A New Opponent of Disclosure-Driven Enemies Lists

April 18th, 2014

In a must-read column, Charles Krauthammer describes his transition from being a supporter to an opponent of full disclosure of campaign contributions, which he writes, is now being used “not to ferret out corruptions but to pursue and persecute citizens with contrary views.”

Krauthammer calls public disclosure of donations “an invitation to the creation of enemies lists,” which “corrupts the very idea of full disclosure.”  He cites the case of Mozilla CEO Brendan Eich, who was forced to resign after reports that he donated $1,000 six years ago to support California’s Proposition 8, a traditional marriage referendum:

“Referendums produce the purest example of transparency misused because corrupt favoritism is not an issue.  There’s no one to corrupt.  Supporting a referendum is a pure expression of one’s beliefs.  Full disclosure in that context becomes a cudgel, an invitation to harassment.”

As Krauthammer points out, the ironic result of the left’s ongoing campaign to press for greater disclosure of campaign contributions – and then deploy disclosure to attack political enemies – is that the very idea of transparency suffers.  As he puts it:  “If revealing your views opens you to the politics of personal destruction, then transparency, however valuable, must give way to the ultimate core political good, free expression.”

Welcome to the fight Mr. Krauthammer!

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More Trial Lawyer Payback

April 17th, 2014

President Obama made the rounds in Texas last week, picking up campaign checks from his most faithful bankrollers:  the trial lawyer elite.  Along the way, he stumped for the so-called Paycheck Fairness Act, which every attorney in attendance understands as the Trial Lawyer Payback Act.

As Karl Rove points out in today’s Wall Street Journal, under this legislation American companies would be presumed guilty in all wage discrimination cases.  The bill also allows trial lawyers to sue for punitive damages, creating a huge incentive for companies to settle even the most meritless cases.  The federal government, of course, would be exempt from this measure.  To further boost legal fees, the Obama Administration wants to make it easier for lawyers to file class actions, even if the plaintiffs haven’t consented to the lawsuit.

Democrats hope to hold onto their Senate majority this fall by castigating Republicans for waging what they like to call a war on women.   But the real domestic war in the U.S. is the one today’s left is waging on American business.

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The Intolerance of Today’s Left

April 11th, 2014

With his usual penetrating insight, Charles Krauthammer’s column today lays bare the ideological “intolerance” of today’s left and the “totalitarian” instincts that drives it to suppress all discussion or debate it finds disagreeable.

Krauthammer argues the left is “entering a new phase of ideological agitation” aimed “no longer at trying to win the debate but stopping debate altogether, banishing from public discourse any and all opposition.”  The “proper word for that attitude,” Krauthammer writes, “is totalitarian.” Rather than engaging in public debate, today’s left “declares certain controversies over” (such as the debate over global warming and gay marriage) and “visits serious consequences – from social ostracism to vocational defenestration – upon those who refuse to be silenced.”

You can see this approach at work in the firing of Mozilla CEO Brendan Eich, which I wrote about earlier this week.  You can see it in the IRS’s attempts to shut down conservative groups and impose new regulations to make it harder for conservatives to participate in the political process.  You can see it in the left’s manic obsession with the Koch brothers and the media’s shameful comparison of their lawful political activities to “drug running.” You can see it in the phony calls for more disclosure, which are merely attempts to build enemies lists for bullying and intimidation.

As Krauthammer notes, this “closing of the leftist mind” demands opposition from all of us who still value free speech, ideological diversity, and the unfettered right to participate in the political process.

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The “False Beliefs” that Propel Restrictions on Free Speech

April 8th, 2014

Influential columnist Robert Samuelson took on decades of free speech restrictions – masquerading as campaign finance reform – in an important column yesterday. Following the U.S. Supreme Court’s 1976 Buckley v. Valeo decision, “instead of free speech, we now have regulated speech,” according to Samuelson.  Federal attempts to regulate speech have “ensnarled elections in a web of bizarre and opaque rules” – unconstitutional abridgments of the First Amendment which the Court began dismantling in Citizens United and followed up with last week’s McCutcheon decision.

Samuelson traces restrictions on free speech to a post-Watergate ideology that suggests failing to limit campaign contributions “consigns government’s vast powers to the rich.  Through disproportionate contributions these moneyed interests win elections and impose their narrow agenda on the nation.”  There’s only one problem with these assertions, Samuelson argues:  “Each of these basic beliefs is false.”

Samuelson points out that since 70 percent of federal spending go to the poor and middle class, while 53 percent of federal taxes are paid by the richest 10 percent, it’s absurd to claim that government is somehow the preserve of the wealthy.  However false, the idea that money spent on campaigns somehow implies corruption creates a self-justifying cycle of cynicism about our political system in general.

