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Why federal campaign finance disclosure laws are unconstitutional

Why federal campaign finance disclosure laws are unconstitutional

This article originally appeared in The Hill.

Many on the left are campaigning to “overturn Citizens United.” By this they mean they want to reverse the portion of Citizens United v. Federal Election Commission in which the Supreme Court upended a federal ban on corporations participating in candidate elections independently of the candidates’ campaigns.

The effect of the court’s ruling is to allow citizens to utilize the corporate form when participating in politics. By an accurate reading of the Constitution, the ruling was correct—not merely because contributions are protected by the First Amendment, but for a more fundamental reason: The Constitution, as originally understood, grants Congress no power to govern political campaigns. Although it does grant Congress some authority over the mechanics of congressional electionsregulation of campaigns was reserved to the states.

But Citizens United included a second decision, one rarely mentioned. In this part of the case, the court upheld federal laws requiring contributors to political ads to publicly reveal their names.

Unlike the first ruling, the second was a constitutional mistake. Although the court has since reaffirmed its position, it should promptly reconsider.

At the heart of the court’s error is the assumption that political advertising is an example of what the First Amendment calls “the freedom of speech.” In fact, it is what the First Amendment calls “the freedom of the press.” The distinction is crucial.

When the First Amendment was ratified, freedom of speech was exercised in person, so the speaker’s identity was almost always known. Freedom of the press, was exercised through a medium that enabled the author to remain anonymous.

The founders did not have electronic media: Their media were pamphlets, letters, posters, handbills, and newspapers. But the nature of the medium is irrelevant to the meaning of the First Amendment: Its phrase “freedom of the press” inherently included the right of the author to conceal his identity.

We know this, in part, because the founding-era records contain statements explicitly saying so. Writers on freedom of the press staunchly defended an author’s right to privacy. They contended that privacy enabled an argument to be considered on its merits without regard to the popularity of the author. Privacy encouraged contributions from the timid and the vulnerable. Privacy protected authors and their families from retaliation. Privacy enabled a person to participate in public debate without public debate taking over his or her life.

We know this also from how freedom of the press was exercised during the Founding Era. Writers on political subjects almost always concealed their true names by using pen names or not signing at all. The Federalist Papers were the most celebrated example of the dominant custom.

There was really only one limit to the right to author privacy. If a text was defamatory, treasonable, or otherwise represented a crime or civil wrong, a prosecuting attorney could insist that the media outlet reveal the author’s name. Otherwise, the author’s identity was no one’s business.

An incident that occurred in 1782 is illustrative.

An author had placed an article in a Philadelphia newspaper criticizing state government. Hearing that the editor had revealed the name of the critic to the governor, another writer accused the editor of “treachery.”

In response, the editor explained that the governor had indeed asked the editor for the critic’s identity, but only (said the governor) “if you are at liberty to mention his name.”

In response to the governor’s request, the editor asked the author whether the editor had permission to reveal his identity. The author responded, “You are at liberty to give my name to his excellency.” Only then did the editor comply with the governor’s request.

So not even an editor—much less the government—could disclose the name of an author who wished to remain anonymous. And if the author had not been consulted, anonymity was assumed.

The founders would have found the congressional law mandating disclosure of contributors to political advertising to be a gross—and very dangerous—violation of the First Amendment. 

Part II: What Do We Do About Legal Realism and Its Promotion of Judicial Activism?

Part II: What Do We Do About Legal Realism and Its Promotion of Judicial Activism?

In the previous installment in this two-part series, I surveyed how the theory of “legal realism” came to displace the traditional views of law shared by Anglo-American attorneys and judges. I explained that the Constitution’s provisions for the judiciary were drafted with the traditional views in mind—but once “legal realism” began to dominate legal thinking, the judicial system no longer worked as expected. Legal realist thought encouraged judges to engage in activist behavior not anticipated by the Constitution.

How, therefore, do we recapture our judiciary from the legal realists?

The first thing to remember is that the problem centers in specific institutions: American law schools and the higher reaches of the judiciary. If follows that any solutions have to focus on those areas. It is pointless to attack those not responsible for the damage, such as state trial court judges or lawyers generally.

Next, keep in mind that,  despite its name, “legal realism” is an ivory tower theory. Although one of its founders, Oliver Wendell Holmes, Jr., had substantial real-world experience, this is not true of most of those who spread the doctrine. These are mostly law professors with little experience in law practice, and even less in business and the economy. They often promote realist ideas because they picked them up in law school or because they think that’s what faculty at more prestigious institutions believe. These professors spread the doctrine through their teaching and law journal articles and other media.

