5-4 bad decision against Arizona Clean Elections law

The decision in Arizona Free Enterprise Club's Freedom Club PAC v. Bennett came out today (PDF), a 5-4 decision ruling Arizona's Clean Election laws unconstitutional.  The dissent, it seems to me, has a much better case than the majority:

the program does not discriminate against any candidate or point of view, and it does not restrict any person's ability to speak.  In fact, by providing resources to many candidates, the program creates more speech and thereby broadens public debate. ...
At every turn, the majority tries to convey the impression that Arizona's matching fund statute is of a piece with laws prohibiting electoral speech. The majority invokes the language of "limits," "bar[s]," and "restraints." ... It equates the law to a "restrictio[n] on the amount of money a person or group can spend on political communication during a campaign." ...

There is just one problem. Arizona's matching funds provision does not restrict, but instead subsidizes, speech. The law "impose[s] no ceiling on [speech] and do[es] not prevent anyone from speaking." ... The statute does not tell candidates or their supporters how much money they can spend to convey their message, when they can spend it, or what they can spend it on. ...

In the usual First Amendment subsidy case, a person complains that the government declined to finance his speech, while financing someone else's; we must then decide whether the government differentiated between these speakers on a prohibited basis--because it preferred one speaker's ideas to another's. ... But the speakers bringing this case do not make that claim--because they were never denied a subsidy. ... Petitioners have refused that assistance. So they are making a novel argument: that Arizona violated their First Amendment rights by disbursing funds to other speakers even though they could have received (but chose to spurn) the same financial assistance. Some people might call that chutzpah.

Indeed, what petitioners demand is essentially a right to quash others' speech through the prohibition of a (universally available) subsidy program. Petitioners are able to convey their ideas without public financing--and they would prefer the field to themselves, so that they can speak free from response. To attain that goal, they ask this court to prevent Arizona from funding electoral speech--even though that assistance is offered to every state candidate, on the same (entirely unobjectionable) basis. And this court gladly obliges.

(See my previous argument against the Institute for Justice's position on this, with some subsequent clarifications on other aspects of the law.)

The majority position on this issue is that the unconstitutionality arises from the way that the subsidy to clean elections candidates is tied to campaign spending by the non-clean-elections candidates; I take it that had the subsidy been a fixed amount the argument would not have worked at all.

There's a good overview of the issues at the SCOTUS blog.

Jeff Benedict and Little Pink House

This afternoon I had the pleasure of hearing writer Jeff Benedict speak about his book, Little Pink House, which is the story behind the Kelo v. New London case that went to the U.S. Supreme Court in 2005. That case, which ruled that New London did have the right to use eminent domain to seize private property and turn it over to another private entity--effectively retranslating the Fifth Amendment's use of the words "public use" into the meaning "public benefit"--was a case I thought I was familiar with. But Benedict's talk revealed that while I was aware of some of the facts relevant to the legal case, I really had no idea about the whole story. In his short talk, he conveyed some of the events and details that did not make it to the national press, but which make the story all the more interesting. The political battles between state and city government, the plan to get Pfizer to stay in Connecticut when it was looking elsewhere, and the personalities involved made for a genuinely moving talk even when we already know how the story ends.

I look forward to reading his book.

2009: A Year for Chinese Dissidents

June 4 will be the 20th anniversary of the Tiananmen Square massacre. March 10 is the 50th anniversary of the Tibetan uprising that led to the Dalai Lama's exile. July 22 is the 10th anniversary of the banning of the Falun Gong cult in China. And October 1 is the celebration of 60 years of Communist rule in China.

Chinese leaders worry that the first three anniversaries may cause issues for the last, and they are right to worry. This looks like it will be a year for dissidents in China to come forward, and it has already begun with an online petition issued in December called Charter 08 at the 60th anniversary of the UN Universal Declaration of Human Rights.

Charter 08 (in English here) was named after Charter 77, a human rights manifesto issued by Czechoslovakian dissidents in 1977. Charter 08, which has been signed by more than two thousand Chinese citizens, calls for recognition of "basic universal values":

Freedom. Freedom is at the core of universal human values. Freedom of speech, freedom of the press, freedom of assembly, freedom of association, freedom in where to live, and the freedoms to strike, to demonstrate, and to protest, among others, are the forms that freedom takes. Without freedom, China will always remain far from civilized ideals.

Human rights. Human rights are not bestowed by a state. Every person is born with inherent rights to dignity and freedom. The government exists for the protection of the human rights of its citizens. The exercise of state power must be authorized by the people. The succession of political disasters in China's recent history is a direct consequence of the ruling regime's disregard for human rights.

Equality. The integrity, dignity, and freedom of every person—regardless of social station, occupation, sex, economic condition, ethnicity, skin color, religion, or political belief—are the same as those of any other. Principles of equality before the law and equality of social, economic, cultural, civil, and political rights must be upheld.

