On the Right to Petition Public Officials on Social Media

Public officials have the same rights to freedom of speech and freedom of association that the rest of us have. The do not lose their rights simply because they win elected office. Public officials are not above the law, but they are not beneath the law, either. They have a right to maintain their private lives, including their personal social media feeds (per the relevant terms of service), and interact with people (or not) as they see fit, just like the rest of us.

At the same time, insofar as public officials act as agents of government, they assume certain legal responsibilities that the rest of us do not have. If public officials open official forums of public commentary, they may not discriminate on the basis of ideology or point of view (among other things), and they must treat everyone equally under the law. Continue reading “On the Right to Petition Public Officials on Social Media”

The Political System is Rigged—But That’s Not Our Main Problem

Donald Trump and Hillary Clinton each have their cheerleaders. Most of us, though, regard these candidates as horrid and this year’s presidential race as an “international embarrassment,” as Vincent Carroll puts it. How did we get here?

Part of the problem is that our political system really is substantially “rigged,” meaning that the rules are inherently unfair in certain ways. Continue reading “The Political System is Rigged—But That’s Not Our Main Problem”

Huemer on Strengthening the Chains of the Constitution

Michael Huemer
If American government was to be bound by the “chains of the Constitution,” then surely those chains have loosened if not snapped. Michael Huemer, a philosopher at the University of Colorado at Boulder, has some ideas for how to tighten those chains. He discussed these ideas July 13 at an event hosted by Liberty On the Rocks, Flatirons.

Huemer observes that structural and procedural Constitutional provisions (regarding how government functions) tend to be taken more seriously than are substantive Constitutional provisions (regarding what government may and may not do). So his ideas focus on changing government structures and procedures in the hopes of indirectly altering the substance of what government does.

He offers three main proposals. First, new legislation should require a two-thirds vote by Congress. Second, “there should be a negative legislature that has the power only of repealing laws.” Third, besides the Supreme Court, there should be a new Constitutional Court, “where the cases are decided by a jury of citizens,” that can initiate Constitutional review and that can mete out punishments to elected officials who violate the Constitution.

Generally I regard these as excellent ideas.

Huemer did an especially good job of explaining why the default should be for government to take no action—the opposite of today’s presumption. Government action, he stressed, involves coercing people. In general, he argued, it’s better to not coerce someone, even if coercion might be justified in a given case, than it is to coerce someone unjustly.

Huemer likened modern government to a Medieval doctor. Society, like the human body, is enormously complex, and making a random change to it is more likely to do harm than good. Medieval doctors were more likely to harm their patients than to help them, Huemer noted, and, similarly, government actors are more likely to do harm than good. Thus, he concluded, it’s good to move the default closer to government taking no action via the institutional changes he suggests. (Huemer offered many additional arguments to buttress his case; for these I’ll point individuals to the video of his presentation.)

I think Huemer went off track only a few times. The most important example is his treatment of the separation of powers. True, as he noted, different government institutions very often support rather than oppose each other. But that does not change the fact that the separation of powers, instituted not only in the tripartite federal government but in federal-state divisions and in representational elections, very often stops or slows the imposition of bad government policies. For example, the Supreme Court threw out much of FDR’s New Deal, and more recently it threw out censorship of political speech via the Citizens United decision.

Huemer errs in this matter largely because he assumes government entities generally seek to expand their own power. True, they often do. But very often government actors are driven by ideological convictions, not (or not only) by a lust for personal power. Because people in different government entities  are motivated by ideological convictions (to a lesser or greater degree), the separation of powers works somewhat better than Huemer thinks.

Another problem with Heumer’s presentation is that his idea of a “negative legislature” needs a lot more development to be viable. It would be a straight-forward fix if it were the case that new laws always expand government powers on net, while repeals of laws always reduce them. But that’s not the case. New laws very often curtail government powers made possible by preexisting laws. For example, federal civil rights laws preempted state-level discrimination laws—and that was a pro-liberty development. In Colorado a few years back, new legislation curtailed the power of police to seize property through asset forfeiture. To make matters more complex, generally old statutory language is removed via the passage of a new bill. So it’s not clear whether a “negative legislature,” unless its scope were very clearly and appropriately defined, would on net act to expand or reduce government power.

