A container that may or may not contain explosives!
Here is how you should vote, if you live in California.
President: George Bush (explanation here).
Senator: James Gray, Libertarian. Boxer is certain to be reelected. Bill Jones is as liberal as one can be without being a Democrat, or Arnold Schwarzenegger (but I repeat myself). In races which are unlikely to be close, I tend to vote for the Libertarian, particularly when the Republican is only barely such.
Proposition 1A: Yes. The state has been raiding local government revenues to pay for things that the state shouldn’t be doing anyway. No reason not to stop that, except that it might mean higher taxes from the state legislature. I actually favor that, because people should not be under the illusion that they can keep getting free stuff. If they expect the state to feed them and clothe them and wipe their asses for them and read them bedtime stories, then they should expect to pay the state for it. So, yes on 1A.
Proposition 59: Who cares? The text of this proposition says “Nothing in this subdivision supersedes or modifies any portion of this Constitution.... This subdivision does not repeal or nullify, expressly or by implication, any constitutional or statutory exception to the right of access to public records,” and so forth. There’s nothing here. Voting yes makes no difference. So vote no.
Proposition 60: No. I’m sick of these open primary schemes. Leave it alone, for godsake. Prop. 60 does little that current law doesn’t do. So leave the current law in place. Vote no on Prop. 60.
Proposition 60A: Yes. I see no reason not to require the legislature to pay for certain things when it sells surplus property. Now, Prop. 60A does not require the state to sell this property at all, and heaven knows, it probably won’t. But we can all hope. Yes on 60A.
Proposition 61: No. Bond initiatives are tax increases. The commercials claim that they don’t raise taxes, but they do, just on your children and grandchildren. In that sense, they are even more immoral than a tax increase which at least takes money from people who vote for it. In this case you would be voting to take money from people who have literally no say in the matter—future generations. No matter how good the intentions (and children’s hospital projects are about as good as you can get) this is still theft, and wrong. Vote no on Prop. 61.
Proposition 62: No. Messing with the primary system is annoying. It’s bad enough as it is. Allowing voters to vote for any candidate in the primary would allow Democrats to choose the Republican candidate, and Republicans to choose the Democratic candidate. Why? The primary exists to allow members of a party to put their “best” candidate forward for the general election, and to make sense of their own views, as a party. This proposition would throw that into chaos and essentially turn the primary into the general election. Republicans have the right to decide for themselves who their candidate is, and Democrats have the same right, and so does everyone else. Something like this was already declared unconstitutional, and rightly so. This is just another shot at a violation of the First Amendment. Vote no on 62.
Proposition 63: No. This is a tax increase, and therefore theft, to pay for mental health services, something that the government has no legitimate authority to do. Government exists to protect people from crime and invasion by enemies, and to adjudicate disputes in courts of law. It does not exist to provide health services, or whatever else people don’t want to pay for. It is wrong to steal money from your neighbor to pay for mental hospitals. Vote no on Prop. 63.
Proposition 64: Yes. As I’ve explained before, current law allows you to sue businesses for an “unfair business practice” even when you have not been harmed in any way. This has led to a rash of frivolous lawsuits, increasing costs to consumers, and stifling the California economy. Although opponents of Prop. 64 continue to lie* about what it would do, all that it would actually do is restore the traditional requirement that a person suing another person prove that he was actually harmed. That is all. But that alone would be a great step toward protecting businesses in this state from unfair lawsuits. Vote yes on Prop. 64.
Proposition 65: No, I guess. The voter pamphlet says 1A replaces 65.
Proposition 66: No. There are already enough safeguards in place to allow judges to issue light sentences for persons convicted of minor crimes. Prop. 66 would gut the “Three Strikes” law which has already proven to be a successful curb on crime in this state. Vote no on Prop. 66.
Proposition 67: No. Emergency services are among the few things that government really ought to do. But paying for it with another tax increase is not necessary. The state should cut spending from programs which it has no business running in the first place, rather than increasing our taxes again. Vote no on Prop. 67.
Proposition 68: Yes. These Indian gambling ones are tough for me. There is no such thing as “paying your fair share,” because nobody has the right to a “fair share” of your money. And gambling should be legal anyway, because nobody has a right to tell you that you can’t gamble with your money if you want to. But on the other hand, the Indian tribes like their monopoly on gambling. They like prohibiting me from gambling anywhere but at their casinos. Still, on balance, I’m for more gambling, and this proposition would allow more gambling. So, I say yes, what the hell.