Republicanism. Republicanism, which holds that power should be balanced among different branches of government and competing interests should be served, resembles the traditional Chinese political ideal of "fairness in all under heaven." It allows different interest groups and social assemblies, and people with a variety of cultures and beliefs, to exercise democratic self-government and to deliberate in order to reach peaceful resolution of public questions on a basis of equal access to government and free and fair competition.

Democracy. The most fundamental principles of democracy are that the people are sovereign and the people select their government. Democracy has these characteristics: (1) Political power begins with the people and the legitimacy of a regime derives from the people. (2) Political power is exercised through choices that the people make. (3) The holders of major official posts in government at all levels are determined through periodic competitive elections. (4) While honoring the will of the majority, the fundamental dignity, freedom, and human rights of minorities are protected. In short, democracy is a modern means for achieving government truly "of the people, by the people, and for the people."

Constitutional rule. Constitutional rule is rule through a legal system and legal regulations to implement principles that are spelled out in a constitution. It means protecting the freedom and the rights of citizens, limiting and defining the scope of legitimate government power, and providing the administrative apparatus necessary to serve these ends.

More concretely, Charter 08 offers the following 19 more-specific recommendations:

1. A New Constitution. We should recast our present constitution, rescinding its provisions that contradict the principle that sovereignty resides with the people and turning it into a document that genuinely guarantees human rights, authorizes the exercise of public power, and serves as the legal underpinning of China's democratization. The constitution must be the highest law in the land, beyond violation by any individual, group, or political party.

2. Separation of Powers. We should construct a modern government in which the separation of legislative, judicial, and executive power is guaranteed. We need an Administrative Law that defines the scope of government responsibility and prevents abuse of administrative power. Government should be responsible to taxpayers. Division of power between provincial governments and the central government should adhere to the principle that central powers are only those specifically granted by the constitution and all other powers belong to the local governments.

3. Legislative Democracy. Members of legislative bodies at all levels should be chosen by direct election, and legislative democracy should observe just and impartial principles.

4. An Independent Judiciary. The rule of law must be above the interests of any particular political party and judges must be independent. We need to establish a constitutional supreme court and institute procedures for constitutional review. As soon as possible, we should abolish all of the Committees on Political and Legal Affairs that now allow Communist Party officials at every level to decide politically sensitive cases in advance and out of court. We should strictly forbid the use of public offices for private purposes.

5. Public Control of Public Servants. The military should be made answerable to the national government, not to a political party, and should be made more professional. Military personnel should swear allegiance to the constitution and remain nonpartisan. Political party organizations must be prohibited in the military. All public officials including police should serve as nonpartisans, and the current practice of favoring one political party in the hiring of public servants must end.

6. Guarantee of Human Rights. There must be strict guarantees of human rights and respect for human dignity. There should be a Human Rights Committee, responsible to the highest legislative body, that will prevent the government from abusing public power in violation of human rights. A democratic and constitutional China especially must guarantee the personal freedom of citizens. No one should suffer illegal arrest, detention, arraignment, interrogation, or punishment. The system of "Reeducation through Labor" must be abolished.

7. Election of Public Officials. There should be a comprehensive system of democratic elections based on "one person, one vote." The direct election of administrative heads at the levels of county, city, province, and nation should be systematically implemented. The rights to hold periodic free elections and to participate in them as a citizen are inalienable.

8. Rural–Urban Equality. The two-tier household registry system must be abolished. This system favors urban residents and harms rural residents. We should establish instead a system that gives every citizen the same constitutional rights and the same freedom to choose where to live.

9. Freedom to Form Groups. The right of citizens to form groups must be guaranteed. The current system for registering nongovernment groups, which requires a group to be "approved," should be replaced by a system in which a group simply registers itself. The formation of political parties should be governed by the constitution and the laws, which means that we must abolish the special privilege of one party to monopolize power and must guarantee principles of free and fair competition among political parties.

10. Freedom to Assemble. The constitution provides that peaceful assembly, demonstration, protest, and freedom of expression are fundamental rights of a citizen. The ruling party and the government must not be permitted to subject these to illegal interference or unconstitutional obstruction.

11. Freedom of Expression. We should make freedom of speech, freedom of the press, and academic freedom universal, thereby guaranteeing that citizens can be informed and can exercise their right of political supervision. These freedoms should be upheld by a Press Law that abolishes political restrictions on the press. The provision in the current Criminal Law that refers to "the crime of incitement to subvert state power" must be abolished. We should end the practice of viewing words as crimes.

12. Freedom of Religion. We must guarantee freedom of religion and belief, and institute a separation of religion and state. There must be no governmental interference in peaceful religious activities. We should abolish any laws, regulations, or local rules that limit or suppress the religious freedom of citizens. We should abolish the current system that requires religious groups (and their places of worship) to get official approval in advance and substitute for it a system in which registry is optional and, for those who choose to register, automatic.

