Institute for Justice

The decision in Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett came out today (PDF), a 5-4 decision ruling Arizona’s Clean Election laws unconstitutional. The dissent, it seems to me, has a much better case than the majority: the program does not discriminate against any candidate or point of view, and it does not restrict any person's ability to speak.  In fact, by providing resources to many candidates, the program creates more speech and thereby broadens public debate. ... At every turn, the majority tries to convey the impression that Arizona's matching fund statute is of a piece with laws prohibiting electoral speech. The majority invokes the language of "limits," "bar[s]," and "restraints." ... It equates the law to a "restrictio[n] on the amount of money a person or group can spend on political communication during a campaign." ... There is just one problem. Arizona's matching funds provision does not restrict, but instead subsidizes, speech. The law "impose[s] no ceiling on [speech] and do[es] not prevent anyone from speaking." ... The statute does not tell candidates or their supporters how much money they can spend to convey their message, when they can spend it, or what they can spend it on. ... In the usual First Amendment subsidy case, a person complains that the government declined to finance his speech, while financing someone else's; we must then decide whether the government differentiated between these speakers on a prohibited basis--because it preferred one speaker's ideas to another's. ... But the speakers bringing this case do not make that claim--because they were never denied a subsidy. ... Petitioners have refused that assistance. So they are making a novel argument: that Arizona violated their First Amendment rights by disbursing funds to other speakers even though they could have received (but chose to spurn) the same financial assistance. Some people might call that chutzpah. Indeed, what petitioners demand is essentially a right to quash others' speech through the prohibition of a (universally available) subsidy program. Petitioners are able to convey their ideas without public financing--and they would prefer the field to themselves, so that they can speak free from response. To attain that goal, they ask this court to prevent Arizona from funding electoral speech--even though that assistance is offered to every state candidate, on the same (entirely unobjectionable) basis. And this court gladly obliges.(See my previous argument against the Institute for Justice's position on this, with some subsequent clarifications on other aspects of the law.) The majority position on this issue is that the unconstitutionality arises from the way that the subsidy to clean elections candidates is tied to campaign spending by the non-clean-elections candidates; I take it that had the subsidy been a fixed amount the argument would not have worked at all. There's a good overview of the issues at the SCOTUS blog.

This afternoon I had the pleasure of hearing writer Jeff Benedict speak about his book, Little Pink House, which is the story behind the Kelo v. New London case that went to the U.S. Supreme Court in 2005. That case, which ruled that New London did have the right to use eminent domain to seize private property and turn it over to another private entity–effectively retranslating the Fifth Amendment’s use of the words “public use” into the meaning “public benefit”–was a case I thought I was familiar with. But Benedict’s talk revealed that while I was aware of some of the facts relevant to the legal case, I really had no idea about the whole story. In his short talk, he conveyed some of the events and details that did not make it to the national press, but which make the story all the more interesting. The political battles between state and city government, the plan to get Pfizer to stay in Connecticut when it was looking elsewhere, and the personalities involved made for a genuinely moving talk even when we already know how the story ends. I look forward to reading his book. ...

June 4 will be the 20th anniversary of the Tiananmen Square massacre. March 10 is the 50th anniversary of the Tibetan uprising that led to the Dalai Lama’s exile. July 22 is the 10th anniversary of the banning of the Falun Gong cult in China. And October 1 is the celebration of 60 years of Communist rule in China. Chinese leaders worry that the first three anniversaries may cause issues for the last, and they are right to worry. This looks like it will be a year for dissidents in China to come forward, and it has already begun with an online petition issued in December called Charter 08 at the 60th anniversary of the UN Universal Declaration of Human Rights. Charter 08 (in English here) was named after Charter 77, a human rights manifesto issued by Czechoslovakian dissidents in 1977. Charter 08, which has been signed by more than two thousand Chinese citizens, calls for recognition of “basic universal values”: ...

