Tag: National Rifle Association

Democracy EXPOSED!

I found a release put out by the American Legislative Exchange Council today a little too meek. So let’s talk about the debate around ALEC, a group I’ve been involved with as a volunteer advisor since before I joined Cato. (The Communications and Technology Task Force used to be called “Telecommunications and Information Technology,” but that didn’t work well in our acronym-happy world.) ALEC is under seige because of alleged ties between its backing of “Stand Your Ground” laws and the Trayvon Martin case, in which a young black man was killed by a neighborhood watch officer of…uncertain ethnic background.

Tim Lynch and Walter Olson have made us aware that the Martin tragedy does not actually implicate Stand Your Ground. Tim has also made us aware of a case in which Stand Your Ground is implicated, that of an elderly Detroit man who shot and killed an 18-year-old entering his home armed with a handgun at 1:30 a.m.

There’s no question, as Tim said, that Zimmerman’s taking of Trayvon Martin’s life warrants intense scrutiny. (The very latest: Prosecutors intend to charge Zimmerman.) While that plays out, Cato will address self-defense law and gun rights at an event entitled “’Stand Your Ground’ Laws: Self-Defense or License to Kill?” on April 23rd, which I encourage you to attend or watch.

But ALEC is an odd target for scrutiny of the quality it’s getting. ALEC describes itself as dedicated to “the Jeffersonian principles of free markets, limited government, federalism, and individual liberty.” Toward this end it “enlist[s] state legislators from all parties and members of the private sector who share ALEC’s mission.”

Anti-ALEC site ALECExposed.org characterizes things differently:

Through the corporate-funded American Legislative Exchange Council, global corporations and state politicians vote behind closed doors to try to rewrite state laws that govern your rights. These so-called “model bills” reach into almost every area of American life and often directly benefit huge corporations. In ALEC’s own words, corporations have “a VOICE and a VOTE” on specific changes to the law that are then proposed in your state. DO YOU?

It’s very exciting stuff—the idea that people would organize themselves to affect the public policies of their states and nation.

The latter characterization of ALEC doesn’t square very well with the Trayvon Martin case, though. The ALECExposed site itself emphasizes that the National Rifle Association works through ALEC to promote and defend Stand Your Ground and other gun rights and self-defense laws. The NRA is a corporation, yes, but it’s an issue advocacy organization. It’s no more the huge or global corporation ALECExposed aims at than the Center for Media and Democracy, hosts of ALECExposed.

The point is made, though: Corporations are trying to influence our public policy! And they are working closely with state legislators to do it!

The horror.

I’ve looked, and there is no NCSLExposed.org. (Domain available!) The National Conference of State Legislatures is a similar group to ALEC: larger, center-left, and government-funded. In 2010, $10 million of NCSL’s $16.8 million general fund came from state legislatures. Most of the remainder comes from grants from federal agencies such as the federal Departments of Health and Human Services, Education, Energy, and Transportation, and from private foundations.

Here, let me re-phrase that:

Through the government-funded National Conference of State Legislatures, governments and foundations try to rewrite state laws that govern your rights. Their efforts reach into almost every area of American life and often directly benefit huge governments and corporations. In NCSL’s own words, it is an advocate for the interests of state governments before Congress and federal agencies. IS IT AN ADVOCATE FOR YOU?

I’ve done my best to make NCSL sound malign, though it’s not. Neither is ALEC malign. I agree with some of what both organizations do, and I disagree with some of what both organizations do.

And I suppose that reveals the trouble with the trouble with ALEC. It is a highly selective attack on one organization that has the peculiar quality of advancing the aims of the business sector, of libertarians, and conservatives. A larger organization that advances the aims of the government sector enjoys no attention in current debate. The hundreds of other organizations that advance the aims of various other sectors—unions, for example—not a peep. Even though RIGHT NOW unions are trying to influence public policy in ways they believe will help workers!

The First Amendment’s protections for freedom of speech, association, and petition of the government have in their background a vision for how our political society should work. Anybody should get to say anything they want, and anybody should organize however they want to advocate for the governing policies they want.

The opponents of ALEC’s positions should advocate the substantive polices they prefer, and they are certainly within their rights to do it in whatever way they prefer. Politics never runs out of ways to disappoint, though, and as a person who tries to deal with the substance of issues, working across partisan and ideological lines, I am amazed at and disappointed by the incoherence of the attack on ALEC.

And I am also disturbed by its anti-democratic and anti-speech quality. The implication I take from the attack on ALEC is that some groups, representing some interests, should not be able to participate in making our nation’s and states’ public policies.

There is one ray of light in all this: NCSL is featuring its concerns with REAL ID, the national ID law, on its homepage. And ALECExposed has a posted a buffoonishly marked-up version of ALEC’s 2007 resolution against REAL ID. NCSL would evidently back the implementation of a national ID if Congress were to fund it. Given its principles, ALEC would not.

Even this debate may help inform the public.

President Obama’s Speech Czar

President Obama’s Secretary of Health and Human Services Kathleen Sebelius is still threatening to bankrupt insurance companies who tell their customers that ObamaCare’s mandates will increase premiums by more than 2 percent, even though her department’s projections show that, starting this week, just one of the law’s new mandates will increase some premiums by nearly 7 percent.

