Tag: Supreme Court

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election law judiciary regulation U.S. Constitution

Fifty Years After Buckley

campaign finance reform, consequences, Tufte inspired

Congress began regulating campaign finances in the 1960s.

In 1976, the Supreme Court’s ruling in Buckley v. Valeo reined in such regulation … in part.

This month, at a symposium marking the 50th anniversary of the ruling, John Samples — a former Vice President at the Cato Institute and currently a Member of Meta’s Oversight Board — compared what happened after the 1976 ruling to what might have happened had the ruling been better or worse.

The alleged point of campaign finance regulation was to “level the playing field.” The actual point, Samples observed, has been to “protect the political status quo” by making it harder “to spend enough money to effectively challenge congressional incumbents.”

In Buckley, the court ruled that contribution limits were indeed valid (they aren’t) for the sake of combatting corruption or the “appearance of corruption.” But it also ruled that limits on campaign spending are limits on speech, hence invalid — thereby saving democracy, argued former Federal Election Commission chair Bradley Smith, in the Wall Street Journal a few weeks ago: “The Buckley court understood that effective political speech requires resources.”

The Court also upheld compulsory disclosure of donors and donations. This led to chronic calumniation of donors, helping to poison public discourse.

Samples suggeststhat a more libertarian Buckley might have enabled major reform, even perhaps privatizing of New Deal and Great Society spending programs in the 1980s.

On the other hand, had the decision been worse, “validating spending limits” as well, Congress would likely have continued to hobble challengers. And thus, perhaps, prevented the ascendancy of Ronald Reagan and the emergence of a GOP majority in the U.S. Senate.

Unwarranted restrictions on freedom of speech should be removed completely. Substantially removed is better than not at all, sure. But now let’s finish the job.

Something Brad Smith’s Institute for Free Speech works on every day.

This is Common Sense. I’m Paul Jacob.

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ideological culture judiciary litigation

Trouble with Definitions

Supreme Court, gender, sex, sports

Is it time to push for a complete wall of separation between Sports and State?

The First Amendment helped the United States — together and separately — protect religion from the ravages of regulation, taxation, suppression, and favoritism. Maybe it’s time to extend the concept. 

This came to mind as I skimmed through the transcript to a current case before the Supreme Court, Little v. Hecox (Docket No. 24 – 38), which involves a challenge to Idaho’s law restricting “transgender women and girls” from participating in women’s and girls’ sports.

I doubt the forthcoming ruling will get government out of sports generally, much less out of sports in public schools — which is what this is all about, Idaho’s law applying only to athletic teams sponsored by public educational institutions (or certain nonpublic ones competing against public ones), not to purely private teams. 

One lawyer for the respondents, Kathleen R. Hartnett, Esq., got stuck with the “tough” job. She was asked by Justice Alito if an understanding of what men and boys are, and what women and girls are, was relevant to the Equal Protection Clause. She said yes, but then confessed to lacking a definition of the sexes for the Court.

Then “how can a court determine that there’s discrimination on the basis of sex,” Alito inquired, “without knowing what sex means.… ?”

Her answer started out on a most unpromising note: “I think here we just know …” immediately pivoting to the statute’s applicability. Alito went on to challenge her on a key notion in trans ideology, that one becomes trans just by saying so.

I see a lot of people online chortling on the comedy of it all.

But I think here we just know it’s … seriously troublesome.

This is Common Sense. I’m Paul Jacob.

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election law

Over-​Regulated or Regulations Over?

Critiques of campaign finance regulations (CFR) often focus on particularly egregious applications or expansions of the regulations.

That’s fine. When somebody who is hammering us on the head starts hammering even harder, it’s okay to object. 

We should make clear, though, that we object to being head-​bashed at all, not just the latest intensification.

In an amicus brief submitted to the Supreme Court National Republican Senatorial Committee v. FEC, the Institute for Free Speech and the Manhattan Institute are tackling CFR-​rationalized repression of speech (CFRRS) as such.

“By conflating election campaign speech with the mechanics of running elections,” IFS says, “the Supreme Court has allowed the government to trample the First Amendment through campaign finance laws.”

This has been going on at least since the Supreme Court’s 1976 ruling in Buckley v. Valeo.

The current case, NRSC v. FEC, pertains to federal limits on coordinated spending by political parties, which is allowed in many states. IFS punches holes in the excuses for this instance of CFRRS but also stresses the bottom line.

“The brief argues that the federal government lacks the power to regulate this type of speech in the first place.… The Constitution grants Congress the power to regulate the times, places, and manner of electing federal officials. But … speech about candidates is not the same thing as the election itself, and the Elections Clause does not give Congress authority to regulate core political speech.”

Obviously. May at least five out of nine justices grasp this also.

This is Common Sense. I’m Paul Jacob.

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crime and punishment First Amendment rights judiciary

States Without Standing

Friends of freedom of speech had been looking forward to a certain U.S. Supreme Court decision, Murthy v. Missouri.

The Biden administration has for years worked to suppress social-​media speech that disputes official government doctrines about biology, pandemic policy, elections, and other controversial matters. In short, the kind of speech the First Amendment was designed to protect.

