Topic: Law and Civil Liberties

The Folly of Hate Crime Laws

That’s the title of Richard Cohen’s op-ed in yesterday’s Washington Post. Cohen highlights the futility of using a hate crime to prosecute the Holocaust Museum shooter:

In von Brunn’s case, the hate-crime counts are an obscenity. To suggest that the effects of this attack were felt only by the Jewish or the black communities – and not, for instance, by your average Washington tourist – ghettoizes both its real and purported victims. It’s a consequence that von Brunn himself might applaud.

I couldn’t agree more.

Sarbanes-Oxley’s Harms Are Magnified by the PCAOB’s Unconstitutional Structure

Passed with scant deliberation amid a stock market panic, the Sarbanes-Oxley Act of 2002 vastly expanded the federal government’s role in regulating corporate governance and the accounting industry. As part of that effort, Congress created a new agency to “audit the auditors.” Known as the Public Company Accounting Oversight Board, the agency has broad rulemaking and enforcement powers to set accounting standards, investigate accounting firms, punish criminal violations, and make whatever rules “may be necessary or appropriate in the public interest or for the protection of investors.”

Remarkably, the PCAOB (pronounced “peek-a-boo”) also has the power to fund its own budget by levying taxes on publicly traded companies. Despite giving the PCAOB all this power, however, Congress insulated it entirely from presidential oversight. Unlike with an ordinary “independent agency,” the president has no power whatsoever to appoint or remove PCAOB officials. Those officials may be removed only “for cause” by the SEC, not the president; and SEC officials may themselves be removed only for cause.

The Free Enterprise Fund challenged the constitutionality of the PCAOB and appealed to the Supreme Court. Cato’s supporting brief focuses on the PCAOB’s practical policy consequences, illustrating how the PCAOB’s unconstitutional structure has created incentives for out-of-control spending, agency aggrandizement, and lack of coordination between regulators. Our brief also highlights the PCAOB’s efforts to impose American accounting standards abroad, which has caused confusion and invited retaliation from foreign regulators.

I previously blogged about this case here and here.

A Chance to Rethink How We Regulate Political Speech

At the March 24 argument in Citizens United v. Federal Election Commission, the U.S. government argued that Section 203 of the Bipartisan Campaign Reform Act of 2002 (otherwise known as McCain-Feingold) permits the FEC to ban corporations, including ideological nonprofits like Citizens United, from making independent expenditures on films, books, or even “a sign held up in Lafayette Park.”  The jurisprudential justification for this extraordinary and shockingly expansive view of the government’s power to suppress political speech traces to the Supreme Court’s 1990 decision in Austin v. Michigan Chamber of Commerce.  In Austin, the Court held that Michigan had a compelling state interest in banning political speech funded with wealth accumulated using the corporate form.  Though the Court contended that such speech, because it bears little correlation to public support for the political ideas expressed, constituted a “different type of corruption,” in reality it upheld Michigan’s statute as a “counterbalance” to the “distorting” and “unfair” influence corporate funds could have on the outcome of elections.

This relative-equality rationale—suppressing disfavored speakers to enhance the voice of other government-favored speakers—is antithetical to core First Amendment protections and elsewhere has been expressly rejected by the Court (in Buckley v. Valeo and, more recently, in Davis v. FEC).  Accordingly, to decide Citizens United’s appeal, the Court ordered rebriefing and reargument on Austin’s continuing validity.

On Friday, Cato filed its brief, the second we’ve filed in the case. We argue that Austin, and the part of McConnell v. FEC that upheld Section 203’s facial validity, are not entitled to stare decisis deference and should thus be overturned.  These relatively recent decisions are poorly reasoned, have engendered no reliance interests (no one relies on less freedom of speech), and have spawned an unworkable and irrational campaign finance system in which the government rations different levels of permissible political speech to otherwise equally situated speakers.

The case will be reargued September 9, in a special session about a month before the official start of the Court’s new term.

Here’s a Cato Institute video detailing some elements of the original Citizens United oral argument:

Keeping Allies at Bay

Many people who care deeply about the Henry Louis Gates incident will steer clear of it because of the racial component and the high dudgeon. Maybe I’m not so wise.  At the risk of sounding  ”I know what it’s like … .”

I’ve been harassed by police for idling my car outside of a grocery store, waiting for a friend to bring out his groceries. I gave them the wrong look as they passed, I guess, so they circled back to berate me on the pretext that the asphalt in front of the store was a fire lane. Never mind that it was after 11:00 p.m. and the parking lot was empty.

