In‐coming House Speaker John Boehner’s endorsement of Rep. Jeff Flake (R‑AZ) for a seat on the chamber’s appropriations committee means that it’s probably a done deal. Flake is one of the few policymakers who actually lives up to the fiscal conservative label. Thus, Flake’s appointment to a committee that many members think only exists to increase spending on special interests would be welcome news.
Boehner also endorsed a suggestion from Rep. Jeff Kingston (R‑GA), who has mounted a dark‐horse campaign to chair the appropriations committee, to create a subcommittee focused on investigating federal programs. Flake would chair this subcommittee, and according to a release on his website, he has already lined up worthy targets like Head Start and farm subsidies.
How much success will Flake have within the committee?
The New York Times quotes Flake as boldly saying, “It has been a favor factory for years, and now it is going to become a slaughterhouse.” At the same time, Flake acknowledged to Politico that putting a few anti‐spenders on appropriations isn’t going to be enough:
Flake said the conservatives that Boehner wants to get on the committee will be “marginalized” if they’re scattered throughout the panel.
“It’s not enough just to have a few going on the committee,” he said. “They could be dispersed among the subcommittees that are forgotten.”
I recently warned the House Republican leadership against serving tea party voters re‐heated meatloaf by allowing old‐school spenders to dominate the committees. Getting Jeff Flake on appropriations is a step in the right direction, but his appointment can’t be a token gesture. Anti‐spenders like Flake will need support from their leadership to succeed because they sure won’t be making friends with the big‐spending old bulls.
Tomorrow morning, the United States Supreme Court will hear one of the most important education cases in a generation: the appeal of a 9th Circuit ruling that would cripple or end Arizona's k-12 scholarship tax credit program.
As you'd expect, commentators aren't sure how the Supreme Court will ultimately rule: it may decide to overturn the 9th Circuit on the merits of the case, or it could overturn the 9th Circuit on the grounds that the plaintiffs never had standing to sue in the first place. Heck, there might even be people who think SCOTUS will uphold the lower court's ruling... can't actually find anyone who thinks that, but they could be out there... somewhere.
On the merits, the law and evidence are clear. Arizona's program allows private individuals to donate to non-profit k-12 scholarship organizations and get a tax credit when they do--much as federal tax deductions are available for donations to non-profit charities. Since federal deductions for donations to religious organizations are Constitutional, the same applies to the credits in the AZ case. Respondents (those trying to kill the program) didn't marshal a serious argument to the contrary. In fact, one of the cases they cite actually eviscerates their own argument, as I noted in Section II (b) of the Cato Institute Winn brief co-written by Ilya Shapiro and myself.
The rest of Respondents' merits arguments are equally ineffectual, not only taking a form (relying on a moving statistical target) that has already been explicitly rejected by the Supreme Court in Zelman and elsewhere, but actually being wrong on the facts as well (see Section IV of the Cato brief linked above).
But while I've been exclusively focused on the merits of the case, it seems that the legal experts defending Arizona's tax credit program have been arguing that the Respondents (originally, the Plaintiffs) never had a right to sue in the first place ("standing"), because they cannot show, in the context of Supreme Court precedents, how they have been harmed.
Both the SCOTUS blog's reporter and independent experts seem to think the Court will overturn the 9th Circuit on the standing issue before even considering the merits, and I'm confident that the Court will overturn on the merits if it ever gets that far.
If the ruling comes down in either of those ways, modern education tax credit programs will retain their perfect record of never having been overturned by a court--a record not enjoyed by any other private school choice policy. The reason that is so very important is explained in the final section (V) of our Cato brief.
Today is the first Monday in October, the traditional start of the Supreme Court term. While we have yet to see as many blockbuster constitutional cases on the docket as we did last term—which, despite the high profile 5–4 splits in McDonald v. Chicago and Citizens United actually produced fewer dissents than any in recent memory—we do look forward to:
- Two big free speech challenges, one over a statute prohibiting the sale of violent video games to minors, another the offensive protesting of a fallen soldier’s funeral;
- An Establishment Clause lawsuit against Arizona’s tax credit for private tuition funds (an alternative to educational voucher programs);
- Regulatory federalism (or “preemption”) cases involving:
- safety standards for seatbelts;
- an Arizona statute regarding the hiring of illegal aliens; and
- the forbidding of class‐arbitration waivers as unconscionable components of arbitration agreements;
- Important ERISA and copyright cases;
- A case examining privacy concerns attending the federal government’s background checks for contractors; and
- A criminal procedure dispute regarding access to DNA testing that may support a claim of innocence.
Cato has filed amicus briefs in several of these cases—and in various others which the Court may decide to review later this year—so I will be paying extra‐close attention.
Perhaps more importantly, we again have a new justice—and, as Justice White often said, a new justice makes a new Court. While her confirmation was never in any serious doubt, Elena Kagan faced strong criticism (including from me) on a variety of issues—most importantly on her refusal to “grade” past Court decisions or identify any specific limits to government power. The 37 votes against Kagan were the most ever for a successful Democratic nominee, which is emblematic of a turbulent political environment in which the Constitution and the basic question of where government derives its power figure prominently.
