Tag: Institute for Justice

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!)

March Madness: Eminent Domain Abuse Goes Coast-to-Coast

This is a big week for private property rights.  Two epic eminent domain struggles are playing out on opposite sides of the country. 

First, National City, California, is ground zero for eminent domain abuse.  City officials declared several hundred properties blighted even before conducting a blight study that was riddled with problems. The city wants to seize and bulldoze a youth community center (CYAC) that has transformed the lives of hundreds of low-income kids, so a wealthy developer can build high-rise luxury condos:

CYAC has numerous volunteers, including local law enforcement officers, providing free mentoring in boxing as well as academics.  The gym is famous for getting kids off the street and back into school.  As Rick Reilly explained in a feature in Sports Illustrated (boy, how I miss his inside-back-page column):

You know what, Mayor? National City doesn’t need more luxury condos. It needs good men like the Barragans teaching kids respect for neighbors and property, manners you could use a little of yourself.

And if you kick the Barragans out so some slick in Armani can buy a bigger yacht, I hope your car stereo gets jacked—weekly—by a kid who would’ve otherwise been lovingly coached on their jabs and their math and their lives.

Question: Can you declare politicians blighted?

This week, the gym’s battle is in trial before the Superior Court of California.  Represented by the Institute for Justice (who else?), a victory will help protect private property far beyond National City and clarify the use and misuse of blight designations.

Second, moving to the other side of the country, we go to Mount Holly, New Jersey:

Mount Holly is another classic case of “Robin Hood-in-Reverse.”  Officials have been dismantling a close-knit community known as the Gardens for the last decade so a Philadelphia developer can bulldoze the area and build more expensive residential properties.

Homeowners in the Gardens are primarily minorities and the elderly.  The row-style houses are being torn down while still attached to occupied homes, and officials refuse to offer the remaining homeowners replacement housing in the new redevelopment.  Further, owners are being offered less than half the amount it would cost to buy a similar home blocks away.

Here, IJ just launched a billboard campaign and did a study that concludes the eminent domain abuse project may result in a loss of a million taxpayer dollars a year, or one-tenth of the Township’s budget.

I previously wrote about eminent domain shenanigans here and you can read more from Cato on property rights here.

The Growing Chorus for Criminal Justice Reform

The American criminal justice system has long been flawed. This probably isn’t news to you. What is news is the emergence of a broad chorus of organizations and leaders from across the political spectrum speaking out in support of serious reform. A few examples:

The Smart on Crime Coalition released its recommendations (and in pdf) for the 112th Congress, providing ways that the federal government can help fix the criminal justice system. Congress creates, on average, a new criminal offense every week. The urge to overcriminalize just about everything needs to be replaced with serious thought about how broadly Congress writes laws so that the drive to lock up a few bad actors does not make felons of a large portion of the citizenry.

The Smart on Crime report also points out the need for reform of asset forfeiture laws, building on the excellent Policing for Profit report produced by the Institute for Justice last year.

Conservatives see the need for reform as well. Right on Crime makes the case for a number of policy changes that not only focus law enforcement resources but aim to save taxpayer dollars.

Grover Norquist of Americans for Tax Reform, a signatory to Right on Crime’s Statement of Principles, points to recent reforms in Texas at National Review:

When the Lone Star State’s incarceration rates were cut by 8 percent, the crime rate actually dropped by 6 percent. Texas did not simply release the prisoners, however. Instead, it placed them under community supervision, in drug courts, and in short-term intermediate sanctions and treatment facilities. Moreover, it linked the funding of the supervision programs to their ability to reduce the number of probationers who returned to prison. These strategies saved Texas $2 billion on prison construction. Does this mean Texas has gotten “soft on crime”? Certainly not. The Texas crime rate has actually dropped to its lowest level since 1973.

The lesson from Texas is that conservatives can push reforms that both keep Americans safe and save money, but only if we return to conservative principles of local control, performance-based funding, and free-market innovation.

As Radley Balko recently wrote at Reason, there are points where libertarians and conservatives will differ, but there is cause for optimism in the recognition that we can’t continue to lock up so many of our citizens. The United States accounts for 5% of the world’s population, yet 23% of the world’s reported prisoners. Hopefully Jim Webb’s National Criminal Justice Commission Act will end his Senate career on a positive note, and prompt serious changes to the way that the states and federal government deal with crime.