Any cure for judicial activism has to be directed not merely at the offending judges but at the legal opinion molders who encourage bad judicial conduct.  On the other hand, you can’t address the law school problem merely by firing every realist faculty member: They are protected by the First Amendment, norms of academic freedom, political reality, and American ideas of fair play.

Here are some more practical reforms. Each has the advantage of making sense for other reasons as well:

Term limits on appellate judges and justices. A single long term for each judge would encourage appointment of somewhat older nominees, nominees more tested and shaped more by experience than by inaccurate theories. Abolishing lifetime appointments probably would reduce judicial arrogance as well. In another post, I addressed  reasons for imposing term limits on the U.S. Supreme Court.

Choosing appeals court judges primarily from trial court judges and from experienced attorneys rather than from academics or politicians. Aside from the occasional academic like Antonin Scalia, most appointments should come from the trial bench and from the ranks of outstanding private practitioners. We should avoid appointing former politicians to the Supreme Court; they tend to become activists.

Reduce the role of the U.S. court system. Nothing in the Constitution requires that Congress fund any federal tribunal other than the Supreme Court. In fact, among federal systems (Germany, Australia, Canada, etc.), America is relatively unusual in having a complete national court system parallel to those of the states.  Although state judges sometimes are infected with the activist virus, I suspect it is more prevalent among federal judges. If so, it might make sense to pare back the federal courts and rely more on state judiciaries.

Open up legal education to free market competition. Many states grant a monopoly on legal education to law schools approved by the liberal American Bar Association. States should permit aspiring lawyers to receive their education by the traditional clerkship method. They should permit law school accreditation by entities other than the ABA. Of course, the bar exam and associated licensing requirements should be preserved.

Establish higher standards for law professors. The following is a typical resume for a newly hired law professor:

  • Good grades at a prestigious school where most of the teachers lack real-world experience,
  • a year or two clerking for a judge or writing memos in a law firm not typical of practice generally (e.g., a Wall Street firm),
  • being hired onto a faculty.

Obviously a person with a resume like this is utterly unqualified to teach law students how to be good lawyers. Further, such a person is easy prey for silly theories.  State authorities should require that law faculty have significant experience in what they teach, especially at state law schools. States require extensive experience in licensing other professions (such as physicians), and even for skilled trades such as plumbers and electricians.

Require fairer hiring procedures for law professors. In addition to employing novices to do a professional job, law school hiring malpractice includes using politically correct criteria favoring certain ethnic groups and freezing out libertarians and conservatives. Law schools sometimes choose faculty with interests in fringe subjects (e.g., “gender studies”) over experts in subjects their students actually need (e.g., commercial law). This is another problem legislatures and boards of regents can address.

Require law professors to engage in real research and publish their findings. Much of the “research” in legal academia amounts to writing articles that are just fancy briefs for pre-fixed conclusions. Often a pre-set conclusion is some leftist canard the professor picked up as an undergrad.

University law schools are not playgrounds for mental self-indulgence. They are institutions with graduate-level status. Faculty research should be appropriate to that status.

Thus, law professors should be required to produce genuine, objective, peer-reviewed investigations into real world subjects. Examples include the influence of historical events on law, how anti-trust rules affect the economy, the psychological effects on jurors from specific courtroom procedures, and the effects on crime of sentencing guidelines. The goal is to push back the frontiers of human knowledge, and perhaps improve the legal system as a result.

Some law professors do valuable work of that kind, but most do not. If a professor wants to spend his days writing briefs arguing for constitutional rights for dolphins, then he should seek employment with a political advocacy group. He should not be taking up space on a research faculty.

* * *

A common theme connecting all these proposed solutions is “opening up the closet”—letting in the sunlight of fairness and from the real world. That is a tested prescription for dissipating arrogance and theoretical cobwebs. The difficulty is in letting the public know that the closet exists, and that we need to open it.

Part I: Judicial activism: Here’s a core reason for it you’ve never heard about

Part I: Judicial activism: Here’s a core reason for it you’ve never heard about

Whenever a court issues a highly publicized liberal activist decision, constitutionalists understandably become upset. They cast around for ways to stop this kind of overreaching.

But if you want to devise a viable solution to misconduct, you have to understand the reasons for the misconduct. And constitutionalists almost invariably overlook one of the core reasons. This post discusses that reason. Next week we shall address possible solutions.