13. Civic Education. In our schools we should abolish political curriculums and examinations that are designed to indoctrinate students in state ideology and to instill support for the rule of one party. We should replace them with civic education that advances universal values and citizens' rights, fosters civic consciousness, and promotes civic virtues that serve society.

14. Protection of Private Property. We should establish and protect the right to private property and promote an economic system of free and fair markets. We should do away with government monopolies in commerce and industry and guarantee the freedom to start new enterprises. We should establish a Committee on State-Owned Property, reporting to the national legislature, that will monitor the transfer of state-owned enterprises to private ownership in a fair, competitive, and orderly manner. We should institute a land reform that promotes private ownership of land, guarantees the right to buy and sell land, and allows the true value of private property to be adequately reflected in the market.

15. Financial and Tax Reform. We should establish a democratically regulated and accountable system of public finance that ensures the protection of taxpayer rights and that operates through legal procedures. We need a system by which public revenues that belong to a certain level of government—central, provincial, county or local—are controlled at that level. We need major tax reform that will abolish any unfair taxes, simplify the tax system, and spread the tax burden fairly. Government officials should not be able to raise taxes, or institute new ones, without public deliberation and the approval of a democratic assembly. We should reform the ownership system in order to encourage competition among a wider variety of market participants.

16. Social Security. We should establish a fair and adequate social security system that covers all citizens and ensures basic access to education, health care, retirement security, and employment.

17. Protection of the Environment. We need to protect the natural environment and to promote development in a way that is sustainable and responsible to our descendants and to the rest of humanity. This means insisting that the state and its officials at all levels not only do what they must do to achieve these goals, but also accept the supervision and participation of nongovernmental organizations.

18. A Federated Republic. A democratic China should seek to act as a responsible major power contributing toward peace and development in the Asian Pacific region by approaching others in a spirit of equality and fairness. In Hong Kong and Macao, we should support the freedoms that already exist. With respect to Taiwan, we should declare our commitment to the principles of freedom and democracy and then, negotiating as equals and ready to compromise, seek a formula for peaceful unification. We should approach disputes in the national-minority areas of China with an open mind, seeking ways to find a workable framework within which all ethnic and religious groups can flourish. We should aim ultimately at a federation of democratic communities of China.

19. Truth in Reconciliation. We should restore the reputations of all people, including their family members, who suffered political stigma in the political campaigns of the past or who have been labeled as criminals because of their thought, speech, or faith. The state should pay reparations to these people. All political prisoners and prisoners of conscience must be released. There should be a Truth Investigation Commission charged with finding the facts about past injustices and atrocities, determining responsibility for them, upholding justice, and, on these bases, seeking social reconciliation.

The Chinese government's response has been to detain Charter 08's chief organizer, Liu Xiaobo, question or threaten signers of the document, shut down websites that contain or discuss the document, and require Google to return no results for searches on Charter 08, but instead produce a warning that "according to local laws, regulations and policies, some results have not been displayed."

More on Charter 08:

"The year of living dissidently," The Economist, January 17, 2009, pp. 42-43.

Bill of Rights celebration at the Wrigley Mansion

Kat and I attended Alan Korwin's Bill of Rights celebration, celebrating the 217th anniversary of the Bill of Rights, which was held this evening at the Wrigley Mansion. There were several hundred people in attendance, mostly civil libertarians of both liberal and libertarian varieties, including people from the Institute for Justice and the ACLU. We were asked in the invitation to think about which Amendment is our favorite--I would probably rank the 1st and 4th at the top of my list, of which the 1st is much healthier than the 4th. I'd also put the 8th and 5th high in importance, both of which have taken some recent hits but are showing signs of recovery. And of course the 6th, and the under-utilized 9th... ah, heck, they're all important. The crowd seemed dominated by 2nd Amendment fans, not surprising since Alan Korwin is the author and publisher of numerous books on U.S. gun laws.

The reading of the Bill of Rights and its preamble was excellent, but I was disappointed that the event included a Patrick Henry impersonator played by Lance Hurley of Founding Fathers Ministries. Hurley is a Christian who endorses David Barton's works of pseudohistory on his website (for which the antidote is Chris Rodda's Liars for Jesus), and at the event argued in character, with quotations from Henry, that the 2nd Amendment came from the teachings of Jesus Christ, that the American revolution was fought on Christian principles, and the Constitutional Convention succeeded because of Ben Franklin's prayer. He also stated, when there were discussions of the health of the first ten amendments to the Constitution, that freedom of religion is in serious danger, because no one can mention God in schools but the Koran can be discussed. This is simply untrue--God and the Bible can be discussed by students, but such discussions cannot constitutionally be imposed by state agents such as teachers and administrators in a way that constitutes an establishment of religion. The Bible can be legally taught as the combination of myth, history, poetry, literature, and religious doctrine that it is, but Christianity cannot be endorsed as true by state agents. The same rules apply to the Koran. Hurley seems not to realize that Madison's version of the First Amendment won out, not Henry's. Some Christians--and it appears that Hurley may be one of them--have a view that their freedom of religion is infringed if they are prevented from legally imposing their religion on others through acts of state agents.

