Topic: Law and Civil Liberties

Welcome to the Blackout Period! NOT

Today McCain-Feingold’s 60-day window on electioneering communications opens. Perhaps a better metaphor would be that the window slams shut.

An electioneering communication is a broadcast ad that mentions a candidate for federal office. Until election day you cannot sponsor an electioneering communication unless you meet certain conditions specified by federal election law.

Practically, this part of McCain-Feingold means business corporations, labor unions, many interest groups (which are incorporated), and groups that receive money from corporations or unions may not fund ads mentioning candidates for federal office. The same groups also may not sponsor ads urging citizens to contact their member of Congress about an issue if that member is running for re-election.

Defenders of McCain-Feingold (and a majority of the U.S. Supreme Court) have argued that the electioneering communication rules do not prohibit political speech. After all, these groups can simply form a political action committee or use other available alternatives to sponsor the advertising.

Maybe, maybe not. In 2000, a donor gave the NAACP a multi-million dollar gift that was used to fund ads criticizing a candidate for federal office, George W. Bush. Under McCain-Feingold, the NAACP would have had to raise that multi-million dollar donation under federal law including disclosure requirements and contribution limits. Raising money under those constraints is much harder than receiving a single gift from one donor. Given those difficulties, the NAACP might well have not raised as much money with a PAC as they did in 2000 from that one contributor. Of course, funds that are not raised cannot be spent on political speech.

Jim Bopp, Jr., a leading First Amendment lawyer, has recently noted other ways McCain-Feingold discourages speech:

 “As one who represents advocacy groups, I have seen first hand that the burdens and undesirability of each available alternative [for example, PACs]  is such that the vast majority of advocacy groups have abandoned issue advertising during the blackout periods… One of the key considerations is that to avail oneself of one of these alternatives requires (1) hiring expert legal assistance to design and implement such strategies and (2) exposing your organization to heightened scrutiny by the FEC, press, and offended public officials.  As a result, only the wealthiest, most sophisticated, and most insistent have assumed these burdens and risks.  The vast majority of advocacy groups have just dropped out – to the everlasting joy of incumbent politicians who face less scrutiny from the general public for what they do to us and for us in office.  A prohibition indeed!”

I am reminded of Frederic Bastiat’s essay on “The Seen and the Unseen.” Americans see the political world after McCain-Feingold. Electoral ads continue to run, and no one has been sentenced to a re-education camp. They conclude that nothing all that bad has happened to free speech.

Americans do not see the political speech that would have existed if McCain-Feingold had not been enacted. They thus discount the possibility that the speech that may not exist in the future may be their own and that blackout periods now may portend a longer night to come.

Big Day

Today the U.S. government hands over control of the Iraqi army to the Iraqis and takes control of American political debate.

Incredibly, the McCain-Feingold ban on independent broadcast advertising that mentions candidates by name, beginning 60 days before the election, is apparently not mentioned in any major media. The blackout period for free speech has been noted in newspapers by such civil libertarians as Ryan Sager, Jacob Sullum, and the D.C. Examiner. But no news stories warning people to stop talking about candidates. No editorials from major papers deploring this restriction on political speech before an election. Nor even any editorials hailing the new restrictions, which might be more likely since most major papers endorsed the McCain-Feingold legislation.

What would McCain, Feingold, and the New York Times say if the U.S.-backed government in Iraq banned any criticism of itself for the next 60 days? Would they say “one giant step toward democracy”? I doubt it.

Anyway, if you want to criticize a member of Congress, or just ask your neighbors to call him about an issue, you’re free to do that – starting November 8.

In Defense of Jury Nullification

Over at my personal blog, I’ve been having a back-and-forth on the issue of jury nullification with an L.A. prosecutor who blogs under the pseudonym “Patterico.” I can certainly understand why a prosecutor would be opposed to jury nullification. Were more Americans aware of their power to nullify — a tool with a rich tradition in the American founding, by the way — prosecutors would have a lot less power.