Given Kagan’s political and professional background, it is safe to assume that she’s not the second coming of Clarence Thomas. And because she replaces the “liberal lion” Justice Stevens, her elevation from “tenth justice” (as the solicitor general is known) to ninth is unlikely to cause an immediate change in issues that most divide the Court—particularly because she is recused from nearly half the cases this term. She could, however, add an interesting and nuanced perspective on a variety of lower‐profile issues. Only time will tell what kind of justice Kagan will be now that she is, seemingly for the first time in her ambitious life, unconstrained to speak her mind.
Here’s to another interesting, varied, and (hopefully) liberty‐enhancing year!
In 1998, after years of scandals ranging from governors being indicted to legislators taking bribes, Arizona passed the Citizens Clean Elections Act. This law was intended to “clean up” state politics by creating a system for publicly funding campaigns.
Participation in the public funding is not mandatory, however, and those who do not participate are subject to rules that match their “excess” private funds with disbursals to their opponent from the public fund. In short, if a privately funded candidate spends more than his publicly funded opponent, then the publicly funded candidate receives public “matching funds.”
Whatever the motivations behind the law, the effects have been to significantly chill political speech. Indeed, ample evidence introduced at trial in a lawsuit challenging the law showed that privately funded candidates changed their spending — and thus their speaking — as a result of the matching funds provisions. In elections, where there is no effective speech without spending money, the matching funds provision of the Clean Elections Act diminishes the quality and quantity of political speech.
In 2008, the U.S. Supreme Court in Davis v. FEC struck down a similar provision in the federal McCain‐Feingold law in which individually wealthy candidates were penalized for spending their own money by triggering increased contribution limits for their opponents. Even this modest opportunity for opponents to raise more money was found to be an unconstitutional burden on political speech.
Cato has thus filed a brief supporting a request that the Supreme Court review the lower court’s decision upholding Arizona’s Clean Elections Act. We highlight Davis (in which Cato also filed a brief) and numerous other cases that point to a clear conclusion: if the mere possibility of your opponent getting more money is unconstitutional, then the guarantee that your opponent will get more money (Arizona’s act automatically disburses matching funds) is even more so. Allowing the government to abridge political speech in this fashion not only diminishes the quality of our political debate, but it ignores the fundamental principle upon which the First Amendment is premised: that the government cannot be trusted to regulate political speech for the public benefit.
The Supreme Court will decide later this fall whether to review this case, McComish v. Bennett.
Yesterday, the Obama administration filed a lawsuit challenging the constitutionality of Arizona’s recently enacted law that is designed to curb illegal immigration. The Arizona law has not yet taken effect — that will occur on July 29. To generate more discussion and debate, Cato will be hosting a policy forum on the legal challenge and related issues on July 21. If the weather in DC continues to cooperate, it will feel like we are actually in Arizona.
Go here for Cato work related to immigration policy.
NRO editor Robert VerBruggen has weighed in a couple of times this week on the relative merits of school vouchers and education tax credits, raising interesting and important issues.
In response to my earlier post today about an education tax credit case now before the U.S. Supreme Court, VerBruggen writes:
If the Supreme Court buys this logic — which I suppose is sound on its face — it could lead to some very interesting programs. Any time it’s illegal for a government to fund something directly, it could simply make a dollar-for-dollar “tax credit” program for it, allowing sympathetic taxpayers to technically “donate” — but actually just redirect the taxes they’d otherwise have to pay — to the cause.
This is actually an argument presented by critics of the program in their brief asking the Supreme Court not to hear the appeal that it... just decided to hear. The fact that this argument is fallacious is no doubt one reason that the Supreme Court decided to reject critics' request. Here's where it goes wrong:
Under a constitutional tax credit program such as Arizona's, the state has no power to pressure/encourage taxpayers to do anything that the state could not do directly. Taxpayers can choose to give no money to religious charities, or to give all their money to them. The state is unable to affect their decisions in any way.
As Ilya Shapiro and I pointed out in Cato's amicus brief in this case, this is identical to the law pertaining to federal charitable tax deductions. Religious charities get more tax deductible donations than any other kind of entity, and the Supreme Court has repeatedly upheld their constitutionality because the decisions regarding such donations are left entirely to the unfettered choices of private citizens.
An otherwise very good story in the Arizona Republic today begins badly:
The U.S. Supreme Court on Monday agreed to review the constitutionality of an Arizona program that diverts state tax revenue into private‐school scholarships.
Here’s the thing: it doesn’t do that. No state tax revenue is used in Arizona’s program, which offers a tax cut (a.k.a. “credit”) to folks who donate to non‐profit k‑12 tuition assistance organizations. Those non‐profits then subsidize private school tuition for families seeking financial help.
Back in 1999, the Arizona Supreme Court made all this clear. Those who were trying to kill the program (at the time, the “petitioners”) claimed that the donated funds were “public money.” The Court begged to differ, writing:
Petitioners argue that this tax credit channels public money to private and sectarian schools in violation of the state constitution.… As respondents note, however, no money ever enters the state’s control as a result of this tax credit. Nothing is deposited in the state treasury or other accounts under the management or possession of governmental agencies or public officials. Thus, under any common understanding of the words, we are not here dealing with “public money.” (p. 19–21)
It would be fine for the Arizona Republic to report that critics refuse to accept the Arizona Supreme Court’s interpretation, and that they are hoping the U.S. Supreme Court will see things their way (FYI: not gonna happen). But it is not okay for the Republic, on its “news” pages, to take sides in a case now before the U.S. Supreme Court by adopting the legal assumptions of the program’s critics.
P.S. Yes, the title is a reference to this.