“In Buckley v. Valeo, the court had to embrace some rationale for its acknowledged limits on First Amendment rights.  The chose reason was preventing ‘corruption or the appearance of corruption.’  So advocates and the courts must constantly repeat that the present system is ‘corrupt.’  Meanwhile, the law’s various limits force people who want to spend above the limits into increasingly complex evasions that look sleazy and defy the spirit of the law.  But the fault lies with the law, not the people.  The sooner it goes, the better.”

The hue and cry against Citizens United and McCutcheon is part of a campaign by today’s Professional Left to delegitimize political speech by individuals or organizations with which it disagrees.  The goal of free speech restrictions is to silence or marginalize opponents, rather than allow all sides to compete openly in the marketplace of ideas and public opinion.  A similar line of anti-democratic thinking and frustration with outcomes in the electoral process runs through the “merit” selection movement that seeks to sideline pro-business groups and keep conservative judges off the bench.  The idea is simple:  If you can’t beat your opponent at the polls, shut them up (through campaign finance “reform”) or take away their right to vote (through “merit” selection of judges).

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Another Victim of the Left’s Enemies List

April 7th, 2014

A Wall Street Journal editorial provides more evidence of how disclosure of contributions to political causes is being used to target individuals for their beliefs.  Just two weeks after Brendan Eich became CEO of Mozilla, maker of the Firefox web browser, he’s been pushed out because of a $1,000 contribution he made six years ago to support California’s Proposition 8 – a ballot initiative in favor of the traditional definition of marriage.

In other words, supporting a cause that was embraced by a majority of Californians and a view of marriage that was consistent with President Obama’s own views – at least until he was safely re-elected – now gets you fired in Silicon Valley.

The editorial references Justice Clarence Thomas’s concurring opinion in Citizens United, which warned that disclosure requirements could result in “ruined careers” among other effects, “as the price for engaging in ‘core political speech.’”  As the Journal puts it:

“Justice Thomas knows how Southern racists tried to subpoena NAACP membership lists for intimidation purposes in the Jim Crow era.  The Supreme Court ruled this was a violation of the First Amendment right of association.  In our current age of growing liberal intolerance, Justice Thomas’s warning takes on renewed meaning.”

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Better a Farmer than a Tort Lawyer!

April 4th, 2014

Iowa Congressman Bruce Braley, a Democrat who is running to succeed retiring Senator Tom Harkin, has gotten into hot water for committing the cardinal political sin of giving voice to his true inner feelings.  Speaking to a group of South Texas trial lawyers at a fundraising recently, Braley warned that a GOP takeover of the Senate would put Iowa’s Republican Senator Chuck Grassley in charge of the Judiciary Committee.  You can watch the video here, but here’s the money line:

“You might have a farmer from Iowa who never went to law school, never practiced law, serving as the next chair of the Senate Judiciary Committee.”

Braley went on to brag to the trial lawyers he’s counting on to bankroll his campaign that he himself would bring to the Judiciary Committee someone with “your background, your experience, your voice, someone who’s been literally fighting tort reform for 30 years.”

Aside from the unseemliness of a U.S. Senate candidate pledging to use the position of power he seeks to serve as a shill for his fellow trial lawyers, a couple points stand out.  First and most obvious is the reeking condescension that assumes that only members of the trial bar guild have a right to shape the direction of America’s courts. Second, in a state that is 89% farmland, where farmers outnumber attorneys by more than 10:1, who is better positioned to represent Iowans – Farmer Grassley or Tort Lawyer Braley?

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“There Is No More Basic Right in Our Democracy than the Right to Participate in Electing Our Leaders”

April 3rd, 2014

As I predicted yesterday, the U.S. Supreme Court’s McCutcheon decision overturning federal limits on aggregate campaign contributions as an abridgment of free speech has unleashed a torrent of criticism by those who, for one reason or another, seek to suppress individual participation in the political process.  Our friends over at gavelgrab, for instance, labeled the ruling a “big win” for “big spenders” and “big money.”  Blah, blah, blah …

For those who want real insight into what the First Amendment means and how far its protections should go, rather than recycled boilerplate and faux outrage, I highly recommend the majority opinion of Chief Justice Roberts.  Here are a few highlights:

“There is no right more basic in our democracy than the right to participate in electing our political leaders.”


“Money in politics may at times seem repugnant to some, but so too does much of what the First Amendment vigorously protects.  If the First Amendment protects flag burning, funeral protests, and Nazi parades – despite the profound offense such spectacle cause – it surely protects political campaign speech despite popular opposition.”


“An aggregate limit on how many candidates and committees an individual may support through contributions is not a ‘modest restraint’ at all.  The Government may no more restrict how many candidates or causes a donor may support than it may tell a newspaper how many candidates it may endorse.”


