehow finding that the statute regulates conduct rather than speech and that, in any event, the judiciary should defer to the legislative branch’s judgment.  Two companies that collect and sell health information and analysis filed a petition asking the Supreme Court to review the case.  Cato, joining Washington Legal Foundation, Reason Foundation, and a group of current and former state officials, has filed a brief supporting that petition.

Our brief argues that the Supreme Court should grant review because: 1) the speech at issue is worthy of First Amendment protection; 2) this case is a good vehicle for examining First Amendment issues attending state attempts to control health care costs (other states have passed similar laws); and 3) the lower court’s holding that a state may restrict speech to “level the playing field” conflicts with the Court’s precedent regarding both commercial speech and campaign finance regulation.

The Supreme Court will be deciding over the summer whether to grant review, with a decision expected after the “Long Conference,” which precedes the beginning of the new term in October.

All-Star Lineup in New York

Cato is planning a seminar in New York on April 30 with an all-star lineup of speakers: Nat Hentoff, our new senior fellow and perhaps the leading First Amendment advocate of the past generation. Top climate scientist Pat Michaels. Peter Schiff, the financial guru who spent 2006 and 2007 failing to persuade people that the U.S. housing and financial markets were on the verge of collapse. And Freeman Dyson, one of the world’s top scientists and the subject of a recent New York Times Magazine profile for his “heretical” views on global warming. Check out the program:

  • 11:05–11:35 a.m. Nat Hentoff —Keynote Address: An Endangered Native Species: The First Amendment
  • 11:35–11:55 a.m. Pat MichaelsClimate of Extremes: Global Warming Science They Don’t Want You to Know
  • 11:55 a.m.–12:15 p.m. Peter SchiffEconomic Crisis: A Government Failure
  • 12:30–2:00 p.m. Freeman Dyson —Luncheon Address: Climate Disaster, Safe Nukes, and Other Myths

Register for the event here ($100 per person).

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