Should Republicans Restore the Judicial Filibuster?

When Republicans take control of the Senate in January, should they revive the judicial filibuster that Democrats instituted in 2003 when George W. Bush was president, but ended last November when Republicans were filibustering Obama nominees? That heads-I-win-tails-you-lose question probably answers itself, but the background is a bit more complicated.

In fact, in a post I rushed into print yesterday morning I mangled some elementary filibuster facts, which I partially corrected late in the day after a reader kindly alerted me to the error. I’m tempted to say that an impostor was writing under my name, but the better explanation perhaps is too little sleep from following overnight election returns. In any event, it turns out that Harry Reid, having gone “nuclear” by ending the judicial filibuster a year ago is in no worse shape going into the next two years, as I’d initially implied, than he would have been had he kept it in place. It’s after that, if there’s a Republican president, that he’ll no longer have the filibuster at hand.

So what’s going on here? Let’s start at the beginning. Article I, section 5 of the Constitution says that “Each House may determine the Rules of its Proceedings.” As students of the subject know, those rules can be arcane. And they change, about which there are also rules. The filibuster is a case in point. It’s nowhere in the Constitution, and it’s changed over the years. On the merits, a good case can be made on either side of the practice. In general, it can keep bad (or good) laws from being enacted—or bad (or good) laws from being removed. In the abstract, therefore, it’s a wash. Empirically, it depends on the history of its use—and where you sit.

Money Rules Elections — Except When It Doesn’t

If money rules American politics, as we constantly hear from some quarters, you sure couldn’t tell from the stunning upset in the Maryland governor’s race (which I saw coming, having had a good chance to watch as a local resident and citizen volunteer.) Here’s blogger/Republican consultant Mark Newgent:

Anthony Brown lost despite outspending Larry Hogan by $15 million and with the aid of two Super PACs. Hogan took public financing. The Maryland gubernatorial race shows that no amount of money can change a bad message — or overcome a lack of message. The Maryland Democratic Party screamed like banshees over the Citizens United decision yet bit their collective tongue when their candidate availed himself of the very “dark money” they pretend to abhor. That Brown supporters Ben Cardin, Barbara Mikulski, and Donna Edwards all supported amending the First Amendment to allow Congress to regulate speech reveals that [some] Maryland Democrats don’t dislike money in politics — they dislike the opposition’s money in politics.

Mayor Michael Bloomberg’s gun control group alone said it would pour $500,000 in outside money into attacking Hogan. That had no visible effect, and it was worth putting up with the ads for the sake of getting a governor who certifiably owes nothing whatever to Michael Bloomberg. 

We now return you to the regularly scheduled rants about how American democracy cannot possibly survive the free-speech guarantees of Citizens United.

Can a State Punish You for Advertising Your Business Without a License?

Under Ohio law, it isn’t illegal to buy gold, it isn’t illegal to sell gold, and it isn’t illegal to talk about buying and selling gold. But—and it’s a significant “but”—if you talk about buying gold, you’re not allowed to actually buy any. At least not without a license.

That’s right: in Ohio, it’s illegal for anyone who advertises a willingness to buy gold to do so without a license. Obtaining and maintaining that license isn’t easy, or cheap. Licenses must be renewed every year, and license holders have to make daily reports to the police detailing their purchases. This law creates a two-tiered system: dealers who have complied with the onerous licensing regime may freely advertise their businesses, while others can’t so much as put up a sign reading “We Buy Gold” without facing criminal prosecution and fines of up to $10,000 per transaction.

The U.S. Supreme Court has said that these sorts of regulations are tantamount requiring a “license to speak”—which are universally reviled as violations of the First Amendment (although some do exist). That should have been the end of this case: laws restricting commercial advertising are only constitutional if they are narrowly tailored to serve a significant state interest. The Ohio law, however, because it targets speech instead of the behavior connected to the speech couldn’t possibly survive that test. And that’s exactly what the federal district court held in this case brought by a coin and precious-metal business.