Proposition 69: No. There’s a reasonable argument to be made for both sides, here. What troubles me about this initiative is that it would take DNA samples from people who are merely arrested, not just from people who are convicted, or even tried. Current law already allows people to be fingerprinted when they are merely arrested, and there would seem to be no reason that DNA should be any different from fingerprints—it’s just more accurate. The advantage is that such collections would help fight crime. Nevertheless, under recent Supreme Court decisions, you can be arrested for anything—or even for nothing. The expansion of arrest authority, combined with the expansion of searching authority, already seriously endangers your freedom from arbitrary police treatment. I see no justification for expanding that authority yet again. Until serious limits are re-imposed on the police authority to arrest you, we should obstruct their post-arrest authority as much as possible. So I say no on Prop. 69.
Proposition 70: No. The argument of this proposition’s defenders says it all: “Proposition 70 will mean that tribal gaming can occur ONLY on Indian land and NOWHERE ELSE. It will NOT lead to increased gambling OFF Indian lands.” Evidently they see this as a selling point. But I think that Indian tribes have no business telling me that I can’t gamble in my living room if I want to. So, no on Prop. 70.
Proposition 71: No. Stem cells have no rights, and there is nothing immoral about using them for research, or cloning them for research. The recent federal ban on funding for stem cell research is based on ridiculous, mystical notions about rights. Nevertheless, it is not the state’s job to be involved in this sort of business. And, again, bonds are tax increases. (And, at least in this case, an unconstitutional one, because the Constitution doesn’t allow bonds of this sort.) Vote no on Prop. 71.
Proposition 72: No. If people want health care, they should bargain with their employers for it. It is immoral to force employers to provide health care to their employees against their will. In addition to its immorality, it is bad economic thinking, because it makes it more expensive to hire and employ people. The last thing California needs (especially if Prop. 64 fails) is to make it more difficult to employ people. Just as it would be wrong and stupid to order the police to just go take money out of people’s cash registers to pay for some public project, so it is wrong and stupid to order the taxing authority to take away business revenues to pay for health care. Vote no on Prop. 72.
*-Update: The author of UCL Practitioner writes to say she “resent[s]” my calling her a liar. I was referring to Bill Lockyer’s lies about Prop. 64 being a danger to the environment. His claims are, indeed, lies. Rather than correcting Lockyer’s misrepresentations of Prop. 64, the UCL Practitioner endorsed Lockyer’s statements with the words “well said.” My apologies for any misunderstanding.
I just finished reading Contempt of Court by Mark Curriden and Leroy Phillips, Jr. It’s a very good book about the fascinating Supreme Court case United States v. Shipp, (three reported decisions) the only criminal trial ever held by the United States Supreme Court. The book has some minor flaws, but overall it’s very interesting.
The story takes place from 1906 to 1910. A black man named Ed Johnson was tried and convicted of raping a white woman, in Chattanooga, Tennessee. It’s almost certain that he was innocent, but the kangaroo court sentenced him to death for the crime, after a trial full of due process violations. (At one point, a juror even leaped from his seat and tried to attack Johnson, and had to be restrained by other jurors.) When Johnson’s attorneys appealed to the Tennessee Supreme Court, the appeal was denied, so they asked Supreme Court Justice John Marshall Harlan to stay the execution pending an appeal. Harlan granted the stay, and in an emergency meeting the Supreme Court granted the appeal. That night, though, a mob led by the county sheriff broke into the jail and lynched Johnson on a nearby bridge. One member of the mob pinned a note to Johnson’s corpse saying “To Justice Harlan. Come get your nigger now.”
Justice Harlan was, of course, infuriated, as were the other justices. They asked the Attorney General to institute contempt-of-court proceedings against the sheriff and other locals. The trial was national news because it was the first time that the federal government seriously attacked lynch-law. Amazingly,
[e]ven as the Court debated the issues and facts a telegram arrived from Oxford, Mississippi, detailing how U.S. Senator W.V. Sullivan had led a lynch mob to kill a black man accused of cutting a white woman’s throat. “I led the mob which lynched Nelse Patton and I’m proud of it,” Sullivan told newspaper reporters. “I directed every movement of the mob. I wanted him lynched. I saw his body dangling from a tree this morning and I am glad of it. I aroused the mob and directed them to storm the jail. I had my revolver but did not use it. I gave it to a deputy sheriff and told him to shoot Patton and shoot to kill. I suppose the bullets form my gun were some of those that killed the Negro.” The article went on to say that no charges were being brought against any person who had participated in the lynching….
