Minor Thoughts from me to you

The two Republicans who broke ranks with their party and announced they would vote against education secretary nominee Betsy DeVos have received thousands of dollars from the nation's largest teachers union.

Sens. Lisa Murkowski (R., Alaska) and Susan Collins (R., Maine) have each benefited from contributions from the National Education Association. Collins received $2,000 from the union in 2002 and 2008, according to the Center for Responsive Politics. Murkowski, meanwhile, has received $23,500.

Is this an example of a special interest buying legislators or of legislators being responsive to public opinion? Careful — I'll hold you to your answer the next time that there's a vote involving a lobbying group and legislators that have received donations from that lobbying group.

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Charles C. W. Cooke offers a quick primer on America's expansive free speech tradition. When I think of American exceptionalism, this is one of the areas that comes to mind.

As the Supreme Court has repeatedly ruled, under American constitutional law there is simply no such thing as “hate speech.” In Texas v. Johnson, the Court confirmed that “the government may not prohibit the verbal or nonverbal expression of an idea merely because society finds the idea offensive or disagreeable,” thereby echoing the insistence of a lower court that “the First Amendment does not recognize exceptions for bigotry, racism, and religious intolerance or ideas or matters some may deem trivial, vulgar or profane.” Indeed, as FIRE’s Sean Clark noted in 2006, the government may not prohibit much at all:

The First Amendment allows you to wear a jacket that says “Fuck the Draft” in a public building (see Cohen v. California, 403 U.S. 15), yell “We’ll take the fucking street later!” during a protest (see Hess v. Indiana, 414 U.S. 105), burn the American flag in protest (Texas v. Johnson, 491 U.S. 397 and United States v. Eichman, 496 U.S. 310), and even give a racially charged speech to a restless crowd (see Terminello v. Chicago, 337 U.S. 1). You can even, consistent with the First Amendment, call for the overthrow of the United States government (see Brandenburg v. Ohio, 395 U.S. 444). This is not a recent development in constitutional law—these cases date back to 1949.

It is worth remembering that Madison did not believe that his Bill of Rights was necessary to protect speech at all. Because the Constitution is a charter of enumerated powers, he argued in Federalist No. 10, Congress enjoys no capacity to censor the press in the first instance and does not therefore need to be prevented from doing so:

Why for instance, should it be said, that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretence for claiming that power.

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I agree with Ross Douthat.

We are in a situation where my third point applies, because the kind of blasphemy that Charlie Hebdo engaged in had deadly consequences, as everyone knew it could … and that kind of blasphemy is precisely the kind that needs to be defended, because it’s the kind that clearly serves a free society’s greater good. If a large enough group of someones is willing to kill you for saying something, then it’s something that almost certainly needs to be said, because otherwise the violent have veto power over liberal civilization, and when that scenario obtains it isn’t really a liberal civilization any more. Again, liberalism doesn’t depend on everyone offending everyone else all the time, and it’s okay to prefer a society where offense for its own sake is limited rather than pervasive. But when offenses are policed by murder, that’s when we need more of them, not less, because the murderers cannot be allowed for a single moment to think that their strategy can succeed.

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Does your free speech extend to sharing your opinion or can state licensing boards tell you to shut up? A federal court decided not to even think about it.

A state licensing board in North Carolina tried to suppress a blogger who talked up and advised people on the health benefits of the "paleo" diet (that is, eating as we think cavement ate, no grains or processed foods), telling him directly what he could or could not say about his belief that the high-meat, low-carb diet helped him with his diabetes. The case was dismissed by a federal court late last week.

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Which brings up the absolutely salient point that there is no U.S. government role in the creation of Innocence of the Muslims. In an editorial on September 12, the New York Times observed that "whoever made the film did true damage to the interests of the United States and its core principle of respecting all faiths." The makers of the video clearly aimed to incite Muslims, but they are under no moral or legal obligation to respect other people’s religious beliefs. Whatever damage to U.S. interests the film has caused among Muslims, the interests of U.S. citizens would suffer far graver harm if our government were permitted to engage in censorship.

As the First Amendment to the U.S. Constitution makes plain, it is indeed a "core principle" that the U.S. government cannot favor one religious doctrine over any other and must respect everyone’s faith or lack thereof. President Thomas Jefferson expressed this view well in his 1802 letter to Danbury Baptists, "I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should 'make no law respecting an establishment of religion, or prohibiting the free exercise thereof,' thus building a wall of separation between Church & State."

This wall of separation is largely responsible for the relative social peace our religiously diverse country enjoys. A comparison of the Hudson’s Institute’s Index of Religious Freedom for countries in the Middle East and North Africa with the World Bank's indicators for political violence and for voice and accountability finds that the lack of freedom of religion and speech goes hand-in-hand with social violence and political instability. Where church (mosque) and state are entwined, social and political violence are far more common.