I'll find it amazing that Christians consider themselves to be a poor, persecuted minority prohibited from expressing their religious views when they are, in fact, regularly engaging in establishment clause violations, and Congressmen are signing on to bills like last year's House Resolution 847.

Hurley does public speaking as both Patrick Henry and George Washington--I wonder if his George Washington is historically accurate with respect to Washington's religious views. He's also an advocate of conspiracy theories (Illuminati, Trilateral Commission, Bilderbergers, etc.) and an advocate of the National Day of Prayer.

Further fringe elements were represented at the event by Ernie Hancock of the Ron Paul Revolution, who distributed multiple pieces of literature promoting his Freedom's Phoenix website, billed as "uncovering the secrets & exposing the lies." That site also promotes conspiracy theory, including "9/11 truth" conspiracy claims.

In the discussions, several people brought up Phoenix's recently installed freeway traffic speed cameras as evidence of the sickliness of the Bill of Rights, though no one really offered an explanation of how the Bill of Rights is violated by them. And the objection seemed to only be to the cameras, not to speed limit laws. I'm not a fan of speed cameras, and I agree that they are more of a revenue generation method than a safety measure, but I don't see an obvious case that they violate the Bill of Rights.

That's not to say that the event was entirely dominated by the lunatic fringe--one woman in the audience commented that she was particularly concerned about the 4th Amendment, because she is now regularly stopped at a "border checkpoint" while driving between destinations well inside the U.S. border, because of the 100-mile "Constitution-free zone" that the courts have created around the perimeter of the U.S. And Jennifer Perkins of the Institute for Justice pointed out that even though the U.S. Supreme Court blew a gigantic hole in the 5th Amendment with the Kelo case, nearly all of the states have passed legislation adding further protections against eminent domain abuse (and Arizona's are the strongest).

There was one critical mention of the USA PATRIOT Act (by the Patrick Henry impersonator, to well-deserved applause), but no mention of Guantanamo Bay, the Military Commissions Act, or torture that I noticed. I think concern over traffic cameras is at least a bit lower on the priority list than any of these items. A point in favor of the Patrick Henry arguments is that he correctly identified the risk of expanding executive power and judicial decisions that disregarded basic rights (the fact that the Bill of Rights, as well as the Constitution itself, has many passages that have effectively been written out of it, is testament to the accuracy of that prediction).

The First Amendment's guarantee of free speech, at least, is alive and relatively well.

UPDATE (December 16, 2008): Ed Brayton at Dispatches from the Culture Wars points out that Ron Paul introduced the American Freedom Agenda Act which would:

Repeal the "Military Commissions Act of 2006" and thereby restore the ancient right of habeas corpus and end legally sanctioned torture by U.S. government agents

Restore the "Foreign Intelligence Surveillance Act" (FISA) and thereby outlaw warrantless spying on American citizens by the President of the United States

Give Congress standing in court to challenge the President's use of "signing statements" as a means to avoid executing the nation's laws

Make it illegal for government agents to kidnap people and send them abroad to be tortured by foreign governments

Provide legal protection to journalists who expose wrong-doing by the Federal government

Prohibit the use of secret evidence to label groups or individuals as terrorists for the purpose of criminal or civil sanctions

Ed suggests, and I agree, that writing or calling your elected representatives and asking them to support this bill is a good way to do something to preserve and protect the Bill of Rights.

Institute for Justice wins San Tan Flat outdoor dance ban case

Yesterday, Arizona Superior Court Judge William O'Neill struck down a Pinal County Court ruling that Dale Bell's San Tan Flat steakhouse is a "dance hall," freeing Bell from a ban against customers dancing outside his establishment. Pinal County's attempt to ban dancing and extract fines from Bell had been hanging over his business since he opened in 2005.

Goldwater Institute takes on Sheriff Joe

Clint Bolick, formerly the primary litigator for the Institute for Justice, is taking on some good causes as a litigator for the Goldwater Institute's new Scharf-Norton Center for Constitutional Litigation. He's currently fighting against the City of Phoenix's unconscionable and unconstitutional multimillion-dollar subsidy to the developers of the CityNorth project, and now he's taking on popular Maricopa County Sheriff Joe Arpaio.

