A Bold Attack On Freedom Of Political Speech In America

On September 11, 2014, the Senate voted 54-42 to end debate on Senate Joint Resolution 19.  Sixty votes were needed to end a filibuster and force a vote on the resolution.  Because the required sixty votes were not obtained, the resolution could not overcome the filibuster and it died.  Fifty four Senators, all Democrats, voted to end debate and go forward with a vote on the resolution.  Included among those 54 Senators were 48 who co-sponsored the resolution.

The point of the resolution was to propose an amendment to the United States Constitution.  Had the resolution gone to a vote, a two/thirds majority of both houses of Congress would be necessary in order to submit the amendment to the states for ratification.  In the Senate, that would require 67 votes, a number clearly unattainable since there were not even enough votes to overcome the filibuster.  That the resolution was doomed from the outset is clear.  Equally clear is that the lack of respect for the U.S. Constitution among our elected representatives is an historic problem that continues to this day.

The proposed amendment is short and easily understood.  It states in its entirety as follows:

Section 1. To advance democratic self-government and political equality, and to protect the integrity of government and the electoral process, Congress and the States may regulate and set reasonable limits on the raising and spending of money by candidates and others to influence elections.

Section 2. Congress and the States shall have power to implement and enforce this article by appropriate legislation, and may distinguish between natural persons and corporations or other artificial entities created by law, including by prohibiting such entities from spending money to influence elections.

Section 3. Nothing in this article shall be construed to grant Congress or the States the power to abridge the freedom of the press

The ultimate ratification of the proposed amendment by the states would have authorized governmental powers over political speech expressly denied by the First Amendment which states in its entirety as follows:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”

The proposed amendment would, by it’s express terms, empower Congress and the States to regulate raising and spending money “to influence elections”.  Because any political speech can reasonably be deemed “to influence elections”, the government would have been empowered to regulate those persons and corporations spending money on disfavored political issues while leaving others deemed by the government to be advancing more “acceptable” political positions unmolested.  Because spending money is the only reliable method to ensure that a message is widely disseminated, the amendment would have empowered the government to choose who is entitled to amplify their political messages by spending money and who is not.  It would have enabled the government to criminalize the spending of money to communicate one message, while leaving those espousing the opposite message free to spend as they wish to communicate to the public.

History has proven that it is naïve in the extreme to hope that those in power will honor the limits on their constitutional powers.  The Federal government has historically and repeatedly argued in favor of extraordinarily broad interpretations of the powers enumerated in the Constitution.  The Commerce Clause provides one of many examples.  Article One provides that Congress has the power “to regulate commerce…among the several states…”  For many years Congress used this power either not at all or in a relatively limited fashion as intended—to prevent the states from implementing protectionist trade policies against each other.  For several years leading up to the New Deal era Congress, with the approval of the Supreme Court, interpreted its powers under the Commerce Clause to regulate more than strictly commerce.  Congress began regulating labor among interstate carriers, the “channels” of commerce and the instruments of interstate commerce, such as the rail cars and railroad safety devices.

The New Deal brought a continuous flow of legislation seeking to regulate wages and industry, ostensibly pursuant to the power to regulate commerce among the states.  For a time, the Supreme Court rebuffed such unconstitutional assertions of power.  But in the end and in the wake of FDR’s effort to pack the Supreme Court in order to emplace more “progressive” jurists, the Supreme Court buckled and approved the use of the constitutional power to regulate commerce among the states to, among other things, broadly regulate labor and products regardless of whether they were implicated in interstate commerce in any direct manner.  Since 1937, the Commerce Clause has been used repeatedly to justify federal regulation of matters which are not “commerce among the several states”.  On each occasion, the Federal government has expanded it’s power over the people despite the fact that it lacks any constitutional authority to do so.

With Senate Joint Resolution 19, 48 presiding U.S. Senators expressed in clear terms their desire.  They want to regulate political speech despite the fact that the Constitution specifically denies them the authority to “abridge the freedom of speech”.  The Supreme Court has not been so availing as it was nearly 80 years earlier in turning a blind eye to the illogical and extreme contortions of the Commerce Clause.  But the question remains; what did the 48 sponsors hope to achieve by proposing the resolution?  As noted, it was doomed from the start.  What did they hope would result from proposing the resolution?

One can only conclude that they hoped to score political points with the electorate.  In the 1930’s FDR and Congress perceived that the electorate would support their efforts to expand federal power despite the lack of constitutional authority.  They used the attendant political power to pressure the Supreme Court until it finally gave in, ushering in a new paradigm of federal power.  Rather than a power limited to regulating commerce among the states, the Federal government has since wielded its power unconstitutionally over almost all things arguably deemed to affect the economy.  Those who would now eliminate our right to free political speech have apparently concluded that there is sufficient public support for their efforts to enable them to utilize the debate over the resolution as an election year gimmick to compete for votes, to create a spring board for a groundswell of popular support, or both.

