Kinsley on Citizens United

This is a well-considered analogy from Michael Kinsley, one I wish more people would consider when they cry foul when (some) corporations decide to spend money advancing their preferred ideas or candidates:

The analogy I like (as did the Supreme Court in its ruling) is to a newspaper. Suppose Citizens United were reversed and President Trump decided one day that he was sick of The New York Times. So he proposes a law setting a ceiling on the amount any individual or organization can spend putting out a newspaper. Constitutional? I hope not. But it’s hard to see the difference in principle between this and a law limiting the amount a corporation or union may spend promoting a political candidate.

I recently chatted with Kentucky Congressman John Yarmuth about his proposal to remove First Amendment protections for many public discussions of federal candidates. He wasn’t particularly convincing in presenting an argument on behalf of an amendment that would strip away the constitutional protections for media outlets to discuss candidates openly while simultaneously asking that I trust Congress to delicately reanimate the corpse of the McCain-Feingold campaign finance rules prohibiting corporations (but not Trusted Media Outlets) from having their say. I have a hard time thinking that Congress, given the opportunity, would craft a proper balance between the interests of Democratic Government and the rights of individuals to band together and say whatever they think needs to be heard.

Listen here:

False Class Consciousness among NPR Listeners?

Today’s installment of NPR’s “Double Take Cartoons” is supposed to be, as the feature indicates, “two opposing political cartoons on today’s news.” It may be argued that the cartoons feed different narratives, but it’s at least clear that they’re just two cartoons bashing the rich.

Funny, both because NPR is subsidized by the feds and because the median NPR listener’s household income is 73% higher that of the average American household.

NPR_Audience_Comp

Do NPR listeners have false class consciousness?

H/T: Walter Olson & The Future of Capitalism.

‘Please express your opinion with kindness …’

Jeremy Drew saw a police officer parked illegally outside a market, so he recorded the officer and asked for his badge number. The officer refused, fired up his motorcycle and then spoke (mostly unintelligibly) to Jeremy. But what impresses me most is that the kid asserted himself to the officer without being disrespectful. It’s a valuable lesson for all of us when we engage with abusers of power, however large the abuse.

The video went viral. Jeremy then posted a followup, entitled, “My Response to My Viral Video.” It’s damn near the most precious thing I’ve seen in a long time. He asks YouTube commenters to be nicer to him and the police officer involved. I hope that kid doesn’t lose his strong regard for his fellow man and his willingness to directly, assertively and respectfully engage with people. It’s sorely needed … especially on YouTube.

The Crime of Whitening Teeth with Over-the-Counter Products

It’s perfectly legal to buy over-the-counter tooth whitening products and use them. But if you pay a nondentist for help in doing so, that person may be committing the crime (!) of practicing dentistry without a license. Kentucky passed just such a prohibition on teeth whitening in 2010, apparently with little-to-no debate.

Today’s Wall Street Journal features an op-ed by Angela C. Erickson and Paul Sherman of the Institute for Justice detailing the institute’s suit against Alabama for this kind of prohibition. The issue holds broad implications for other kinds of employment where a powerful lobby can effectively shut out even the smallest of competitors. The authors note that of the complaints, the overwhelming majority come from would-be competitors:


white-out-cover-231x300The Institute for Justice’s “White Out” study
, released Tuesday, documents that dissatisfied consumers are not the force behind restrictions that shut down teeth-whitening businesses in malls and salons. Overwhelmingly, it is dental-industry interests. Of the 97 complaints about non-dentist teeth whitening provided to the institute from 17 state agencies, only four came from consumers. All four alleged reversible side effects, like gum inflammation and tooth sensitivity. Academic dental research shows that such side effects are common to all forms of teeth whitening, wherever it is done.

The remaining 93 complaints came from dentists, hygienists, dental boards, associations and anonymous individuals. They didn’t allege harm to consumers as a result of commercial on-site whitening. The complaint was that entrepreneurs offering teeth-whitening services are practicing dentistry without a license.

As a result of these unlicensed-practice complaints and pressure from licensed dentists and associations, at least 30 states have taken action against non-dentist teeth-whitening businesses. Some of the states have passed new laws or regulations to ban them from the trade. Others have simply reinterpreted existing laws against the unlicensed practice of dentistry.

These laws, and many others like them, need to go. You can read the report here. You can listen to a related Cato Institute podcast about it below:

Sheriffs talk tough on Second Amendment (unnecessarily)

A number of sheriffs around the country (Oregon, Kentucky, Missouri, Wyoming, New Mexico, Utah) have said they will refuse to enforce federal restrictions on private gun ownership that they find to be in conflict with the Constitution.

It seems like a bold threat, but it really isn’t. State and local law enforcement officials simply don’t have to enforce federal laws that they don’t want to enforce. That fact is not controversial. It is, however, a persistent issue in the federal versus state struggle over the marijuana legalization initiatives in Colorado and Washington. Those states have simply chosen to stop assisting the federal government. It may complicate the feds’ ability to enforce those laws, but it’s just not as confrontational an approach as media reports have suggested.

Robert Mikos discussed this in his new paper with respect to marijuana laws, but the principles related to how states and federal powers interact is one that holds significant implications for the right to keep arms and the President’s health care law.

Mikos and I discussed the marijuana initiatives for a Cato Daily Podcast. You can also watch the forum.

Tim Lynch and I also discussed gun restrictions and federalism in a Cato E-Briefing last week.

