Archive for June, 2010

DISCLOSE: Here We Go Again

Wednesday, June 23rd, 2010

Despite the Supreme Court’s recent ruling in Citizens United v. Federal Election Commission (see explanatory video here if needed), Congress seems poised to resume its underhanded and self-serving efforts to control political speech. Congress is now considering legislation, sponsored by Representative Chris Van Hollen of Maryland and Senator Charles Schumer of New York, that would further restrict political speech during election season. This latest legislative effort bears the auspicious title of “Democracy Is Strengthened by Casting Light On Spending in Elections Act,” which generates the acronym DISCLOSE for its short name. (H.R.5175, and S.3295 respectively).

Given the Supreme Court’s clear ruling in Citizens United which protected robust free speech rights, it may surprise you to learn that in many ways the DISCLOSE Act would restrict speech even more aggressively than the law which the Supreme Court recently struck down. For example, the old speech restrictions only applied to electioneering communications that were made within 60 days prior to a general election. The DISCLOSE Act would double that time period to 120 days. Features like this might give the impression, at first glance, that instead of accepting the Court’s scolding for violating the First Amendment, Congress, like a petulant child, is bent on contradiction and belligerence.

But the DISCLOSE Act isn’t just Congress’ reflexive gag to a bitter slice of humble pie. It is cunningly crafted legislation that would, if enacted, stifle challenging, political speech without falling into the same legal pitfalls as the McCain-Feingold Act. Since the Supreme Court rejected an outright ban on all corporations, the DISCLOSE Act pretends to take a more moderate approach. Instead of directly restricting the speech of all corporations and unions, the DISCLOSE Act would directly restrict the speech of only certain classes of corporations. These classes are government contractors if the value of the contract is at least $7 million; recipients of recent government bailout funds; and foreign-controlled domestic corporations. In all fairness, these restrictions are relatively reasonable—as government restrictions go. But the real teeth of the DISCLOSE Act are found—quite fittingly—in the new disclosure requirements. Consider the following.

The DISCLOSE Act expands the definition of “independent expenditure” to include, “an expenditure that, when taken as a whole, expressly advocates the election or defeat of a clearly identified candidate, or is the functional equivalent of express advocacy.” Sec. 201(a). This tack-on at the end about functional equivalence gives the Federal Election Commission broad discretion about what speech it can regulate, and it correspondingly creates uncertainty among potential speakers about what speech is safe from regulation.

The DISCLOSE Act imposes filing requirements on everyone who wishes to spend over a $10,000 on political speech to, “(1) file a report electronically within 24 hours; and (2) file a new report electronically each time the person makes or contracts to make independent expenditures in an aggregate amount equal to or greater than $10,000 (or $1,000, if less than 20 days before an election) with respect to the same election.” Sec. 201(b). These filing requirements apply irrespective of whether it is election season or not. $10,000 may seem like high threshold, but it doesn’t last long when you consider the cost of broadcasting on television and radio. The bottom line is that before you speak about politics in any significant way, you have to warn the federal government of your intentions.

The DISCLOSE Act “Requires corporations, labor organizations, tax-exempt charitable organizations, and political organizations other than political committees (covered organizations) to include specified additional information ….” Sec. 211(a)(5)(A). This information includes, among other things, the names of substantial donors. This disclosure requirement will discourage political speech, especially the speech of those who advocate political messages that don’t agree with their community’s acceptable mainstream. Think, for example, of what this would have done to the civil rights movement in the south. Many political and social issues debated in politics today similarly raise deep prejudice and anger, and publicly disclosing the names of those who support unpopular ideas causes more than minor discomfort.

The DISCLOSE Act requires any television or radio advertisement to include statements by substantial donors stating “‘I am XXXXXXX, and I approve this message.’, with the blank filled in with the name of the applicable individual.” Sec. 214(e). Organizational donors must similarly identify themselves. This, obviously, will waste expensive seconds that would otherwise have been available for the speakers to communicate their message.

This list of restrictions found in the DISCLOSE Act is by no means a comprehensive one, but I think it illustrates a subtle, underhanded strategy for restricting speech that seeks to undermine First Amendment rights while avoiding constitutional challenge. Instead of direct bans, this strategy seeks to increase the costs—both social and economic—for those who wish to exercise their First Amendment rights. It comes on the heels of loud public outcry about many of Congress’s policies, and it immediately precedes an election season in which most voters’ starting assumption will be that “incumbent” means “incompetent and corrupt.” Even if the DISCLOSE Act did nothing more than confuse and intimidate speakers about what was permissible and what was not—which it certainly will do if it is passed, that would be reason enough not to enact it. But this legislation would do far more damage than that.

Trials for Terrorists?

Sunday, June 6th, 2010

As with most issues that appear in the national news, politicians and pundits have badly muddled the question of what to do with non-citizens captured by American soldiers and their allies. The recent debate about if and where to try Khalid Sheik Mohammed has provoked intense debate and strong feelings. For example, in response to President Obama’s plan to bring Khalid to New York for a trial in federal court, Congressman Pete Olson of Texas issued a press release which included the following statement: “This Administration needs to understand what the American people already know. Terrorists captured in foreign battle zones are not like us—they don’t deserve our sacred constitutional rights.” I also oppose measures to try “terrorists captured in foreign battle zones” in federal courts, but for very different reasons.

