Topic: Law and Civil Liberties

John Walters on Cato and Drug Legalization

On her radio show earlier today, Laura Ingraham discussed drug legalization with John Walters, the White House “Drug Czar” under George W. Bush.

Walters had nothing good to say about Cato, George Soros, legalizers in general, or me in particular.  Walters’ view comes down to three claims:

1. Legalization will cause drug use to soar; 

2. Increased drug use is bad; 

3. The negatives of prohibition are more acceptable than negatives of greater use.

On point 1:  No existing evidence suggests major increases in use from legalization.  Some increase may occur, since drug prices will likely decline.  But most drugs are already cheap enough that price is not a major deterrent.

On point 2: Drugs can indeed cause harm, but so can alcohol, tobacco, double-black diamond ski slopes, Ben & Jerry’s ice cream, and driving on the highway. Many current harms (e.g., accidental overdoses), result from prohibition, which makes it harder for users to determine quality.  Walters view that all drug use leads to irresponsible intoxication is utterly inconsistent with the evidence.

And, many people derive a benefit from drugs.  Walters thinks people take drugs only because they are addicted; an alternate view is that people choose to use drugs, whether to alleviate pain, aid relaxation, or become intoxicated. Under the second view, increased use is a benefit of legalization, not a cost. And in a free society, individuals, not government, get to make that determination.

On point 3: Drug prohibition generates violence and corruption; reduces quality control and spreads HIV; diminishes civil liberties; restricts medicinal uses of drugs; foments insurrection in source countries; foregoes tens of billions each year in tax revenue; and requires tens of billions more on police, prosecutors, and prisons.

John Walters may believe that all this is preferable to a modest increase in drug use (some of which benefits users); he is entitled to his view.

But I disagree.

Voter ID Laws and Rights of Convicted Felons

Nothing in the Constitution requires voter ID laws. Nor does any provision bar voter ID laws, except: (1) the 14th Amendment forecloses state denial of equal protection of the laws to any person, and (2) the 15th Amendment forecloses discrimination by race in determining who can vote.

Accordingly, a voter ID law would be unconstitutional if it discriminated by race without a compelling state justification.  Put differently, to justify a discriminatory voter ID law, a state would have to show: (a) there’s significant voter fraud, (b) the law would fix the problem; and (c) there’s no other way to accomplish the same ends without discriminating.

The convicted felon problem is more complicated.  Rand Paul argues that 180,000 convicted felons in Kentucky should be allowed to vote. Does the constitution support that view?  Of course, prisoners can be denied the right to vote while in prison.  By committing a felony, they forfeit certain rights, which can even include the most fundamental right – the right to liberty.  But after a felon completes his sentence, his voting rights should (in my view) be restored.

Indeed, if the law denying his voting rights were passed after his commission of the felony, that law would be unconstitutional because it’s ex post facto.  If the law were passed prior to his commission of the felony, it would still be subject to the test noted above.  That is, government would have to show a compelling need for the discriminatory law, its effectiveness at satisfying that need, and no less discriminatory means of accomplishing the same ends.  Frankly, I doubt that many, if any, states can make that showing.

Mad Magazine vs. Hollywood

Side-by-side obituaries in the Washington Post on Sunday were an interesting juxtaposition.

One obituary was for Efrem Zimbalist, Jr., a fine actor known for playing an agent in the television series “The F.B.I.,” which ran from 1965 to 1974. I never saw this show, but it sounds like many shows over the decades that have portrayed government agencies as super-efficient, laser-focused on the public interest, and always getting the bad guys.

By the end of each episode, “Mr. Zimbalist’s character, Inspector Erskine, and his fellow G-men had captured that week’s mobsters, subversives, bank robbers, or spies.” That surely helped to burnish the FBI’s image, as did the “stunning good looks” of Zimbalist.

The Washington Post notes: “Perceiving that the series could provide the real FBI with an important P.R. boost, [J. Edgar] Hoover opened the bureau’s files to the show’s producers and even allowed background shots to be filmed in real FBI offices.” Hmm, I wonder whether that influenced the show’s portrayal of the agency?

The other obituary was for Al Feldstein, a pioneering editor of Mad magazine, which had a circulation of 2.8 million by the 1970s and “shaped” many young minds. I had one of those young minds, and was influenced by the magazine’s “mockery of adult hypocrises.”