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Michael Totten again, quoting Paul Berman. It's dangerous to criticize Islam.

When I met Hirsi Ali at a conference in Sweden last year, she was protected by no less than five bodyguards. Even in the United States she is protected by bodyguards. But this is no longer unusual. Buruma himself mentions in Murder in Amsterdam that the Dutch Social Democratic politician Ahmed Aboutaleb requires full-time bodyguards. At that same Swedish conference I happened to meet the British writer of immigrant background who has been obliged to adopt the pseudonym Ibn Warraq, out of fear that, in his case because of his Bertrand Russell influenced philosophical convictions, he might be singled out for assassination. I happened to attend a different conference in Italy a few days earlier and met the very brave Egyptian-Italian journalist Magdi Allam, who writes scathing criticisms of the new totalitarian wave in Il Corriere della Sera–and I discovered that Allam, too, was traveling with a full complement of five bodyguards. The Italian journalist Fiamma Nierenstein, because of her well-known sympathies for Israel, was accompanied by her own bodyguards. Caroline Fourest, the author of the most important extended criticism of [Tariq] Ramadan, had to go under police protection for a while. The French philosophy professor Robert Redeker has had to go into hiding. I have no idea what security precautions have been taken by Flemming Rose, the cultural editor of the Danish newspaper Jyllands-Posten, which published the Muhammad cartoons. And van Gogh…

Salman Rushdie has metastasized into an entire social class, a subset of the European intelligentsia–its Muslim wing especially–who survive only because of their bodyguards and their own precautions. This is unprecedented in Western Europe during the last sixty years. And yet if someone like Pascal Bruckner mumbles a few words about the need for courage under these circumstances, the sneers begin–"Now where have we heard that kind of thing before?"–and onward to the litany about fascism. In the Times magazine, Buruma held back even from hinting obliquely about the fascist influences on Ramadan’s grandfather, the founder of the modern cult of artistic death. Yet Bruckner, the liberal–here is somebody on the brink of fascism!

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David M. Primo talks about how campaign finance laws work to restrict free speech.

This past election when Dina Galassini emailed some friends urging them to join her in opposing a ballot initiative proposing $30 million in bonds for the town of Fountain Hills, Ariz., she thought she was doing what Americans have done throughout our nation’s history—speaking out on matters of public concern. Instead, she received a letter from a town clerk strongly urging her to “cease any campaign related activities.” It turns out she failed to fill out the paperwork required by Arizona’s campaign finance laws and therefore didn’t have the government’s permission to speak.

Under Arizona law, as in most states, anytime two or more people work together to support or oppose a ballot issue, they become a “political committee.” Even before they speak, they must register with the state, and then they must track every penny they spend, and if spending more than a small amount, fill out complicated reports detailing every move.

Worse yet, these laws do nothing to help educate voters. They're worthless, they're unconstitutional, and they're keeping citizens from becoming involved in politics.

I honestly don't understand why "progressives" think that these laws are such a great idea. Why is it okay for me to be involved in politics by myself but not okay for me and 10 or 100 or 1,000 or even 10,000 people to pool our time, resources, energy, and money together, to promote or oppose an idea?

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Are you tired of politics?

God knows, I am. As big a politics junkie as I used to be - in my time as a flag-wavin', God-fearin' Republican there wasn't a Townhall.com update I didn't read, nor an issue of _The Economist _I didn't completely consume for more general news before moving on to a host of blogs - these days I can barely finish a simple newspaper article without feeling that despicable strain that comes from forcing my poor brain to endure the consumption of totally repetitive and irrelevant information (for those of you who aren't Bible geeks like me, think of how you feel when reading the Book of Leviticus). Unless that newspaper article details the sexual exploits of one of our holders of higher office, anyway, because at least the secret life of Mark Sanford appeals to the voyeur in me.

But what the heck am I supposed to find interesting about Washington today - or indeed the world? No thoughtful debate of current issues exists within the federal and state levels of U.S. authority. Bills are written at absurd length and then submitted to the floor for approval on days when reading them, much less discussing them is impossible - and often include "blank checks", entire sections which are simply to be "filled in later" without returning for reconsideration. Which might be averted had our so-called representatives the huevos to simply vote down bills they've only just learned about, but Congress is utterly beholden to the unions, corporations, foreign governments, and associations which purchase its members' elections - the work of passing a bill doesn't really have anything to do with what's in it, so much as who is for it and who is against it. Indeed, at least in many sessions the leader of a party has simply informed his party's other members how they are to vote using hand signals - one for "yes", another for "no", an occasional third for "vote your conscience".

