Prof. Paul Krugman’s New York Times column of March 27th, “American Thought Police,” made this startling assertion: “the hard right — which these days is more or less synonymous with the Republican Party — has a modus operandi when it comes to scholars expressing views it dislikes: never mind the substance, go for the smear.” What would Dr. Freud say? Well, after careful study of Prof. Krugman’s works and one trip to the couch, Dr. Freud diagnosed the patient and proclaimed, “projection bias.” Yes, the ace of the ad hominem smear is simply projecting his own attributes and habits of mind and deed to others.

The Weinberger-Powell Doctrine offers Congress and the President five key hurdles before military force should be employed. Chris Preble, in this new video, runs through the reasons why President Obama’s Libya incursion fails the Weinberger-Powell test.

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Speaking of free speech, last night I had an Obamacare panel at Widener University, which is currently having its own little speech-related brouhaha. (Getting there was a bit of a hassle because I was held up at the Wilmington Amtrak station by Vice President Biden’s entourage — but I didn’t end up in a closet, so I guess it could have been worse.)

There are strange things afoot at the tiny Delaware law school, specifically to tenured professor Lawrence Connell, who also happens to be the adviser to the school’s Federalist Society chapter. From the Foundation for Individual Rights in Education:

Widener University School of Law is attempting to fire longtime criminal law professor Lawrence Connell by charging him with dubious violations of the school’s harassment code, such as using the term “black folks” in class and using the names of law school Dean Linda L. Ammons and other law school colleagues as characters in class hypotheticals. Although a faculty panel has already recommended that Widener drop its “dismissal for cause” proceedings against Connell, administrators have reportedly induced students to issue further complaints under a new process that forces Connell to keep the details of the proceedings secret. Connell, who is represented by attorney Thomas S. Neuberger, also requested help from the Foundation for Individual Rights in Education (FIRE).

“Not only do the charges against Professor Connell appear to be either unsubstantiated or totally meritless, but even after the faculty refused to assent to his firing Widener has found a new, ‘confidential’ procedure to use against him,” FIRE President Greg Lukianoff said. “Professor Connell has already addressed the charges, but now he cannot publicly discuss the details of his prosecution out of fear of punishment for ‘retaliatory action’ if he reveals them.”

Although Widener is a private university, a faculty member receiving such treatment on dubious charges should raise some eyebrows in legal academia. If there is something to the charges, let them be aired in public. While this is not a constitutional issue, I’m sure the law school administration is well aware of the importance of both due process and intellectual freedom. To that end, either the professor should be afforded the dignity of defending himself to his accusers or this nonsense should be put to bed.

You can read more about the case here. Also, if the state of today’s law schools interests you, I cannot recommend strongly enough my colleague Walter Olson’s new book, Schools for Misrule: Legal Academia and an Overlawyered America.

Thanks to Jonathan Blanks for his help with this blogpost.

Yesterday the Supreme Court heard oral arguments in the Arizona matching-public-campaign-funding case, McComish v. Bennett, spearheaded by our friends at the Goldwater Institute and the Institute for Justice.

Here’s the background: 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 showed that privately funded candidates changed their spending — and thus their speaking — as a result of the matching funds provisions. Notably, in a case where a privately funded candidate is running against more than one publicly assisted opponent, the matching funds act as a multiplier: if privately funded candidate A is running against publicly funded candidates B, C, and D, every dollar A spends will effectively fund his opposition three-fold. In elections where there is no effective speech without spending money, the matching funds provision unquestionably chills speech and thus is clearly unconstitutional. For more, see Roger Pilon’s policy forum featuring Goldwater lawyer Nick Dranias, which Cato hosted last week and you can view here.

The oral arguments were entertaining, if predictable. A nice debate opened up between Justices Scalia and Kagan about the burden that publicly financed speech imposes on candidats who trigger that sort of financing mechanism under Arizona law. Justice Kennedy then entered the fray, starting out in his usual place — open to both sides — but soon was laying into the Arizona’s counsel alongside Justice Alito and the Chief Justice.

