The Gandalf Test

The two dominant American political parties have one defining trait in common, and it’s the trait that makes them both undeserving to hold the power they seek to wield. Both parties fail the Gandalf test.

I derive the Gandalf test from one of my favorite conversations in the Lord of the Rings. Gandalf pays a visit to Frodo Baggins after concluding that Bilbo’s old ring is in fact the One Ring–the single most dangerous and powerful object in Middle-earth. Once the full enormity of the ring dawns on Frodo, he tries to thrust it upon Gandalf. Gandalf flatly refuses. “With that power I should have power too great and terrible.” He recognized that he cannot embrace so much power even though he would want to do good with it. “Yet the way of the Ring to my heart is by pity, pity for weakness and the desire of strength to do good. Do not tempt me!”

The Gandalf test is simple: a righteous cause and a genuine desire to save the world do not qualify anyone for the exercise of extensive unilateral power. The Republican and Democratic Parties both have recently failed this test, and not for the first time. On one side, President Trump has turned to emergency powers to barge through constitutional barriers, so convinced he is that his cause is just. On the other side, the Green New Deal proposes to remake the United States economy. We tend to too often squabble over the merits of these policies instead of stepping back to apply the Gandalf test. Even if the policies themselves are good ones, even urgent ones, we must ask whether any person or cadre should wield the extraordinary power to put them into action. The “desire of strength to do good” is not enough.

A clear message of Gandalf’s and the Lord of the Rings generally is that progress toward the good and worthy comes through the everyday courage and goodness of ordinary people, not a few great souls on gilded thrones. Elsewhere, Gandalf points out: “Saruman believes it is only great power that can hold evil in check, but that is not what I have found. It is the small everyday deeds of ordinary folk that keeps the darkness at bay.” And in the Return of the King: “It is not our part to master all the tides of the world, but to do what is in us for the succour of those years wherein we are set, uprooting the evil in the fields that we know, so that those who live after may have clean earth to till. What weather they shall have is not ours to rule.” What a wonderfully apt response to the Green New Deal’s attempt to rule with an iron fist today in order to literally rule the weather that others might have tomorrow. That kind of hubris is poison to a republic.

We need to subject our leaders to the Gandalf test. We need to know if they are the type to vainly “master all the tides of the world,” or whether they will lead in humility by quietly empowering the everyday deeds of everyday people. If they can’t pass the test, I couldn’t care less whether they’re proposing a wall, a tax hike, or a clean energy revolution.

Automated law enforcement and rational basis

Does law enforcement need a human touch? The Supreme Court of Iowa says no. The Court recently decided that automated traffic enforcement (ATE) does not violate the Iowa Constitution. The Court, however, did take some time to address an important topic in constitutional jurisprudence: the nature of rational basis review.

Rational basis is a test applied to a variety of constitutional challenges. In the ATE case, the plaintiffs had brought due process and equal protection claims, both of which relied on the rational basis test. Rational basis is the weakest test in the hierarchy of judicial scrutiny. If a law is rationally related to a legitimate government interest, then a court won’t strike it down. As you might expect, plaintiffs very rarely succeed on this flimsy rational basis standard.

And so it was here. The Plaintiffs had argued that the ATE system in Cedar Rapids was not rationally related to an interest in public safety because, among many other things, the system punished a vehicle’s owner for speeding even if the owner was not the driver at the time. The Court had misgivings, but it ultimately deferred to the City and let the law slide.

The Court did, however, give a little boost to rational basis. The Court correctly noted that many state constitutions offer a stronger rational basis test than the federal test. That’s an important reminder to constitutional litigators–sometimes state constitutions may have analogous provisions to the federal constitution, but the protections they offer might be more robust.

The Court also made an important point about evidence in a rational basis claim. In many rational basis cases, plaintiffs don’t even get a chance to present evidence as to whether a law is rationally related to a legitimate government interest. If the government just asserts–without evidence–that a law furthers a legitimate interest like public safety, then the game is over. But the Iowa Supreme Court correctly noted that while a law is entitled to a presumption of constitutionality under rational basis, plaintiffs have a right to present evidence to rebut that presumption. Hence, “the mere incantation of the abracadabra of public safety does not end the analysis.” This evidentiary point is vital for strengthening the constitution’s protections against expansive government power.