In the end, Sheriff Shipp’s conviction was a pretty meek response to the southern reign of terror. But it was a first step, and I very much enjoyed reading about it.
I’m going to explain why I’ll vote for Bush, but I’ll start with my reasons for disliking his administration. I disagree with him on almost every issue of domestic policy. He has vastly increased the size and scope of government. Spending has increased under his watch to a level that Bill Clinton only dreamed about. No government is too big for Bush—and yet he has the gall to criticize Kerry for being a tax-and-spend Democrat. He believes the federal government should run marriage-counseling, should cure AIDS in Africa, should increase farm subsidies by seventy percent, should protect American steelworkers from having to compete fairly. He can lay no legitimate claim to believing in the free market, yet he continues brazenly to make that claim. (I consider this the biggest lie of the campaign season.) He promised us a market solution to the Social Security crisis. Instead, his administration has decided to tax my grandchildren to pay for pills for old folks today.
As far as social issues go, he believes in an absurd conception of “life” by which he has barred federal spending on stem-cell research. Normally I’d be okay with barring federal spending on something that is not the government’s business, but this decision was made in the service of what Jason Kuznicki has rightly called a mysticist notion of individual rights for which Bush rightly deserves condemnation. Bush’s supporters are eager to undermine the crucial separation of church and state in this country. On top of that, Bush’s call for a Constitutional ban on gay marriage lacks a convincing philosophical basis, and his supporters betray genuine bigotry.
This post (which I saw via Instapundit) argues that, on balance, Bush’s domestic policies are still more pro-liberty than Kerry’s. I’m not convinced of that, but I am convinced that, were Kerry elected, the division between the Republican Congress and a Kerry White House would cut down on the amount of spending and the growth of government. Were it not for the war, I would vote for John Kerry.
But I think it would be extremely irresponsible to ignore the fact that the fundamental issue in this campaign is the war. As I’ve said earlier, the question here is, how should we act in the face of inevitably weak information? George Bush says that we should be willing to strike first in some cases. That can be a dangerous argument, but in the case of Saddam Hussein, it was warranted. Hussein was a tyrant, who had no legitimate claim to sovereignty, and oppressed his own people. He had supported terrorist attacks in the past and was willing to use chemical and biological weapons. The justification for attacking Iraq was that intelligence suggested a reasonable probability that Hussein was going to develop dangerous weapons—something that Bill Clinton, John Kerry, and others agreed with, until it became politically unpopular to say so. Bush tried, I think too much, to work with the United Nations in his efforts against Iraq. When that was not forthcoming, he was faced with a crucial choice: wait longer? Or attack now?
John Kerry seems to believe—and I hasten to say “seems,” because it’s never been clear what he believes—that the right answer is, wait. But how long? Kerry has never told us when we should stop waiting for international cooperation. His record suggests that he would never stop waiting for international cooperation, but perhaps there is such a point. What is that point? It is always easy to say afterwards that Hussein wasn’t a threat, and we shouldn’t have gone, but the question is not one to be answered in hindsight. Do we want a president who will make the tough call in favor of preemptive action, or do we think that preemptive action is never right? That’s the question.
I answer it this way: I assume that retaliation is legitimate. It follows that stopping an attack that is in progress is also legitimate—when a person tries to punch you, you can act to avoid or strike back. At some point, therefore, a threat becomes serious enough to justify acting preemptively, because the threat is tantamount to an initiation of force. This argument runs a serious risk, however, of rationalizing attacks on innocent countries. I think that, so long as it is against a regime like Hussein’s, that is the proper course of action. Hussein’s other crimes warranted American intervention. (It has the added advantage of drawing the enemy into a single country, where they are focusing their attention.) Insofar as this election is a referendum on the Iraq war, therefore, I think the right answer is that Bush did the right thing. Most importantly, his mindset is right. If we wait for international cooperation, we will end up waiting too long. That is not something we can bank our future on.