Huemer also suggested that he supports anarchy over limited government; he did not get into that issue during his talk, so I won’t get into it here. I’ll have more to say against anarchy later.

In all, Huemer’s talk is well worth watching. It is an excellent example of how an academic can make rigorous arguments to a popular audience. Academics should interact with the thinking public, and vice versa—as such provides checks and balances within American intellectual discourse.

Related:

Why Not Send All Colorado Bills to a Floor Vote?

Colorado Capitol
Greg O’Beirne

Yesterday I waded into the middle of the conflict between Rocky Mountain Gun Owners RMGO and the Independence Institute regarding strategy over gun magazine restrictions. (This morning Mandy Connell discussed my article on KHOW, and Dudley Brown called in to explain his position.) Related, yesterday RMGO* also tried a bizarre procedural move to force a floor vote of the bill to repeal the magazine restrictions.

The leftist ColoradoPols has a write-up about this. According to a Democratic media release it quotes, “Rep. Everett moved to amend the journal to overturn the work of the committee and show that SB15-175 passed.” That is certainly an, uh, interesting tactic. Obviously if a Democrat tried that with Republican leadership, Republicans would explode in anger. (I’ve emailed Everett about this and will update this article if he replies.)*

But, RMGO* antics aside, the episode gave me an idea: Why not send all bills to a floor-wide vote? The legislature would still have committees, and the committees would still hear testimony. But, rather than vote a bill up or down, a committee would offer a recommendation on a bill and send it on to the entire body for a vote.

The idea behind the committee vote, presumably, is that a small group of legislators can specialize in a certain area and weed out the unworthy bills. But, in practice, legislative leadership routinely use committees to kill bills they don’t like. Certain committees are informally known as “kill committees”; they are where leadership sends bills so that their reliable colleagues in safe seats can vote them down. Yes, committees hear testimony, but in many or most cases this testimony is entirely irrelevant to the outcome of the bill: Often legislators know how they will vote, and how each of the other committee members will vote, before the hearing even starts.

One purpose of “kill committees” is to shield other members of the leadership’s party from having to take uncomfortable positions on controversial topics. This is good for the party in power, but it is bad for constituents, and it is bad for the democratic process. (I’m not a democrat, but I do see value in citizen oversight of government.)

Of course, if every bill were brought to a floor vote, each legislator would have to vote on many more bills than is currently the case. I regard that as a benefit of the plan, not a bug. It might discourage legislators from introducing so damn many bills.

If this plan were implemented, it might also make sense to change how floor votes are conducted. Here is one possibility: Once a bill made it through committee, legislators could register their vote for a bill whenever they wanted. They could vote yes, no, or abstain. Once every legislator cast a vote, the bill would be declared passed or failed. If, by the end of the session, a legislator had not cast a vote, his vote would be “abstain” by default.

At this point, my proposal is preliminary. I’d want to learn some additional facts before committing to it, including these: Is this done in any other state government? [April 20 Update: Paul Jacob tells me that New Hampshire does this. Rob Natelson tells me North Dakota does, too.] Is there any consequence to the system I’m not foreseeing? Would this require a citizens’ initiative to implement? Offhand, though, putting every bill to a floor vote seems like a great idea.

April 20 Update: This plan is compatible with floor debate for each vote. Then voting would start at the end of the floor debate. Also, I’m not sure how the legislature works now on this issue, but it seems to me that a bill should pass only if a majority plus one vote to pass it, counting all the “abstain” votes. Another variant: Rather than send all bills to the floor, committees could rule, unless a third (plus one) of a body’s members called for a floor vote, in which case a bill would go to the floor even if the committee voted no.