Oh, I suppose there is a little bit of discussion about the choices before us, now and then. Remember the most recent presidential debates? When an Ordinary Citizen would ask a pointed question and both Obama and McCain would simply ignore it, just make a vague statement about the economy or the Earth or Change instead? Just like their campaign managers demanded, I'm sure, because being boring and non-specific is how Poli-Sci wizards have determined one wins elections. There's a reason no president of our country has delivered a speech worthy of the Gettysburg Address in a very, very long time.

What is the American government that I am supposed to want to engage in it? Let's momentarily push past the oft-quoted reminder that "Democracy is two wolves and a sheep voting on what to have for lunch" (Benjamin Franklin is often incorrectly cited as the author, but in fact nobody can find evidence of the observation been written prior to '92). Let's note instead the unchallengeable fact that even the laws established both by the Unites States Constitution and our government are ignored whenever they get in the state's way. The government has a "compelling interest" in ignoring our property rights. It prosecutes people and expressly denies them the right to raise funds for their own defense. It goes to war without declaring war. It spies on us. It imprisons people indefinitely after they are found innocent of the crimes with which they were charged. It takes my money and gives it to the people who voted for and contributed to whoever is in office.

So I should work to change all that, right? I should start a movement. I should convince others of my position. That's what Democracy is all about.

Sure. That's the ticket. I'll just convince a bunch of first-class thieves to pass a bill which forbids them from stealing. Perhaps something along the lines of what Dan Carlin repeatedly suggests: a bill that requires a politician to excuse himself or herself from voting on any bill that affects an industry from which he or she has taken donations. If I campaign tirelessly for its passage, I'm sure it will only be a matter of time. Say, the rest of my life.

And really, that's a point I think needs to be brought up more often: the unknown amount of time I have on this planet and how much I can do with it. I have so many dreams. How much of this surely limited lifespan I have am I supposed to use up defending myself against these politicians and their supporters? These people hell-bent on owning me because they've bought into a utopian religion.

No, I really want nothing to do with any of it. I don't want to read another lie on the front page - and there is always a lie on the front page. I don't want to waste an hour or more of my day voting so that the next thief-in-chief to come along can say he has a mandate from me (or alternatively that he does not, but too bad).

But what options does rejecting this political arena, this total lie, leave me? Two, really: one is to resign myself to being at the mercy of whatever greedy power possesses the military might to hurt me and try to live my life as best I can anyway. The second is to succumb to what some commentators are snidely calling "the Bubba Effect" because they envision white rednecks from the South when they think of it (and incidentally, um, they're spot-on, 'cuz I am one). According to Glenn Beck's definition of the term (there seems to be disagreement), communities of like-minded individuals tend to form when citizens become disillusioned with the idea they are going to be able to live decent lives under their out-of-control government. Militias, for example. Or Christian Exoduses. Or Free State Projects.

I ask myself on a fairly regular basis these days if I have the courage to choose the latter and live a life of civil disobedience, as well as at what point the former would become unbearable (after Hate Speech Legislation? After socialized medicine? When my taxes reach a certain level?). Fortunately for me it's an academic question for now. I've the next several years of my life planned out and they mainly involve overseas work, living as a guest in other countries. My decision will remain deferred 'til my return.

And then, what?

The Supreme Court handed down a decision in FEC vs Wisconsin Right to Life today. The case revolved around the McCain-Feingold restrictions on free speech. I'm still in the process of reading the opinion and figuring out what it all means. Since I don't have an opinion yet, I turned to SCOTUS Blog for their analysis.

First though, a note about the makeup of the justices who decided the case. Bomb Throwers and Dismantlers.

Scalia and Thomas seem to be pursuing a different path than Roberts and Alito. The former want to blow things up quickly; the latter want to take them apart slowly. (Kennedy, the swing Justice, does whatever the hell he wants-- because, as a swing Justice-- he can.)

In all three cases, we see that Scalia and Thomas are much more willing to overturn existing doctrines that they oppose. Roberts and Alito, on the other hand, want to chip away at the doctrines slowly, using distinctions that make little sense on their own, but undermine older precedents-- leaving the possibility that they will be ripe for overruling later on.

It is the difference between bomb throwing and dismantling.

Frankly, I'm more of a bomb thrower than a dismantler myself. That's why I like Judge Janice Rogers Brown so much. On the other hand, Roberts and Alito may be able to accomplish more through a slow, gradual chipping process. Take today's decision in WRTL today.

WRTL: A Constitutional Sea Change

The 5-4 decision in WRTL is a blockbuster. Effectively, though silently, it overrules a central element in the Court's most recent prior confrontation with the campaign-finance problem at issue, the 5-4 decision in McConnell, issued only four years ago when Justice O'Connor (and Chief Justice Rehnquist) were on the Court. There is no doubt today's decision reflects a constitutional sea change that is likely to have dramatic effects on upcoming elections. Some will celebrate that change, others will bemoan it, but that the change is dramatic cannot be doubted.