Several suits have been launched against the federal government’s censorship. This one had been brought by Louisiana, Missouri, and other states, abundantly proving that administration officials actively pressed social-​media companies to suppress speech.

By a 6 – 3 vote, the court tossed lower-​court rulings that favor the states’ position. According to the decision’s coiled reasoning, the states lack legal right to sue. They lack standing.

Dissenting: Justices Alito, Gorsuch, Thomas.

The majority made a big point of ruling only on this question of “standing” — which none of us speakers of speech have, apparently — and not on the main question. We can hope, I guess, that some other case will someday be brought by plaintiffs whose rights the majority will concede have been infringed by the government’s infringing actions, which by their nature assault the right of freedom of speech of all Americans.

Meanwhile, in the words of Louisiana Attorney General Liz Murrill, the court’s decision “gives a free pass” to the government’s efforts to “threaten tech platforms into censorship and suppression of speech that is indisputably protected by the First Amendment.”

This isn’t a minor procedural setback.

This is Common Sense. I’m Paul Jacob.

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judiciary national politics & policies regulation

Regulatory Pressure?

gun control, Supreme Court, regulations, regulators, persuasion

Should government regulators be able to urge financial institutions to cancel clients that regulators dislike for political reasons? Such as oil companies and groups advocating Second Amendment rights?

Although a court of appeals has said Yes, the Supreme Court has just said Maybe No in a case involving the National Rifle Association (NRA v. Vullo).

The NRA hasn’t won final victory. But the court is unanimously letting it proceed with its lawsuit, which argues that by pressuring banks and insurance companies to cancel their business with the NRA, New York regulator Maria Vullo violated its freedom of speech.

The Supreme Court seems to accept an artificial distinction, though, between a regulator’s “persuading” an organization to hurt a client and “forcing” it to do so.

An official with power over a company who seeks as a government official to “persuade” that company to do something is engaging in coercion. The implicit threat is: “I have the power to hurt you if you don’t do this little favor for me.”

Moreover, in sending the case back to the lower court, the Supreme Court has also said that it may consider whether Ms. Vullo is protected by qualified immunity, the get-​away-​with-​anything card that government officials are too often able to rely on when they commit wrongdoing.

So this decision is hardly a final, definitive victory for the NRA and other victims of thug-​regulators. But at least the NRA can keep fighting — for itself and the rest of us.

This is Common Sense. I’m Paul Jacob.

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judiciary property rights

Greed & the Innocent Owners

civil asset forfeiture

“We know there are abuses of the forfeiture system,” Supreme Court Justice Sonia Sotomayor declares. “We know it because it’s been documented throughout the country repeatedly.”

Civil asset forfeiture is a crime — if a legal one. I’ve devoted numerous columns to it, here, these past few decades. Interestingly, there’s no overt political reason for it not to stop, for opposition to it comes from both left and right — and middle.

The problem, explains left-​wing Justice Sotomayor, is that this legal practice of seizing property associated with crime does not have checks and balances in American law, since, until the 1970s, it had been used circumspectly, for the most part — against pirates and such. Since then, and in great part because of the War on Drugs, it has gotten out of hand: greedy functionaries in law enforcement have grabbed property and kept it, requiring even “innocent owners” — people not directly engaging in any crime — to go through absurdly difficult legal maneuvers, expending inordinate time and far too much money to get back what’s theirs.

It’s all very corrupt, as Justice Neil Gorsuch — no left-​winger, he — observes. “Clearly, there are some jurisdictions that are using civil forfeiture as funding mechanisms,” he said.

All this I glean from a terrific article by Jacob Sullum in Reason. Like many of my past columns, Sullum identifies litigation by the heroic Institute for Justice.

What strikes me now, however, is how unresponsive our governments have been. We are still dealing with this horrific practice year after year despite near universal opposition to it by citizens. Politicians could have stopped it cold years ago. 

Justice delayed is justice denied.

Why pussyfoot around this? Because politicians are not serving us. They are greedy, too. For power. They’ll even use our property for their cause.

This is Common Sense. I’m Paul Jacob. 

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education and schooling judiciary

Thomas & Thomas

race, racism, Supreme Court, college, education

In the Students for Fair Admissions decision, the Supreme Court rules that using race as a criterion of university admissions is unconstitutional.

Ambiguous aspects of the decision and the determination of some universities to keep using race as a criterion mean that qualified applicants may, alas, still be penalized for being the “wrong” color. Unambiguous, though, is Justice Clarence Thomas’s rebuke of the decision’s dissenters for, among other things, assuming that only racism can explain the different average outcomes of ethnic groups.

“[N]one of those statistics are capable of drawing a direct causal link between race — rather than socioeconomic status or any other factor — and individual outcomes. So Justice Jackson supplies the link herself: the legacy of slavery and the nature of inherited wealth. This, she claims, locks blacks into a seemingly perpetual inferior caste. Such a view is irrational; it is an insult to individual achievement and cancerous to young minds.…”

Has Thomas been perusing the work of Thomas Sowell?

One of Sowell’s career-​integrating insights is that statistics summarizing differences in average group outcomes are mute about the causes. 