Bad guys and bad thinking

AOC made waves with her recent “lightning round” during a hearing on a new campaign finance behemoth lumbering through the House, HR 1. Her basic point was that under our current campaign finance regime, it’s “super legal” to be a “pretty bad guy.”

I wrote recently that much campaign finance rhetoric resembles a religious canon. If so, then AOC is vying for the position of high priestess. I can’t review all the many flaws in her five-minute fable, but I’ll briefly canvas her commitment to orthodoxy.

First, she asks the hearing panel whether there is anything stopping a “bad guy” from being entirely funded by corporate PACs. The panel answered that no law prevents that. But surely common sense does. Running on a campaign solely funded by corporate PACs would be a titanically stupid campaign strategy. First off, thanks to disclosure laws and the realities of a media-rich society, all constituents would know that the candidate was running solely off corporate PACs. Why any candidate would intentionally sell themselves as a corporate lackey is beyond me.

Not only would this look bad, but it would also come at a huge financial cost. Congressional campaigns are mostly funded by individual contributions, not corporate PAC money, so basically a candidate would be refusing a huge amount of loot in order to broadcast themselves as the Peter Pettigrew of electoral candidates. I’m not convinced this is a looming threat to our democracy. Why should we regulate a non-existent problem?

Of course, she also trotted out important theological terms such as “dark money.” She seems to think campaigns are directly funded by dark money. Not so–any contribution over $200 faces extensive disclosure requirements. Dark money usually refers to independent political expenditures, which still face a variety of disclosure requirements and make up a surprisingly small amount of total political expenditures. Again, she is swiping at phantasms.

A larger issue is that even if her claims are true, HR 1 and most other campaign finance laws are hugely overbroad. The overwhelming majority of political spending occurs with no eye toward extracting favors from a candidate. Yet HR 1 would impose huge burdens on all groups speaking in the political arena. The better route to catch “bad guys” is to enforce criminal laws that prohibit bribery. Will you catch every instance of quid pro quo corruption? Almost certainly not. But since when was this a controversial price to pay for a free society? We’ve long ago decided that it’s best to have less than perfect enforcement in order to preserve individual liberty.

The collateral damage that HR 1 would impose on legitimate, non-corrupt speech is tremendous. I’m not confident AOC is fretting over the real “bad guy.”

Time to emerge from the campaign finance mythology

Campaign finance laws long ago ascended to the Mount Olympus of political mythos. The mantra that we must exorcize money from politics has become an article of faith. But the basic premises undergirding this creed rest on a sandy foundation made up of unsound logic and unsupported claims. Not to mention a total disregard for First Amendment rights. The Supreme Court, however, will soon have a chance to reconsider campaign finance laws’ often dubious rationales and uncomfortable relationship with the First Amendment.

Campaign finance laws kicked off in the late nineteenth and early twentieth centuries with some early laws that banned corporation contributions, but they mostly gathered dust. Then, ironically, Republicans in 1947 used campaign finance laws to try and stifle union contributions, which led unions to create the much-hated PAC to dodge the restrictions. Then first serious attempt at comprehensive campaign finance regulation swept through in 1971 with the Federal Election Campaign Act. FECA laid down strict contribution and expenditures limits. Six years later, FECA led to the Supreme Court’s major canonical work in campaign finance lore, Buckley v. Valeo.

Buckley was a mixed bag. On the one hand, it struck down limits on independent expenditures by people who spend their own money on political communication during a campaign. On the other, it upheld limits on direct campaign contributions. Hence, both sides of the campaign-finance divide gripe about Buckley—First Amendment advocates want campaign contributions to be just as uninhibited as independent expenditures, and campaign-finance believers think government should be able to curtail independent expenditures to the same degree as campaign contributions.