Now, that being said, I think that there are obviously very significant problems with how Bush is running the war. First, I’m very troubled by the military detention and military tribunal situation in Guantanamo Bay. I didn’t used to be, but then I read the Cato Supreme Court Review articles on the subject, and they have me convinced that the Administration is doing the wrong thing there. We ought either to give these people access to the courts, or suspend the writ of habeas corpus. Second, I think the handling of Iraq today is being done very badly. Ed Brayton and others are right that we need more troops there. Moreover, I’m extremely bothered by the fact that the American imprimatur was put on an Interim Constitution which unites church and state and provides for a socialist economy. That betrays much of Bush’s talk about spreading freedom to other countries.
Nevertheless, on balance, Bush comes out ahead of Kerry. Kerry has given us no reason to think he would have insisted on a better Interim Constitution. And as far as handling the detainees, I’m not convinced that Kerry, with a Republican Congress, would solve that problem.
Now, unlike many people, I do not think that a Kerry Administration would be a disaster for our war effort. With a Republican Congress in place to hold his feet to the fire, a reasonable argument can be made that Kerry would actually do a better job of fighting the war. I don’t buy it, but I see the argument.
The reason I don’t buy it is because Kerry is not independent enough from his constituency. His waffling has betrayed the fact that he is largely in the service of the Michael Moore faction of the Democratic Party—a group of people who believe, fundamentally, that American capitalism is at fault for September 11th, and who believe that the proper response to September 11th is entire withdrawal of American interests in the Middle East, and even deeper, a philosophical shift away from individualism and the principles underling the greedy evil corporations and blah, blah, blah. Kerry has tried sometimes to portray himself as more moderate than this, but after all the campaigning, I am left with the impression that the Democratic Party does not believe in confronting Middle Eastern thugs (and especially not the Palestinians!) Kerry claims to have a Nixonian “plan” for ending this war but he refuses to divulge it. I think it more likely that he has sold himself to the Moore types (and, on some social issues, has sold himself to social conservatives) too much to be able to free himself once in office. Again, it’s arguable that the Republicans would force him to walk the line, but it is equally plausible that, as Tom Clancy said once, this pressure might push Kerry into proving he’s a tough guy by going too far—perhaps with a nuclear strike. Kerry’s extreme talk about Iran and North Korea, for example, seem to be motivated less by a serious concern for our policy than by his need to show that he’s just as tough as Bush. Bush doesn’t have anything to prove to the international community as far as toughness is concerned. Kerry might very well be forced to overreact to prove his toughness.
So while I cannot trust Bush to do the right thing in this war, I believe I can trust Kerry to do the wrong thing. Victor Davis Hanson puts it well:
[T]here is some reason for the Islamists’ optimism that they can break our will—given a decade of nonchalance after the first World Trade Center attack, the Khobar towers, the USS Cole, and an assortment of other unanswered murders in the 1990s. The April withdrawal from Fallujah...was a grievous blow....
John Kerry talks about timetables for departure and cessation of the present course. His supporters on the extreme left from George Soros to Michael Moore blame George Bush, not Osama bin Laden or Saddam Hussein, for the current televised butchery. There is a reason why candidate Kerry now painfully insists that he would not precipitously withdraw—because everyone else worldwide, from a Chirac and Schroeder to Arafat and most of the Arab world—suspect that, in fact, he will.
An American flight would shame Tony Blair and John Howard, leave eastern Europe to the bullying of Paris and Berlin, destroy the Iraq interim government, take the heat off Arab autocracies, and send a message that American policy was back to Clintonian-like law enforcement, replete with jargon such as “sensitive” and “nuisance.” It does not matter what Kerry would “really” wish to do, since the last two years of campaign rhetoric have earned him the worldwide reputation of the Bush antithesis, and thus his victory would, rightly or wrongly, be interpreted as a complete rejection of toppling Saddam and fostering a constitutional government in his place. His supporters and financial backers on the left would not tolerate anything less than a withdrawal.
Because of our astounding weaponry and superb military, the terrorists in Fallujah count on the help of such postmodern Western guilt and internecine blame to supply constraints on the American military every bit as effective as the old Soviet nuclear deterrent. Again, a Michael Moore—or so they believe—is worth an entire jihadist cell....