“Spending large sums of money in connection with elections, but not in connection with an effort to control the exercise of an officeholder’s official duties, does not give rise to such quid pro quo corruption.  Nor does the possibility that an individual who spends large sums maybe garner ‘influence over or access to’ elected officials or political parties.”


“ … under the dissent’s view, it is perfectly fine to contribute $5,200 to nine candidates but somehow corrupt to give the same amount to a tenth.”


“The line between quid pro quo corruption and general influence may seem vague at times, but the distinction must be respected in order to safeguard basic First Amendment rights.  In addition, ‘[i]n drawing that line, the First Amendment requires us to err on the side of protecting political speech rather than suppressing it.’”


“When donors furnish widely distributed support within all applicable base limits, all members of the party or supporters of the cause may benefit, and the leaders of the party or cause may feel particular gratitude.  That gratitude stems from the basic nature of the party system, in which party members join together to further common political beliefs, and citizens can choose to support a party because they share some, more, or all of those beliefs.  To recast such shared interest, standing alone, as an opportunity for quid pro quo corruption would dramatically expand government regulation of the political process.”

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A First Amendment Victory

April 2nd, 2014

The U.S. Supreme Court today stuck a blow for the First Amendment by overturning federal restrictions on individual participation in the political process.  Writing for the 5-4 majority, Chief Justice Roberts concluded “there is no right in our democracy more basic than the right to participate in electing our political leaders.”

Today’s ruling lifts overall contribution limits of $48,600 by individuals to all federal candidates and the $74,600 limit on contributions to political party committees.  “An aggregate limit on how many candidates an individual may support through contributions is not a modest restraint at all,” Roberts wrote.  “The government may no more restrict how many candidates or causes a donor may support than it may tell a newspaper how many candidates it may endorse.”

Of course, we should expect the usual gnashing of teeth from speech suppressors about the dangers of money in politics.  Chief Justice Roberts not only anticipated these catcalls, but neatly shredded them:

“Spending large sums of money in connection with elections, but not in connection with an effort to control the exercise of an officeholder’s official duties, does not give rise to such quid pro quo corruption.”

In other words, donors contribute to candidates and causes that broadly align with their views, but these donations in and of themselves don’t prove political corruption. It’s odd how liberalism, which once stood for the right of individuals to govern themselves, has morphed into an anti-democratic movement that often strives to keep individuals at arms-length from the process of choosing our leaders.

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Doing Away with Lawyer-Controlled Judicial Selection in Alaska

March 20th, 2014

Add Alaska to the list of states pushing back against lawyer-dominated schemes for choosing judges.  Of the state’s 735,132 citizens, only about 4,000 are lawyers.  Yet despite constituting less than 1 percent of Alaska’s population, lawyers have a permanent 4-3 majority on the Alaska Judicial Council – the panel that controls who will sit on the bench.

Former Alaska Attorney General Charlie Cole defends the system by suggesting that lawyers “are particularly well-qualified to evaluate professional qualifications of judicial applicants.”  Members of the Alaska House and Senate appear to disagree, with both bodies considering legislation that would create a council comprised of 6 non-attorney members and 3 attorneys.

Frankly, the idea that one special interest group (the Alaska Bar Association) holds a monopoly on wisdom when it comes to picking judges is elitist and undemocratic.  Average citizens are just as qualified to select the public servants who interpret our laws as they are to select the public servants who make the laws and execute the laws.  Turning judicial selection into a clubby, insiders’ game is an invitation to cronyism.  While Cole and other critics suggest the proposed reform would politicize judicial selection, in reality it would merely take power away from special interests like the Bar and shift it to the people and their elected representatives.

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Kansas Chief Justice Lobbies to Keep Power Over Lower Courts

March 19th, 2014

Kansas Supreme Court Chief Justice Lawton R. Nuss took to the op-ed pages yesterday to lobby against a proposal by the legislature to weaken the Supreme Court’s control over court budgets in the state’s 31 judicial districts and the selection of chief judges in those districts.  Under the legislature’s plan, each district chief judge would be responsible for submitting and controlling his or her own budget, while the chiefs themselves would be chosen by judges in the district, rather than the Supreme Court.

Chief Justice Nuss claims to “express no opinion about the constitutionality” of the plan because, if the plan is challenged, “the Supreme Court may need to answer that question.”  Yet he makes his sympathies pretty clear a couple paragraphs earlier when he raises the point that “some argue this Senate action violates the people’s constitution.”

This is too clever by half.  Rather than wading into political fights, the Chief should recognize that his only proper role in this debate is ruling on the constitutionality of the plan, if and when it is challenged in court.  Judges who refuse to stay out of politics only undermine their independence and their reputation as neutral interpreters of the law.

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