Supreme Court Unleashes Legal Beast To Trouble Colorado's 2nd District

By Julian Dunraven, J.D., M.P.A.

I have never liked campaign finance reform laws. The notion that one can take the influence of money completely out of politics seems, at best, woefully naive and, at worst, ridiculously absurd. Nonetheless, in so many ways our lawmakers and activists continue to try. After they finish attempting to put all sorts of fetters on the evil beast of our political system, the Supreme Court inevitably comes by and proceeds to cut about half the restraints. Of course, this simply creates a very angry beast that has to lurch clumsily about using only one leg and one arm. And people wonder why campaign regulations are always such a disaster. Well, the Supreme Court has, yet again, taken its judicial scissors to the latest Congressional fetter: the Millionaire Amendment of the Bipartisan Campaign Reform Act (BCRA). And yes, the beast is already crashing about angrily.

Let me try to sum up the bizarre laws at issue in very brief terms. Between the meddling of Congress and the stilted reasoning of the Court, the government may impose limits on how much money people may contribute to any given campaign, but not on how much money the campaigns can spend. Also, there is no limit to how much an individual candidate can contribute to his campaign. The reason for this is that money is speech. Contributions may be limited because they still express the message of support for a candidate but, in being limited, also prevent corruption or the appearance thereof. However, the candidate is free to use as much of his own speech/money to promote his cause as he wants. To limit that would be to limit his speech too directly.

Naturally, this creates an advantage for rich candidates. They can spend their own money without limit while a poorer candidate, who may have rich friends, cannot get as much money out of those friends because of the campaign contribution limits. Thus, Congress passed the so called Millionaire Amendment so that if a rich candidate used enough of his own money, the contribution limits for the poorer candidate would be near tripled while the contribution limits for the richer candidate would remain the same. This would continue until the two candidates had eliminated the financial difference between them.

Now, though, Justice Alito, writing for the majority, has declared in Davis v. Federal Election Commission that this balancing scheme is unconstitutional. Apparently, this imbalance does not directly limit speech, but creates a substantial penalty for a rich candidate who chooses to exercise his right to speech robustly (i.e. spend a lot of his own money and trigger the provisions of the amendment). Thus, the Court has declared that the law must go.

Naturally, the government has objected that this means that rich candidates will once again have a huge advantage in elections given the contribution limits. The Court is aware of this. However, Justice Alito reminds us all that it was Congress who created this problem in the first place with its bizarre attempts to regulate campaign contributions. Congress also has the power to fix this situation. He recommends:

If the normally applicable limits on individual contributions and coordi­nated party contributions are seriously distorting the electoral process, if they are feeding a "public perception that wealthy people can buy seats in Congress," Brief for Appellee 34, and if those limits are not needed in order to combat corruption, then the obvious remedy is to raise or eliminate those limits. But the unprecedented step of imposing different contribution and coordinated party expenditure limits on candidates vying for the same seat is antithetical to the First Amendment.
In my own humble opinion, Congress would be well advised to adopt Justice Kennedy's recommendations from his dissenting opinion in Nixon v. Shrink Missouri Government PAC, 528 U.S. 377 (2000). He pointed out that all of these attempts to limit the flow of money just serve to create problems or push it underground where there is virtually no accountability or transparency (such as 527 groups). Thus, he suggests that, rather than limiting contributions or expenditures, Congress should simply require that all contributions be reported and made public. Certainly, the internet is more than capable of providing instant access to this information for anyone who wants to know. In that way, the public could judge for themselves whether a candidate was too beholden to any particular donor or interest group and vote accordingly. Now there is a novel thought: trusting the voters to make decisions themselves.

For those of you interested in what the dissent had to say, Justice Stevens seems to think there is nothing at all wrong with this imbalanced scheme. Indeed, he goes so far as to contend that Congress should limit both contributions and expenditures. It seems he feels that if the campaigns were forced to spend less, then the quality of their message would be forced to improve and he would not have to ensure watching so many of these annoying and repetitious political advertisements on television any longer. It is rare that a Justice so plainly expresses his personal opinions and tastes as a matter of law. Preventing the Court from being populated by others who feel at liberty to do so may be the single most important reason to elect John McCain as our next president-despite the fact that he is partially responsible for saddling us with these nightmarish campaign laws in the first place.

