Litigating for Liberty

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

Nick Gillespie from the March 2008 issue

(Page 2 of 8)

Mellor: One perverse aspect of McCain-Feingold and Buckley v. Valeo, the predecessor case, is that both allow legislators wide latitude to pass laws limiting political speech for the purpose of avoiding the appearance of corruption. That standard—the appearance of corruption—is obviously so vague and so much in the eyes of the beholder or the politician that it allows virtually unfettered discretion and potential for abuse. You see that playing out in McCain-Feingold with the restrictions on advertising 30 or 60 days before an election. Unions and corporations are not allowed to express advocacy for or against a candidate 60 days before a general election and 30 days before a primary. What that basically means is you can’t take out paid advertising and make your position known.

reason: It has the explicit intention of limiting the amount of information that would be available to voters.

Mellor: Yes. On the express assumption that this is somehow corrupting the political process and this is somehow beleaguering voters with information that might make them make a bad choice.

reason: If the AFL-CIO or Bechtel can just throw an unlimited amount of money saying that George Bush is a bastard or John Kerry is the greatest thing since sliced bread or whatever, why shouldn’t that be regulated?

Mellor: The whole notion of democracy is the ability to persuade others to adopt the views that you have in voting for the candidate or the issue that you prefer. That’s true of the AFL-CIO or John Doe on the street. Reaching large numbers of people often requires the enlistment of media or of an extensive advertising campaign. It just goes hand in glove with making your views known. In the early days it was pamphlets; today it’s TV.

Two things will always happen. One is that money will always find its way into elections. The problem isn’t too much money in politics; it’s too much power in government. I think that’s absolutely correct. As long as government has the favors to dispense and the power to dispense, people will find ways to get the money to it. It’s a fool’s errand to try to just limit the money.

Second, as long as America is a democracy, you’re always going to have people trying to make their views known. And that’s as it should be. So the attempts to limit this and to impose these increasingly complicated obstacles are doomed to failure and at the same time are going to increasingly create incentives for cynicism, for all sorts of intermediaries. You have to hire lawyers, accountants. You have to do all these sorts of things, and it will serve the interests of the entrenched political establishment because it will be the most able to adapt to them. It will paralyze outsiders and insurgents because it will be harder for them to organize and penetrate these increasingly complicated and arcane rules.

One good example of that is a case we have in Colorado. In Parker North, which is not too far from Denver, a neighborhood found out that it was going to be annexed. Parker North was suddenly going to become part of Parker. That carried with it increased taxes and other obligations that the residents of Parker North were not interested in, so several folks got together and just started talking among themselves in their backyards and said let’s fight this, let’s organize against it. So they began posting yard signs and organizing a bake sale and that sort of thing to increase interest among the residents in their community to vote against the annexation. Partway through the campaign they were served with a cease-and-desist order saying they’d violated the campaign laws of Colorado because they had spent more than $200 simply to influence the outcome of an election and they failed to account for every penny of that, from bake sales, on yard signs.

These are feisty folks. They didn’t give up, but others might, and it’s still in trial.

reason: Will they win?

Mellor: I think we’ll ultimately win, but the fact that we’re in trial, that it’s not a slam-dunk victory for us, should tell you something.

reason: How do you feel about mandatory disclosure laws?

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.

reason: What was the first case that IJ took on?

Mellor: The first case was in 1991 and involved a wonderful entrepreneur here in Washington, D.C., named Taalib-Din Uqdah and his wife, Pamela Farrell. They were entrepreneurs seeking to braid hair but had the misfortune of doing so without a license to practice cosmetology.

Comments

|3.3.08 @ 5:19PM|#

reason sucks

SIV|3.3.08 @ 5:38PM|#

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

Progressives hate freedom.

|3.3.08 @ 6:10PM|#

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|3.3.08 @ 6:42PM|#

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

Robert|3.3.08 @ 11:49PM|#

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|3.4.08 @ 12:30AM|#

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

paul|3.4.08 @ 1:28AM|#

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|3.4.08 @ 10:17AM|#

Oligopoly beats zeropoly

Bad beating worse makes bad okay?

|3.4.08 @ 11:48AM|#

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|3.4.08 @ 1:07PM|#

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|3.4.08 @ 3:25PM|#

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|3.4.08 @ 4:23PM|#

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|3.4.08 @ 4:24PM|#

Yeah, why not?

|3.4.08 @ 4:38PM|#

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

Ventifact|3.4.08 @ 4:39PM|#

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|3.4.08 @ 4:43PM|#

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|3.4.08 @ 4:47PM|#

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|3.4.08 @ 4:53PM|#

"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|3.4.08 @ 5:53PM|#

" 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|3.5.08 @ 3:22PM|#

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?