Patterico’s “gotcha” question on the issue concerns the oath many courts require jurors to take before serving, which affirms that they will uphold the law. Patterico asks supporters of nullification if they’d risk perjury charges by taking that oath and then subverting an unjust law during deliberations.

It’s a difficult question, and one I think people interested in real justice need to reconcile with their own values and priorities. But I also think his question is pretty revealing. It shows how prosecutors and judges have tweaked juror oaths to set perjury traps for would-be nullifiers, thus taking out of play an important check against bad laws, bad judges, and bad prosecutors. I’d like to see a civil liberties group mount a challenge to those oaths.

It seems to me the disagreement between opponents and supporters (like me) of nullification boils down to this: I believe that we have enough bad laws, overly aggressive police officers and prosecutors, and imperfections in the criminal justice system that jury nullification is a needed and justified last defense against overreaches of the state. I think there are a not-insubstantial number of real cases — historically and recently — where real people have been wrongly sent to prison, or sent to prison for far too long, to back this up.

Opponents’ objections can only come down to one of three positions:

  1. They doubt the current system gives rise to a significant number of injustices.
  2. There are a significant number of injustices, but they’re okay with that, in the interest of upholding the law.
  3. There are unjustices, and they are indeed troubled by them, but jury nullification isn’t an appropriate way to prevent injustices from occuring.

I think choice (3) is the least morally objectionable position. But it’s also the least logical. If these outrages really are outrages, and we’re clearly not okay with them, I’m at a loss to see why nullification, with it’s considerable history in this country, wouldn’t be an appropriate remedy. Indeed it seems to be the only remedy.

Remember, to get to this point, we’ve already accepted the premise that there is indeed a significant number of injustices, and that we don’t believe that they’re acceptable. If “changing the laws” were really feasible, then the laws leading to these types of injustices wouldn’t be in place to cause the injustices in the first place. They’d already have been changed, or never passed at all. That, or they wouldn’t have led to the injustices we’ve agreed have happened.

In other words, something clearly isn’t working.

So if you have an unjust law that’s clearly leading to unjust outcomes, what’s the solution if you’re on the jury? Is voting for what you know to be an injustice out of deference to the wisdom of a bunch of politicians really the correct, moral decision?

Put another way, which act is more immoral, upholding a law made by imperfect men, enforced by imperfect men, and that has clearly led to an immoral outcome, or subverting a wrongheaded law the one time you have the chance, and preserving the freedom of a man who doesn’t deserve to go to prison?

Opponents of nullification also really need to answer for what they’d have done had they served on a jury in which the defendant was charged with violating Jim Crow laws, helping smuggle a slave to freedom, exercising his right to free speech in war time, or any number of other clearly immoral laws that have been on the books throughout American history. They need to ask themselves if it’s really possible that, given that history, we should just assume that all laws on the books today ought to be immune from the scrutiny of juries simply by virtue of the fact that they made it through the legislative process. Given our imperfect past, isn’t it a bit naive to think we’re perfect — or even “close enough” to perfect — today?

Keep in mind, too, that upholders of those clearly immoral laws of the past made the same arguments at the time that opponents of jury nullification make today — that even if they conflict with one’s own personal values, those laws should have been respected and upheld by jururs by simple virtue of the fact that they were, after all, the law.

Now, it’s true that many of those laws were eventually repealed or changed. But their later repeal doesn’t account for the fate of the people imprisoned or even executed while they were still on the books. What about them? Wouldn’t it have been better if a jury had assessed and acted on the immorality of those laws before they were repealed? And looking back now, isn’t it a wonderful thing that many juries did?

There is a reason why we’re tried by a jury of our peers and not by a jury of professional experts, trained in meticulously assigning value to evidence. Peers are capable of mercy. They don’t — and shouldn’t — deal solely in cold equations. They can take into consideration and assess more than just the facts of a case. They’re capable of seeing injustice in spite of the law.

And they are the last line of defense against government when government oversteps its bounds.

For more, see Clay S. Conrad’s excellent book on the subject, or his synopsis of the book for Counterpunch.