Federal judges and state supreme court justices are largely drawn from a group that, from the time they are law students, are trained in a particular view of the law. Its promoters call it “legal realism,” although it is neither particularly legal nor entirely realistic.  Legal realism is sharply at odds with the view of law on which our Constitution is based. Legal realism empowers judges intellectually and socially to subordinate the law to promoting favored social policy.

The Founding Era View

Let’s revert to the Founding Era for a moment: Although the Founders did not think much of the British king or parliament, they deeply admired the English legal system. Over the previous two centuries, the English legal system had evolved from a mere tool of the king into a cluster of institutions with a reputation for independence tempered by incorruptible respect for the law.

In England and 18th century America, judging was a learned, but fundamentally humble, enterprise. When interpreting statutes and other documents, judges did their best to follow the “intent of the makers.” When a document didn’t control the case, judges explored other documents, surrounding circumstances,  earlier court decisions, customs, and the principles of natural law. From these they deduced as well as they could the correct rule for the case at hand.

Deducing the correct rule is similar to developing a scientific hypothesis. In science, you examine the reliable data available and try to infer a workable hypothesis to describe or explain them. In the Anglo-American common law system, a judge examined reliable data presented to the court—testimony, documents, other evidence, earlier cases, prevailing custom, rules of interpretation, and so forth—to extrapolate a general principle applicable to the controversy before him.

Among those reflecting these values were two leading Founders who also were outstanding lawyers, Alexander Hamilton and John Marshall. (The real John Marshall, not the liberal activist some law-school text writers make him out to be.)

In those days, law students were educated primarily by serving as “clerks” in the offices of experienced and successful attorneys. They also attended numerous court sessions. Their education was very practical. And each generation of judges and lawyers passed judicial values onto the next generation. (Some English and American law students attended London’s Inns of Court, where they absorbed the same ideals.)

The Founders erected the American legal system to operate in the context of Anglo-American judicial values. The rules placed expressly or implicitly in the Constitution—life tenure, jurisdiction, judicial review, and so forth—were designed to operate in that context.

However, the context changed.

Enter the Ivory Tower Philosophers

In the late 19th and 20th centuries the focus of legal education began to move away from lawyers’ offices and the Inns of Court to the new law schools. As time went on, more and more aspiring students attended law schools rather than clerked for senior attorneys. Significantly, more and more law schools became located on university campuses. They became influenced by university trends in the liberal arts and social sciences. Many law schools became government institutions.

The problems afflicting liberal arts universities, especially government universities, began to corrupt the law schools. Even though legal education is really just a fancy form of vocational education, committees hiring faculty ignored how much practical experience an aspiring professor might have. Quite the contrary, when I was in academia (1985-2010) they tended to discriminate against experienced practitioners. Hires were made for academic credentials and political reasons instead. Faculty slavishly followed the lead of trend-setter institutions like Harvard and Yale. So did professional associations. (Attend an annual meeting of the Association of American Law Schools, and you’ll see what I mean.)

“Legal realism” was one of the trends. Beginning in the late 19th and 20th centuries, writers such as Oliver Wendell Holmes, Jr., at Harvard and Karl Lllewellyn at Yale, taught that law  “derives from prevailing social interests and public policy.” This quickly caught on among legal academics. Further, the idea that law was a creation of social interests and public policy suggested judges could improve the world by revising the law to fit their favored social interests and promote “good” public policy.

The PR Coup: Calling an Ivory Tower Theory “Legal Realism”

The favored position in the media enjoyed by the Harvard-Yale crowd enabled them to carry out a public relations coup (compare here and here). They called their ivory tower/central planning view of jurisprudence “legal realism.” They tarred the earlier, more practical view, with the insulting phrase “legal formalism.

Now, it is true that there are many versions of legal realism, from Critical Legal Studies on the far left to the Law and Economics group that, within legal academia, passes for “conservative.” (It’s actually utilitarian.) But all legal realists share the idea that law should be used as an instrument of social policy and that judges ought to play a role in so using it.

My Experience at Cornell Law School: Legal Realism on Steroids

A good example is my experience as a law student at Cornell University. My contracts professor told us to think of legal rules not as rules, but as mere instruments for obtaining the desired result (“Tools, not rules,” he would say.) My torts professor spent a lot of time telling us that personal injury law should be rewritten to redistribute wealth. My constitutional law professor (a centrist who at Cornell was considered conservative) emphasized over and over again the need to “balance” policy factors in constitutional clauses where the framers and ratifiers already had done the balancing. Almost all professors asked us to judge case results by whether and to what extent they served “good public policy.”

