Monday, October 28, 2013

Does the Milwaukee Common Council Hate the First Amendment?

The First Amendment to the United States Constitution guarantees the freedom of speech and of the press as well as the right to assemble and petition the government for redress of grievances.  The Supreme Court has recognized that these right  establish a right of association,  reasoning that “"implicit in the right to engage in activities protected by the First Amendment" is "a corresponding right to associate with others in pursuit of a wide variety of political, social, economic, educational, religious, and cultural ends.” 

This afternoon, the Milwaukee Common Council will be asked to oppose these constitutional protections.   

On the agenda is a meaningless resolution asking the Council to endorse an amendment to the Constitution establishing that “only human beings--not corporations, unions, nonprofit organizations, or similar associations--are endowed with constitutional rights, and that limiting political contributions and spending is not equivalent to restricting political speech .” 

Now, the Milwaukee Common Council has about as much influence on whether the Constitution will be amended as I do. This is a classic political stunt by which elected officials seek to genuflect to some grand cause that they have no ability to further rather than attend to their jobs. It’s not surprising. Empty gestures are easy. Governing is hard.

But we should be clear about what this empty gesture endorses. It is not liberty. It is not equality.  It is fascism. 

Yes, I chose that word deliberately and with great care.

Should the Constitution be amended in the silly way that the Common Council is being asked to endorse, organizations like the ACLU and NAACP would have no right to advocate for their members. This newspaper would have no constitutionally protected freedom to publish.  The Bush administration would have been free to shut down  All of these entities are “corporations.” 

Both prongs of the proposed amendment would eviscerate the freedom of association (persons who gather together to speak typically incorporate or form “organizations”) and the freedom of speech. To say that limiting “political spending” is not restricting political speech is to say that the government can deprive advocacy organizations of the means to speak.  In the brave new world that the proposed amendment would establish, the government could silence unwanted voices by denying them the ability to effectively communicate their views. Want to publish a book or magazine? Put up a website or make a movie? Hire canvassers to distribute literature? It all costs money. 

Yes, I understand the motivation. Sponsors believe that people who are able to spend a greater amount of money on politics have an unfair advantage and government is sold to the highest bidder. But there is virtually no evidence that this actually happens (money tends to be on both sides of most elections and there are countervailing advantages) or that the blunderbuss proposed is necessary to address it.

Wednesday, October 09, 2013

McCutcheon v. FEC

Yesterday, the United States Supreme Court heard argument in McCutcheon v. FEC, a case challenging the constitutionality on limits on the amount of lawful campaign contributions a person can make. My take on the issue is here at US News' Debate Club.  The other side's view is a bit more popular.

Tuesday, October 01, 2013

The lights are not out

I arose this morning to a headline in today's Journal Sentinel  telling me that it is "lights out" today as the federal government shuts down and Obamacare proceeds.

Give me a break. The lights aren't out and calling what is happening today a government "shutdown" is a tad hyperbolic and, to the paper’s credit, the text of its report makes clear that the “shutdown” is “partial.”

Very partial. 

Now that the "lights" are "out," just what is the federal government not doing?  Are the military and national security apparatus on hiatus? No, they are not.  If you go Mitchell International today, there will be air traffic controllers in the tower and TSA personnel to run you through the airport Macarena. The food and drug safety agencies remain in operation and, if there is a disaster, FEMA will roll - at least as much as it ever does. The Fed and banking regulators are operational. The FBI is working. The courts are open.  In fact, the majority of federal workers are still going in. Benefits checks are still going out and taxes are still being collected.

This is all because Congress has provided that, in the event of a funding gap, "essential services" will continue and "essential" is defined rather broadly. In fact, one is tempted to argue that, if a federal job is not considered essential and immune from "shutdown," it probably shouldn't exist.

I won’t go that far – an extended furlough of some of these workers would be undesirable – but the sky is not falling.  Congress has provided that “essential” are to continue because "shutdowns" like this are not uncommon. Prior to today, we have had 17 since 1977 most of them prompted by issues far less compelling than the President's stubborn commitment to roll out parts of a health care plan which is clearly not ready for prime time even as he lawlessly refuses to implement other parts and grants exemptions to political cronies.

Lights out? It would be more accurate to say they’ve been dimmed. A little.

Cross posted at Purple Wisconsin.