As a speech advocate, I fall into the camp that feels Buckley did not do enough to protect First Amendment interests. Buckley relied on flawed notions about the nature of campaign contributions and the alleged need for limiting them. For example, the Buckley Court claimed that contributions don’t deserve as much First Amendment protection as expenditures because the speech facilitated by the contribution is someone beside the contributor. The trouble is that the same is true of expenditures—typically a political spender’s message is conveyed through a go-between, like an ad agency or a TV station. Courts have never held that reliance on someone else to convey your message robs you of the right to promote that message. Except for Buckley.

Another rationale for distinguishing contributions and expenditures is the “general” nature of a contribution. An expenditure allows the speaker to tailor his precise message. I.e.: I support Daenaerys Targaryen because she fries Lannisters with dragon fire. But if you just give a contribution to the Targaryen campaign, then no one knows why you support her. Anti-slavery? Dragons? Small Hands? You could be contributing for any reason, and the lack of specificity translates to a weaker First Amendment right. This is another lame excuse. After all, does the guy holding a “Warren 2020” deserve less First Amendment protection than someone holding a “Harris for better healthcare” sign? No case has ever said so or will ever say so. Except for Buckley.

The third rationale for contribution limits is that the quantity of the contribution does not strengthen or weaken the speech being regulated. That is, Buckley says if you give $5 or $500 to the Palpatine campaign, your message is the same. But surely the number is a clear metric for degree or intensity of support. If you gave $1 to Albus Dumbledore and $100 to Lord Voldemort, that says something about your viewpoint. If a cap is placed on contributions, the government is essentially saying that you can only support your candidate up to X amount—that’s more than a minor burden on someone’s right to political expression and participation. Plus, the contribution is not just about the symbolic act of giving—it’s also about the speech facilitated by that contribution, which is obviously affected by the quantity of the donation.

Buckley allowed contribution limits for the sake of combating corruption or the appearance of corruption. Here, too, Buckley falters. Study after study has failed to demonstrate that campaign contributions purchase special favors on anything approaching a widespread basis. Yet contribution limits take a widespread approach. Certainly, anecdotal evidence of quid pro quo exchange of contributions for favors exists. But that can hardly support a widespread cap where the overwhelming majority of contributions are motivated by ideological commitment, not a desire to obtain special political favors post-election.

Bereft of actual evidence, campaign finance zealots resort to bumper sticker slogans like “money buys elections.” Certainly, candidates who receive a lot of money tend to also receive a lot of votes. But this is just correlation. People will tend to donate to strong candidates, and people will also tend to vote for strong candidates. The likely variable here is a candidate’s popularity, not campaign contributions.

And what in the world is the “appearance” of corruption? No other First Amendment right that I know of lives or dies by the grace of the subjective feelings of the public. Rights are supposed to exist despite any prevailing hostility from the public. Yet that’s the Buckley standard. Indeed, courts have looked to public opinion polls and other tenuous evidence to uphold severe contribution limits in cities and states across the country.

While contribution limits likely don’t do any good, they do plenty of harm. Even beyond the injury done to the First Amendment interests of contributors, campaign finance laws tend to only help one group of people: incumbents. Campaign finance laws erect such arcane labyrinths that only the savvy, experienced politicians who can afford pinstriped election-law attorneys and have lots of name recognition will come out ahead. Contribution limits also do huge favors for wealthy, self-funded candidates.

Often, what political amateurs with no name recognition need is a concentrated boost of support from a small group of supporters to kickstart a competitive campaign. Contribution limits make this nigh impossible. But instead of loosening campaign finance laws that fortify incumbency, politicians peddle terrible ideas like term limits. If they truly wanted competitive politics (which they don’t), then they’d liberalize campaign finance.

Since we can hardly rely on the incumbents to break down incumbency protections, the time has come for the Supreme Court to return to Buckley. The Court will have the chance to do just that with a petition from a case called Illinois Liberty PAC v. Madigan. We could do for some fresh air in politics—the way to do that is to strip away an orthodoxy that only serves to protect the powerful.