So when Justice Sonya Sotomayor, while still a federal appeals judge, casually told a law school audience that federal appeals courts make law, she was repeating modern academic orthodoxy. That is also why Richard Posner, a key American promoter of the law and economics school and now a federal appeals judge, says a judge ought to, essentially, decide the case first and look at legal materials later.

(Additional note: At the University of Montana, where I spent most of my teaching years, the orthodoxy was pushed right up front. All entering students were funneled into introductory lectures in which a professor informed them that natural law and formalism were “simple minded” and legal realism and its Critical Legal Studies subdivision were more “sophisticated.”)

Legal Realism is Neither Legal Nor Realistic

I figured out early that legal realism is not, strictly speaking, “legal.” Instead of being built on established legal principles, it rests on arbitrary factors such as the political views of the judge or how he thinks about matters not before the court. For example, suppose Mr. Seller contracts to sell a house to Ms. Buyer. Before the the deal closes, the place burns down though no fault of Mr. Seller. Should Ms. Buyer be required to purchase the house? The traditional common law rule was “yes.” A judge may not like that outcome, but he really has no way of knowing what the social results will be if he tries to change it. Traditional judges leave such issues to the legislature. Legal realist judges follow their personal guesses. In fact, a feminist-realist judge might even decide the case for Ms. Buyer because she is a woman, and therefore was not sufficiently “empowered” to negotiate her contact. This is not law. It is guesswork and political favoritism.

I eventually learned that legal realism is not particularly “realistic,” either.

Most people who eventually become law professors, if they practice law at all, do so for a few years in elite firms, government, or politically-driven legal aid shops. Fortunately, I turned down a Wall Street job and chose to enter grass-roots (“Main Street”) law practice. And I stayed there a fairly long time (10-12 years, depending on how you count) before returning to academia.

While in practice I worked with middle- and working-class Americans on ordinary cases, and in state trial courts. Over the years, I represented personal injury clients, a union local, and a municipality. I handled DUIs, divorces, and other lesser litigation. I represented real estate developers and people who purchased from, or sued, real estate developers. I wrote wills and contacts, and counseled small business people and non-profit associations.

What I learned was that for Main Street law, the “public policy” fixation was nonsense. At the grass roots level, judges didn’t purport to make policy guesses.  Instead, they did their best to deduce and apply the law. After I became a professor and had confirmed my observations by study of thousands of cases on many different legal subjects, I wrote an essay explaining my observations. The essay showed how jurisprudence really works for most people most of the time.

But our problem is not how the law works most of the time, but how it works in federal tribunals and in the state supreme courts. That is where judicial activism occurs.

Next week: How do we respond to legal realism’s corruption of our judicial system?

Drafting a Balanced Budget Amendment: It’s tougher than you might think

Drafting a Balanced Budget Amendment: It’s tougher than you might think

The idea of a balanced budget amendment to the U.S. Constitution (BBA) has been highly popular since the 1970s. Yet Congress has failed to propose a BBA, and the number of states applying for a proposing convention remains stuck below the necessary 34. Meanwhile, the federal debt continues to soar out of control.

Among the tactics employed by Article V skeptics is to highlight the difficulties in drafting an effective BBA. For once they have a point. Here are some of the defects afflicting present drafts, including some reproduced in Article V legislative applications:

  • Relying on congressional supermajorities (two thirds, three fourths, 60%) whose practical effect will vary in unknown ways between the U.S. House and U.S. Senate.
  • Unwittingly validating federal spending programs that, objectively considered, are currently unconstitutional.
  • Introducing into the Constitution new words and phrases (e.g., “outlays,” “estimated revenue”), either undefined or poorly defined.
  • Relying on budgetary formulae shown to be ineffective at the state level.
  • Including terms (e.g., two-thirds vote to raise taxes) pleasing to potential donors, but rendering impossible the broad coalition necessary to ratify.
  • Relying unduly on the courts for enforcement.

In addition, some of the drafts are simply too long to be accepted as amendments. The longest constitutional change ever adopted was the Fourteenth Amendment—containing 423 words—but some BBA drafts are far longer. In addition, some drafts contain unclear language. Consider this example appearing in a few state applications:

Total outlays of the government of the United States shall not exceed total receipts of the government of the United States at any point in time unless [a condition is met].

