Constitution, the Law, and the Courts

June 15, 2006 11:31AM

Spending Limits Are Not the Answer

David Primo and Jeff Milyo have just published an op-ed in Roll Call. Advocates have long argued that restrictions on campaign spending, which can be direct spending or contributions, enhance electoral competition. In Vermont they convinced the state legislature to pass spending limits, the constitutionality of which are now before the U.S. Supreme Court. Primo and Milyo correctly note "the most current and best scientific evidence flies in the face of the promises" made by these advocates. Indeed, "the court jurisprudence upholding campaign finance laws is built on a shaky empirical foundation." They continue: "In fact, we are aware of no scholarly studies that yield consistent evidence of large and statistically significant effects of campaign finance regulations on electoral competitiveness."

I go into the shaky philosophical and empirical foundations of campaign finance law in my upcoming book, The Fallacy of Campaign Finance Reform.

June 15, 2006 11:29AM

Supreme Court Gets it Wrong in Hudson

The Supreme Court just ruled 5-4 that police who conduct an illegal "no-knock" raid on a citizen's home can use evidence seized from that raid against the suspect at trial.

Taken with the high degree of immunity from lawsuits courts and lawmakers have given to police officers in these cases, there is now no real penalty for police who ignore the legal requirement to knock and announce themselves before forcibly entering a private home.

We can expect the already disturbing trend of military-style police raids on American citizens to get substantially worse.

Last April, I wrote a synopsis of what's at stake in the Hudson case for Slate.

June 14, 2006 12:42PM

Helmetless Non‐​Fatal Motorcycle Accident Causing No Permanent Injuries Proves the Need for Helmet Laws

Ben Roethlisberger's unfortunate motorcycle accident this week has editorial boards and pundits calling once again for mandatory motorcycle helmet laws. The Cincinnati Post went so far as to put the word freedom in sarcasm quotes.

I'm not exactly sure how Roethlisberger's accident demonstrates the need for such laws. Roethlisberger is more than capable of paying for his treatment, so the "cost to taxpayers" argument doesn't fly. It may cost the Pittsburgh Steelers some money, but they could have headed off those losses by stipulating a helmet requirement in Roethlisberger's contract (he has been outspoken about riding without a helmet). And despite being thrown from his bike and leaving an imprint in the windshield of an oncoming car in the shape of his skull---all while not wearing a helmet---Roethlisberger is expected to make a complete recovery.

That's not to say it's wise to ride without a helmet. But Roethlisberger is a grown-up. He knows the risks. He decided to assume them. He was seriously injured, and now he's recovering. I wish him the best, of course. I'm just having a hard time understanding how his accident provides conclusive evidence that we need a federal helmet law, or why it merits sneering commentary about an excess of "freedom." The answer is "yes," you should have the freedom to make your own decisions about what risks you take. Even foolish ones. But you should also assume responsibility for those decisions, and not expect taxpayers or anyone else to bail you out when poor decisions catch up with you. Seems to me that's exactly what's happening here.

If we're really concerned about the safety of motorcycle riders, we should probably just ban motorcycles altogether. USA Today, for example, notes that wearing a helmet would prevent 37 percent of motorcycle fatalities. But the paper also points out that motorcycle riders are 32 times more likely to die on the roadways than drivers or passengers in automobiles. So the paper is advocating a law preventing people from assuming the low-level risk associated with riding without a helmet versus riding with one, but still advocating allowing people to assume the exponentially higher risk of riding a motorcycle in the first place (as opposed riding in a car or truck). Just think of all the lives and health care costs we could save if we banned motorcycles!

My favorite diatribe comes from Sports Illustrated's Peter King. It's always fun to watch sportswriters comment on issues that spill out beyond the playing field. They seem to savor the chance to dress up as real journalists. And so they tend to come out swinging. King writes:

And while we're at it, how dumb does Pennsylvania look for not making helmets mandatory? I heard a state legislator on the radio this morning say that this accident wouldn't cause him to change his mind. It's about human rights, he said. Riders should not be forced to wear a helmet.

I've got one for you, Mr. Politician. Let's repeal seat-belt laws, and gun laws, and minimum drinking ages, and let's just let America be the Wild, Wild West. Do what you want, when you want.

Actually, all of that sounds pretty good to me (in truth, the minarchist "wild, wild west" wasn't all that wild). Here's the punchline:

Laws are made to protect people, even when they think they don't need protecting. Wearing a helmet while riding a motorcycle is about as basic as one can get in terms of human safety. It's irresponsible to argue the other side.

Empahsis mine. "Irresponsible" would be one word for it.

"Principled" would be another.

June 13, 2006 4:04PM

Official Secrets

Sunday's Washington Post has a fine piece by former Post managing editor Robert G. Kaiser explaining why papers like the Post publish official secrets despite government assertions that publication may be harmful to national security. Kaiser writes: 

We avoid the gratuitous revelation of secrets. . . . [but] no single authority should be able to decide what information should reach the public. Some readers ask us why the president's decisions on how best to protect the nation shouldn't govern us, and specifically our choices of what to publish. The answer is that in the American system of checks and balances, the president cannot be allowed to decide what the voters need to know to hold him accountable. 

Moreover, Kaiser notes that "labeling something 'classified' or important to 'national security' does not make it so. The government overclassifies with abandon." "Exhibit A" for Kaiser is the historic Pentagon Papers case, in which the Nixon administration, citing (you guessed it) the president's authority as Commander in Chief, attempted to enjoin publication of the Pentagon Papers, a classified Defense Department history of the Vietnam war leaked to the New York Times and the Washington Post.