Congressman Olson is wrong about the U.S. Constitution; it certainly does protect terrorists. It protects everyone. Olson’s mistake is a common one for people who don’t understand the Constitution’s role. The Constitution was meant to restrain the power of the federal government, and its principles derive from self-evident, inalienable rights. These rights belong to all humans as humans. If the Constitution were strictly limited to U.S. citizens or residents, or even if it were limited to people who are not captured in foreign battle zones, it would be ineffective. If membership or non-membership in a category were a prerequisite for having “sacred constitutional rights,” the federal government could avoid constitutional restraints by simply categorizing individuals as unprotected. That process of categorization itself would be unrestrained, because if the government did not have to abide by the Constitution in its dealings with a category of individuals, then it could act however it chose toward them. Such individuals would have no right to a fair trial, no right to due process, no right to be free from torture or even summary execution. This is an absurd result.

But recognizing that terrorists have constitutional rights does not inevitably lead to the conclusion that those rights may or must be adjudicated by federal courts. Although the Constitution is meant to restrain the federal government in all of its interactions, regardless of who it is dealing with, the form of those restraints varies. The important question is not whether terrorists are entitled to constitutional rights, but rather which branch of government is responsible for protecting those rights and the method by which they must be protected. In short, it is an issue of separation of powers and procedural due process.

For Americans today, courts are the natural first choice for protecting constitutional rights. But it was not always so, and the Constitution clearly did not entrust courts with the power to determine those rights in every circumstance. Take, for example, the writ of habeas corpus. The writ of habeas corpus is the legal procedure by which a litigant may compel the government to release a person who the government doesn’t have good cause to imprison. Obviously this is an extraordinarily important procedure, but the Constitution explicitly grants to Congress the power to suspend the writ of habeas corpus “when in cases of Rebellion or Invasion the public Safety may require it.” Art. I, §9, cl. 2. Consider also that the Constitution entrusts to Congress and the President the power to employ military force to destroy the lives or property of foreign nations: “The Congress shall have power … To declare war.” Art. I, §8, cl. 11; and “The President shall be commander in chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States” Art. II, §2, cl. 1. No court is involved even though the rights of those individuals in enemy countries are drastically curtailed by the federal government.

The Founding Fathers recognized a simple truth that many politicians and pundits cannot seem to grasp: judicial adjudication of constitutional rights is neither possible nor even desirable in every circumstance. The task of dealing with individuals captured by the military on foreign battlefields is one of these circumstances. A federal court trial is not appropriate here for at least two reasons: competence and jurisdiction.

Federal courts are not competent to adjudicate the rights of individuals captured on foreign battlefields. This is not because judges are not smart enough or because of flaws in the trial process. Federal courts are not competent for this task simply because the processes and goals of a criminal trial are not compatible with the exigencies and aims of war. The military is not equipped to handle evidence, find witnesses, or investigate crime; it is equipped to achieve victory by bringing death and destruction to our enemies. The purpose of capture and imprisonment in a military context is not to punish wrongdoing or rehabilitate wrongdoers; it is to neutralize threats. Consequently, the federal courts’ complex rules of evidence and procedure that help ensure fairness in regular criminal trials only cause confusion and mistakes when applied in the context of military prisoners. But even more serious than the lack of competence is the problem of jurisdiction.

For a federal court to have authority to decide a case brought before it, it must have jurisdiction over the individuals involved in the case. Generally, a court has jurisdiction over individuals who are within the territory of the nation to which the court belongs. This makes intuitive sense. For example, prostitution is legal in the Netherlands but it is illegal in the United States. Nevertheless, a United States court clearly has no authority to hear cases about people who prostitute themselves in the Netherlands—even though it violates United States law—because it is outside of the jurisdiction of United States courts. Granted this is easier to accept than the terrorist cases because there are not United States troops occupying the Netherlands, and prostitution in the Netherlands doesn’t directly threaten United States’ national security. But the concept is the same. United States courts don’t have jurisdiction over individuals who commit crimes outside of the United States. Any other policy aggrandizes the United States federal courts as arbiters of justice for the whole world, or at least however far United States military power can reach. This is insufferable arrogance.

The jurisdiction of federal courts is also limited by the fact that warfare and national security are the province of Congress and the President. By constitutional design, courts were not given authority over foreign affairs—especially where there is a need for secrecy, rapid response, or coordinated effort. Justice Scalia effectively argued this position in his fiery dissent from the court’s opinion in Boumediene v. Bush.

What competence does the Court have to second-guess the judgment of Congress and the President on such a point? None whatever. But the Court blunders in nonetheless. Henceforth, as today’s opinion makes unnervingly clear, how to handle enemy prisoners in this war will ultimately lie with the branch that knows least about the national security concerns that the subject entails.

Boumediene v. Bush, 553 U.S. 723 (2008) (Scalia J. Dissenting). So although it seems like the Supreme Court is protecting individual rights by hearing cases about military detention, it is, in effect, a power grab by the Court. It allows the Court to finally extend its reach into the field of foreign affairs—which for so long has been beyond its power.

For all of these reasons, bringing individuals into United States courts to adjudicate the extent of their constitutional rights is a bad idea. It is a bad idea because federal courts are not competent to handle such cases; it is a bad idea because it aggrandizes the jurisdiction of United States courts beyond their territorial limits; and it is a bad idea because it permits the Court to seize power from Congress and the President, once again, under the guise of protecting individual rights.

So although I reject Congressman Olson’s shocking claim—that terrorists don’t have sacred constitutional rights—we reach the same result. Bringing individuals captured on foreign battlefields into the United States for trial in United States courts is the wrong way to vindicate those rights.