Topic: Law and Civil Liberties

The Blunt End of Paternalism

Kudos to both the Washington Times and North Dakota state GOP Rep. Jim Kaspar for opposing the Republican Congress’s wrongheaded attempt to ban Internet gambling. There are at least a few folks on the right who still understand that there’s more to “limited government” than revoking the estate tax.

Sen. Frist is justifying his misguided, pre-election move on the grounds that it’s the government’s responsibility to protect us from bad behavior. Said Frist on the floor of the Senate, “Internet gambling threatens our families by bringing addictive behavior right into our living rooms.”

At risk of delving into libertarian cliches, even if you buy the dubious notion that protecting us from “addictive behavior” is a legitimate function of government, even the most well-intentioned of paternalistic legislation is, ultimately, enforced at the point of a gun. The people who break these laws are arrested. The people who resist arrest risk getting shot. The end of result of legislation like Frist’s is, absurdly, that government will eventually use violence against American citizens to “protect” them from violating Sen. Bill Frist’s morals.

Here’s a real-world example: At last week’s forum for my Overkill paper, I met Salvatore and Anita Culosi, parents of Sal Culosi, the Fairfax, Virginia optometrist shot and killed by a SWAT team earlier this year. The SWAT team came to Culosi’s home to enforce Virginia’s prohibition on gambling, ostensibly designed to “protect” Virginians like Sal Culosi from wagering their own money on games of chance. Culosi, an accomplished, single man who had the means to back up his wagers, had been placing bets on football games with friends. He’s dead because there are people in Virginia’s government who fail to see the absurdity of sending a military unit to arrest a man guilty of nothing more than spending his own money in ways some people find unseemly. That’s it.

Culosi’s family is still understandably devastated. Mrs. Culosi still can’t talk about her son without fighting back tears. I choked up several times just listening to her. I can’t imagine the rage that would come with losing an adult son to such a stupid and hypocritical policy. Horrible.

The Culosi outrage has been compounded by the insensitive and unaccountable behavior of many in Fairfax County government since the incident (are you reading, Justice Scalia?). It’s been seven months now, and the Fairfax County police department still refuses to cooperate with Culosi’s family.

Frist’s legislation is aimed primarily at financial institutions. But like all prohibitions on consensual crimes, it will fail. And so over the next several years we will inevitably see attempts by Congress to expand and strengthen the gambling prohibition, to the point where, as is now the law in Washington state, the prohibition will be aimed squarely at gamblers themselves, not just the companies that profit from gambling.

Perhaps Senators Frist and Kyl, and Reps. Leach and Goodlatte should sit down for a few minutes with Salvatore and Anita Culosi. It would at least help them understand the inevitable consequences of using the blunt instrument of government to impose their own values and morals on the rest of the country.

Concealed Weapons

The Associated Press reports:

When Susan Kuhnhausen returned home from work one day earlier this month, she encountered an intruder wielding a claw hammer. After a struggle, the 51-year-old nurse fended off her attacker by strangling him with her bare hands. 

I hope she isn’t arrested for possession of dangerous hands.

Hopelessly Devoted to HIM?

SMU Biblical studies professor Mark Chancey has just penned a study of Bible teaching in Texas Public Schools (.pdf). The report concludes that “the public school courses currently taught in Texas often fail to meet minimal academic standards for teacher qualifications; curriculum, and academic rigor; promote one faith perspective over all others; and push an ideological agenda that is hostile to religious freedom, science and public education.”

Chancey’s most damning charge: “Most Bible courses are taught as religious and devotional classes that promote one faith perspective over all others.” If true, that, of course. would be unconstitutional. (Nadine Strossen, call your office.)

Here’s a thought: Rather than forcing all Americans to pay for a one-size-fits-few government monopoly that inevitably creates legal and cultural conflict over the curriculum, why not institute a school system that would give both parents and other taxpayers real educational choice? This could easily be done by combining and enlarging the existing personal use and scholarship donation tax credit programs that exist in states like Pennsylvania and Arizona. A short exposition of the idea appears here, and a more comprehensive one is available here.

Cato’s Neal McCluskey will be publishing a study of the endless school wars caused by our state-run education monopolies later this year. Stay tuned.

Doublespeak and the War on Terror

Last week, Cato published my paper “Doublespeak and the War on Terrorism.” Of course, this has not kept President Bush from using doublespeak. 

In his televised address this week, Mr. Bush said that all members of the U.S. military are “volunteers.” Not so. We do not have the large-scale conscription of civilians, but we do have “stop-loss” orders from the White House, which means soldiers that have fulfilled the terms of their enlistment contracts may not leave military. The men and women who wanted to return to civilian life after serving their term of service are not “volunteers.”  In military circles, the stop-loss order is known as the “backdoor draft.”

Fortunately, more people are calling attention to such misuse of language by government. Go here for a column by Eugene Robinson of the Washington Post. Go here for a column by Dick Meyer of CBS News.

We’ll never be able to stop the government from engaging in doublespeak because the government is constantly engaging in mischief. But if we’re vigilant about it, we can keep the government in check.

It’s Constitution Day, Charlie Brown

Note to D.C. readers: Tomorrow is Cato’s annual Constitution Day symposium, headlined by Chief Judge Danny Boggs of the Sixth Circuit, a polymath and one of the bright lights of the federal appellate bench. View the schedule and last-minute registration information here. (Bonus points: Take a version of the quiz Boggs famously asks clerkship candidates to fill out here).