The Right That Was

Remember FreeRepublic.com? The right-wing web forum for Clinton-hatred, respectable and otherwise? I recently ran across an article, “The Secret FISA Court: Rubber Stamping Our Rights,” that somebody posted on FR back in 2000. (Hat tip: Glenn Greenwald.) The comments are precious:

This is beyond frightening. Thank you for this find.

This does not bode well for continued freedom. Franz Kafka would have judged this too wild to fictionalize. But for us - it’s real.

And my personal favorite:

Any chance of Bush rolling some of this back? It sounds amazing on its face.

Today, when NSA surveillance is in the news, as with the recent decision in ACLU v. NSA [.pdf], you’re far more likely to read this sort of thing over at FR.

Privacy is a false argument and has been for some time. Your insurance company and the credit bureaus have more on you than the feds do and you can do nothing about it. I would rather be secure knowing that the feds were looking over my shoulder and keeping me safe. I have nothing to hide, and in times of war, these steps are necessary.

There are a few exceptions per comment thread, a few throwbacks to the pre-9/11 Right who think skepticism about power is justified even when the Red Team’s in charge. But they’re a distinct minority.

Was it September 11th that “changed everything,” or Republican takeover of the executive branch? Either way, for the Right, it’s a different world indeed.

Scandal in Public Broadcasting

The big scandal in public (or actually government) broadcasting is that the taxpayers are forced to pay hundreds of millions of dollars a year for the propagation of unremittingly liberal views on politics and policy. As I said in my testimony to the Senate last year, I agree with some of the liberal attitudes of NPR and PBS, but I don’t think taxpayers should be forced to subsidize my views or those of anyone else.

The second biggest scandal is that when Republicans get control of the federal government, they don’t relieve the taxpayers of that burden. Maybe it’s because they know the old advice, “Never pick a fight with people who buy ink by the barrel.” Or who have their own nationwide broadcast networks. But it’s unbelievable to me that Republicans appropriate money every year for two networks that could be called ARN, the Anti-Republican Network.

The third biggest scandal is that instead of just privatizing PBS and NPR, Republicans appoint public broadcasting officials who go in like a bull in a china shop and try to force a bunch of liberal journalists to include conservative shows and perspectives. The government shouldn’t be telling journalists how and what to report. Instead, it should just free them to report as they choose, with money from investors and customers rather than taxpayers.

And I guess the fourth biggest scandal is the one making headlines today: that the chairman of the Broadcasting Board of Governors (which oversees the federal government’s international broadcasting), who used to be chairman of the Corporation for Public Broadcasting, is alleged to have improperly used his office. In a State Department report made public by three Democratic members of Congress, Tomlinson is accused of putting a friend on the BBG payroll – something that never happens elsewhere in the federal government – and using office resources to support his personal horse-racing operation, which I suppose goes beyond the March Madness pools conducted in every federal office.

Maybe when conservatives get tired of being hit over the head by tax-funded broadcast networks, and liberals get tired of conservatives trying to meddle in the networks’ reporting, they could both agree to privatize PBS and NPR, freeing them from political intervention and freeing the taxpayers from being coerced to support what Thomas Jefferson called “the propagation of opinions which [they] disbelieve.”

Prepare to Be Shocked

ONDCP is a waste of money:

The government’s anti-drug ad campaign has not been proven to deter children from using drugs, and lawmakers should consider reducing funding for the $1.2 billion program, congressional auditors said Friday.

The Government Accountability Office based its recommendation on its review of an independent evaluation of the media campaign by Westat Inc.

The government has spent about $1.2 billion since 1998 on scores of television, print and radio ads designed to discourage drug use among youth. The ads also describe parents as the anti-drug. President Bush requested another $120 million for next year.

Westat found the ads had no “significant favorable effects” in deterring children from trying marijuana or in getting them to stop. Rather, it found that more 12 1/2- to 13-year-olds and girls were trying the drug after seeing the ads, the GAO said.

Apparently, comparing pot-smoking cancer patients to terrorist sympathizers isn’t resonating with the public. Whoda’ thunkit’?

Full report here [.pdf].