One must investigate causally relevant facts.

Consider, for example, differences in characteristics and outcomes between subgroups of a broader ethnic group. Sole possible cause: racism? Or the fact that Asians on average perform better than whites in certain academic or economic categories. Sole possible cause: racism?

Just two of many pertinent questions that Dr. Sowell has asked as he, in his numerous books, surveyed our world’s cultures, lands, and histories.

This is Common Sense. I’m Paul Jacob.

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Fifth Amendment rights general freedom property rights

Government Greed Swept in Double-Header

takings, property rights, Supreme Court

Geraldine Tyler lived long enough to see the U.S. Supreme Court rule against those who robbed her. She is 94.

On May 25, 2023, the Court determined in a 9 – 0 ruling that Hennepin County, Minnesota, is not constitutionally entitled to pocket the entire sale-​price value of a condo in massive excess of the property taxes that Geraldine Tyler owed on the property when the government seized it for unpaid taxes.

Including penalties and interest, Tyler had owed about $15,000. But after selling the condo for $40,000, the county government seemed to think that $25,000 was a reasonable brokerage fee.

Pacific Legal Foundation, which represented Tyler in the case, argued that the county violated the Takings Clause of the Constitution by taking private property for public use “without just compensation.”

The Court agreed, saying that exploiting the debt “to confiscate more property than was due” effected “a ‘classic taking in which the government directly appropriates private property for its own use.’ ”

The ruling also rejects the county’s argument that Tyler somehow forfeited her constitutional rights by failing to pay her property taxes.

The same day, PLF also won another huge victory in the U.S. Supreme Court when the Court ruled that the EPA does not have limitless authority to block property owners from building on their own land if the agency chooses to designate a soggy part of the land a protected “wetland.”

Two for two. Not a bad batting average.

This is Common Sense. I’m Paul Jacob.

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crime and punishment education and schooling

Justice (Almost) Done

donuts, racist, college

It ain’t over until the money’s in the bank. But one wrong, long fought, may soon be righted. Justice done.

Years ago, Gibson’s Bakery won a judgment of $38 million against Oberlin College because of the Ohio school’s role in harassing the bakery and defaming it as “racist” after a 2016 shoplifting incident. 

The shopkeeper of the family-​donuts, racist, college bakery, Allyn Gibson, caught students trying to steal wine. They attacked him. They were black.

For whatever reasons, students on campus chugged into uproar mode, accusing the bakery of racism as if it prefers to be robbed only by persons of pallor. 

The shoplifters eventually pled guilty and acknowledged that the bakery is not racist.

The students’ irrationality was bad enough. Then Dean of Students Meredith Raimondo chimed in, working with protesters to defame the bakery. The school canceled its contract with Gibson’s and would claim in legal filings that the bakery’s “archaic chase-​and-​detain policy regarding suspected shoplifters was the catalyst for the protests.”

In 2017, the bakery sued Oberlin and won.

Oberlin has been appealing. Now it has lost in the Ohio Supreme Court, which refused to hear the appeal.

Only the U.S. Supreme Court can save Oberlin now. But according to the Legal Insurrection blog, the chances that it will even consider the case are slim.

Is $38 million the right award? Perhaps Oberlin should pay Gibson’s $50 million. Or a cool billion. 

But Oberlin deserves to be punished just as Gibson’s deserves to be compensated. 

May this finally happen.

This is Common Sense. I’m Paul Jacob.

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crime and punishment ideological culture

Pushing Past Protest

Jane's Revenge, abortion, Supreme Court

A group called Jane’s Revenge is on a rampage against organizations known to oppose abortion.

“We promised to take increasingly drastic measures against oppressive infrastructures,” the manifesto declares. “Rest assured that we will, and those measures may not come in the form of something so easily cleaned up as fire and graffiti. From here forward, any anti-​choice group who closes their doors, and stops operating will no longer be a target. But until you do, it’s open season.”

We don’t know how Jane’s Revenge is constituted. Maybe it will turn out to be just one woman with a keyboard. Whatever its form, though, it has acolytes, persons willing to damage the property of churches, anti-​abortion pregnancy centers, and other anti-​abortion organizations.

Jane’s Revenge has claimed responsibility for vandalizing the Agape Pregnancy Center in Des Moines this month. In Olympia, St. Michael Parish was spray-​painted with the words “abort the church.” Dozens of similar incidents began in early May, when Wisconsin Family Action was damaged by arson and vandalism. (Family Research Center maintains a list of the attacks; Wikipedia curates a page about those attributed specifically to Jane’s Revenge.)

The Biden administration has finally made a pro forma objection to the violence being perpetrated by pro-​abortion protesters. Too often, though, government officials and others have been conspicuously silent. Could it possibly be the case that they’re OK with violence as a means because they agree about abortion as an end?

This is tantamount to encouraging violence by the angry left — and not just when it comes to this particular controversial issue.

Thankfully, though there have been protests nationwide against the Supreme Court’s overthrowal, last week, of Roe v. Wade (1973) and Planned Parenthood v. Casey (1992), there has so far been no “Night of Rage.”

This is Common Sense. I’m Paul Jacob.

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