In an article posted today called "Who's in Charge?", Bolick points out two cases of apparent misuse of funds by Arpaio--using RICO funds to send staff to Honduras, and sending out nearly 200 deputies and "posse" members on "saturation patrols" that appear to be trespassing the jurisdiction of the Phoenix Police Department. Meanwhile, Bolick notes:

Whatever the rationale the Maricopa County Sheriff’s Office had for those actions, both diverted scarce resources away from vital law enforcement duties that fall within the Sheriff’s Office’s core duties:

• Unserved warrants, including those for violent offenders, number an estimated 70,000.
• Dozens of criminal defendants have missed court appearances because deputies in charge of moving inmates were told to skip shifts due to excessive overtime.
• The Sheriff’s Office closed three regional booking facilities in Surprise, Avondale, and Mesa, forcing police officers in all 26 Maricopa County jurisdictions to book criminal suspects at the Fourth Avenue jail in downtown Phoenix. The greatly increased transportation time removes officers from the streets and induces them to simply cite and release criminals.

Arpaio has a long history of showy but useless or even counterproductive law enforcement activities, as well as costing the taxpayers millions by getting the MCSO sued repeatedly for wrongful death and injury cases as a result of abuse of inmates. But Maricopa County residents keep voting him back in, because he claims to be tough on crime and is often a good self-promoter. I hope that events like last October's arrests of the owners of New Times and now Clint Bolick going after him will finally lead to his non-reelection for County Sheriff this year.

Dan Saban, who's running against Arpaio, is saying all the right things about integrity, civil rights, and combating waste, though he also seems to take a hard line on illegal immigration (which is another area where Arpaio has taken a hard line and engaged in some theatrical activities). He looks like a marked improvement to Arpaio.

UPDATE (April 2, 2008): Looks like Goldwater lost round one today on CityNorth, a project where the city is giving $97.4 million in taxpayer subsidies to the developers of a shopping mall over the next 11 years, and claiming that it is for the 3,180 parking spaces in the parking garage the project is building, 200 of which are reserved for carpoolers using park and ride city bus services for the next 45 years. If the subsidy is considered to be for those 200 spaces, that comes out to $487,000 per space over the 45-year period, or $10,822.22 per space per year. The average parking space annual lease price in Phoenix is $684, and ASU recently estimated that a parking garage would cost $14,000 per space to build. In other words, if instead of paying nearly $100 million to CityNorth, the city instead had purchased land and built its own parking garage, the construction would have cost less than what the city is paying for the first two years worth of the 45-year lease on the 200 spaces. And that doesn't count the additional $10,000/week of taxpayer funds that has been spent on lawyers fighting for this subsidy.

The Goldwater Institute has announced that it will appeal.

UPDATE (April 9, 2008): The New York Times has editorialized that Arpaio should be subpoenaed about his anti-illegal-immigrant sweeps:

For months now, Sheriff Joe has been sending squads of officers through Latino neighborhoods, pulling cars over for broken taillights or turn-signal violations, checking drivers' and passengers' papers and arresting illegal immigrants by the dozen.

Because he sends out press releases beforehand, the sweeps are accompanied by TV crews and protesters — deport-'em-all hard-liners facing off against immigrant advocates. Being Arizona, many of those shouting and jeering are also packing guns. Sheriff Joe, seemingly addicted to the buzz, has been filmed marching down the street shaking hands with adoring Minutemen.

If this doesn't look to you like a carefully regulated, federally supervised effort to catch dangerous criminals, that's because it isn't. It is a series of stunts focused mostly on day laborers, as Sheriff Joe bulldozes his way toward re-election.

The sheriff says he is keeping the peace, but it seems as if he is doing just the opposite — a useless, reckless churning of fear and unrest.

IJ defends Speechnow.org

Speechnow.org is being supported by the Institute for Justice and the Center for Competitive Politics in its lawsuit against federal laws and regulations which forbid it from receiving more than $5,000 in donations per year from any individual and require it to file forms and engage in reporting in order to do what it wants to do.

What does Speechnow.org want to do? It wants to advocate the view that voters should vote for candidates who support the First Amendment and against candidates who do not. It takes no corporate or union money, it doesn't donate to or coordinate with individual candidates or political parties. Yet this is sufficient under current law to restrict its activities and entangle it in red tape, so Speechnow.org has filed a federal lawsuit seeking a preliminary injunction.

Institute for Justice argument against Clean Elections

I agree with most of the positions taken by the Institute for Justice, an organization that fights for economic rights of entrepreneurs (especially small businesses fighting ridiculous regulations designed as barriers to entry), for freedom of speech, against eminent domain abuse, and for school choice. But I don't understand its argument against Arizona's Clean Elections law, which strikes me as conflicting with some of its other arguments.