The United States was granted argument time to support Arizona’s law, but Justice Alito walked the relatively young lawyer from the Solicitor General’s office right into what I consider to be his (Alito’s) best majority opinion to date, the federal “millionaire’s amendment” case (paraphrasing; here’s the transcript):

Alito: Do you agree that “leveling the playing field” is not a valid rationale for restricting speech?

US: Sort of.

Alito: Have you read FEC v. Davis?

Note to aspiring SCOTUS litigators: try not to finesse away direct precedent written by a sitting justice.

My prediction is that the Court will decide this as they did Davis, 5–4, with Alito writing the opinion striking down the law and upholding free speech. Cato’s amicus briefs in this case, which you can read here and here, focused on the similarities to Davis, so I’m keeping my fingers crossed that we’ll get cited.

NB: I got to the Court too late to get into the courtroom today but live-tweeted (@ishapiro) the oral arguments from the (overflow) bar members’ lounge, which has a live audio feed. I was later informed that such a practice violates the Court rules, however — ironic given how pro-free-speech this Court is — so I will not be repeating the short-lived experiment. (That said, you should still follow me on Twitter — and also be sure to follow our friends @IJ and @GoldwaterInst!)

At the Britannica Blog I reflect on the death of Geraldine Ferraro and the dramatic changes in women’s role in political and social life in a surprisingly short time:

In the 1960s and 1970s feminism swept the field, overwhelming all opposition.

And if you don’t know who was the first woman in American history to win an electoral vote, or the first woman elected to the U.S. Senate who did not follow her father or husband into politics, read the whole thing.

A previous post of mine at International Liberty addressed the debate over whether Republicans should trim the IRS’s budget. The following case study should convince everyone that the answer is a resounding yes.

First, some background from a Joe Nocera column in the New York Times. The federal government made a rather troubling decision a few years ago to investigate, prosecute, and ultimately imprison a random home-loan borrower named Charlie Engle for the crime of mortgage fraud.

Mr. Engle is far from blameless in this saga, but I noted in another post that it was rather odd that the government would target a nobody while letting all the big fish swim away. This episode certainly paints a picture of a government that has one set of rules for ordinary people, but an entirely different set of rules for the political elite and those who make big campaign contributions to that ruling class.

But I also noted that I’m not a lawyer or legal expert and was unsure about the degree to which the big players actually broke laws, or whether they simply made stupid business decisions (often encouraged by bad government policy).

The most upsetting part of the story, though, is how the government wound up targeting Mr. Engle. It turns out that an IRS agent, Robert Norlander, must have been competing for the IRS’s Bully-of-the-Year Award because here are some of the things he did:

• Norlander decided to snoop into Engle’s affairs because he saw a film about him training for a marathon. In other words, there was no probable cause, no reasonable suspicion, nothing. Just the perverse decision of an IRS bully to go after someone.
• 
  
  Norlander admitted a pattern of thuggish behavior, stating that he will snoop into someone’s private life simply because that person drives an expensive car.
• 
  
  Norlander continued to investigate and persecute Engle, subjecting him to undercover surveillance, even though his tax returns showed no wrongdoing.
• 
  
  Norlander even engaged in “dumpster dives” to look for evidence of wrongdoing in Mr. Engle’s garbage. Keep in mind that there is no probable cause, no reasonable suspicion, and Engle’s tax returns were legit.
• 
  
  Norlander used a sleazy KGB tactic by sending an attractive woman to flirt with Mr. Engle in hopes of getting him to somehow admit to a crime.
• 
  
  Norlander failed to find any evidence of a tax crime. He couldn’t even hit Engle with a money-laundering offense. But the undercover agent who was part of the “honey trap” was wearing a wire and supposedly got Engle to admit to mortgage fraud and Norlander used that extremely flimsy evidence to justify a Justice Department case against Engle.

In other words, this whole thing has a terrible stench. Assuming the details in the story are accurate, we have an IRS agent engaging in a random vendetta against someone, and then apparently justifying his jihad by figuring out how to nail the guy on a very weak charge of mortgage fraud. I would describe Norlander as a “rogue agent,” but apparently this behavior is business-as-usual at the IRS.