Feldstein saw his magazine “as a form of civic education” for young people. He said “it was their pipeline into the truth about what was happening in the country.” It “taught them skepticism,” which was certainly true for me.

While “The F.B.I.” was apparently portraying the FBI as beyond reproach, Mad magazine was busy “puncturing pomposity.” And here is where the two obituaries collide. Mad “asked readers to write FBI Director J. Edgar Hoover to request an ‘Official Draft Dodger Card,’” and many did. One would think that the agency would have been too busy catching mobsters to pay attention to such a prank. But no: “In a predictably bizarre encounter, FBI agents paid a visit to Mad’s offices in New York, dropping hints that Hoover didn’t take kindly to such shenanigans.”

Later on, America found out that it was Hoover who was committing the real shenanigans. In 1971 a group of skeptical young people “broke into a Bureau branch office outside of Philadelphia, seeking evidence for what they’d long suspected: that Hoover’s FBI was engaged in a secret, illegal campaign of surveillance and harassment of American citizens. The documents they found revealed massive abuses of power and helped lead to new legal checks on domestic surveillance.”

They probably didn’t find any files on Mad in that Philadelphia office, but apparently FBI HQ had accumulated 36 of them over the years.

The Washington Post says that Mad “warped the sensibilities of America’s youth” and exerted a “subversive” influence. But there is nothing warped about teaching skepticism. The real warping comes from all the Hollywood portrayals of government as a benevolent force led by technocratic experts who can solve all our problems.   

Venezuela Arrests Human Rights Activist, Cato University Alum

Last night Venezuela’s Bolivarian Intelligence Service (SEBIN) arrested Rodrigo Diamanti, president of “Un Mundo sin Mordaza” (A World Without Gag), an NGO that promotes human rights and freedom of expression in that country. Diamanti is also a good friend of the Cato Institute and attended the Cato University that we co-hosted in Venezuela in 2009.

No charges have been filed, although reportedly he had an arrest warrant against him. Two weeks ago, while visiting Caracas to run another Cato University and speak at a conference of the pro-liberty think tank Cedice, my colleague Ian Vásquez and I got to talk to Rodrigo and other Venezuelan friends who were part of the student movement that defeated Hugo Chávez in a referendum in 2007. They told us how the government was increasingly harassing NGOs. Sadly, we noticed that many of the guys that attended that Cato University in 2009 have left Venezuela. Those who stayed and continue to fight against the increasingly authoritarian government face the consequences.

Also, early this morning the Bolivarian National Guard violently took over two camps in downtown Caracas where students had been staging a permanent protest against the government. The authorities claim they arrested 243 people. I visited both camps and met several of the students there. One of them, Maria Alejandra, 23, told me she had an arrest warrant against her and woke up every day not knowing whether she would be free –or even alive—by the end of the day. I haven’t been able to contact her today and I’m afraid she’s among those detained during today’s raid.

The crackdown comes at a time that the government is holding phony dialogue meetings with a sector of the opposition. Yesterday a poll by Datanálisis found that 78% of Venezuelans are pessimistic about the situation of the country and 59% thinks that president Nicolás Maduro is doing a bad job. The trend is clear: As the popularity of the regime dwindles, its authoritarianism increases.

FERC’s Prosecutorial Tactics

Joseph Rago of the Wall Street Journal reports on an outrageous enforcement action by the Federal Energy Regulatory Commission against brothers, Rich and Kevin Gates.  Excerpt:

[FERC] began demanding information and taking depositions in fall 2010. At first, the Gates brothers tried to adhere to the insider playbook and hired an attorney from White & Case, a D.C.-based law firm that does frequent business in front of FERC. The insular Washington energy bar trafficks in political connections, but those aren’t so useful for clients who maintain their innocence.

Things started to turn for Kevin Gates, he recalls, during his second full-day deposition with the lead FERC enforcement lawyers on the Powhatan matter, Steven Tabackman and Thomas Olson. “I would suggest that it was intimidation tactics, aggressive behavior, which I guess is natural for a federal prosecutor, maybe what you would expect,” he says. “But there were also a lot of questions asked and behavior that suggested to me that we were seeing the world very differently and—I would suggest—they didn’t know what they were talking about.”