The second most important issue in the campaign, I believe, is the federal judiciary. We cannot expect good judges from John Kerry at all. In recent years, the Supreme Court has slightly restricted federal power under the commerce clause, holding that the clause does not give Congress absolute authority over everything. Those decisions, however, have been 5-4. A Kerry administration would turn those cases into an aberration. Now, there are pluses to a Kerry administration as far as federal courts are concerned (abortion, primarily, and privacy rights). And there are downsides to a Bush administration. Bush is likely to appoint some Borkian judges. But we might also get some good judges, like Janice Rogers Brown. We won’t get any good judges out of John Kerry.
Bush is far from a great president, and I regret much that he has done. But I, too, prefer the devil I know to the devil I don’t—and, in particular, the devil that I can predict to the devil that I cannot.
It’s now been a year since I started the Libertarian Bookworm feature. I’ve skipped several weeks, but I’ve provided 39 entries. Unfortunately, it’s getting more and more difficult to find likely candidates. I try not to feature the same writer twice, and since I try to discuss the book somewhat in depth, I have to have actually read it. Even I can’t read that much. So the Bookworm is going to downshift. I will still add to it, but not every weekend as I tried this year; just whenever I have a moment. Still to come: Anarchy, State And Utopia, The Decline of American Liberalism, and many others.
Robert Hessen’s In Defense of The Corporation was written as a response to Ralph Nader in the 1970s, at a time when Nader had proposed federal legislation which would have heavily regulated every corporation in America. But Hessen’s slim and easily read book (only about 120 pages) is not aimed solely at Nader’s proposal. It provides a comprehensive reply to the various justifications for heavily regulating the corporate form.
One of the most frequently heard of these justifications is that corporations are “creatures of the state.” Since the state issues a charter to the corporation, and thus vests it with life, so to speak, Nader and others argue that corporations are not like more mundane business forms, and that it is proper for the state to regulate them. Hessen briefly explains the history of the corporate form, explaining that, although it is true that the “corporation” was originally a government-created entity, that view is no longer valid:
Medieval boroughs and modern business corporations share one minor characteristic, perpetual existence. Their differences are far more numerous and fundamental—most importantly, a corporation involves a voluntary investment in a profit-oriented venture, while a borough is a unit of government. It is invalid to define a corporation as a group with continuity of existence despite changes in membership. Such a sweeping definition would mean that nearly every group, organization and society could be called a corporation. Even a family or an army or the human race itself would be a corporation—which they obviously are not….
The “concession” theory of corporate regulation—that the government creates corporations and may therefore regulate them—is based on a deeply outdated definition of the term “corporation.” “The discussion of corporations in Blackstone’s Commentaries did not refer to business enterprises. Years later, in 1793, when Stewart Kyd wrote the first major treatise on corporations, the term still did not denote a profit-oriented business.” It was during the nineteenth century that Anglo-American countries saw what I call “the privatization of the corporation.” Gordon Wood explains in The Radicalism of The American Revolution 318 (1992) that
because of republican aversion to chartered monopolies, the creation of corporations [in early America] did not take place without strenuous opposition and heated debate. As a consequence, these corporations were radically transformed. Within a few years most of them became very different from their monarchical predecessors: they were no longer exclusive monopolies and there were no longer public. They became private property and what Samuel Blodget in 1806 called “rivals for the common weal.” And they were created in astonishing numbers unduplicated anywhere else in the world.
The privatization of the corporation was commented on by the Michigan Supreme Court in 1852:
[A]s to all their rights, powers, and responsibilities, three grand classes of corporations exist. 1st. Political or municipal corporations, such as counties, towns, cities and villages, which, from their nature, are subject to the unlimited control of the Legislature; 2d. Those associations which are created for public benefit, and to which the government delegates a portion of its sovereign power, to be exercised for public utility, such as turnpike, bridge, canal, and railroad companies; and 3d strictly private corporations, where the private interest of the corporators is the primary object of the associations, such as banking, insurance, manufacturing and trading companies…. The object, defines the character of these associations, and by whatever name they may be styled, their rights and liabilities, and in many respects the tenure of their powers and franchises depend upon entirely different considerations, and are derived from an entirely different legislative source.