What does it mean to say that total outlays cannot exceed total receipts “at any point in time?” Does that mean that the inflow of dollars must always exceed the simultaneous outflow? Maybe. But if so, it disregards the realities of government finance: tax revenue arrives in chunks (as on April 15), while spending is more constant over the course of the year. Or does it mean that at any “point in time” all expenditures ever made, from 1789 to date, cannot exceed all funds received? But that would render existing debt unconstitutional. And what is a “point in time,” anyway? A day? hour? nanosecond? As Kurt Vonnegut might have quipped, “So it goes.”

Of course, it is one thing to criticize, but another to try to craft something better. A new Heartland Institute Policy Brief includes my own draft, with accompanying explanations. I know it is imperfect, and neither my draft nor anyone else’s should be included in state legislative applications. (The proposing convention has the constitutional prerogative of writing the amendment.) My goal is merely to “reset” public discussion to, perhaps, a higher level, and encourage others to offer proposals better than mine.

You can get the Policy Brief here.

If you want to win a Supreme Court case, it helps to play to “progressive” values

If you want to win a Supreme Court case, it helps to play to “progressive” values

This article originally appeared in The Hill.

Two new Supreme Court decisions illustrate the point: Even conservative litigants should argue their cases so as to genuflect before the legal elite’s “progressive” faith.

Courts are supposed to apply the law neutrally. When construing the Constitution, this means they should apply the original, actual meaning of the document. Yet the Supreme Court often decides cases in ways divorced from that meaning. So it is easier to win your case if your argument accords with the social and cultural values favored among the contemporary elite.

At the turn of the last century, when most of America’s opinion makers subscribed to free market economics, you had a reasonable chance of winning a constitutional challenge against a business regulation. During the late 1930s and the 1940s, when fashions favored collectivism, it became almost impossible to do so. In 2015, cultural attitudes induced the Supreme Court to rule—on virtually no evidence other than the Zeitgeist itself—that the Constitution requires states to recognize same-sex civil marriage.

Both Murr v. Wisconsin and Trinity Lutheran Church v. Comer are further illustrations. The Murrs contended that state-authorized zoning regulations had deprived them of property rights without the compensation required by the Fifth Amendment.  Trinity Lutheran Church claimed the state had denied the church access to a grant program in violation of the First Amendment.

If the Supreme Court had applied the Constitution’s original meaning, both the Murrs and Trinity Church would have lost. Contrary to common illusion, the Constitution’s original meaning does not always mandate results conservatives (or liberals) like.

Yet the Court (Justice Thomas excepted) pretty much ignored the original meaning. It ruled for the state in Murr but against the state in Trinity Lutheran.

One reason the Murrs lost is they made a legal blunder by kicking away a “grandfather clause” that would have protected them. One reason Trinity Lutheran Church won was that it was seeking a government grant “for the children”—that is, to provide a softer surface for a playground.

But if you are considering which cases to bring before the Supreme Court and how to argue them, you can’t overlook this: Attorneys for the church played to the legal elite’s “progressive” values—and won. In fact, they won 7-2, carrying with them two of the most liberal justices.  The Murrs, on the other hand, defied those values. They lost, 5-3, with even the three more “conservative” dissenters agreeing with the result.

The Murrs were in a position any “progressive” would find unsympathetic. They were private landowners (bad). Their land was in an area the state and federal governments deemed environmentally sensitive (worse). They had the cheek to challenge an ordinance that allegedly protected the environment (inexcusable). Their goal was to develop or sell for profit. (Enough said.)

Compare the facts and presentation of Trinity Lutheran:

*          Unlike Murr, the case did not involve purely individual freedom. It involved a kind of “freedom” the Left can better understand: freedom to get a government grant.

*          The grant program was limited to non-profit organizations, of which the plaintiff was one. No filthy profits here!

*          The program served an environmental cause—recycling used tires.

*          It was a government program, funded by a mandatory “fee” (in reality, a tax).

*          Grant applicants received extra points if located in a poverty area.

*          Applicants also got extra points for agreeing to “promote recycling”—i.e, propagate environmental ideology.

*          The grant would help the church comply with federal disability regulations.

*          The playground was not merely for children of church congregants (that would be too “private”). Use “would extend . . . to the local community.”

Observe how many of the Left’s ideological buttons the plaintiff’s lawyers pushed: non-profit, recycling, mandatory government fee, poverty, disabilities, environment—and that interminably-overused mantra: community.

The lesson: Whatever your personal beliefs, if you are taking a case to Washington, D.C., it helps to ensure that your case does not flout—and preferably panders to—the ideology prevalent there.