Spaghetti Monsters and Free Exercise

Should Flying Spaghetti Monster worshipers be allowed to wear colanders on their heads in drivers’ license photos? Maybe so. Today, four conservative justices hinted that someone might want to bring them a good Free Exercise case soon so they can unseat a long-standing and long-criticized case called Employment Division v. Smith. That case, penned by Justice Scalia, had in turn uprooted several decades-worth of precedent that had built up a robust bulwark of religious rights under the First Amendment’s Free Exercise Clause.

It’s a funny twist. Liberal justices like Justice William Brennan had built up strong protections under the Free Exercise Clause, such as allowing Amish to pull their children from high school early because of their faith, or allowing Saturday Sabbath worshipers to enjoy certain exceptions to work requirements for unemployment benefits. Then the penultimate conservative justice, Antonin Scalia, dealt a severe blow to those precedents in Smith. Scalia said that religious practices did not merit exemption from generally applicable laws.

Now, the conservative justices want to rethink Smith, while the liberal justices may hang back. Perhaps the shift in the culture wars has caused this parallel shift in jurisprudential alliances. In any case, I think we should welcome reconsideration of Smith.

Scalia’s opinion in Smith raised some legitimate concerns. He argued that if we allowed judges to have a heavy hand in deciding which religious practices deserved special exemptions from the law and which did not, then judges would inevitably engage in subjective judgment calls and descend into the very parochialism that the First Amendment is designed to thwart. He also worried that allowing exemptions from generally applicable law would court anarchy—we would have a legal code peppered with holes for a thousand individualized religious beliefs and practices. Both are legitimate concerns.

Smith did prompt a strong legislative response. Congress and quite a few states thereafter passed Religious Freedom Restoration Acts (RFRAs) that basically revived the pre-Smith law. But legislatures can and do exempt some laws from RFRAs, and many states do not have them.

My primary issue with Justice Scalia’s Smith opinion is that his worry about subjective judgment calls seems to prove too much. Judges are called upon to make these kinds of sensitive and controversial decisions all the time. We rely on things like tenure and salary protection to shelter their independence and impartiality as much as we can, but these kinds of difficult decisions arise in innumerable other contexts. I would prefer a robust and imperfectly enforced Free Exercise Clause to one that does almost nothing at all.

Likewise, the concern about courting anarchy may be overblown. Laws and religious practices usually do not clash in a fundamental way, and under the pre-Smith “compelling interest” test, legislators can still forbid child sacrifice while allowing Muslim police officers to keep their beards. Plus, freedom of speech and many other rights already require exceptions to the scope of otherwise legitimate laws—they just can’t be applied in certain circumstances. The Free Exercise Clause is not unique in that way.

If the Court does confront Smith, it may also have to deal with the Flying Spaghetti Monster problem. That is—the Court may have to address a question which it has mostly avoided: what is a “religion” under the First Amendment. Does the Church of the Flying Spaghetti Monster count? Should Pastafarians be allowed to wear colanders on their heads in drivers’ license photos while everyone else has to go bareheaded? What about the Church of Diego Maradona, a real church dedicated to the Argentine soccer legend? Clearly, asking a court to define a “religion” raises the same concerns of parochial judgment calls that drove the decision in Smith. But maybe the answer is to let them all in, with perhaps just a low-threshold sincerity requirement. Beyond the occasional colander-clad guy in the DMV line, we haven’t seen a huge number of people adopting faux beliefs just so they can get a religious exemption for smoking dope. But then, there is an International Church of Cannabis that would surely see a surge in conversions if Smith is overturned.

Where are our manners?

“Manners Makyth Man.” William of Wykeham said that back in a distant past when the letter “y” was at peak popularity. I thought of that quote today as I read about the shrill outrage over Karen Pence’s unremarkable job at a Christian school. There’s a great speech expounding on William of Wykeham’s quote, delivered about a century ago by Lord John Fletcher Moulton in London. He entitled his speech, “Law and Manners,” and its message could really use another go around.

Lord Moulton’s speech begins by dividing human action into three domains: the domain of positive law, the domain of absolute choice, and the domain of what he calls “manners.” This last domain is his essential topic, which he defines as “obedience to the unenforceable.”