Swan v. Williams, 1852 WL 3103, **5-6 (Mich. 1852). The argument that government may regulate corporations because they are created by the state ignores an entire century of legal evolution.
The argument that corporations are “creatures of the state” is also based on the notion that limited liability and other corporate privileges are granted by the state, and that this gives the state a predicate for regulating corporations. Hessen rejects this argument also. He argues that these various benefits can also be created by private contract between the partners. That they are accomplished instead by a single government charter is merely a convenience, not a special privilege:
Entity status merely means that a corporation can sue (and be sued) as a unit, instead of having to specify the name of every shareholder…. Professor Adolf A. Berle wrote: “More accurately, the associates are granted a legal convenience, in that they may use the courts without writing the name of every shareholder into their papers.” If this convenience is considered a privilege, then it is neutralized, for as Berle noted, “The reverse process—that of liability to be sued under a single name, is manifestly not advantageous to them, but is rather a measure of fairness to their opponents.”
Limited liability, too, can be explained in a realm of private contract, too, by the extension of respondeat superior. “Vicarious liability should only apply to those shareholders who play an active role in managing an enterprise or in selecting and supervising its employees and agents…. The proper principle of liability should be that whoever controls a business, regardless of its legal form, should be personally liable….” Although under current law, corporations have adopted some admittedly unfair mechanisms for escaping liability, the mere existence of limited liability does not prove that corporations are creatures of the state, because the same results could be accomplished by private contracts. The corporate form has therefore become a mere convenience, not an essential vesting of a privilege for which corporations owe obedience in return.
[T]he entity concept serves no valid purpose. Like the idea that corporations are creatures of the state, it is a vestige of medieval mentality and should be discarded. The proper alternative is the inherence theory of corporations—the idea that men have a natural right to form a corporation by contract for their own benefit, welfare, and mutual self-interest. It is the only theory of corporations that is faithful to the facts and philosophically consistent with the moral and legal principles of a free society.
Hessen goes on to discuss several other features of corporations—whether shareholders are exploited by their lack of control, for instance, and the rationales for breaking up large corporations. Criticisms of corporations, and justifications for government controls are so often presented in a one-sided manner, that it is refreshing, at the very least, to hear the case for the other side. In Defense of The Corporation is must-reading for lawyers and law students, but laymen also would benefit from his systematic response to the sophisticated critiques of corporations.
Previous Libertarian Bookworm entries are here.
From a recent interview with Tom Brokaw:
Brokaw: This week you’ve been very critical of the president because of the missing explosives in Iraq. The fact is, senator, we still don’t know what happened to those explosives. How many for sure that were there. Who might have gotten away with them? Is it unfair to the president, just as you believe he’s been unfair to you, to blame him for that?
Kerry: No. It’s not unfair. Because what we do know, from the commanders on the ground, is that they went there, as they marched to Baghdad. We even read stories today that they broke locks off of the doors, took photographs of materials in there. There were materials. And they left.
Brokaw: The flip side of that is that if you had been president, Saddam Hussein would still be in power. Because you...
Kerry: Not necessarily at all.
Brokaw: But you have said you wouldn’t go to war against him...
Kerry: That’s not true. Because under the inspection process, Saddam Hussein was required to destroy those kinds of materials and weapons.
Brokaw: But he wasn’t destroying them...
Kerry: But that’s what you have inspectors for. And that’s why I voted for the threat of force. Because he only does things when you have a legitimate threat of force. It’s absolutely impossible and irresponsible to suggest that if I were president, he wouldn’t necessarily be gone. He might be gone. Because if he hadn’t complied, we might have had to go to war. And we might have gone to war. But if we did, I’ll tell you this, Tom. We’d have gone to war with allies in a way that the American people weren’t carrying the burden. And the entire world would have understood why we were doing it.
But when do we stop threatening, Senator? When do we stop waiting for Hussein to cooperate with the inspectors? We did it your way, and Hussein refused to cooperate and refused to comply. You’re saying it’s okay for us to go to “threaten” force—but when do we go beyond the threat? If we never go beyond the threat, it becomes an empty threat, Senator, and we cannot afford empty threats in the post-September 11th world! Your Nixonian “plan” to do it faster, smarter, more efficiently, cheaper, and whatever, appears to be: wait, threaten, wait, threaten, wait, threaten... and then...nothing?