Kat and I attended Alan Korwin’s Bill of Rights celebration, celebrating the 217th anniversary of the Bill of Rights, which was held this evening at the Wrigley Mansion. There were several hundred people in attendance, mostly civil libertarians of both liberal and libertarian varieties, including people from the Institute for Justice and the ACLU. We were asked in the invitation to think about which Amendment is our favorite–I would probably rank the 1st and 4th at the top of my list, of which the 1st is much healthier than the 4th. I’d also put the 8th and 5th high in importance, both of which have taken some recent hits but are showing signs of recovery. And of course the 6th, and the under-utilized 9th… ah, heck, they’re all important. The crowd seemed dominated by 2nd Amendment fans, not surprising since Alan Korwin is the author and publisher of numerous books on U.S. gun laws. The reading of the Bill of Rights and its preamble was excellent, but I was disappointed that the event included a Patrick Henry impersonator played by Lance Hurley of Founding Fathers Ministries. Hurley is a Christian who endorses David Barton’s works of pseudohistory on his website (for which the antidote is Chris Rodda’s Liars for Jesus), and at the event argued in character, with quotations from Henry, that the 2nd Amendment came from the teachings of Jesus Christ, that the American revolution was fought on Christian principles, and the Constitutional Convention succeeded because of Ben Franklin’s prayer. He also stated, when there were discussions of the health of the first ten amendments to the Constitution, that freedom of religion is in serious danger, because no one can mention God in schools but the Koran can be discussed. This is simply untrue–God and the Bible can be discussed by students, but such discussions cannot constitutionally be imposed by state agents such as teachers and administrators in a way that constitutes an establishment of religion. The Bible can be legally taught as the combination of myth, history, poetry, literature, and religious doctrine that it is, but Christianity cannot be endorsed as true by state agents. The same rules apply to the Koran. Hurley seems not to realize that Madison’s version of the First Amendment won out, not Henry’s. Some Christians–and it appears that Hurley may be one of them–have a view that their freedom of religion is infringed if they are prevented from legally imposing their religion on others through acts of state agents. I’ll find it amazing that Christians consider themselves to be a poor, persecuted minority prohibited from expressing their religious views when they are, in fact, regularly engaging in establishment clause violations, and Congressmen are signing on to bills like last year’s House Resolution 847. Hurley does public speaking as both Patrick Henry and George Washington–I wonder if his George Washington is historically accurate with respect to Washington’s religious views. He’s also an advocate of conspiracy theories (Illuminati, Trilateral Commission, Bilderbergers, etc.) and an advocate of the National Day of Prayer. Further fringe elements were represented at the event by Ernie Hancock of the Ron Paul Revolution, who distributed multiple pieces of literature promoting his Freedom’s Phoenix website, billed as “uncovering the secrets & exposing the lies.” That site also promotes conspiracy theory, including “9/11 truth” conspiracy claims. In the discussions, several people brought up Phoenix’s recently installed freeway traffic speed cameras as evidence of the sickliness of the Bill of Rights, though no one really offered an explanation of how the Bill of Rights is violated by them. And the objection seemed to only be to the cameras, not to speed limit laws. I’m not a fan of speed cameras, and I agree that they are more of a revenue generation method than a safety measure, but I don’t see an obvious case that they violate the Bill of Rights. That’s not to say that the event was entirely dominated by the lunatic fringe–one woman in the audience commented that she was particularly concerned about the 4th Amendment, because she is now regularly stopped at a “border checkpoint” while driving between destinations well inside the U.S. border, because of the 100-mile “Constitution-free zone” that the courts have created around the perimeter of the U.S. And Jennifer Perkins of the Institute for Justice pointed out that even though the U.S. Supreme Court blew a gigantic hole in the 5th Amendment with the Kelo case, nearly all of the states have passed legislation adding further protections against eminent domain abuse (and Arizona’s are the strongest). There was one critical mention of the USA PATRIOT Act (by the Patrick Henry impersonator, to well-deserved applause), but no mention of Guantanamo Bay, the Military Commissions Act, or torture that I noticed. I think concern over traffic cameras is at least a bit lower on the priority list than any of these items. A point in favor of the Patrick Henry arguments is that he correctly identified the risk of expanding executive power and judicial decisions that disregarded basic rights (the fact that the Bill of Rights, as well as the Constitution itself, has many passages that have effectively been written out of it, is testament to the accuracy of that prediction). The First Amendment’s guarantee of free speech, at least, is alive and relatively well. UPDATE (December 16, 2008): Ed Brayton at Dispatches from the Culture Wars points out that Ron Paul introduced the American Freedom Agenda Act which would: Repeal the “Military Commissions Act of 2006” and thereby restore the ancient right of habeas corpus and end legally sanctioned torture by U.S. government agents Restore the “Foreign Intelligence Surveillance Act” (FISA) and thereby outlaw warrantless spying on American citizens by the President of the United States ...

