Topic: Law and Civil Liberties

Two Former Police Chiefs on Overkill

Joseph McNamara — a 35-year law enforcement official, including 18 years as a police chief in Kansas City and San Jose — has kindly praised my recent report on police militarization.

Former Seattle police chief Norm Stamper also had some kind things to say about the paper.

The terrific group Law Enforcement Against Prohibition (LEAP) has also put out an extended press release and endorsement.

A Telling Analogy

From the Washington Post:

“At this point, it seems like the war on drugs in America,” added Spec. David Fulcher, 22, a medic from Lynchburg, Va., who sat [in a barracks in Baghdad]. “It’s like this never-ending battle, like, we find one IED, if we do find it before it hits us, so what? You know it’s just like if the cops make a big bust, next week the next higher-up puts more back out there.”

Getting People to Love Welfare for Politicians

The lobbying campaign to reconstruct the presidential public financing program continues apace. Its authors have designed the bill to appeal to marginal presidential candidates of both parties; it will be less favored by incumbent presidents and skilled fundraisers like Hillary Rodham Clinton. But Congress,  not third-tier candidates, have the authority to enact the bill into law. 

Members of Congress know the public rejects the presidential system. The number of households checking off the box on the tax form has dropped from 28 percent in 1978 to 11 percent in 2002. It is probably under 10 percent today. Why should Congress pour more money into a program that the public has seen in action and rejected so completely?

Well, if public opinion is a problem for “reform,” coercion is the solution.

The new bill “requires the Secretary of the Treasury to issue regulations to ensure that electronic software used in the preparation or filing of individual tax returns not automatically accept or decline a check-off of taxpayer funds to the Presidential Election Campaign Fund.” The authors of the bill think this will get rid of a lot of refusals to contribute to the system. The bill also authorizes the Federal Election Commission to spend $10 million “to conduct a public education program to inform the public about the Fund and its purposes.” In other words, Congress will earmark tax dollars to persuade voters that the program is a good thing.

In a liberal democracy, public opinion should be a cause rather than an effect of laws. The new presidential taxpayer funding bill flips democracy on its head: support for the program is intended to be an effect of the law, not a cause of it.

“Reformers” have long sought to control the speech of others. It is disturbing but hardly surprising that they now seek to control public opinion when it frustrates their ambition.

Online Gambling Roundup

I have a Cato podcast today looking at federal efforts to ban online gambling. Jacob Sullum and Walter Williams have also offered critiques of the crackdown, including the recent arrest of BetonSports.com CEO David Carruthers.

In a sort of convergence of two issues I’ve been covering lately, last month, a SWAT team conducted a heavy-handed raid of an underground poker room in Dallas. The SWAT team brought along a camera crew from the A&E reality show Dallas SWAT to record the action. This was no Sopranos-style game where everybody’s packing. It was a well-known, advertised, gray-area gathering of poker fans. The Pokerati blog has more details.

For posterity, here’s a photo of the Dallas SWAT team. This is what they brought to crack down on a group of people playing cards. The Pokerati blog says the SWAT team brought computer-generated maps that looked to be specific to poker rooms, indicating that this is likely the first of many such raids.

And it isn’t the first time. SWAT teams have also been breaking up underground games in New York City. They’ve even been used to raid charity poker games in Baltimore, Denver, and all over the state of Ohio.

In my home state of Virginia, a SWAT team shot and killed unarmed Sal Culosi last January. They had come to arrest the optometrist for the crime of betting on sports games with friends. And in 1998, a SWAT team on a gambling raid in Virginia Beach shot and killed security guard Edward C. Reid, who was in a car reading a book, and mistook the police officers for burglars (the club he was guarding had been robbed months earlier).

It’s scary how quickly “good-intentioned” paternalism can turn into frightening militarism.

The Campaign Finance Institute Study II

Two days ago, Brad Smith, Robert Bauer and I criticized a recent study by the Campaign Finance Institute.

The head of CFI, Michael Malbin, has now responded to our criticism. Bauer and Smith have in turn continued the debate in posts well worth your time.

Before turning to Malbin’s reply, I might note that he did not respond to a couple of my earlier points. I argued that the sample used in the CFI working paper was biased and a poor foundation for policymaking. I also suggested that the bias in the CFI sample was interesting: it concerned organizations–on both sides of the partisan and ideological divide–that were heavily involved in national politics and elections. The CFI sample is almost certainly not representive of the entire population of nonfprofits, 527s and interest groups. It might, however, be a workable sample of groups of primary interest to members of Congress, i.e. groups that bear on a member’s primary interest in being re-elected. In that respect, the CFI study might be a poor guide to policymaking but persuasive to policymakers. That should be troubling to the rest of us.

Malbin also does not mention a political point I made in my post. Why should the Democrats give up 527s which they used to spend substantial sums in 2004 in exchange for Republicans forsaking 501c groups that appear to have laid out only a small portion of the Democratic 527 expenditures? If I were a Democrat, I would read that “compromise option” as a ”bad deal.”

Malbin states that we have misunderstood the CFI study. It does not advocate a policy, it merely points out “uncomfortable facts” to foster a needed debate. Of course, you could say that Michael Malbin might know best what the study sought to do (he heads the organization that sponsored it), and we should leave it at that. I’m not interested in questioning Malbin’s integrity so the reader is welcome to that conclusion.