Unfortunately, the U.S. Court of Appeals for the Sixth Circuit was less willing to follow the First Amendment, and reversed the district court. While that is bad enough in itself, the Sixth Circuit’s reasoning law is especially frightening. The court didn’t hold that Ohio’s law survived strict scrutiny under the First Amendment, but instead that the First Amendment didn’t apply. The Sixth Circuit found that an advertisement—a simple statement offering to buy gold—was “unprotected speech” beyond the scope of the First Amendment.

Cato has filed an amicus brief urging the Court to take this case and reverse the Sixth Circuit’s erroneous conclusion about the nature of free speech. While there certainly are types of speech that are not protected by the First Amendment, such as incitement to violence and child pornography, the existing rule is that truthful commercial advertising is protected unless it advertises criminal conduct. 

It’s not a crime to buy gold in Ohio, so it shouldn’t be illegal to talk about buying gold, with or without a license. Upholding the Sixth Circuit’s rule—which allows states to freely prohibit speech about conduct which is only illegal if discussed in public—would deprive nearly all advertising of constitutional protection, undoing 70 years of jurisprudence in the process. 

The Supreme Court will decide whether to take the case of Liberty Coins v. Goodman later this year or early in 2015.

Can the World Bank’s Doing Business Be Rescued?

In an interesting post about the World Bank, Nancy Birdsall of the Center for Global Development expresses two concerns about the future of the organization. First, she fears the effects of the seemingly endless process of internal restructuring – covered here, for example. Second, she fears that the World Bank may lose its ability to be an effective supplier of ‘global public goods’ in the 21st century.

One does not have to agree with her framing of the issue to see that one of the least controversial, most cost-efficient, and public goods-like functions of the World Bank is to produce internationally comparable data that can serve both as input into research and into policy discussions. The Doing Business project is a case in point, as my colleague Marian L. Tupy and I wrote last year:

In publication since 2003, Doing Business was inspired by academic research into the importance of sound legal environments for economic growth. The survey currently synthesizes expert assessments by roughly ten thousand contributors from 185 countries into a picture of the ease of doing business around the world. It serves as a guide to important requisites such as the costs of starting a business, obtaining permits, hiring and firing, and so on. The project thus brings together a large amount of data that either didn’t really exist before or weren’t comparable across different countries and presents them in a way that is easy to understand and use.

Following a controversial review last year, the report is undergoing methodological changes phased over several years. That makes comparisons over time more difficult.

You Shouldn’t Have to Register with the Government to Engage in Political Advocacy

Vermont Right to Life Committee, Inc. (VRLC) is a non-profit advocacy group organized as a “social welfare organization” under Section 501(c)(4) of the tax code. It seeks to achieve “universal recognition of the sanctity of human life from conception through natural death.” To accomplish this, VRLC publishes pamphlets, newsletters, brochures, mass e-mails, newspaper articles, and radio ads. The group does not advocate for the election of any candidate or coordinate its actions with any candidate. It simply take donations from supporters and tries to educate people about the sanctity of human life.

Nevertheless, Vermont has required VRLC to register as a political committee because it takes in more than $1000 in donations and seeks to “influence elections.” This means that VRLC has to (1) register with the state, which includes appointing a treasurer and creating a special bank account; (2) keep extensive records about its activities; and (3) regularly give the government extensive reports. All of these requirements add up to a significant burden on VRLC’s educational activities and advocacy while not furthering any real government interest. After all, if VRLC is talking about issues not candidates, then, according to the Supreme Court, there is little or no chance that it will corrupt candidates.

Or, to put it another way, if VRLC has to register and report to the government—and just think for a moment how ridiculous and Orwellian (and Putinesque) that statement is—then who doesn’t have to register with the government to speak about political issues?