Tim Keller, head of the Arizona chapter of the Institute for Justice, makes the following argument:

Direct government limits on expenditures are unconstitutional. Instead of a direct limit, Arizona created so-called “matching funds” to enforce the caps. The system’s drafters knew that many candidates like Martin would reject taxpayer funding on principle and simply opt out, freeing them of the government caps. That would give them an advantage over those who accept taxpayer funds and thus discourage participation in the scheme. So there had to be a way to punish those who opt out. “Matching funds” is the punishment: Whenever a privately financed candidate or an independent group outspends a taxpayer-funded candidate, the government steps up to the ATM (in this case, Arizona Taxpayers’ Money) and matches those expenditures dollar-for-dollar, up to two times the initial payout.
“Matching funds” are how Arizona rewards those who take taxpayer money for politics and punishes those who refuse it—as well as private citizens or groups who want to support them. “Matching funds” are how Arizona reins in speech about politics.
Indeed, the dirty little secret of Arizona’s law is that it is designed to limit speech: Government controls the purse strings, so government decides how much speech is “enough.” But, in a free society, the government has no business micromanaging how citizens debate, of all things, who should run the government.
State-imposed limits, even indirect limits, on grassroots advocacy and campaigns for public office violate the free speech and association guarantees of the First Amendment. That is why Dean Martin, the Freedom Club PAC and Taxpayer Action Committee joined with the Institute for Justice to ask the federal courts to vindicate their First Amendment rights. The 9th U.S. Circuit Court of Appeals recently reinstated this lawsuit, originally filed in 2004 by IJ and Martin. Now we return to the trial court to argue the merits of the case.
Arizona’s election scheme, one of the most far-reaching in the nation, adds up to less speech from fewer voices resulting in a less robust public debate. If the Arizona model spreads, as so-called campaign finance “reformers” hope, our core rights as citizens to speak on political matters will give way to government control. But IJ is fighting back with a case that can set an important precedent against taxpayer-funded campaigns and in favor of unfettered First Amendment rights.

In Arizona, candidates can either choose to be "clean elections" candidates receiving public funding, or not. If they choose public funding, they need to find a certain number of "grassroots" supporters to each make $5 donations (a number dependent upon the number of people in the district, or in the state, for statewide offices), and then they are eligible for matching funds for advertising if any non-"clean elections" candidates exceed the "clean elections" spending cap. Those funds come from money earmarked for the purpose by Arizona taxpayers when they file their state income tax returns--many people check the box that allows a $5 tax credit ($10 for married filing jointly) if the money is passed on to the clean elections fund.
The IJ argument is that this violates the First Amendment because a non-"clean elections" candidate's speech is chilled by the fact that matching funds will go to any "clean elections" candidates running for the same office if they exceed the spending cap. There's nothing else preventing them from exceeding the spending cap--only the knowledge that their opponent will get comparable funding. I don't see how this constitutes any restriction at all on a candidate's freedom of speech. The fact that someone else will get funding to promote their speech if I spend money to promote mine doesn't impact my ability to speak at all. This isn't like the Fairness Doctrine where some media outlet is being compelled to give equal time for opposing views, rather it's that taxpayers who have given money to clean elections are providing funding for such candidates to speak with a comparably loud voice to their opponents funded by special interests.

This is not to say there aren't good arguments against the clean elections law. I think one good argument against it is that it has been used by social conservatives to get fringe candidates elected to office. Another is that it makes complicated and seemingly arbitrary rules (PDF) about how a candidate can spend money, and involved the creation of a new bureaucracy, the Citizens Clean Elections Committee. It also used to (until successfully overturned by a previous lawsuit) involve compelled funding of speech, when it was funded by parking fines.

IJ has argued (rightly, in my opinion) that a tax credit for donations to school choice organizations doesn't constitute a violation of the First Amendment if it goes to religious schools, since it's an individual taxpayer choosing to give their own money to a religious organization, not the government passing money along. I agree with Sam Coppersmith that similar reasoning should apply to the clean elections tax credit.

UPDATE (February 7, 2008): Tim Keller has sent me a copy of the decision in Day v. Holohan, the case that overturned clean elections in Minnesota, as well as informing me that contrary to what I say above, 2/3 of Arizona's clean elections funding still comes from surcharges on civil and criminal fines--which I agree amounts to compelled speech for parking and traffic violators. I was under the (apparently mistaken) impression that that source of funding had already been eliminated.

Tim also points out that, contrary to Sam Coppersmith, the clean elections tax credit doesn't quite work the same way as the school tuition credit. When a taxpayer checks the box for a $5 donation to the clean elections fund, $5 goes as a tax credit to the taxpayer and another $5 goes to the clean elections fund, so the general fund really is out $5 ($10 if you count the taxpayer being allowed to keep $5 of his own money to be a taking from the government, which I don't). The school tuition credit, by contrast, involves the taxpayer making a donation (up to $1,000 for a married couple filing jointly) directly to a school tuition organization which then counts as a tax credit on the return. No money at all goes from the treasury to the school, though it gets the amount of the donation less in taxes paid. With the clean elections credit, the state is out the money it has to pay to clean elections AND it doesn't get the money from the taxpayer, while with the school tuition organization tax credit, the state is only out the money it doesn't get from the taxpayer. Tim says that if clean elections was funded the same way, IJ wouldn't be suing.