Here are the relevant passages from Nocera’s column:

Mr. Engle received $30,000 for his participation. The film, “Running the Sahara,” was released in the fall of 2008. Eventually, it caught the attention of Robert W. Nordlander, a special agent for the Internal Revenue Service. As Mr. Nordlander later told the grand jury, “Being the special agent that I am, I was wondering, how does a guy train for this because most people have to work from nine to five and it’s very difficult to train for this part-time.” (He also told the grand jurors that sometimes, when he sees somebody driving a Ferrari, he’ll check to see if they make enough money to afford it. When I called Mr. Nordlander and others at the I.R.S. to ask whether this was an appropriate way to choose subjects for criminal tax investigations, my questions were met with a stone wall of silence.) Mr. Engle’s tax records showed that while his actual income was substantial, his taxable income was quite small, in part because he had a large tax-loss carry forward, due to a business deal he’d been involved in several years earlier. (Mr. Nordlander would later inform the grand jury only of his much lower taxable income, which made it seem more suspicious.) Still convinced that Mr. Engle must be hiding income, Mr. Nordlander did undercover surveillance and took “Dumpster dives” into Mr. Engle’s garbage. He mainly discovered that Mr. Engle lived modestly. In March 2009, still unsatisfied, Mr. Nordlander persuaded his superiors to send an attractive female undercover agent, Ellen Burrows, to meet Mr. Engle and see if she could get him to say something incriminating. In the course of several flirtatious encounters, she asked him about his investments. …Unbeknownst to Mr. Engle, Ms. Burrows was wearing a wire. …No tax charges were ever brought, even though that was Mr. Nordlander’s original rationale. Money laundering, the suspicion of which was needed to justify the undercover sting, was a nonissue as well. As for that “confession” to Ms. Burrows, take a closer look. It really isn’t a confession at all. Mr. Engle is confessing to his mortgage broker’s sins, not his own.

Stories like this explain why I’m a libertarian.

As George Washington supposedly said, “Government is not reason; it is not eloquence; it is force. Like fire, it is a dangerous servant and a fearful master.” Unfortunately, thanks to bad laws and thuggish bureaucrats, government is definitely now our master and no longer just a servant. The IRS is a grim example of this phenomenon. President Obama, not surprisingly, wants to increase their budget.

I posted recently at International Liberty about the stunning political incompetence of Republican Senators, who reportedly are willing to give Obama an increase in the debt limit in exchange for a vote (yes, just a vote) on a balanced budget amendment.

As I explained, there is no way they can get the necessary two-thirds support to approve an amendment, so why trade a meaningless and symbolic vote on a BBA for meaningful and real approval of more borrowing authority for Obama? My analogy yesterday was that this was like trading an all-star baseball player for a utility infielder in the minor leagues.

I did acknowledge that forcing a vote on a BBA was a worthwhile endeavor, but said that the GOP has that power anyhow, so why trade away something valuable to get something you already can get for free?

Little did I realize that Republicans already did force a vote on the balanced budget amendment. Less than one month ago, on March 2, Senator Lee of Utah got a vote on a “Sense of the Senate” resolution in favor of a balanced budget amendment. Senator Lee’s resolution received 58 votes, which is nice, but an actual amendment would need a two-thirds supermajority, so this test vote demonstrated that there is no way to approve an amendment this year.

I’m glad Senator Lee proposed his resolution. I’m glad Senators were forced to go on the record.

But I’m mystified, flabbergasted, and stunned that Republicans apparently are willing to give Obama a bigger debt limit in exchange for something they already got.

Returning to our baseball analogy, this would be like the Yankees giving Derek Jeter to the Red Sox in exchange for a player they already have, such as Alex Rodriguez. I imagine New York sportswriters would be dumbfounded by such stupidity and would rip the team’s management to shreds. So that gives you an idea of how I feel about what’s happening in Washington.

As I noted in my earlier post, I’ll soon write about the fiscal reforms fiscal conservatives should demand in exchange for a higher debt limit.