In a June 14, 1971 oval office meeting with the president, White House chief of staff H.R. Haldeman discussed whether to file suit (and whether to steal the papers from the Brookings Institution). Haldeman described what he feared the effect of publication would be:

But out of the gobbledygook, comes a very clear thing: [unclear] you can’t trust the government; you can’t believe what they say; and you can’t rely on their judgment; and the –- the implicit infallibility of presidents, which has been an accepted thing in America, is badly hurt by this, because it shows that people do things the president wants to do even though it’s wrong, and the president can be wrong.  [Emphasis added]. 

That the "implicit infallibility of presidents" is no longer "an accepted thing in America" -- that the very phrase now causes any thoughtful American to smirk -- is one reason to give thanks that reporters no longer automatically wilt before government claims of secrecy.  

June 13, 2006 3:48PM

The Power to Seize

You already know about the Duke University lacrosse players that have been indicted for rape.  The investigation is ongoing and the prosecutor is now ordering Duke University to turn over personal records for the other athletes on the team.  If Duke balks, the government could levy fines until the information is surrendered.

The power to seize private property is supposed to be divided between the executive branch and the judicial branch.  That is, the police file a search warrant application with a judge.  If the judge approves, the search takes place.  What does the judge look for in the application?  Well, the Fourth Amendment speaks of "probable cause" and "particularity" --  so the judge is basically looking for a good basis for the police to interfere with someone's liberty.   No judicial approval, no search.  (There are exceptions, but that's the general idea).  The "basis" for the prosecutor's subpoena to Duke University amounts to ...  "they're on the lacrosse team."

The executive branch (police) bypasses the judicial "check" whenever it can get away with it.  If a search warrant application would be shaky, just use a subpoena. When most people think of subpoena, they imagine an official-looking envelope that arrives via certified mail.  Think again.  The government likes to claim that it is not using subpoenas as substitutes for search warrants, but you decide for yourself.  This is not a police raid, it's an "administrative inspection."

If Cato could subpoena the government, we might get a clearer picture on how officials use these powers, but the state is fierce about its own records.  For background on how prosecutors have been using grand jury subpoenas to bypass constitutional safeguards, read this.

Thanks to Crime and Federalism for the pointer.

June 12, 2006 2:20PM

Motion to Dismiss this Lawsuit … With Extreme Prejudice!

Item: Criminal brings lawsuit against John Q. Citizens for defending themselves.

Nonlawyers are quick to ask, "Can he really do that?!"

Let me attempt a quick answer:

Any person can sue any other person for anything. You can file a lawsuit against a newborn baby for "disturbing the peace" in a park. But there is a legal mechanism to dispose of meritless lawsuits without a trial or even a preliminary hearing--it's called a motion to dismiss. And a motion to dismiss with prejudice will bar the litigant from bringing such an action again. When law students learn about the motion to dismiss with prejudice, their textbook should illustrate the concept by mentioning the case of the criminal who tried to sue his victims.

On the general subject of self-defense, we should all remember this gem from Colorado Sheriff Bill Masters: "It is your responsibility to protect yourself and your family from criminals. If you rely on the government for protection, you are going to be at least disappointed and at worst injured or killed."

More on self-defense here. To listen to a talk that Masters gave at Cato, click here.

June 12, 2006 12:56PM

The American Meddling Association

The American Medical Association has long ceased to be a serious advocate for doctors. It instead has become a propaganda arm for the wackier factions of the public health movement. The Chicago Sun Times reports that at its annual meeting this week, the AMA is considering throwing its support behind a move to tax soda sales, with proceeds going to various anti-obesity measures. This, despite little evidence that soda consumption is linked to weight gain (non-diet soda consumption has remained virtually unchanged since 1988). Not to mention the fact that if we've learned anything about sin taxes, it's that they're inevitably used for projects far removed from those educational programs promised when they're enacted.

The soda tax endorsement comes on the heels of the AMA's embarassing attempt to pass off a web-based survey (which the organization later admitted was an "advocacy" tool) about alcohol consumption as scientific research, complete with a fake margin of error. Last year, the same organization and its president expressed shock that -- gasp! -- most minors get their first taste of alcohol from... their parents. Seems to me that the supervising eye of a parent would be the ideal circumstance under which a minor would get his first sip of beer or wine, wouldn't it?

Consider these other action items from the agenda for the AMA's annual meeting this week:

  • Support a 50 percent reduction in salt in processed foods, fast foods and restaurant meals over the next decade.
  • Oppose beer ads on college sports broadcasts.
  • Prepare a report summarizing video game research, including emotional and behavioral effects and addictive potential.
  • Push to ban smoking in all public places and workplaces.
  • Support mandatory school instruction on the dangers of Internet pornography.

Meanwhile, as it continues to tell parents how to raise their children, and push for government regulation of private behavior, the AMA has been conspicuously silent, passive, or just plain wrong on issues you'd think would be high-priority for a group that claims to represent doctors: The relentless DEA campaign against doctors who specialize in pain management, for example. Pain activists say the AMA has been AWOL. And not only didn't the AMA oppose many of the more onerous HIPAA regulations, it lobbied for their enforcement. The organization has also taken a relatively passive stance of the federal prohibition on medical marijuana, which puts political drug eradication goals ahead of patient care.

The AMA's percentage of revenue from membership dues has fallen over the last few years. It now counts just 26% of U.S. physicians among its dues-paying members.

Given the organization's priorities, I can see why. Journalists should keep that figure in mind when reporting on official AMA positions. The group certainly doesn't represent the opinion of all doctors. Of, for that matter, even a majority of them.