* April 17 Update: Representative Justin Everett emailed me and stated that, contrary to the claims of ColoradoPols, “RMGO wasn’t involved” in the floor action. (RMGO PAC endorsed Everett last year.) He further states “it was a legit way to get the mag ban to the floor.” April 18 Update: RMGO’s Dudley Brown, however, explicitly claims participation in the legislative move.

Perry Indictment “Irresponsible and Nakedly Political”

Image: Gage Skidmore
Image: Gage Skidmore
Scott Lemieux, writing for the Week, reaching a similar conclusion to the indictment of Texas governor Rick Perry that I and others have reached: “The basis for the indictment is exceptionally weak, and reflects a disturbing trend towards criminalizing garden-variety political actions. . . . The indictment . . . is irresponsible and nakedly political.” Lemieux observes the obvious fact that part of a governor’s legitimate powers is to veto legislation.

Related:

One in Six U.S. Jobs Are in Government

Image: Wikimedia Commons
Image: Wikimedia Commons

As Rani Molla reports for the Wall Street Journal, “Nearly 1 in 6 jobs in the U.S. are working for the government, more than any single private industry.” Put another way, every government employee is supported by only five people working in the private economy. In California, nearly 2.3 million people work for government—more than the entire populations of over a dozen states. In Colorado, the figure is 383,646. The number of government workers per 1,000 people ranges from 52 in Nevada to 114 in Wyoming.

What’s the trend? The National Bureau of Economic Research reports, “In 1900, one out of 24 workers was on a government payroll, in 1920, one out of 15, and in 1940, one out of 11. The [1949] ratio . . . is one out of 8 or 9.”

Over the last dozen decades or so, Americans fundamentally rethought their relationship with government. I suggest we should fundamentally revisit that relationship again.

August 7 Update: As Rani Molla points out in a follow-up for the Journal, “the percentage of government jobs out of all nonfarm jobs has actually dropped significantly from its peak in 1975 of 20%.”

U.S. Bureaucrats Watch TV and Porn at Taxpayer Expense

Image: Jeremy Keith
Image: Jeremy Keith

An employee of the Federal Communications Commission watched a day’s worth of porn every week “out of boredom,” reports Bonnie Kristian for the Week. Meanwhile, “paralegals at the U.S. Patent and Trademark office were paid salaries as high as $80,000 per year, with $3,500 annual bonuses, while spending their days watching TV and doing the dishes at home, with the full knowledge of their supervisors,” Kristian reports. See the reports by the Washington Times and the Washington Post for details. Meanwhile, Watchdog Wire dings Colorado Senators Mark Udall and Michael Bennet for requesting new field offices for the patent office, a move that apparently would allow even more bureaucrats can screw off at taxpayers’ expense. (Hat tip to Complete Colorado.) So long as the FCC exists, it’s probably better that their bureaucrats are wasting time rather than harassing Americans. Offhand I can think of no legitimate reason for the FCC to exist. But doesn’t the patent office have important work to do, protecting people’s intellectual property?

Udall Calls for Resignation of CIA Director Brennan

Wikimedia Commons
Wikimedia Commons

Today Colorado Senator Mark Udall “demanded the resignation of CIA Director John Brennan in response to a new watchdog report that concluded that CIA officers improperly accessed computer files and records used by the Senate Intelligence Committee,” the Denver Post reports (hat tip to Complete Colorado). See also CNN’s report. This might be the only issue on which I’ve agreed with Udall lately, but it’s an important one. A federal agency spying on Congress? Outrageous. My main remaining question is why the agents in question are not now sitting in a prison cell, or at least awaiting their criminal trial.

Congress Sues Over “Lawlessness of this President”

“The House on Wednesday approved a highly contentious lawsuit against President Obama over his alleged abuse of executive power,” Fox reports. Colorado Congressman Doug Lamborn said, “”The people’s representatives will not turn a blind eye to the lawlessness of this president. We will do whatever it takes to hold him and future occupants of the Oval Office accountable.” It’s unclear to me whether the move is purely political, or if the suit might actually go somewhere legally.