Mr. Gates was asked to leave the room and sat in the hallway while his lawyer conferred with the feds. The lawyer emerged to relate what the FERC enforcement team had proposed: “Kevin’s a businessman, isn’t he? He knows that it’s cheaper to settle than it is to fight this investigation.” Right then, Mr. Gates says, “I realized that we had a big problem on our hands. This was unlike anything we’d ever seen before at a regulatory agency.”

The Gates brothers fired the white-shoe practice and brought on Bill McSwain of Drinker Biddle, a Philadelphia-area lawyer who “didn’t interface much with FERC. He also used to be a Marine sniper, so he had a different approach to the world.” Mr. McSwain introduced himself to FERC by calling their conduct contrary to “established law, as well as common sense,” and that was one of his subtler letters…

[FERC’s regulators] have specialized in retroactive punishments for conduct that was legal at the time. Most of these cases never go to court and end with settlements against politically disfavored defendants like J.P. Morgan (that one, like Powhatan, was led by Mr. Olson). Most companies roll over because their future business interests depend on preserving good regulatory graces and favorable FERC rulings. The Gates brothers are unusual in that their livelihoods are elsewhere, but the illogic, intimidation tactics and erosion of due process in their investigation are typical. [Emphasis added].

Read the whole thing.  As the article notes, most business people surrender to the bullying tactics of regulators.  By taking their case public and fighting back, the Gates brothers may not only win their case, but might establish some favorable legal precedents that will help others in the future.  And for that, they deserve our thanks.

For related Cato work on the erosion of due process, go here, here, here, and here.

Federal Judge Halts Wisconsin “John Doe” Criminalization-of-Politics Probe

In a huge victory for the First Amendment, a Wisconsin federal judge has ordered a halt to a wide-ranging secret prosecutorial probe aimed at groups supporting Gov. Scott Walker. From pp. 1-2 of the court opinion (which is short enough to read, here): “Defendants instigated a secret John Doe investigation replete with armed raids on homes to collect evidence that would support their criminal prosecution.” Judge Rudolph Randa goes on to cite stunningly abusive conduct by the secret prosecutors and law enforcers under their command. (This article has more on Wisconsin’s distinctively broad law allowing so-called John Doe proceedings intended to determine whether a crime has been committed.) 

“The subpoenas’ list of advocacy groups indicates that all or nearly all right-of-center groups and individuals in Wisconsin who engaged in issue advocacy from 2010 to the present are targets of the investigation,” the judge writes. At the homes of targets across the state in the predawn hours of Oct. 3, 2013, “Sheriff deputy vehicles used bright floodlights to illuminate the targets’ homes. Deputies executed the search warrants, seizing business papers, computer equipment, phones, and other devices, while their targets were restrained under police supervision and denied the ability to contact their attorneys.” Target groups were also ordered to turn over essentially their entire records of public advocacy activity over a period of years.

I covered the probe and raids earlier at Overlawyered herehere, and most recently here. One of the most remarkable and harsh aspects of the raids was that they included gag orders forbidding the targets to talk about the episode with anyone other than their lawyers. That is one reason the story seeped out to the public only slowly and partially over a period of months. The Wall Street Journal editorial page helped bring the raids to national attention a month and a half after they took place, and has continued to follow the story since.

The citizens of Wisconsin must now demand a full accounting of how these raids could have happened. They should also insist on changes in state law, in particular the “John Doe” law, aimed at ensuring that nothing like them ever happens again.

Liberal Moral Superiority

Nature abhors a vacuum. So in an era of declining attention spans (or so we’re told), as blog posts were growing longer, Twitter came along. That left a vacuum in between that a site called “2paragraphs” is filling—long enough to make a substantive point or two, short enough to be read, “respecting people’s time and intelligence,” its editors say.

Two weeks ago, seeing my post on the Court’s recent affirmative action decision, they asked me to reduce my thoughts to two paragraphs. It killed me to throw out perfectly good prose over which I’d labored mightily, but I did. Today, they asked me to do the same with last week’s post on whether liberal campaign contributors’ pretentions to moral superiority could pass the straight-face test. You’ll find that post epitomized here.