UPDATE (September 3, 2008): The Institute for Justice argument prevailed in court. Last Friday Judge Roslyn Silver ruled that the matching funds provision of the Clean Elections Act violates the First Amendment, following the Supreme Court case of Davis v. FEC. There will be a hearing today to determine what the implications are--whether matching funds will continue to be provided to candidates in this November's general election or not. IJ has asked for an injunction against matching funds.

UPDATE (June 27, 2011): The U.S. Supreme Court has sided with the Institute for Justice on this (PDF), in a 5-4 decision.  The dissenting argument makes some of the same points I do above, and I still have to agree that it's a better argument.  As the dissent puts it:

the program does not discriminate against any candidate or point of view, and it does not restrict any person's ability to speak.  In fact, by providing resources to many candidates, the program creates more speech and thereby broadens public debate. ...
At every turn, the majority tries to convey the impression that Arizona's matching fund statute is of a piece with laws prohibiting electoral speech. The majority invokes the language of "limits," "bar[s]," and "restraints." ... It equates the law to a "restrictio[n] on the amount of money a person or group can spend on political communication during a campaign." ...

There is just one problem. Arizona's matching funds provision does not restrict, but instead subsidizes, speech. The law "impose[s] no ceiling on [speech] and do[es] not prevent anyone from speaking." ... The statute does not tell candidates or their supporters how much money they can spend to convey their message, when they can spend it, or what they can spend it on. ...

In the usual First Amendment subsidy case, a person complains that the government declined to finance his speech, while financing someone else's; we must then decide whether the government differentiated between these speakers on a prohibited basis--because it preferred one speaker's ideas to another's. ... But the speakers bringing this case do not make that claim--because they were never denied a subsidy. ... Petitioners have refused that assistance. So they are making a novel argument: that Arizona violated their First Amendment rights by disbursing funds to other speakers even though they could have received (but chose to spurn) the same financial assistance. Some people might call that chutzpah.

Indeed, what petitioners demand is essentially a right to quash others' speech through the prohibition of a (universally available) subsidy program. Petitioners are able to convey their ideas without public financing--and they would prefer the field to themselves, so that they can speak free from response. To attain that goal, they ask this court to prevent Arizona from funding electoral speech--even though that assistance is offered to every state candidate, on the same (entirely unobjectionable) basis. And this court gladly obliges.

Congressional earmark reform is a sham

From Robert Novak (ick, but it doesn't change the facts here) via Distributed Republic:

With the midnight hour approaching on Saturday, Aug. 4, near the end of a marathon session, Democratic and Republican leaders alike wanted to pass the defense appropriations bill quickly and start their summer recess. But Republican Rep. Jeff Flake's stubborn adherence to principle forced an hour-long delay that revealed unpleasant realities about Congress.

Flake insisted on debating the most egregious of the 1,300 earmarks placed in the defense money bill by individual House members that authorize spending in their districts. Defending every such earmark was the chairman of the Appropriations defense subcommittee: Democratic Rep. John Murtha, unsmiling and unresponsive to questions posed on the House floor by Flake. Murtha is called "King Corruption" by Republican reformers, but what happened after midnight on Aug. 5 is not a party matter. Democrats and Republicans, as always, locked arms to support every earmark. It makes no difference that at least seven House members are under investigation by the Justice Department. A bipartisan majority insists on sending taxpayers' money to companies in their districts without competitive bidding or public review.

Claims of newly established transparency were undermined by the late-night follies. Flake, who ran a Phoenix think tank, the Goldwater Institute, before coming to Congress in 2001, is immensely unpopular on both sides of the aisle for forcing votes on his colleagues' pork. He burnished that reputation by prolonging the marathon Saturday session and challenging selected earmarks.

What ensued showed the sham of earmark "reform." With debate on each earmark limited to five minutes per pro and con, and roll calls also pressed into five minutes, the House was mainly interested in finishing up and defeating Flake with huge bipartisan majorities. The mood of annoyance with Flake was personified by the 17-term Murtha, who as subcommittee chairman defended and retained every earmark (including notorious infusions of cash to his Johnstown, Pa., district).

Murtha is on CREW's list of the most corrupt Congressmen (as "one to watch") and has a history of working with Republicans in order to block fraud investigations and prevent lobbying reform. I observed last November that it looked like the Democrats were off to a poor start on reforming Congress.

Eminent domain extortion

Radley Balko describes an outrageous case of eminent domain extortion in Port Chester, NY:

With the blessing of officials from the Village of Port Chester, the Village's chosen developer approached [entrepreneur Bart] Didden and his partner with an offer they couldn't refuse. Because Didden planned to build a CVS on his property--land the developer coveted for a Walgreens--the developer demanded $800,000 from Didden to make him "go away" or ordered Didden to give him an unearned 50 percent stake in the CVS development. If Didden refused, the developer would have the Village of Port Chester condemn the land for his private use. Didden rejected the bold-faced extortion. The very next day the Village of Port Chester condemned Didden's property through eminent domain so it could hand it over to the developer who made the threat.