To gain an appreciation of the scope of the problem, check out Tim Lynch’s In the Name of Justice: Leading Experts Reexamine the Classic Article “The Aims of the Criminal Law” and Harvey Silverglate’s Three Felonies a Day: How the Feds Target the Innocent.

Judges Should Judge

I am pleased to pass on word from our friends at the Institute for Justice that they have established a new Center for Judicial Engagement.  The center is dedicated to reinvigorating the judicial branch to stand up and perform its constitutional role instead of showing the deference so many courts now give to the political branches of state and federal government.

As much lip service that has been paid to the bogeyman of “judicial activism,” the reality is that the courts have been all-too-reluctant to sacrifice constitutional questions to acquiesce to the supposed wisdom of political actors.  Veteran IJ lawyer and friend of Cato Clark Neily will be heading the center, and had this to say about its mission:

We need judges to judge.  What we see too often now is judges who ignore evidence, invent facts, and accept implausible explanations for government regulations.  That amounts to judicial abdication.  Judges should engage the facts of every case, including constitutional cases, and require the government to justify its actions with real reasons backed by real evidence.

As outlined by IJ in a press release, the basic principles of judicial engagement include:

1.  The Constitution limits both the means and ends of government action.

The Framers wrote the Constitution to constrain government power.  The Constitution explicitly defines a limited set of powers belonging to the federal government; government actions outside the scope of those powers are illegitimate and unconstitutional.  The Constitution also demands that even legitimate powers of government be exercised fairly and without discrimination.

2.  The Constitution guarantees a broad array of individual rights.

While the powers granted to government by the Constitution are few and limited, the rights guaranteed to individuals are many and broad.  Some of those rights are specifically listed in the Constitution, and some are not.  But all rights are entitled to meaningful judicial protection, regardless of their source.  There are no “second-class” constitutional rights.

3.  The job of judges is to enforce the Constitution.

Judicial review has been a vital part of our system of government for more than 200 years, and it remains a key bulwark against government tyranny and abuse of power.  It is the duty of judges to strike down government actions that assume powers not granted by the Constitution or that violate individual rights.  It is not “judicial activism” to strike down unconstitutional laws or government actions; it is judicial engagement—taking the Constitution seriously and applying it consistently in all cases.  Refusing to strike down unconstitutional acts is not admirable “judicial restraint,” it is judicial abdication—judges literally failing to do their jobs.

4.  The government should not have a leg up on citizens challenging government actions.

Laws are not entitled to judicial “deference” simply because they result from a democratic political process.  To the contrary, the Framers were deeply concerned about interest-group politics and majority tyranny, and they designed the Constitution to protect individual rights from those dangers.  Enforcing a presumption of government power over individual liberty, as courts typically do today, gets this design exactly backwards.

5.  Facts matter.

It is impossible to determine the constitutionality of any regulation without determining the government’s actual objectives in enforcing it.  But courts often ignore that question altogether, and will accept even the most ridiculous explanations at face value or, when necessary, simply invent justifications of their own in order to uphold government action against constitutional challenge.  This is profoundly mistaken.  Judges must carefully weigh the facts of each constitutional case, just as they would in any other case, and meaningfully evaluate the government’s action.  Ignoring evidence, inventing justifications and rubber-stamping the exercise of government power—which have come to be the norm in the vast majority of constitutional cases—represents abdication, not judgment.

We fully agree – and applaud IJ for adding innovative programming such as this new center to its continuing litigation against the government Leviathan.  Please check out the new center’s homepage here and its inaugural declaration here.

Citizens United Turns One

The Supreme Court majority in Citizens United asserted plainly that the federal government’s powers are few and defined in the realm of political speech. The decision has since been cast as one that does little more than give “corporations and unions the freedom to spend as much as they like to support or attack candidates.” Of course, the stakes were far higher. As the government’s attorney asserted during the initial oral argument, the Federal Election Commission retained the authority to ban the sale of certain books (e-books included) in the weeks leading up to an election, a fact opponents of Citizens United rarely mention.

Shortly after that oral argument, Austin Bragg and I made a short video with Steve Simpson of the Institute for Justice, Allison Hayward of George Mason University School of Law (and now of the Center for Competitive Politics) and John Samples, director of the Center for Representative Government at the Cato Institute.