John Yarmuth Is Wrong about The First Amendment

My former hometown NPR affiliate, WKMS in Murray, Kentucky aired my radio commentary yesterday. Here’s the text:

Congressman John Yarmuth believes that Citizens United was a bad Supreme Court decision. The two year old free speech ruling found that people don’t have to give up their right to associate freely when they want to speak freely and vice versa. And it allowed unions and corporations to facilitate political speech more easily.

Congressman Yarmuth, by way of overturning Citizens United, has written a Constitutional Amendment that, as he puts it, establishes “financial expenditures … do not qualify as protected speech under the First Amendment.” He further argues that the financial expenditures don’t even have to clearly express support or opposition for a candidate. That speech would no longer be protected by the Constitution.

To me, this seems odd. I used to work for John Yarmuth on occasion, writing articles in his former newspaper, LEO, about public policy and other matters. The reason Yarmuth’s claim seems odd is that his newspaper regularly endorsed candidates for political office and regularly published stories expressing support or skepticism toward political actors. I wonder if Yarmuth believes that his Constitutional amendment would hamper newspapers that endorse candidates as LEO did and still does.

Most newspapers are owned by corporations and it would be foolish to argue that a newspaper endorsement is not both a corporate expenditure and an “in kind” contribution, both of which are targeted by Yarmuth’s amendment. After all, it costs money to print a newspaper and newspaper endorsements are often extremely valuable to politicians during a campaign.

Now I expect that John Yarmuth doesn’t mean to single out newspapers or other media outlets for direct government regulation of political speech and he may respond that the government would use discretion and restraint when choosing which media outlets receive this higher level of scrutiny.

The problem, of course, is that Congress has already tried to regulate political speech in very scary ways. And they’ve done it by precisely claiming that spending money to advance an idea … isn’t really speech.

In 2010, the Supreme Court decided a case where advertisements for a political documentary were banned by the Federal Election Commission. And the Commission banned the film from being shown on Pay-per-View for weeks prior to elections. During the oral argument, justices asked the government’s lawyer if he thought the Federal Election Commission could even ban the sale of books, or publications for your kindle, that contained so-called “express political advocacy.” The government’s lawyer effectively said yes, we can.

That case was Citizens United. And the high court rightly threw out that kind of dangerous government censorship of political speech.

So a few questions should be put to Congressman Yarmuth: Do you really believe under your proposal that newspapers like LEO wouldn’t be subject to direct government regulation of their content? Is government censorship really the answer here?

Big Money, Small Money and Corruption

A few thoughts following the election in Wisconsin and the influence of “big money.” First:

“In 1968, the last presidential election before passage of the Federal Election Campaign Act, Eugene McCarthy got his influential anti-war campaign off the ground in days, thanks to a handful of wealthy individuals who contributed the equivalent of several million each in today’s dollars.” – Bradley A. Smith

Second: John Samples and I discuss the election in Wisconsin and “big money” for a Cato podcast.

Third: A former employer of mine, Congressman John Yarmuth, is pushing a constitutional amendment that would, in his words, establish that money is not speech. Here’s a radio commentary from me that may or may not air in the near future:

Congressman John Yarmuth believes that Citizens United was a bad Supreme Court decision. The two year old free speech ruling found that people don’t have to give up their right to associate freely when they want to speak freely and vice versa. And it allowed unions and corporations to facilitate political speech more easily.

Congressman Yarmuth, by way of overturning Citizens United, has written a Constitutional Amendment that, as he puts it, establishes “financial expenditures … do not qualify as protected speech under the First Amendment.” He further argues that the financial expenditures don’t even have to clearly express support or opposition for a candidate. That speech would no longer be protected by the Constitution.

To me, this seems odd. I used to work for John Yarmuth on occasion, writing articles in his former newspaper, LEO, about public policy and other matters. The reason Yarmuth’s claim seems odd is that his newspaper regularly endorsed candidates for political office and regularly published stories expressing support or skepticism toward political actors. I wonder if Yarmuth believes that his Constitutional amendment would hamper newspapers that endorse candidates as LEO did and still does.

Most newspapers are owned by corporations and it would be foolish to argue that a newspaper endorsement is not both a corporate expenditure and an “in kind” contribution, both of which are targeted by Yarmuth’s amendment. After all, it costs money to print a newspaper and newspaper endorsements are often extremely valuable to politicians during a campaign.

Now I expect that John Yarmuth doesn’t mean to single out newspapers or other media outlets for direct government regulation of political speech and he may respond that the government would use discretion and restraint when choosing which media outlets receive this higher of scrutiny.

The problem, of course, is that Congress has already tried to regulate political speech in very scary ways. And they’ve done it by precisely claiming that spending money to advance an idea … isn’t really speech.

In 2010, the Supreme Court decided a case where advertisements for a political documentary were banned by the Federal Election Commission. And the Commission banned the film from being shown on Pay-per-View for weeks prior to elections. During the oral argument, justices asked the government’s lawyer if he thought the Federal Election Commission could even ban the sale of books, or publications for your kindle, that contained so-called “express political advocacy.” The government’s lawyer effectively said yes, we can.

That case was Citizens United. And the high court rightly threw out that kind of dangerous government censorship of political speech.

So a few questions should be put to Congressman Yarmuth: Do you really believe under your proposal that newspapers like LEO wouldn’t be subject to direct government regulation of their content? Is government censorship really the answer here?

More to come.