Now, we are likely to see a return of the kinds of ads we saw before McCain-Feingold: ads that contain a fig-leaf of reference to issues that is just enough to give them constitutional protection, even if the ads are close to hard core efforts to influence election outcomes. For First Amendment libertarians, this outcome will be celebrated. For those who fear "undue influence" of corporations and/or unions over federal officeholders, this outcome will be a major blow.

WRTL: Big Win for Campaign Finance Deregulation

In my writings on campaign finance, I have analogized the Supreme Court's campaign finance cases to the swing of a pendulum. We began with Buckley, which was a multi-authored schizophrenic opinion offering something (a ban on independent campaign expenditures by individuals) to those who believe that most campaign finance laws conflict with First Amendment rights of speech and association, and something else (upholding of campaign contribution limits) to those who believe that the government's interest in preventing corruption, insuring the integrity of the electoral process or promoting electoral equality (though the Buckley court itself eschewed that interest). The early post-Buckley cases, such as Bellotti, and NCPAC were deregulationist, and were followed by the period I've called the New Deference, where the four liberals on the Court, joined by Justice O'Connor, upheld a wide range of campaign finance laws, including major provisions of the McCain-Feingold law (the Bipartisan Campaign Finance Act, or BCRA) in a number of different cases. Last year's Randall decision showed Justice Breyer trying to salvage the campaign finance regime and prevent the Chief and Justice Alito from going to the deregulationist side. Today it is clear that those efforts have failed.

What's next? Expect a full, frontal attack on McConnell, likely manufactured by Jim Bopp, as invited by Justice Alito (not to mention Scalia, Kennedy, and Thomas). Within a few years, expect the Court to take another campaign contributions case, revisit Randall, and reconsider whether even higher contribution limits violate the First Amendment.

Wisconsin Right to Life in a Nutshell.

Today's decision in effect eviscerates that 60-year-old rule for all practical purposes -- it overrules Austin in all but name, and for the first time in 60 years establishes a constitutional regime in which corporations are entitled to the same First Amendment protections as individuals, notwithstanding that, as the Court stressed in Austin, corporations' "voice" in public debate is magnified considerably by virtue of numerous advantages that state law provides to such artificial entities.

That is to say: This is a very good day for the speech rights of corporations, and for the ability of government officials to engage in speech that favors religion -- but not such a good day for the speech rights of students who would "celebrate" drug use rather than debate whether it should be lawful.

WRTL: The Anti-McConnell

FEC v. WRTL is the anti-McConnell. The majority and plurality opinions -- Chief Justice Roberts's opinion speaks for the Court only in the introductory and jurisdictional sections; the sections dealing with the challenge to electioneering communication section of the Bipartisan Campaign Reform Act (BCRA) were joined only by Justice Alito — breaks with McConnell at every level in the general approach to campaign finance regulation; in the doctrinal analysis of corporate electioneering communications; and in its specific holding concerning the constitutionality of the electioneering communication restriction.

At the highest level, WRTL rejects the view that campaign finance restrictions can be justified and sustained as democracy-promoting measures that advance government integrity. Where McConnell saw campaign finance jurisprudence as entailing the reconciliation of competing constitutional values — democracy and free speech — Chief Justice Roberts flatly proclaimed that WRTL is "about political speech" only. So much for Justice Breyer's theory of Active Liberty.

Do I know what all of that means? Not yet. But it's clear that a lot changed with today's case. As one of the "First Amendment libertarians", I'm overjoyed at the outcome of this case. I'd have preferred that the court blow up McCain-Feingold entirely, but I'll settle for a simple gutting.

I think John McCain just lost whatever chance he had at the Presidency:

[T]alking about campaign finance reform....I know that money corrupts....I would rather have a clean government than one where quote First Amendment rights are being respected, that has become corrupt. If I had my choice, I'd rather have the clean government.

Yep, he really said "I would rather have a clean government than one where quote First Amendment rights are being respected". I certainly won't be voting for him, ever. Simply put, I don't trust him to "preserve, protect, and defend the Constitution of these United States, so help me God".

(Hat Tip: Division of Labour).

As an incumbent politician, it's easy to protect yourself in re-election campaigns. Your political protection is only three steps away:

1. Convince your constituents that political campaigns are hopeless corrupt
2. Pass a "Campaign Finance Reform Act"
3. Use the new law to stomp on anyone who threatens you

It's not just provocative, it really happened. Read the true story behind the McCain-Feingold Bipartisian Campaign Finance Reform Act.