Litigating for Liberty

The Institute for Justice's Chip Mellor on campaign-finance reform, eminent-domain abuse, and licensing laws gone wild

If you’ve seen a case of state-on-citizen injustice become a mainstream outrage from coast to coast, chances are Chip Mellor had something to do with it. Mellor founded the Institute for Justice, arguably the most effective public interest law firm dedicated to property rights and choice, in 1991.

Since then IJ has “litigated for liberty” on behalf of small entrepreneurs and property owners against rapacious City Halls. In its most famous case, it defended homeowner Susette Kelo at the U.S. Supreme Court against the city of New London, Connecticut, which seized her house using eminent domain to clear the way for a big real estate project that never really got off the ground. Although the Supreme Court ruled against IJ’s client, Kelo v. New London was a tremendous political success, triggering a backlash that has rolled back eminent domain abuse in more than 40 states. Which was exactly the point.

“All of our cases,” the 58-year-old Mellor says, “are viewed and deliberately designed as platforms to educate the general public about the importance of what may seem to be unique or even arcane issues and why those issues affect many, many people beyond the particular case.”

Born in Knoxville, Tennessee, and raised all over the upper Midwest, Mellor was an anti-Nixon, anti-war activist at Ohio State from 1969 to 1973; discovered the works of the economist Milton Friedman, the anti-communist writer Whittaker Chambers, and the novelist Ayn Rand; and earned his law degree from the University of Denver with ambitions to “change the world.” That led him to the Mountain States Legal Foundation, one of the first non-lefty public interest law firms, where the self-described hippie worked for James Watt, the soon-to-be-despised future secretary of the interior, whom Mellor describes as a “fascinating man.”

In the 1980s, Mellor moved on to the Reagan administration, where he was a deputy general counsel in the Department of Energy. After that he served for five years as director of the Pacific Research Institute, where he helped “develop a strategic long-term…libertarian litigation strategy,” one that would come to full fruition with the founding of the Institute for Justice.

IJ has helped everyone from New York jitney drivers to D.C. hair braiders to New Orleans florists defeat unreasonable, frequently ridiculous legal restrictions that prevented them from earning a living in their chosen trade. In recent years the law firm has branched out to defend free speech against campaign finance laws and school vouchers against teachers unions, earning high praise along the way from the likes of Mellor’s hero Milton Friedman. “The Institute for Justice,” Friedman once said, “has become a major pillar of our free society.”

Editor-in-Chief Nick Gillespie spoke with Mellor in IJ’s Arlington, Virginia, offices in September 2007.

reason: Let’s talk about the First Amendment and particularly your political speech cases. IJ has traditionally focused on economic liberty issues—the ridiculous licensing of hair braiders and florists, for example. Wading into speech issues is a relatively new initiative.

Chip Mellor: Yes. We’re challenging the stranglehold campaign finance laws pose for vibrant political free speech. We won a case recently in the Washington state Supreme Court in which the state had passed a 9.5 cent per gallon tax increase and some folks organized an initiative to repeal that. Amongst those supporting the initiative were two talk radio hosts. They opposed it and used time on the air to rail against the injustice and insanity of this kind of tax.

The election commission there slapped them with a cease-and-desist order on the grounds that the time they had spent on the radio advocating against the tax constituted an in-kind contribution to the anti-tax campaign.

reason
: And we can guess that had they been talking about how great the tax increase was, they wouldn’t have been fined for political speech.

Mellor: Right. A twist on this is that the law firm doing the enforcement activity had direct ties to the city and would benefit from the gas tax increase because of the work it did.

These campaign finance laws get very complicated and very technical very quickly, so many people don’t understand them very easily. Something like in-kind contributions might not sound that bad. But the practical reality is that here the limit is $5,000 per campaign or per cycle for in-kind contributions. That’s about five minutes on talk radio.

reason: What happened?

Mellor: We won. That part of the law was invalidated. They were able to keep talking up to a point, but there was a period of time when they had to do that at risk. They were brave enough to do it, but other folks might not be, so it has this chilling effect that even when you fight back, you’re in this limbo not knowing what the ultimate outcome is going to be.

reason: What are some of the other problematic campaign finance laws?