Yesterday, Arizona Superior Court Judge William O’Neill struck down a Pinal County Court ruling that Dale Bell’s San Tan Flat steakhouse is a “dance hall," freeing Bell from a ban against customers dancing outside his establishment. Pinal County’s attempt to ban dancing and extract fines from Bell had been hanging over his business since he opened in 2005. Eamon Knight (2008-05-02): I have to ask: how on earth did this silly case get started? Did the neighbours complain about noise? Some petty control freak at City Hall decided to check every old law on the books? Someone had a grudge on the owner? ...

Clint Bolick, formerly the primary litigator for the Institute for Justice, is taking on some good causes as a litigator for the Goldwater Institute’s new Scharf-Norton Center for Constitutional Litigation. He’s currently fighting against the City of Phoenix’s unconscionable and unconstitutional multimillion-dollar subsidy to the developers of the CityNorth project, and now he’s taking on popular Maricopa County Sheriff Joe Arpaio. In an article posted today called “Who’s in Charge?", Bolick points out two cases of apparent misuse of funds by Arpaio–using RICO funds to send staff to Honduras, and sending out nearly 200 deputies and “posse” members on “saturation patrols” that appear to be trespassing the jurisdiction of the Phoenix Police Department. Meanwhile, Bolick notes: Whatever the rationale the Maricopa County Sheriff’s Office had for those actions, both diverted scarce resources away from vital law enforcement duties that fall within the Sheriff’s Office’s core duties: • Unserved warrants, including those for violent offenders, number an estimated 70,000. • Dozens of criminal defendants have missed court appearances because deputies in charge of moving inmates were told to skip shifts due to excessive overtime. • The Sheriff’s Office closed three regional booking facilities in Surprise, Avondale, and Mesa, forcing police officers in all 26 Maricopa County jurisdictions to book criminal suspects at the Fourth Avenue jail in downtown Phoenix. The greatly increased transportation time removes officers from the streets and induces them to simply cite and release criminals.Arpaio has a long history of showy but useless or even counterproductive law enforcement activities, as well as costing the taxpayers millions by getting the MCSO sued repeatedly for wrongful death and injury cases as a result of abuse of inmates. But Maricopa County residents keep voting him back in, because he claims to be tough on crime and is often a good self-promoter. I hope that events like last October’s arrests of the owners of New Times and now Clint Bolick going after him will finally lead to his non-reelection for County Sheriff this year. Dan Saban, who’s running against Arpaio, is saying all the right things about integrity, civil rights, and combating waste, though he also seems to take a hard line on illegal immigration (which is another area where Arpaio has taken a hard line and engaged in some theatrical activities). He looks like a marked improvement to Arpaio. UPDATE (April 2, 2008): Looks like Goldwater lost round one today on CityNorth, a project where the city is giving $97.4 million in taxpayer subsidies to the developers of a shopping mall over the next 11 years, and claiming that it is for the 3,180 parking spaces in the parking garage the project is building, 200 of which are reserved for carpoolers using park and ride city bus services for the next 45 years. If the subsidy is considered to be for those 200 spaces, that comes out to $487,000 per space over the 45-year period, or $10,822.22 per space per year. The average parking space annual lease price in Phoenix is $684, and ASU recently estimated that a parking garage would cost $14,000 per space to build. In other words, if instead of paying nearly $100 million to CityNorth, the city instead had purchased land and built its own parking garage, the construction would have cost less than what the city is paying for the first two years worth of the 45-year lease on the 200 spaces. And that doesn’t count the additional $10,000/week of taxpayer funds that has been spent on lawyers fighting for this subsidy. The Goldwater Institute has announced that it will appeal. UPDATE (April 9, 2008): The New York Times has editorialized that Arpaio should be subpoenaed about his anti-illegal-immigrant sweeps: For months now, Sheriff Joe has been sending squads of officers through Latino neighborhoods, pulling cars over for broken taillights or turn-signal violations, checking drivers’ and passengers’ papers and arresting illegal immigrants by the dozen. Because he sends out press releases beforehand, the sweeps are accompanied by TV crews and protesters — deport-’em-all hard-liners facing off against immigrant advocates. Being Arizona, many of those shouting and jeering are also packing guns. Sheriff Joe, seemingly addicted to the buzz, has been filmed marching down the street shaking hands with adoring Minutemen. ...