In the meantime, we shall watch the beast of our current system flail about in the 2nd Congressional district where the millionaire idiot author of Colorado's ethics debacle, Jared Polis, just triggered the now unconstitutional amendment and his opponents, Joan Fitz-Gerald and Will Shafroth, are left without the benefit of the increased contribution limits it would have provided them.

On Heller

By Julian Dunraven

Today, virtually every newspaper and broadcaster across the nation has been trumpeting the news that we have a newly expressed fundamental freedom: an individual right to keep and bear arms, courtesy of the U.S. Supreme Court's decision in The District of Columbia v. Heller. If you woke up this morning breathing a bit easier and feeling a little more free, that is why. What every article and story will tell you is that the Court struck down the D.C. handgun ban. However, most stories seem to be missing two important points: the opinion was quite funny, and it went a lot further than people seem to be grasping.

Justice Scalia wrote for the majority. To read his opinion is to be transported back to grade school, listening to your teacher patiently instruct you on basic grammar. If you ever wondered what use it was to learn all those annoying rules governing punctuation, Scalia will be happy to explain how one of your basic rights rests upon the use of three commas in the Second Amendment.

The amendment reads: "A well-regulated militia, being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed."

Throughout, the opinion, Scalia expounds on the use of those commas, the differences between prefatory and operative clauses, and even goes so far as to dissect and rearrange the Amendment as a grammar school teacher might demonstrate to his students while diagramming sentences. Remember those sentence diagrams? He then instructs us as to the differences between singular and plural, the use of verbs and their objects, modifiers, prepositions, and idiomatic usage. English teachers everywhere should be rejoicing.

In the footnotes, scattered throughout, one can imagine that Teacher Scalia has just been interrupted during lecture by a question from a student-a particularly annoying little boy who bears a strong resemblance to a miniature Justice Stevens. Scalia, like any good teacher, generally responds by patiently explaining why his pupil's assumptions are mistaken. Occasionally though, like all good teachers driven to distraction by particularly annoying students, Scalia offers a sharp rebuke, openly speculating as to whether Justice Stevens might have leapt through the looking glass to study law with the Mad Hatter. He also describes Stevens' grasp of the English language as "dead wrong," "an absurdity," and "grotesque." Judging from Scalia's remarks, by the time I got to the dissent I was expecting to find near illiterate ravings.

For example, here is a small sample of the opinion as Scalia responded to Stevens' contention that "bear arms" did not just mean "to carry weapons or armor" but "to carry weapons in a military context."

In any event, the meaning of "bear arms" that petitioners and JUSTICE STEVENS propose is not even the (sometimes) idiomatic meaning. Rather, they manufacture a hybrid definition, whereby "bear arms" connotes the actual carrying of arms (and therefore is not really an idiom) but only in the service of an organized militia. No dictionary has ever adopted that definition, and we have been apprised of no source that indicates that it carried that meaning at the time of the founding. But it is easy to see why petitioners and the dissent are driven to the hybrid definition. Giving "bear Arms" its idiomatic meaning would cause the protected right to consist of the right to be a soldier or to wage war--an absurdity that no commentator has ever endorsed. See L. Levy, Origins of the
Bill of Rights 135 (1999). Worse still, the phrase "keep and bear Arms" would be incoherent. The word "Arms" would have two different meanings at once: "weapons" (as the object of "keep") and (as the object of "bear") one-half of an idiom. It would be rather like saying "He filled and kicked the bucket" to mean "He filled the bucket and died." Grotesque.

He also remarks that:

A purposive qualifying phrase that contradicts the word or phrase it modifies is unknown this side of the looking glass (except, apparently, in some courses on Linguistics). If "bear arms" means, as we think, simply the carrying of arms, a modifier can limit the purpose of the carriage ("for the purpose of selfdefense" or "to make war against the King"). But if "bear arms" means, as the petitioners and the dissent think, the carrying of arms only for military purposes, one simply cannot add "for the purpose of killing game." The right "to carry arms in the militia for the purpose of killing game" is worthy of the mad hatter.

In any case, Scalia manages to save the English language from being tortured and ravaged by Justice Stevens. As a result, we now have a solidly expressed individual right to keep and bear arms defined by a most amusing opinion. We have quite a bit more than that too.

Most articles are reporting that Scalia's opinion preserves gun control laws regarding schools, certain public places, and bans on automatic weapons. This is not precisely true. The opinion simply states that those items were not at issue before the Court and will therefore be presumed to be valid until specifically contested. Yet the Court just issued a very broad embrace of an individual right to keep and bear arms, especially in the interest of self defense. Moreover, it also adopted, as a standard for protected weaponry, that which is "in common use at the time." The only limit the Court articulated was to say that, "that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes."