Regardless of their motive, it is clear that the disregard many of our elected representatives have for the Constitution, for it’s limitations on their powers and for the protocols it establishes to ensure that the Constitution can only be amended at the will of the sovereign people is at least as problematic as it has ever been.  That 48 out of 100 U.S. Senators would support a measure to obliterate the First Amendment is a sad commentary on the status of our leadership, the level of accountability demanded by the citizenry and the diminishing measure of importance we the people place on limiting the authority of our government over us and on maintaining our popular sovereignty.







Engineering False Pricing Pressures In Healthcare

I recently heard a representative of a non-profit organization committed to stemming the rising cost of healthcare interviewed on a local public radio program.  She said that her organization has launched a state wide program which is patterned after a national initiative implemented by the American Board of Internal Medicine Foundation.  The goal of the program is to ensure that health care providers are providing necessary treatments and therapies efficiently and only as actually needed.  During the interview, she gave an example of the type of activity and interaction the program is designed to achieve.  Paraphrasing, she said that “if a doctor orders a test or some treatment, we want the patient to inquire whether this is really the best thing to do or should I just wait to see if it gets better on its own”.  Because her comment was “off the cuff” and not well measured, we should not take it literally.  I don’t imagine the primary focus of this program is to induce patients to question their doctor’s judgment with respect to every test or therapy the physician might prescribe.

What is interesting isn’t the program or its specific focus but the underlying truth her comments reveal.  Because our healthcare is generally paid for by employer or government provided “insurance”, the end users (the patients) have had little incentive to monitor the price of medical care.  As a result, the role of prices in determining demand is muted.  The consumer of healthcare is not as directly interested in the price of his treatment because he does not directly pay it.  In a free market, higher prices result in lower demand which in turn keeps prices in check.  When the healthcare consumer doesn’t pay for the healthcare he receives, his demand is not nearly as affected by increasing prices.  As prices go up, his demand does not decrease as it normally would.

The program discussed by the representative of the local non-profit apparently seeks to redress the problem by artificially inducing consumers to act as though they have the same interest in health care pricing as they would if they paid for it directly.  It is hoped that sufficient numbers of patients can be coached to act like paying consumers so as to reintroduce the effect of diminishing demand into the economic equation.  Though this is no doubt a well intentioned effort, it ignores human nature and history.  We know from the communist experiment that individuals cannot be prodded en masse to act in the “best interest of the collective”, at least not for long.  Ultimately, the vast majority of individuals are rational economic actors, which means that they act in accord with their own perceived best interests.  For this reason, the percentage of people who can ever be expected to pressure their doctors about the real need for suggested therapies pales in comparison to the number of individuals who will do so when they are actually responsible to pay for the therapy out of their own pockets.  Even at that, the few who are initially willing to question their doctors in this fashion will lose the initiative to do so going forward.

Try as we have, mankind has not been able to efficiently plan a route around human nature.  Government restraint and coercion gives rise to unintended consequences.  In this case restraint and coercion in the form of redistributing and regulating health care gives rise to the unintended consequence of inflexible demand for healthcare which in turn gives rise to higher and higher prices.  Asking and expecting the citizenry to act in contradiction to their nature is not the answer to the problem.  The answer to the problem is a return to the free market, the natural state of society in which human nature flourishes.

The Larger Lesson To Be Learned From The GSA’s “Art In Architecture” Program

On her September 8 show, Greta Van Susteren was dismayed over the fact that the federal government is going to spend about a half of a million dollars on art work for an upgrade project to the border crossing for the San Diego –Tijuana region.  You can read the text of her justified rant here.  The overall project is to cost $735 million and it seems the General Services Administration allocates one half of one percent of construction projects to “art work” pursuant to the GSA’s “art in architecture” program.  In short, Greta is incensed by the fact that this is the same crossing where Sergeant Tahmooressi made a wrong turn and ended up in Mexico.   Greta asks rhetorically why the government wouldn’t spend that money on improving the road signage so people stop making wrong turns into Mexico.

Her frustration is justified because it is unjust for the federal government to tax American citizens or borrow from future generations to purchase artwork for anything, not because the government failed to improve the road signage.  If the GSA spends one half of a percent of every construction project on “art in architecture”, how many millions of taxed or borrowed taxpayer dollars are spent on art overall?  Worse, the big picture implications are far more severe.

We are often incensed at relatively small and insignificant injustices that are tangible but seem oblivious to larger problems that are less obvious.  The purchase of $500,000 worth of art for a border crossing is a specific, tangible, actual event we can all appreciate and evaluate on its own merits.  It is relatively easy for us to size up this issue and make a human judgment that it is wasteful and improper to tax citizens or borrow from future generations to spend money on something as frivolous as art for a border crossing.  It’s harder to consider the implications of such waste and inefficiency on a grander scale.