In a CBS News story last week, Sebelius tried to defend those indefensible threats:

But don’t the insurance companies have a right to make their own analyses and claims to their customers?

“Absolutely, they have a right to communicate with their customers,” replied HHS Secretary Kathleen Sebelius. “We just want to make sure that communication is as accurate as possible.”

The government can and should police fraud – but that’s not what Sebelius is doing.  She is suppressing legitimate differences of opinion in the pursuit of political gain.

What if the government had said, “Absolutely, CBS News has a right to communicate with its customers – we just want to make sure that communication is as accurate as possible”?  Should the government be able to put CBS News out of business if it decides those communications are not as accurate as possible? How about the National Rifle Association?  Should the next Republican administration be able to put the Center for American Progress, the SEIU, or The New York Times out of business if it decides their communications are not as accurate as possible?

You don’t have to oppose ObamaCare to see the danger here.

The Principle behind Campaign Finance Regulation

Democratic House leaders apparently have reached a compromise that may bring the DISCLOSE Act to a vote. The National Rifle Association, a group that enjoys some support from House Democrats, objected to the bill’s disclosure provisions. DISCLOSE’s authors have now agreed to exempt “organizations that have more than 1 million members, have been in existence for more than 10 years, have members in all 50 states, and raise 15 percent or less of their funds from corporations.” The National Rifle Association qualifies for the exemption. But you knew that.

I wonder what principle of campaign finance regulation justifies this exemption? Earlier the authors of DISCLOSE said the American people deserve to know who is trying to influence elections. Now it would seem that voters only need information about relatively small, young, geographically-confined organizations that receive more than 15 percent of their money from corporations.

There is no principle at stake here. The NRA had enough support to stop the DISCLOSE Act. House leaders had to compromise by cutting the NRA a deal, a special exemption from the proposed law. The deal does show, if nothing else, that House Democrats are really worried about new money entering the fall campaign. They are willing to go a long way – even as far as helping the NRA – to make sure other speech funded by businesses and groups is not heard.

Finally, imagine you are a member of a group not exempted from DISCLOSE. You have been treated unequally by Congress.  The courts have said Congress can treat you unequally if they show that this exemption  for the NRA has a rational relationship to an important government purpose.  How does exempting older, bigger, more widespread groups with less than fifteen percent corporate funding help Americans cast an informed vote?  Put another way, if the NRA deserves an exemption, doesn’t everyone?

NRA Cares More about NRA Than Gun Rights, Liberty, Professional Courtesy

Yesterday the Supreme Court granted the NRA’s motion for divided argument in McDonald v. Chicago.  What this means is that Alan Gura’s 30 minutes of argument time on behalf of Chicagoland gun owners just became 20, with 10 going to former Solicitor General Paul Clement, whom the NRA hired at the last minute to pursue this motion and argument.  (Full disclosure: Alan Gura is a friend of mine, and of Cato.)

The NRA’s motion was premised on the idea that Alan had not fully presented the substantive due process argument for selective incorporation of the Second Amendment – presumably out of an outsized concern for the Privileges or Immunities Clause arguments about which I’ve previously blogged and written a law review article.  This is a highly unusual argument and is a facial slap at Alan’s abilities as an advocate.  Sadly, it’s also typical of how the NRA has behaved throughout this case and before that during the Heller litigation – sabotaging Alan at every turn and showing again and again that, even in the face of winning arguments that fully support its legal positions, the NRA prefers to seek glory for itself rather than presenting the strongest case for its purported constituency of gun owners.

Alan rightfully opposed the NRA’s motion because the group’s participation at argument adds nothing substantive to the case. No one will ever know why the motion was granted, as the Court need not (and did not) provide any reasons.  Nonetheless, it’s a safe bet that this is solely a testament to Clement’s talent and reputation (notably, the motion was not filed by any of the NRA’s other excellent attorneys, who briefed and argued their case in the lower courts and in a cert petition and brief before the Supreme Court).

I have great respect for Paul Clement, and have worked with him by filing amicus briefs in two cases he’s already argued this term, but I do take issue with his repeated suggestion that the motion’s purpose – and the reason behind its granting – was so that “all the avenues to incorporation, including the due process clause, are fully explored at the argument.”  This kind of comment – again impugning Alan’s litigation strategy – is uncalled for, and renews concerns over the NRA’s conduct.

Throughout this case, Alan has consistently and forcefully advocated for the Second Amendment’s incorporation under the Due Process Clause.  That didn’t change when his case was taken up by the Supreme Court.  The thing is that the due process arguments are not all that complex, and simply do not merit the same care and attention in the briefs as arguments based on the Constitution’s actual text and history.  A first-year law student who’s taken constitutional law – let alone a Supreme Court clerk – could write a due process incorporation argument in her sleep!  In any event, the oral argument will be driven by the justices’ questions, not by any long soliloquies by counsel.  Alan’s – and all attorneys’ – job is to be ready for anything.

If the NRA were concerned about the final outcome of the case, it would be unlikely to attack Alan’s strategy or question his preparation (an odd way to be “helpful” to one’s side).  It is not a stretch to predict that this case will be favorably decided at least in part on due process grounds, however, so what we are seeing here is likely an attempt by the NRA to position itself as responsible for such a victory – and that Alan isn’t.

Ultimately, then, the NRA is engaging here in fundraising, not liberty-promotion or ethical lawyering.