The 2nd U.S. Circuit Court of Appeals upheld this extortion under last year's Kelo eminent domain decision. The court ruled that because this is taking place in a "redevelopment zone" they couldn't stop what the Village is doing.

The case will be considered for review by the U.S. Supreme Court on January 5, 2007, and Didden's side is being supported by the Institute for Justice.

By the way, if you are considering any last minute end-of-year charitable donations, I highly recommend giving support to the Institute for Justice. They have received 4-star ratings from Charity Navigator for five years straight, they regularly win critical civil liberties cases in the courts, they do a great job of keeping donors informed of what is being done with their money, they don't continually pester you for more, and they have a strong record of acting in a principled manner. IJ holds regular entrepreneurship workshops, and operates state chapters in Arizona (the first IJ state chapter), Minnesota, and Washington.

AzCLU wrong on school choice

Ed Brayton rightly criticizes the Arizona Civil Liberties Union's lawsuit to try to prevent Arizona from giving corporate tax credits for donations to organizations that provide private school tuition for students from low-income families. The AzCLU has previously failed in two lawsuits to eliminate the state income tax credit for individual donations to private school tuition organizations. There is no reason to believe this third lawsuit will be anything but a waste of money.

As Ed points out, this is not a violation of the establishment clause of the Constitution (or the Arizona Constitution's prohibition on state funds being used to promote religion) because no state funds are going directly to any religious organization.

I support the Institute for Justice on this issue, and this is a reason I've never given funds to the AzCLU (though I support the ACLU Foundation).

I am a beneficiary of the individual state tax credit--I annually make the maximum qualifying contribution to the Arizona School Choice Trust, which is the single most efficient charity I donate to (100% of donations are distributed as tuition payments for students from low-income families; salaries for employees and administrative overhead are paid by another private organization).

UPDATE (June 7, 2007): Judge Janet Barton granted the Institute for Justice's motion to dismiss this case, back in March.

UPDATE (March 12, 2009): The Institute for Justice won this case again today in the Arizona Court of Appeals.

Apparently Sam Coppersmith has never heard of Kelo v. New London Development Corp.

Sam Coppersmith complains that legislators seeking restrictions on eminent domain abuse are wasting their time (and apparently that they are trying to create a diversion from other more important issues). Sure, Arizona has better protections in place than most states (as demonstrated by the decisions in Bailey v. Myers (link is a PDF) and City of Tempe v. Valentine) , but why is it any surprise that there is extensive support for expanding such protections in the aftermath of the Kelo decision? The failure of his column to even mention that decision strikes me as disingenuous.

The Castle Coalition and the Institute for Justice have very strong grassroots support on this issue, and it's not a partisan issue.

Rehnquist remembered, Rashomon-style

Clint Bolick and Alan Dershowitz have written two very different--yet only occasionally directly contradictory--rememberances of Chief Justice William Rehnquist. Bolick, in a piece distributed by the Goldwater Institute and published in the Arizona Republic, describes Rehnquist as a conservative, moderating influence on a liberal court, advocating state's rights, school choice, and presiding over a court that has been "usually (though less frequently lately) siding with individual liberty over state power." Dershowitz, on the other hand, in a piece published on the Huffington Post, describes Rehnquist as a bigot who enjoyed racist and anti-Semitic jokes, who defended the "separate but equal" doctrine in Plessy v. Ferguson as a law clerk for Justice Jackson, and who began his legal career as a Republican thug who obstructed African-American and Hispanic voters at Phoenix polling places.

Bolick gives a more nuanced view that actually addresses more of Rehnquist's work on the court (though less than I would have expected), while Dershowitz emphasizes evidence of Rehnquist's personal character which mostly derives from before he was on the Supreme Court. I was surprised that Bolick didn't mention some of the recent cases (such as Raich v. Ashcroft and Kelo v. New London) where Rehnquist voted for liberty (and was unfortunately in the minority).

Yet I have no doubt that there is accuracy in both descriptions. Bolick has in the past seen people as defenders of liberty who have done much to destroy it, such as former Attorney General John Ashcroft. Dershowitz alternatively takes courageous stands in defense of liberty and crazy stands which oppose it.

One area where I was less than impressed with Rehnquist was on religious liberty, specifically for nonbelievers. He (like the majority) went the wrong way on Elk Grove v. Newdow (the Pledge of Allegiance "under God" case) and (unlike the majority) the wrong way on the McCreary County v. ACLU case (Ten Commandments display in a Kentucky courtroom which included a written statement that the display was "in remembrance and honor of Jesus Christ, the Prince of Ethics").