I held my tongue - even pretended to get a little weepy - and collected their car number. Once home, I called the sheriff’s office, saying I had gotten some help from some officers and wanted to get their names to ”write a nice letter or something.” The next day I called back and spoke to their Senior Deputy, Deputy Arnaldi, about what was at a minimum rudeness and to me very threatening. It turns out that Deputy Tuller was a training officer bringing a young man named Vargas up to speed on how to intimidate and offend the public.

Also in college, police came to a party of mine because of a noise complaint - well-founded, I’ll admit. Instead of quieting the party, they drew my roommate outside and claimed they needed his ID, but refused to let him get it. Instead, they encircled and harangued him. It appeared to me that they were trying to draw him into violence. It’s a tribute to his lifelong decency and dignity that he didn’t take the bait. My roommate was black, and the inference I drew from the circumstances is that the police had it in for him because he was black.

I was a little more assertive this time.  I demanded the name of the ringleader. He responded by asking me to come talk to him on the street, but I guessed that he would have stronger grounds to arrest me there so I declined.

His name was Abel Pibo. Abel Pibo of the Santa Barbara County Sheriff’s Department is a stain. If he has family who loves him, they should know that other people feel very differently.

Next up, law school. In the summer between my first and second year, police officers in South Dakota invented a reason to convert a tail-light stop into a full-blown search of my car and passengers, complete with a drug-sniffing dog and a camera crew from a television show called ”Real Stories of the Highway Patrol.” The car, which had been broken into by thieves earlier in the trip, was ransacked again, by “law enforcement.”

My assertiveness grows. To render the television footage unusable, I stood just off-camera swearing like a sailor throughout the search and the re-staging of events the officers did for the camera crew. Every combination of the filthy words I’ve ever known passed my lips twice.

Why recite these incidents in such detail? Why tell you what I think of Abel Pibo? To convey the depth of feeling I have - and so many of us have - about police abuses of power. 

I’ve been lucky, of course, because I haven’t been arrested - even as I’ve gotten mouthier with age. And it’s entirely clear to me as a person who resides in the upper echelons of society (putting aside traditional categorizations) that much worse is happening to other people.

It’s not about being anti-police. During those college years, I worked in a nightclub where we often relied on and worked with local police. I won’t use their last names, but Bill, Sid, and Dennis (aka “Sergeant Idol”) are great guys. When I got decked by a guy wearing a ring and had to get my chin stitched up, Sid was ticked! I had never seen him scurry around quite so much. And I appreciate it.

As Tim Lynch noted, Radley Balko captured what won’t be taught in this evening’s teaching moment: “[T]he issue here is abuse of police power, and misplaced deference to authority.”

Radley tells the story of our friend Brooke Oberwetter, who was arrested at the Jefferson Memorial for dancing on his birthday - perhaps, more accurately, for asking why she wasn’t allowed to dance there on his birthday.

At a cross-ideological panel discussion on civil liberties post-9/11 some months ago, I told the story of Brooke’s arrest and the slightly over-righteous commentary about “the state” in one of the videos.  A co-panelist from the NAACP observed to my delight (paraphrasing), “So your ‘the state’ is our ‘the man!’” It was an absolutely hilarious comment - and a delight because it crystalized the common interest we all have. Police abuses I’m quite certain fall disproprtionately on African Americans.

With regret, I report that the NAACP is seeking policy changes that aren’t grounded in these common interests.  They want anti-racial profiling training and race and gender sentivity training.

These things won’t address the issue most central in the Henry Louis Gates incident, or the issue that will bring more communities and constituents on board. Unfortunately, this approach to the matter is keeping allies at bay.

Cult Watch: Obama’s “Chat” About Cambridge Arrest

So President Obama is going to host Professor Gates and Officer Crowley today at the White House.  Much has already been said about the controversial arrest for “disorderly conduct.”  IMHO, it seems like a false arrest.  I wasn’t there, but it is not a crime for someone to be obnoxious to the police (and that is basically the cop’s version of the incident).  For additional background, I recommend the columns by Eugene Robinson, Harvey Silverglate, and Radley Balko.

But leave the arrest itself aside.  Even more disturbing is Obama’s leap into this matter.  It is yet another indication of the Cult of the Presidency where the President sees a role for himself in just about any aspect of life.  The news media covers the event as if it is pretty much ordinary business.  What’s next?  Will Mr. Obama try to help the Gosselins out by having Jon and Kate over for tea?  Obama could bring in the best counselors in the world while Michelle takes the kids on a helicopter ride to Camp David for the afternoon.