In the dicta, Scalia acknowledged that, as standard issue for our infantry, M-16s might be protected. However, as they are not commonly used by the citizenry, they might not be protected. As he points out toward the end of the opinion, the Court only expressed a fundamental individual right to keep and bear arms. He openly invites further lawsuits to help determine just how far that right may go-much to the chagrin of the dissenting Justices who rightly see a flurry of litigation coming and the probable overturning of a good number of longstanding regulations.

This is an exciting time, the first formal expression of a right we have had for 200 years. I look forward to seeing how we develop this right. In the meantime, teachers, you now have solid evidence which to prove to your truculent students that good grammar can lead to greater freedom.

Julian Dunraven, J.D., M.P.A.

Climate Change Blasphemy Must Be Prosecuted Says NASA Scientist

By Julian Dunraven, J.D., M.P.A.

It always amazes me to see how people view the legal system. Dr. James Hansen, vaguely referred to by The Guardian as one of the world's leading climate scientists (presumably due to the fact that he becomes hysterical more swiftly than the others), now thinks we should prosecute oil company executives for, "high crimes against humanity and nature, accusing them of actively spreading doubt about global warming."

Last time I checked, expressing doubt as to any theory, and then trying to disprove that theory, was part of the scientific method--not a violation of the criminal code. But never mind that, we have important criminal accusations to consider.

So, what are crimes against humanity and nature anyway? Article 7 § 1 of the Rome Statute of the International Criminal Court defines crimes against humanity as:

any of the following acts when committed as part of a widespread or
systematic attack directed against any civilian population, with knowledge of
the attack:

(a) Murder;
(b) Extermination;
(c) Enslavement;
(d) Deportation or forcible transfer of population;
(e) Imprisonment or other severe deprivation of physical liberty in
violation of fundamental rules of international law;
(f) Torture;
(g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced
sterilization, or any other form of sexual violence of comparable gravity;
(h) Persecution against any identifiable group or collectivity on
political, racial, national, ethnic, cultural, religious, gender as defined in
paragraph 3, or other grounds that are universally recognized as impermissible
under international law, in connection with any act referred to in this
paragraph or any crime within the jurisdiction of the Court;
(i) Enforced disappearance of persons;
(j) The crime of apartheid;
(k) Other inhumane acts of a similar character intentionally causing great
suffering, or serious injury to body or to mental or physical health.

Strangely, it says nothing about climate at all. Even if it did, Global Warming might be widespread, but could hardly be called a systematic attack upon any civilian population by oil company executives from the lawful operation of their businesses.

That leaves crimes against nature. Crimes against nature are not international crimes at all. They are generally part of state law. They forbid things like masturbation, oral sex, and sodomy. After the Supreme Court’s opinion in Lawrence v. Texas, 539 U.S. 558 (2003), most of the so called crimes against nature are unconstitutional as they violate our fundamental right to privacy. Of course, bestiality and necrophilia are both still forbidden, but Global Warming just does not seem to fit into this category does it? Then again, perhaps it does.

It seems the oil companies have violated neither international nor domestic law with their pernicious doubts about Global Warming. Of course, this is not the real problem here. The particular criminal charge does not matter so long as we can find one that will work to silence these doubters once and for all.

Generally speaking, true scientists want a lot of doubt expressed about their theories. They want the whole scientific community to have a go at them, and, if they still stand up, undamaged, at the end of the day the whole world is likely to embrace them. Such is not the case with Global Warming, though. Almost any rational person can manage to find considerable holes in the Global Warming theories. A scientist would say this means it requires more research and study.

Dr. Hansen and his ilk, however, remind us that this is about more than just science or law: it is about moral goodness. More research and more study takes time. Persuading lawmakers to act takes even longer. But we know what is evil now. Global Warming is evil. Those who doubt it are evil. There are many of them out there—doubting—and they are getting away with it!

There was once a time when our legal system would have accommodated such thinking. Indeed, both Church and State tried for a long while to prosecute irritating “doubters” for insufficient belief. Back then, though, we did not use those words. Instead, we used words like Inquisition, heretics, and blasphemy. The system had a splendid effect upon morality, but apparently science lagged a bit. We called that time the Dark Ages. Ironically, today, any government that tried to manage belief in such a way would be prosecuted for crimes against humanity. See supra, Article 7 § 1(h).