At Forbes, Daniel Fisher asks a former federal official whether a thread connects the failed white-collar prosecutions of the onetime presidential candidate and the baseball great. Yes, as a matter of fact, there might: “Jurors could be sending a message to Washington they don’t like the awesome firepower of the Justice Dept. brought to bear on borderline cases without an obvious victim.”
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Campaign Finance: The Obsession of Liberal Democrats
Today POLITICO Arena asks:
Is Rep. Adam Schiff’s (D‑Calif.) proposed constitutional amendment aimed at overturning the Supreme Court’s 2010 Citizens United decision on campaign finance a good idea?
My response:
Leave it to liberal Democrats, phony friends of liberty, to destroy the First Amendment. Their true colors emerged with the Federal Election Campaign Act of 1971 — especially with the 1974 amendments. Ever since they’ve tried, at every level of government, to restrict the rights of Americans to support candidates of their choosing, alone or together with others. And the result is a body of law that is so complex, with such draconian sanctions, that no one would dare run for the lowest office without a gaggle of lawyers behind him to keep him out of jail. What was John Edwards just tried for, infidelity? No, campaign finance violations.
Today, these phonies complain about “super PACs.” Why do we have those? Because people can’t give unlimited amounts directly to candidates. And the candidates complain that they have no control over what their independent “friends” say, often to their detriment — because the law requires their friends to be “independent” of the candidate. And on it goes, with one restriction after another, all to prevent “corruption,” we’re told — corruption that no one can quite seem to locate.
It’s time to bring this farce to an end and restore the political freedom the First Amendment was written to protect. The Supreme Court can do that with the Montana case now before it on a petition for certiorari. It can take the case, not to reverse Citizens United, as liberal Democrats plus the hapless John McCain hope, nor even to summarily reverse the insubordinate Montana Supreme Court, but to revisit the errors it made in Buckley v. Valeo in 1976 when it upheld many of the 1974 FICA amendments.
There never was a campaign finance problem, as states with minimal restrictions have made clear to this day. There was an incumbents facing well-funded challengers problem, and that’s the dirty little secret of this whole sordid business.
One Cheer for Obama’s New Immigration Policy
The new legalization non-deportation policy President Obama announced on Friday, which I’ll call “Executive DREAM,” is really interesting. A half-measure not worthy of unadorned praise or condemnation, Executive DREAM creates mixed feelings in those of us who want liberalized immigration laws — because immigrants are generally a good thing for a country — but want to see actual, you know, law-making get us there. Not executive initiatives, not prosecutorial discretion, not administrative-agency diktats, but honest-to-goodness passed-by-Congress-and-signed-by-the-President laws.
I thus join my colleague Alex Nowrasteh in calling this a “temporary, tepid” immigration fix. Alex notes that Executive DREAM, if its operation turns out to be similar to the proposed DREAM Act, “will shrink the informal economy, increase economic efficiency, and remove the fear and uncertainty of deportation from potentially millions of otherwise law-abiding people. It would be a good first step toward reforming immigration and a glimpse at what the Dream Act would do.”
Now, while the result of this little Executive DREAM is good, the manner in which it was promulgated ensures that it will be a short-lived stopgap that prevents real reform and undermines the rule of law. There’s no reason not to normalize the status of those who would have been eligible for legalization under the DREAM Act, but doing it by executive discretion after Congress had rejected the equivalent legislation shows contempt for a co-equal branch of government. That President Obama announced it in the midst of an election campaign, after not having spent any political capital on immigration during the first three-and-a-half years of his term, only adds to the corrosive cynicism surrounding the issue.
Our immigration system needs comprehensive reform that will only be achieved with buy-in from both parties. Executive DREAM feels good and is the least we can do for over a million law-abiding, productive young people, but makes the long-term goal that much harder to achieve. Indeed, Sen. Marco Rubio (R‑FL) has already indicated that the president’s actions have essentially sucked the oxygen from his nascent attempts at reform.
Doug Mataconis has a similar take. He concludes that “this action was made somewhat inevitable by Congress’s failure to act on immigration reform for at least the past six years. When there’s a power vacuum, someone will move in to occupy that space. Unfortunately, that’s what the President has done and, in the process, he’s done real damage to the Separation Of Powers.”
Williams v. Illinois and the Supposed SCOTUS ‘Gender Gap’
Remember the supposed gender gap on the U.S. Supreme Court? When the Court’s three female justices sided with plaintiffs in the sex discrimination case of Wal-Mart v. Dukes, we heard quite a bit about how their dissent supposedly represented women’s point of view (albeit joined by male Stephen Breyer). Some of us objected that to the extent the three justices do tend to cohere as a bloc, it has less to do with their gender than with their general ideological stance: as the Court’s most reliably liberal members, Justices Ruth Ginsburg, Sonia Sotomayor, and Elena Kagan can be expected to be somewhat more sympathetic to plaintiffs in a discrimination case, whether that case hinges on sex or, say, national origin or disability. Yet in a column about a different case, Coleman v. Maryland Court of Appeals, Linda Greenhouse of the New York Times specifically rebukes those who imagine an outcome like this “simply maps onto the court’s ordinary ideological alignments.”
Today the court released its opinion in the Confrontation Clause case of Williams v. Illinois, raising the question of whether a criminal defendant has a Due Process right to cross-examine DNA technicians whose findings contributed to his conviction. In this case the three female justices were in dissent, joined by Justice Antonin Scalia (who not infrequently joins his liberal colleagues on matters relating to criminal due process). The other five justices voted to sustain the conviction, though Clarence Thomas adopted his own rationale in a concurrence.