Tomorrow, Cato also releases our annual Cato Supreme Court Review, now ranked among the top 20 peer-reviewed specialty law journals in terms of “impact” according to the influential Washington & Lee law review ranking system. For a sample of the 2005-2006 edition’s contents, see former Thomas clerk Peter “Bo” Rutledge’s thoughtful article analyzing the next Supreme Court term here.

Baby Steps

Yesterday, the DEA announced that it would allow doctors to write multiple, post-dated painkiller prescriptions for chronic pain patients. This is good news. The prior restrictions were odious, and heartlessly required people suffering from chronic pain to make multiple trips to doctors and pharmacists to get their medication.

This problem is worse than it sounds. Because the DEA’s witchhunt has scared physicians away from palliative therapy, many of these patients have to drive several hours to find a doctor who is willing to treat them. Doctors willing to administer the most promising chronic pain treatment — high-dose opioid therapy — are even harder to find.

But yesterday’s decision doesn’t go nearly far enough. And the DEA seems to be trying to use this one concession to show its “reasonableness,” thus heading off criticism over the larger, more important issue — it’s overly aggressive pursuit of doctors.

Here’s what won’t change: The agency will continue to substitute its own judgment for the medical opinions of doctors. It will continue to define some high-dose treatments as off-limits, and it will continue to use malpractice standards, meant for civil litigation, in criminal court. The DEA also still refuses to give doctors a set of guidelines they can follow to guarantee they won’t be prosecuted, thus giving the agency a great deal of leeway and leaving doctors who engage in the experimental high-dosage treatments in legal ambiguity. The agency will also continue to deny doctors a “good faith” defense to prosecution.

DEA administrator Karen Tandy, who has a history duplicity on this issue, made some misleading and downright false comments in a USA Today story yesterday on her agency’s change in policy:

The new policy statement does not include a specific list of do’s and don’ts, but the DEA Administrator Karen Tandy says doctors should be able to glean from the listing of prosecutions on the agency’s website what it takes to violate the law. 

This is ridiculous. Instead of actual guidelines to see if they’re complying with the law, doctors are instead being instructed to read up on a “rogue’s gallery” of DEA trophies to determine if their own prescription habits are potentially criminal. That would be like the IRS refusing to give any real guidelines on how much money we owe the government, but instead refering us to a list of the “20 biggest tax cheats of all time” for guidance.

More Tandy:

Out of more than 1 million doctors who are registered with the DEA to prescribe such narcotics, the agency prosecuted 67 last year for prescription abuse. Tandy says the DEA has targeted doctors who have strayed far outside accepted medical practice, including some who have prescribed medically unnecessary drugs for cash or sex, some who have demanded kickbacks, and invented patients or fed their own addictions. 

Tandy is hyperbolizing. Included among those she says “have strayed far outside the accepted medical practice” are William Hurwitz and Bernard Rotschaeffer. The case against each of these men is far from conclusive. Pain activists like Siobhan Reynolds and Dr. Frank Fisher regularly send out new examples of doctors prosecuted by the DEA. In a few cases, it looks like the doctors were clearly unethical. In most, the evidence is far from conclusive and appears to be more attributable to the DEA’s ignorance of how high-dose therapy works, or that its own policies are chasing doctors away from this treatment, causing the few doctors left in the field to have no choice but to see more patients and write more prescriptions.

Tandy’s “67 of one million” statistic is also misleading. The one million number is the total number of physicians, in any line of practice, who are licensed to prescribe narcotics. The number who specialize in pain treatment is far, far lower. And the number willing to engage in high-dose therapy — the only therapy that seems to work on chronic pain — is much lower still. That 67 comes from an already small and dwindling pool of doctors willing to administer this promising line of treatment. Given that the DEA makes a big deal out of each arrest, including holding press conferences and putting out statements to the media, it isn’t difficult to see how each arrest would make it yet more difficult for pain patients to get adequate treatment.

More Tandy:

The DEA investigates doctors “who knowingly and egregiously put drugs into the hands of traffickers and abusers,” Tandy says. “This isn’t just questionable behavior. There is no gray area here.” 

There most certainly is. See the case of Dr. William Hurwitz, one of the DEA’s most sought-after and hard-won trophies. An appeals court recently set Dr. Hurwtiz’s conviction aside, finding that the government was wrong to deny Dr. Hurwitz to mount a “good faith” defense against charges that he prescribed painkillers to drug addicts.

More Tandy:

Tandy says she doesn’t want to tell doctors how to treat patients. “The DEA does not belong in the practice of medicine. We want doctors to be able to prescribe drugs when people are in pain. We’re trying to give them a comfort level.” 

But if the DEA has its own definition of what is and isn’t “accepted medical practice,” and — worse — won’t tell doctors what that definition is when it comes to prescribing painkillers, thus leading doctors to err on the side of undertreatment, we have most certainly entered the realm of drug cops dictating medical practice.

The DEA has taken a lot of heat from pain activists, academics, media critics, and civil libertarians on this issue. Yesterday’s minor shift in policy should by no means be the end of the debate.

For more on this issue, see here and here.

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.