But Mike doesn’t have a monopoly on the correct interpretation of this text. To see why I (reasonably) believed the study was a policy proposal, we need to head on over to the IRS website (of course!).

The Campaign Finance Institute is a nonprofit organized under section 501c(3) of the Internal Revenue Code. That means CFI can educate the public but not propose legislation. Here is the relevant advice from your friendly taxman:

In general, no organization may qualify for section 501(c)(3) status if a substantial part of its activities is attempting to influence legislation (commonly known as lobbying)…Legislation includes action by Congress, any state legislature, any local council, or similar governing body, with respect to acts, bills, resolutions, or similar items…An organization will be regarded as attempting to influence legislation if it contacts, or urges the public to contact, members or employees of a legislative body for the purpose of proposing, supporting, or opposing legislation, or if the organization advocates the adoption or rejection of legislation. Organizations may, however, involve themselves in issues of public policy without the activity being considered as lobbying. For example, organizations may conduct educational meetings, prepare and distribute educational materials, or otherwise consider public policy issues in an educational manner without jeopardizing their tax-exempt status.

So for legal purposes I went to an education meeting at the National Press Club and received educational materials prepared by CFI.

However, the CFI authors urge us to think about campaign finance matters in light of their context (that is, the political facts) rather than “legal pigeonholes.” (CFI study, p. 33) In my original post I set out the political context of the CFI study: legislation on 527s had stalled in Congress because of partisan opposition by Democrats. I could have added to the earlier post: Louise Slaughter, the ranking member on the House Rules committee, suggested in early April that Congress should broaden the 527 debate to include 501c groups which she saw as potential loopholes to current and planned campaign finance regulation. A study then appears that argues both parties use non-regulated entities to fight elections, that such spending probably corrupts representation, and that adumbrates “possible compromise” options for policymakers. (CFI study, p. 33) Given that context and this text, what is a reader to make of the CFI study? It is educational material (it fits the legal pigeonhole) that in context looks a lot like an announcement of the next item on “the reform community’s” agenda for restricting political speech.

There is also a larger legal context here that should be kept in mind. The main justification for regulating campaign finance remains preventing corruption or the appearance of corruption. However, legislative actions to prevent circumvention of laws that address corruption may also justify constitutionally restrictions on campaign finance. The CFI study argues that powerful interest groups use 527s and 501c groups along with regulated spending in elections. Its authors then ask whether those alternatives, taken as a whole, corrupt legislators on the theory mentioned in my earlier post: policymakers do not distinguish among legal categories, which is to say that disclosed spending acts like a contribution. Given that, the use of 527s and 501c groups are both corrupting and a circumvention of campaign finance law. The CFI study thus justifies extending campaign finance regulation to entities that spend money on politics but do not contribute to candidates. That is why I wrote earlier that the CFI study sought to end the distinction between politics and elections in current law and thus constituted a radical break with the past. I would be glad to know that CFI does not support ending that distinction or making that radical break. A fair reading of this study, however, suggests otherwise.

 

LEAP on Overkill

The terrific group Law Enforcement Against Prohibition (LEAP) issued a statement today on my Overkill paper:

The concern over escalating police paramilitary raids is a valid one, as this tactic takes us farther and farther away from the concept of civilian policing. This is the natural escalation of fighting a war that cannot be won. The answer to every failure in the “War on Drugs” is to escalate, in terms of dollars spent and civil liberties encroached on. Increased use of the more severe tactics by civilian police is just another example of unintended consequences of a failed policy. The only question is: how much more damage must our society and our cherished civil liberties sustain before our political leaders end the destruction of “Drug Prohibition”?

The endorsement was authored by Jerry Cameron. Cameron’s background:

Jerry Cameron spent a considerable part of his seventeen-year law enforcement career in the “war on drugs.” Not only was he chief of two small town departments for a total of eleven years, he is also a graduate of the 150th Session of the FBI National Academy, the DEA Basic Drug Enforcement Course, and two DEA Advanced Drug Enforcement Professional Institutes.

As you might guess, some other law enforcement officers have been less supportive.

… and the Banana Republic for which it Stands

From the office of U.S. Rep. Skelton (D - Mo.):

On July 19, the U.S. House of Representatives approved legislation to bar all federal courts from hearing cases related to the interpretation of, or the validity under the Constitution, of the Pledge of Allegiance, or its recitation. Similar legislation has been introduced in the Senate.

This bill should be unconstitutional. To protect the separation of powers, Congress should NOT be able to redefine the duties of the judicial branch and curtail judicial review without amending the Constitution. Otherwise, we could well see a proliferation of court-free zones in which the power of Congress becomes absolute. Wouldn’t that be special.

This insane bit of legislation is of course meant to ensure that public schools can mandate the recitation of the Pledge of Allegiance, which (since 1954) has included the words “under God.”

Is it not embarrassingly ironic to mandate the reading of a pledge that nominally guarantees “liberty… for all,” particularly when that Pledge takes a position on the existence of God?

This isn’t Freedonia, folks, it’s America. Why don’t we try teaching children about liberty by actually, well, respecting it?