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  • ||

    reason sucks

  • SIV||

    There was a proliferation of these licensing laws in the Progressive Era and an explosion of them after the New Deal.

    Progressives hate freedom.

  • ||

    Chip Mellor is certainly working for freedom.

    Alcohol commerce is a good ol' boy fuck story in ~50 states, and some terrorities. We all know why. Because they can. It's illegal to open a 4th casino in Detroit. MGM and Mike Illitch's wife (He owns Little Ceasers, Detroit Tigers, Detroit Red Wings) are owners of two of the three casino licenses allowed in Detroit. Both are very happy with the status quo. Wherever you live you see government regs that serve no purpose other trhan protect the insiders from competition. It pisses me off no end.

    And it is Incumbent Protection, not campaign finance regulation.

  • Robert||

    But it's better than when they allowed no casinos, isn't it? Oligopoly beats zeropoly.

  • Robert||

    Mellor: Mandatory disclosure laws are often viewed as a painless way of accommodating some degree of regulation of campaign financing such that people at least know who is backing whom. I think that oftentimes people overlook problems created through disclosure, and we ought to consider those problems and determine if those costs are worth bearing. Any time you have to disclose, you're in essence putting your vote on record. You may feel perfectly comfortable saying, "I back Ron Paul," but other folks may be in a position where coming out visibly for a candidate or an issue could compromise them in their community, in their workplace, in their church or synagogue, or some place like that, and they may be very reluctant to have their name appear not just in some obscure filing in a city hall file cabinet but on the Internet.


    Bug or feature? Robert LeFevre and others have criticized the secret ballot. If we don't allow our representatives to vote in secret, why should we allow the people they represent to do so? Wouldn't it be better to know who in the grass roots to credit or blame? And what's wrong with being compromised in the community? Why shouldn't we be able to reward or penalize on the basis of the ones who are ultimately responsible in a democracy, i.e. individual voters? With the secret ballot, what recourse do you have against those who oppose you with their votes?

  • Mike Laursens of the World||

    Err, umm, like what kind of recourse do you have in mind against those who you think voted the wrong way?

  • paul||

    Bug or feature? Robert LeFevre and others have criticized the secret ballot. If we don't allow our representatives to vote in secret, why should we allow the people they represent to do so?

    Because they represent us.

    BECAUSE THEY REPRESENT US.

    Sorry, I thought you might not have heard me.

    As representatives of...us... we need to know HOW they're representing us. If once they're an elected representative (I like that word) they sneak around in secrecy, and tell us "Yeah, I'd like to show you my representative track record, but I can't do that" then they wouldn't be representing us, they'd be representing themselves.

    That's why I can vote in secret (goddamnit) and they fucking can't. I represent me, so my vote is secret. See how that works? It's actually not that complicated.

    With the secret ballot, what recourse do you have against those who oppose you with their votes?

    Ok, maybe the joke's on me. You a troll? You serious with this comment?

    Ok, rocks or gunshots through the front window is always effective. Maybe a molotov cocktail on the side of the house. That one will wake those pesky, non-vote-cooperating neighbors.

  • stuartl||

    Oligopoly beats zeropoly

    Bad beating worse makes bad okay?

  • ||

    SIV--

    I was talking to a very smart couple about politics. The conversation moved to the inevitable corruption associated with government power. Though I had remained aloof regarding my own particular leanings, I took that opportunity to remark, as neutrally as one can when mentioning an ideology widely regarded as insane, that that insight was (often) the launching point for those who embrace libertarianism. The husband followed up immediately by adding "or liberal progressivism." Either he was talking about a progressive movement seeking to reduce government purview I had never ever heard of, or he misunderstood me, or I misunderstood him. But I think we'll agree on which was probably actually happening.

  • Robert||

    Err, umm, like what kind of recourse do you have in mind against those who you think voted the wrong way?


    Any legal kind.

    "Bug or feature? Robert LeFevre and others have criticized the secret ballot. If we don't allow our representatives to vote in secret, why should we allow the people they represent to do so?"

    Because they represent us.


    And who do we represent? As long as our votes can affect others, aren't we responsible for effects on them?

    Robert

  • Mike Laursens of the World||

    Any legal kind.