As it happens, Williams was accused of rape, and the female justices (plus Scalia) were therefore the ones more concerned about the niceties of due process toward one in his position. If one adopted the ludicrous “which side are you on?” approach of so much pop commentary on the Court, one might find this a real puzzler: why would the Court’s men be more sensitive to the need to keep rapists behind bars?
That’s ridiculous, of course, but only a couple of notches more ridiculous than attributing the Wal-Mart result to the Justices’ genders. For the rest of us, it remains true that the best way to understand and predict jurists’ votes on tough cases is to consult their philosophy on legal questions, not which restroom they happen to use.
Another Cop Says It’s Time to Legalize Drugs
From the Los Angeles Times opinion page:
Stephen Downing speaks fondly of his 20 years with the Los Angeles Police Department, saying he misses the camaraderie and the integrity of the people he worked with in a career that took him from street cop to deputy chief. Along the way, as commander of the Bureau of Investigations, he oversaw the Administrative Narcotics Division.
And so when we had lunch at a sidewalk cafe in Long Beach the other day, it was more than a little strange to hear this life-long Republican insist that for the sake of cops, and in the interest of logic and public safety, the United States ought to legalize drugs.…
The way he sees it, the war on drugs hasn’t reduced drug use and the violence that accompanies it; it’s made matters worse. Law enforcement and the drug lords have been in an arms race for more than 40 years, perpetuating their own existence in a never-ending escalation that has bloated prison budgets and robbed us of funding for education and basic human services. The killing fields hold the bodies of cops, dealers and innocent victims. And still, after incalculable costs in blood and money, neither the supply nor the demand has abated.
Read the whole thing.
Partially Reining in Administrative Agencies
Today, the Supreme Court decided Christopher v. SmithKline Beecham Corp. The case concerns whether the Department of Labor can change a 70-year old regulation essentially on a whim. Cato joined the Washington Legal Foundation in a brief that urged the Court to affirm the Ninth Circuit’s holding that administrative agencies are not allowed to enact massive regulatory changes without sufficient notice. Today, the Supreme Court did just that.
For over 70 years, the Department of Labor (DOL) has exempted “outside salesmen” from overtime-pay requirements. Such traveling salesmen typically do not punch a clock and often put in more than 40 hours per week. The pharmaceutical industry uses traveling pharmaceutical sales representatives (PSRs) to demonstrate to doctors the benefits of various prescription medications. While these PSRs do not make direct sales, the DOL has long regarded the PSRs as “outside salesmen” who do not qualify for overtime pay. In 2009, however, the DOL filed an amicus brief in a Second Circuit case announcing they had changed the classification—for the first time, PSRs would not be exempt from overtime-pay requirements. The move was unexpected, to say the least. There are currently approximately 90,000 PSRs in the country, and such a significant rule change threatened to alter the pharmaceutical industry’s entire way of doing business.
But the high costs are only a small part of the problem. In our brief, we argued that allowing administrative agencies to promulgate a major rule changes in amicus briefs as part of a litigation strategy would give them even more arbitrary power than they already have. Courts already give agencies so-called Auer deference in interpreting their own regulations, but this would be taking that deference too far. Justice Samuel A. Alito, writing for five justices (Scalia, Thomas, Kennedy, and Chief Justice Roberts), agreed:
In this case, there are strong reasons for withholding the deference that Auer generally requires. Petitioners invoke the DOL’s interpretation of ambiguous regulations to impose potentially massive liability on respondent for conduct that occurred well before that interpretation was announced. To defer to the agency’s interpretation in this circumstance would seriously undermine the principle that agencies should provide regulated parties “fair warning of the conduct [a regulation] prohibits or requires.” … Indeed, it would result in precisely the kind of “unfair surprise” against which our cases have long warned…Our practice of deferring to an agency’s interpretation of its own ambiguous regulations undoubtedly has important advantages, but this practice also creates a risk that agencies will promulgate vague and open-ended regulations that they can later interpret as they see fit, thereby “frustrat[ing] the notice and predictability purposes of rulemaking.” Talk America, Inc. v. Michigan Bell Telephone Co., 564U. S. ___, ___ (2011) (SCALIA, J., concurring)
The citation to Justice Scalia’s opinion in Talk America is interesting because in it Scalia expresses well-founded doubt that Auer should still be the law:
[W]hen an agency promulgates an imprecise rule, it leaves to itself the implementation of that rule, and thus the initial determination of the rule’s meaning. And though the adoption of a rule is an exercise of the executive rather than the legislative power, a properly adopted rule has fully the effect of law. It seems contrary to fundamental principles of separation of powers to permit the person who promulgates a law to interpret it as well. “When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty; because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner.” Montesquieu, Spirit of the Laws bk. XI, ch. 6, pp. 151–152 (O. Piest ed., T. Nugent transl. 1949).
Deferring to an agency’s interpretation of a statute does not encourage Congress, out of a desire to expand its power, to enact vague statutes; the vagueness effectively cedes power to the executive. By contrast, deferring to an agency’s interpretation of its own rule encourages the agency to enact vague rules which give it the power, in future adjudications, to do what it pleases. This frustrates the notice and predictability purposes of rulemaking, and promotes arbitrary government.
Although SmithKline Beechum Corp. does not overturn Auer, it shows that Auer deference rests on a shaky footing with the current Court. Perhaps we’ll see an end to this unduly deferential standard in the near future.
Adler on How the IRS Is Rewriting ObamaCare to Tax Employers
Jonathan H. Adler is the Johan Verheij Memorial Professor of Law and director of the Center for Business Law and Regulation at Case Western Reserve University. In this new Cato Institute video, Adler explains how a recently finalized IRS rule implementing ObamaCare taxes employers without any statutory authority.
For more, see this previous Cato video, “States Should Flatly Reject ObamaCare Exchanges”:
See also our November 2011 op-ed on this IRS rule that appeared in the Wall Street Journal.