Supreme Court Accepts Another Chance to Reverse Ninth Circuit, Uphold First Amendment

Today, the Supreme Court agreed to review McComish v. Bennett (consolidated with Arizona Free Enterprise v. Bennett), which challenges Arizona’s public financing of elections as an unconstitutional abridgment of speech. Because the case concerns a crucial new battleground in the fight between free speech and “fair” (read: government-controlled) elections, Cato filed an amicus brief supporting the cert petitions filed by our friends at Goldwater Institute and the Institute for Justice.

McComish centers on Arizona’s “Clean Elections” Act, which provides matching funds to publicly funded candidates if their privately funded opponent spends above certain limits. In other words, by ensuring that his speech will not go “unmatched” by his opponent, the privately funded candidate is penalized for working too hard and speaking too much. The law violates established Supreme Court precedents that have consistently held that forcing a speaker to “disseminate hostile views” as a consequence of speaking abridges the freedom of speech. Although the Ninth Circuit upheld the Arizona law, the Second Circuit recently struck down a similar Connecticut law, thus creating a circuit split that undoubtedly encouraged the Court to take the case.

In 2008 the Court decided Davis v. FEC (in which Cato also filed a brief), which overturned the “millionaires amendment” to the McCain-Feingold campaign finance “reform.” That provision gave similar assurances to candidates faced with the possibility of being outspent by their opponent. There, however, the concern was with rich, self-funded candidates: The act provided increased fundraising limits – triple the amount normally allowed – for candidates whose opponents spent too much (by the government’s judgment) of their own money on their campaign. The Davis Court held that this provision “impose[d] an unprecedented penalty on any candidate who robustly exercises [his] First Amendment right.”

The Arizona law is even worse. It doesn’t even delve into the messiness of fundraising – tripling the contribution limit does not, after all, mean that those funds will be raised – but rather guarantees that a candidate’s “robus[t] exercise[] of [his] First Amendment right” will be met with contrary speech from his opponent. And the law sweeps still broader: it applies the same matching funds provision to groups that spend independently from any campaign but are nevertheless deemed to be supporting a given candidate. Such “uncoordinated speech” by third parties – speech that, many times, the candidate does not want even if it is thought to be on his behalf – also triggers matching funds for the candidate’s opponent.

The end result, as extensive evidence shows, is that numerous speakers – from the candidate to the independent groups – will be reluctant to spend money to speak (which is, of course, required for nearly all effective campaign speech) because their opponents are guaranteed the funds needed to reply. In elections, where the freedom of speech “has its fullest and most urgent application,” such laws simply cannot fly.

Finally, it is also worth remembering what is at stake when we allow politicians to pass laws that determine the very rules by which they hold their jobs. Justice Scalia put this most poignantly in Austin v. Michigan Chamber of Commerce: “the Court today endorses the principle that too much speech is an evil that the democratic majority can proscribe. I dissent because that principle is contrary to our case law and incompatible with the absolutely central truth of the First Amendment: that government cannot be trusted to assure, through censorship, the ‘fairness’ of political debate.” As we now well know, the Court overruled Austin this past January in Citizens United, vindicating Scalia’s pro-free speech position.

It will be exciting to see how McComish unfolds. Expect another Cato amicus brief early in the new year, oral arguments in the spring, and a decision by the end of June.

Court Enforces Secrecy about Constitutional Abuses

The purpose of filing amicus briefs is to bring to courts’ attention certain supplemental arguments or relevant facts that go beyond those which the parties present.  It is also to show that a particular group – ranging from policy activists and think tanks to industry groups to ad hoc collections of academics to companies and organizations  that would be directly affected by the case – has a particular interest in a case, as well as educating the public about important issues.  Cato files its briefs for all these reasons, and we’ve found them to be an effective method of spreading our message, both in court and in the “court of public opinion.”

Now, imagine if, after filing a brief, you discover that the court has “sealed” it – meaning removed it from public view or access – precisely because your goal “is clearly to discuss in public [your] agenda.”  As Adam Liptak describes in a troubling New York Times column today, that’s the situation facing our friends at the Institute for Justice and Reason Foundation in a case before the Tenth Circuit (the federal appellate court based in Denver).

I won’t regurgitate the column here, but suffice it to say that the IJ/Reason brief shines a spotlight on various abuses by the Kansas U.S. attorney office, and supports a case in which the federal district court in Topeka has come down hard on an activist who thinks the government is too aggressive in prosecuting doctors who prescribe pain medications.  As my friend and IJ lawyer Paul Sherman is quoted as saying, “It’s a profound problem.  We want to bring attention to important First Amendment issues but cannot share the brief that most forcefully makes those arguments.”

Read the whole thing.