Speechnow.org is being supported by the Institute for Justice and the Center for Competitive Politics in its lawsuit against federal laws and regulations which forbid it from receiving more than $5,000 in donations per year from any individual and require it to file forms and engage in reporting in order to do what it wants to do. What does Speechnow.org want to do? It wants to advocate the view that voters should vote for candidates who support the First Amendment and against candidates who do not. It takes no corporate or union money, it doesn’t donate to or coordinate with individual candidates or political parties. Yet this is sufficient under current law to restrict its activities and entangle it in red tape, so Speechnow.org has filed a federal lawsuit seeking a preliminary injunction.

I agree with most of the positions taken by the Institute for Justice, an organization that fights for economic rights of entrepreneurs (especially small businesses fighting ridiculous regulations designed as barriers to entry), for freedom of speech, against eminent domain abuse, and for school choice. But I don’t understand its argument against Arizona’s Clean Elections law, which strikes me as conflicting with some of its other arguments. Tim Keller, head of the Arizona chapter of the Institute for Justice, makes the following argument: ...

From Robert Novak (ick, but it doesn’t change the facts here) via Distributed Republic: With the midnight hour approaching on Saturday, Aug. 4, near the end of a marathon session, Democratic and Republican leaders alike wanted to pass the defense appropriations bill quickly and start their summer recess. But Republican Rep. Jeff Flake’s stubborn adherence to principle forced an hour-long delay that revealed unpleasant realities about Congress. Flake insisted on debating the most egregious of the 1,300 earmarks placed in the defense money bill by individual House members that authorize spending in their districts. Defending every such earmark was the chairman of the Appropriations defense subcommittee: Democratic Rep. John Murtha, unsmiling and unresponsive to questions posed on the House floor by Flake. Murtha is called “King Corruption” by Republican reformers, but what happened after midnight on Aug. 5 is not a party matter. Democrats and Republicans, as always, locked arms to support every earmark. It makes no difference that at least seven House members are under investigation by the Justice Department. A bipartisan majority insists on sending taxpayers’ money to companies in their districts without competitive bidding or public review. ...

Radley Balko describes an outrageous case of eminent domain extortion in Port Chester, NY: With the blessing of officials from the Village of Port Chester, the Village’s chosen developer approached [entrepreneur Bart] Didden and his partner with an offer they couldn’t refuse. Because Didden planned to build a CVS on his property–land the developer coveted for a Walgreens–the developer demanded $800,000 from Didden to make him “go away” or ordered Didden to give him an unearned 50 percent stake in the CVS development. If Didden refused, the developer would have the Village of Port Chester condemn the land for his private use. Didden rejected the bold-faced extortion. The very next day the Village of Port Chester condemned Didden’s property through eminent domain so it could hand it over to the developer who made the threat. ...