Here we have one, certain isolated event—the GSA is spending $500,000 on art for a border crossing.  We also have a slightly less specific, but far further reaching and equally certain series of events—the GSA spends one half of one percent of every construction project on art.  Certainly, the magnitude of the GSA’s spending on art dwarfs the $500,000 to be spent on the border crossing.  More broadly, we have hundreds of government programs spending taxed or borrowed money on tens of thousands of different expenditures.  We can not begin to know much less evaluate each agency, each program or each expenditure.  Despite the certain, isolated examples of government waste and inefficiency we see on a daily basis, we too often ignore the larger implications.  Somehow many among us remain convinced that government can do a better, more efficient job than the free market in providing services we need or desire.

Individual citizens do not have the wherewithal to conduct the exhaustive research of a well funded political think tank or a major university.  But individual citizens can think for themselves.  If a parent has a child that mismanages his own money by spending it wildly and regularly misplacing or losing it, that parent would not be inclined to trust that child with taking charge of the family bank account and paying the mortgage and the other monthly bills.  Yet that is exactly what we do as a society when we give a wasteful, inefficient government control over more and greater aspects of our lives and well being.

Too many of us trust in the promise of the good that government might do if given the opportunity but close our eyes to our actual experience. Our actual experience is that the free market delivers goods and services extremely efficiently and progress in the improvement of those goods and services is swift and consistent.  Our actual experience is that the government delivers services expensively and wastefully and progress in the improvement of those services is slow or nonexistent.  Let us be frustrated with the $500,000 to be spent on art for a border crossing, but let us be frustrated for the right reasons.  It is but one of thousands of examples of our misplaced reliance on government.

The Common Core Debate’s Implications For A Return To Constitutionalism.

The grass roots effort to defeat the Common Core might be interpreted by many as a sign of hope.  In an age when federal overreach is routine and the centralization of governmental authority in Washington is widely accepted or even welcomed by the States, the media and a great portion of the citizenry, a proponent of decentralized government and constitutionalism might find the opposition to the Common Core a welcome reason for optimism.  Perhaps not since the advent of the Tea Party movement has there been an issue that coalesced individuals in a cause against centralized government on such a wide spread basis.

To be sure, the reasons for the movement against the Common Core are many.  Not all are motivated by concern over the potential for the centralization of education in Washington or the potential loss of local control over curricula.  Some are motivated by concern over the testing protocol, others by the collection and consolidation of personal information and privacy issues implicated thereby and still others by the perceived lack of rigor embodied in the standards. But it is clear that the “federalization” of education is among the primary concerns giving cause for the movement. For this reason, constitutionalists might be heard to breathe a sigh of relief.  Sadly, further reflection leads me to conclude the opposite—the grass roots movement to defeat the Common Core illustrates the magnitude of the centralization problem and the revelation is disheartening.

One would have a difficult time identifying an issue that could be more important to people than education.  The public apathy for political issues is widespread and obvious, but Americans still love their children and grandchildren and we still go to great lengths to plan their futures for the best and to manage their lives while they remain under our care.  During the debate over the Affordable Care Act, it occurred to me on many occasions that there are not many issues more personal and thus, of greater importance than health care.  It seems to me that maintaining the ability to influence public education is one such issue.

Unfortunately, the debate over the ACA became bogged down in the minutia over the efficacy and costs of the plan.  Rather than focus on the free market and constitutional principles involved and the implications for human liberty, the debate was too much based on the pragmatic; would the ACA improve healthcare, how much would it cost, and how would it be paid for.  Happily, it does seem that the debate over the Common Core may be developing somewhat more of a focus on the fundamental principles involved.  Certainly the proponents of Common Core would be happy if the debate could be made to focus on pragmatic issues.  Arguing about the supposed benefits of nationwide standards or a technical debate over the details of the standards themselves would suit their purpose.  If the debate can be made to be technical and obscure they know that most eyes will glaze over and they’ll be far more likely to get the result they want—people leave it to others to figure out the best approach and bow out of the debate.  As long as a substantial focus of the debate remains on the ability to affect decision making at the local level, the grass roots is more likely to remain interested and engaged.

For today, my sad point is this: If it is this difficult to gain sufficient widespread support to defeat Common Core, an issue which implicates our ability to influence and affect our children’s education, how far removed must we be from an age where constitutionalism and widely dispersed government are generally appreciated and ultimately demanded?  If Americans will not “wake up” in sufficient numbers to protect the free market in health care or demand a continued say in the education of their children, what will be required to awaken them to all the other benefits of constitutionalism?  The decades long trend of diminishing State sovereignty and federalism in favor of growing and centralized power in Washington must be broken if we are to enjoy the larger liberty, free markets and individual role in self government contemplated by the founders. That it is so difficult and effortful to engage sufficient numbers of Americans in the effort to ensure the continued local control of public education does not bode well for breaking that trend without some larger, likely terrible eventuality to trigger a national introspection on the slow decay of our first principles.

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