    That's a little open-ended. What recourse do you think should be legal? Should it be legal to:
    * Take out an ad listing all of the people who voted for or against something?
    * Fire an employee or evict a renter who didn't vote the way you wanted him to?
    * Challenge the person to a duel?

  • Paul||

    And who do we represent?

    Robert, please, re-ready my original post. Nay, let me quote it for you:

    That's why I can vote in secret (goddamnit) and they fucking can't. I represent me[emphasis added], so my vote is secret. See how that works? It's actually not that complicated.



    Each voter represents himself, his own desires, his own ambitions, his own self-interest. Yes, even if you're a pinko-commie bed-wetting liberal who thinks that every vote he casts is a selfless act, cast only for the "common good", you're still representing yourself, and your self-interest. Period.

    As long as our votes can affect others, aren't we responsible for effects on them?

    I'm trying to craft an honest answer here, but I'm afraid that "responsible" may not be the correct term to use when you vote. Because "responsible" voting begins to smack of only voting when it's not in your self-interest, and we all know what lies down that path. More people (including me) have suffered deeply by "responsible voters" who kept voting for the "common good".

    Sell "common good" somewhere else, we're all stocked up here.

  • Robert||

    Yeah, why not?

  • ||

    Smooth move Robert. Trying to get someone to prove a negative is a sure sign you're losing the argument.

  • Ventifact||

    Laursen --

    I think those should all be legal behaviors regardless of motivation. That is, I am a fan of secret ballots and so I don't hope for a world in which a landlord knows how a tenant votes (unless the info is shared willingly). But I do think if you own a building you are under no obligation to let people reside there. Similarly, I do prefer secret balloting but think any legally obtained information should be legal to disseminate through advertising.

    And assuming duels are verifiably different from murder -- that the challenged person is not under threat of bodily harm (or coercion) if he decides not to participate in the duel -- there is no reason to keep people from risking their own lives that way. (Provided they aren't, like, blasting away at each other on a crowded bus or something...)

  • Vent||

    Bud -- he was challenging Laursen to explain why we might have a right to restrict i) speech involving public information, ii) a person's choices regarding use of private property, and iii) consenting persons' rights to engage in dangerous activities that don't involve nonconsenting persons.

  • Mike Laursens of the World||

    I wasn't arguing for or against anything. I was just trying to draw out more from Robert on what he is getting at.

  • Colonel_Angus||

    "That's a little open-ended. What recourse do you think should be legal? Should it be legal to:
    * Take out an ad listing all of the people who voted for or against something?
    * Fire an employee or evict a renter who didn't vote the way you wanted him to?
    * Challenge the person to a duel?"

    Agreeing with Ventifact, I can fire anyone I want, or ridicule anyone I want in the newspaper. If someone somehow makes their oppinions public, they open themselves up to all sorts of criticism, excluding things like assault, harassment, or property damage. But the secret ballot allows that choice. One can keep their oppinions secret or put them out in public.

    And in the case of duels, when there is consent there is no wrong doing. If you get your ass shot in a duel, it's your own fault.

  • Colonel_Angus||

    " With the secret ballot, what recourse do you have against those who oppose you with their votes?"

    @Robert:

    One can in turn vote for another candidate, or try to persuade peple to vote for that person or in favor of such proposition or whatever.

  • Robert||

    One can in turn vote for another candidate, or try to persuade peple to vote for that person or in favor of such proposition or whatever.


    But how can you reward or punish them if you don't know which way they're voting? How do you know whom to try to persuade, if you don't know who needs persuading to being with? The elected official's votes are public, but what can you do when people you don't even know, and you can't find out who they are, are voting in someone you don't want?

  • nfl jerseys||

    kkj

  • Nike Dunk Low||

    is good

  • ||

    You guys sure hate taxes, but you'll drive on the roads that were created by them.
    Ayn Rand was a novelist......fiction.

  • Alrazaak.com||

    In the 1980s, Mellor moved on to the Reagan administration, where he was a deputy general counsel in the Department of Energy. After that he served for five years as director of the Pacific Research Institute, where he helped “develop a strategic long-term…libertarian litigation strategy,” one that would come to full fruition with the founding of the Institute for Justice.

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