The registration and reporting burdens on VRLC are so great, in fact, that the group has said it’s “simply not worth it” to engage in constitutionally protected speech if it has to comply with Vermont’s regulations. VRLC thus brought a First Amendment challenge to many of the state’s convoluted campaign finance laws. The trial court and the U.S. Court of Appeals for the Second Circuit agreed with the state government, however, and held that the burdens on VRLC’s speech were constitutionally acceptable.

VRLC has now petitioned the Supreme Court. Cato, joining the Center for Competitive Politics, has filed a supporting brief.

We argue that the Court should take the case in order to clarify the test for when an organization’s “major purpose” is the “nomination or election of candidates.” The “major purpose test,” which derives from the foundational campaign finance case of Buckley v. Valeo (1976), exists to save issue-advocacy groups from burdensome requirements like Vermont’s. Unfortunately, courts throughout the country misapply this test and place heightened burdens on organizations that simply want to talk about issues of public concern.

We also argue that regulations like Vermont’s place unique and often insurmountable burdens on small organizations. These laws are expensive to comply with, so larger organizations with more resources for accountants and lawyers—overhead that can be better absorbed—have a comparative advantage over smaller players. If the Supreme Court doesn’t take this case, states will continue to find it easy to shut down the political speech—particularly of feisty small idea entrepreneurs—while labeling such censorship as ordinary campaign finance regulations.

The Supreme Court will decide later this year or early next year whether to review Vermont Right to Life Committee v. Sorrell.

The Adaptive Response of Salmon to Global Warming

…the extinction horrors of climate change may be a “fish story”

Perhaps the myth-iest chestnut in the scary global warming meme is that our dear earth’s panoply of species is adapted only to the current climatic regime, and changing that regime means certain death, i.e. extinction.

That’s an easy, simplistic sell, but it denies some of the subtleties of organismal biology. Four decades ago, scientists realized that evolution has preserved a variety of responses to environmental change. It turns out that our enzymes, the basic material that catalyze life as we know it, actually change their shape as climate changes. Whether this is because we have so much information stored in our DNA that has survived countless generations and a variety of climates, or whether the response is simply built into the enzymes is unknown, but it is ubiquitous. It even has a catchy name: “Phenotypic Plasticity.”

Before your eyes glaze over, a little explanation is in order.

Each one of us has a genotype, which is our DNA, and each of us has an expression of that, our “phenotype.” Obviously not all genes express themselves—if they did, our physiological destiny would be eminently predictable, but it is not. Instead, we all carry strands of DNA that could theoretically cause major disease that generally do not express (or “penetrate” in the lingo of biology), and we also have DNA that could probably defeat many of the aging processes, that similarly do not express.

Instead, organisms display “plastic” responses when their environment changes. And so, species-related concerns over potential CO2-induced global warming may be dramatically overblown. And, though they don’t get much publicity, scientists are continually documenting our amazing adaptability.

How to Repeal ObamaCare through the Same Process that Gave Us ObamaCare

From my latest at Darwin’s Fool:

Republicans won an impressive number of victories last night, including a larger and more conservative House majority and enough wins to give the GOP at least a 52-seat majority in the Senate. As Jeffrey Anderson and Robert Laszewski have noted, Republicans made ObamaCare a major issue in the election  (the New York Times’ denials notwithstanding). Senate Republicans will fall several seats short of the 60-vote super-majority needed to overcome a Democratic filibuster of an ObamaCare-repeal bill, though. ObamaCare opponents are therefore debating whether and how Republicans could repeal some or all of the law via the Senate’s “budget reconciliation” process, which allows certain legislation to pass the Senate with only 51 votes. Some opponents have proposed getting around these difficulties by getting rid of the filibuster entirely. I think there’s a more prudent, targeted way Republicans could put ObamaCare repeal on the president’s desk, give Democrats a taste of their own majoritarian medicine, and convince Senate Democrats of the virtues of restoring the filibuster on legislation and judicial nominations.

It goes like this…

Read the whole thing.