Fun With DHS Press Releases!

Let’s fisk a DHS press release! It’s the “Statement by DHS Press Secretary Sara Kuban on Markup of the Pass ID Bill by the Senate Homeland Security and Government Affairs Committee.” Here goes:

On the same day that Secretary Napolitano highlighted the Department’s efforts to combat terrorism and keep our country safe during a speech in New York City,

This part is true: Secretary Napolitano was in New York speaking about terrorism.

Congress took a major step forward on the PASS ID secure identification legislation.

There was a markup of PASS ID in the Homeland Security and Governmental Affairs Committee. It’s a step – not sure how major.

PASS ID is critical national security legislation

People who have studied identity-based security know that knowing people’s identities doesn’t secure against serious threats, so this is exaggeration.

that will break a long-standing stalemate with state governments

Thirteen states have barred themselves by law from implementing REAL ID, the national ID law. DHS hopes that changing the name and offering them money will change their minds.

that has prevented the implementation of a critical 9/11 recommendation to establish national standards for driver’s licenses.

The 9/11 Commission devoted three-quarters of a page to identity security – out of 400+ substantive pages. That’s more of a throwaway recommendation or afterthought. False identification wasn’t a modus operandi in the 9/11 attacks, and the 9/11 Commission didn’t explain how identity would defeat future attacks. (Also, using “critical” twice in the same sentence is a stylistic no-no.)

As the 9/11 Commission report noted, fraudulent identification documents are dangerous weapons for terrorists,

No, it said “travel documents are as important as weapons.” It was talking about passports and visas, not drivers’ licenses. Oh – and it was exaggerating.

but progress has stalled towards securing identification documents under the top-down, proscriptive approach of the REAL ID Act

True, rather than following top-down prescription, states have set their own policies to increase driver’s license security. It’s not necessarily needed, but if they want to they can, and they don’t need federal conscription of their DMVs to do it.

– an approach that has led thirteen states to enact legislation prohibiting compliance with the Act.

“… which is why we’re trying to get it passed again with a different name!”

Rather than a continuing stalemate with the states,

Non-compliant states stared Secretary Chertoff down when he threatened to disrupt their residents’ air travel, and they can do the same to Secretary Napolitano.

PASS ID provides crucial security gains now by establishing common security standards for driver’s licenses

Weak security gains, possibly in five years. In computer science – to which identification and credentialing is akin – monoculture is regarded as a source of vulnerability.

and a path forward for ensuring that states can electronically verify source documents, including birth certificates.

We’re on the way to that cradle-to-grave biometric tracking system that will give government so much power over every single citizen and resident.

See? That was fun!

Senate Panel Endorses Sotomayor

The judiciary committee’s vote to endorse Sonia Sotomayor is not surprising. None of the Democrats are from red states and so have little to fear from voters, while the quixotic Lindsey Graham—in what can only be described as a triumph of hope over experience—was the only Republican to have set aside legitimate qualms and voted for the “wise Latina.” But voting on a Supreme Court nomination is more than a matter of deciding whether a nominee is “qualified”—even if Sonia Sotomayor had been a leading light of the judiciary rather than just the best available Hispanic woman—or deferring to the president. Instead, Senator Dick Durbin had it right when he said during John Roberts’s confirmation hearings that “no one has a right to sit on the Supreme Court” and that the “burden of proof for a Supreme Court justice is on the nominee.”

Given Sotomayor’s repeated rejection of the idea that law is or should be objective or discernible from written text, her inability in oral and written testimony to even state a position on important cases and legal doctrine beyond an acceptance of precedent—by which she would no longer be bound in her new role—leaves me with an abiding concern about the damage she could do to the rule of law in this country. I am similarly hard-pressed to accept hearing-seat conversions that contradict over 15 years of speeches and articles: most notably on the idea that judges’ ethnic backgrounds—and even “physiological differences”—should affect their rulings and on using foreign law to inform constitutional interpretation. Because of her evasion, obfuscation, and doubletalk, I like Sotomayor less now than when she was first nominated.

And so, in following the “burden of proof” paradigm and also respecting the logic of Senator Arlen Specter, who curiously evoked Scottish law at President Clinton’s impeachment trial to vote “not proven,” I would vote that the case for confirming Sonia Sotomayor to the Supreme Court is “not proven”—under American law.