Then we “might” have gone to war. But “not necessarily.” Just “maybe”...if Germany and France said okay? I guarantee you that, no matter what else you say about the Iraq war, the rest of the world knows why we did what we did. They may not like it, they may be right not to like it, but they’re under no illusions as to why we did it.
When the Bipartisan Campaign Reform Act (BCRA) was signed recently, libertarians and some conservatives complained that it violated the First Amendment. Nevertheless, the Supreme Court upheld its constitutionality. Erik Jaffe explains here why that decision was wrong, and he concludes that “[g]one is the quaint notion of a ‘free’ marketplace of ideas and the commitment to the principle that more speech is the answer to speech that may trouble us. In their place has arisen a new theory of political speech dedicated to regulating and equalizing the ability of individuals to use speech to influence elections.”
Now, you may disagree with what John and Ken are doing—you may disagree with their views regarding illegal immigration. But their campaign against David Dreier represents the best traditions of American democracy: people who believe something going on the radio and urging listeners to vote a particular way. But according to Congressman David Dreier, their doing so constitutes an “in-kind contribution” to his opponent, and thus a violation of federal election laws. Again, let’s be absolutely clear about what is happening: a current member of Congress is filing a criminal complaint against people who go on the radio to urge listeners to vote a particular way.
I quote from the First Amendment to the Constitution: “Congress shall make no law...abridging the freedom of speech....”
Update: From the LA Times:
Stung by a radio campaign to oust veteran Rep. David Dreier, the National Republican Congressional Committee has filed a federal elections complaint. It contends that an ongoing campaign by a pair of radio talk-show hosts represents an illegal contribution to Dreier’s opponent.
Dreier (R-San Dimas) has been taking a beating at the hands of radio hosts John Kobylt and Ken Chiampou of KFI-AM (640) radio in Los Angeles. They have launched an on-air campaign to oust the 24-year veteran for what they claim is a lax record on illegal immigration. Dreier’s opponent, Cynthia Matthews, has appeared on “The John and Ken Show” during the campaign.
The radio hosts say they have offered to have Dreier appear on their show to defend his record on illegal immigration, but he has declined. Kobylt called the complaint “absurd” said he and Chiampou did not plan to retreat from their efforts to oust Dreier.
Update 2: More from the Daily News.
The gist of appellant’s argument is that the Augusta business ordinance contains no category for speaking animals. The ordinance exhaustively lists trades, businesses, and occupations subject to the tax and the amount of the tax to be paid, but it nowhere lists cats with forensic prowess. However, section 2 of Augusta’s Business Ordinance No. 5006 specifies that a $50 license shall be paid by any “Agent or Agency not specifically mentioned.” Appellants insist that the drafters of section 2 could not have meant to include Blackie the Talking Cat and, if they did, appellants assert that section 2, as drafted, is vague and overbroad and hence unconstitutional.
Upon review of appellants’ claims, we agree with the district court’s detailed analysis of the Augusta ordinance. The assertion that Blackie’s speaking engagements do not constitute an “occupation” or “business” within the meaning of the catchall provision of the Augusta ordinance is wholly without merit. Although the Miles family called what they received for Blackie’s performances “contributions,” these elocutionary endeavors were entirely intended for pecuniary enrichment and were indubitably commercial.³ Moreover, we refuse to require that Augusta define “business” in order to avoid problems of vagueness. The word has a common sense meaning that Mr. Miles undoubtedly understood.
Finally, we agree with the district court that appellants have not made out a case of overbreadth with respect to section 2 of the ordinance. Appellants fail to show any illegal infringement of First Amendment rights of free speech5 or assembly.
³ This conclusion is supported by the undisputed evidence in the record that appellants solicited contributions. Blackie would become catatonic and refuse to speak whenever his audience neglected to make a contribution....
5 This Court will not hear a claim that Blackie’s right to free speech has been infringed. First, although Blackie arguably possesses a very unusual ability, he cannot be considered a “person” and is therefore not protected by the Bill of Rights. Second, even if Blackie had such a right, we see no need for appellants to assert his right jus tertii. Blackie can clearly speak for himself.
Miles v. City Council of Augusta, Ga., 710 F.2d 1542, 1544 (11th Cir. 1983).
Thanks to Andrew for the pointer.