Manners, by which he means something akin to duty or morality but encompassing more than both, are sandwiched between the worlds of positive law and absolute choice. This realm of manners is where we may act as we choose but we nonetheless face constraints that are outside the force of law. His basic premise is that the larger the middle domain, the healthier the society. He says, “The true test is the extent to which individuals composing the nation can be trusted to obey self-imposed law.” Encroachment from the realms of positive law and absolute choice pose a danger.

Lord Moulton does not suggest that the two outer domains are bad. They are vital. But if either expands too far into the middle, trouble awaits. If positive law expands too far, it stifles the freedom necessary for a flourishing society. On the other hand, if people feel completely unrestrained in their exercise of freedom, civil society begins to sag, and the danger that positive law will sweep in to pick up a perceived slack increases. As one religious leader put it, “We would not accept the yoke of Christ; so now we must tremble at the yoke of Caesar.”

Given these threats to the middle domain, Lord Moulton feared that “the worst tyranny will be found in democracies.” Minority interests will get chewed up by the voracious appetite of a positive law driven by a majority.  The representatives of the majority “think that the power and the will to legislate amount to a justification for that legislation. Such a principle would be death to liberty. No part of our life would be secure from interference from without. If I were asked to define tyranny, I would say it was yielding to the lust of governing.”

The maintenance of the middle domain depends on growth of a robust civil society sheltered from majority dominance. Religion, culture, tradition, diasporas—communities independent of the state must exist with some genuine autonomy for the middle domain to survive and thrive.

And this brings me back to Karen Pence working at a Christian school that (trigger outrage) requires students and teachers to abide by traditional Christian values. Whether or not those values are correct or not is not at all the point. Those eager to slap down a law at the first hint of a disagreement need to understand that tolerance for even genuinely illiberal viewpoints is essential to the success of liberal democracy. Organizations must have some power to define themselves apart from the prerogatives of the state to establish a framework for obedience to the unenforceable. As the Supreme Court put it, people must have space to organize communities separate from state interference that can serve as competing purveyors of norms. Such groups provide an essential “counterweight . . . to the State’s impulse to hegemony.” Thus, organizations that can establish their own norms apart form majority interference prevent the encroachment of positive law into the middle domain.

I worry that we are seeing simultaneous encroachment from both the realms of positive law and absolute choice. People outraged at Karen Pence’s new job feel convinced that the positive law should thrust its tentacles into group dynamics, thereby swallowing civil society into an all-pervading state orthodoxy. On the other hand, a sneering sense of moral relativity that frowns upon any attempt to speak up for solid norms encroaches from the other end—the perversion of tolerance that believes in no genuine moral structure outside what the law “makyth.” The letter “Y” may be a consonant and a vowel, but that doesn’t mean we can live without unenforced rules. Lord Moulton warned us about this. It’s time we mind our manners.

Libertarianism and the shutdown

Yesterday, Paul Krugman published a deceptive, sloppy, and self-contradictory opinion article in the New York Times entitled “Trump’s Big Libertarian Experiment.” The premise: the shutdown delivers what all libertarians want, and the shutdown (this is strongly implied) demonstrates just how silly libertarians are.

This is nonsense. First off, Trump is decidedly not a libertarian. Second, government shutdowns have occurred for decades–are all of these “libertarian” experiments? Finally, no libertarians that I’m aware of have ever favored mercurial spending freezes that sweep the rug out from under people who’ve come to rely on government programs. Principled reform is a bit different from abrupt financial lurches.

The disruption and harm caused by sudden spending jolts have no bearing on whether a libertarian society could work or not. Krugman points out that businesspeople are already enraged that the Small Business Administration has ceased issuing loans, an organization that many libertarians have claimed is unnecessary. Of course they’re angry–they expected something that suddenly has ceased. That has absolutely nothing to do with whether the SBA is necessary; it just demonstrates that people get ticked off when their expectations are suddenly dashed. The shutdown proves nothing about whether the private market could ultimately supply any benefits offered by the SBA.

He also says that work at the FDA has dwindled. Routine inspections have ceased. He has zero evidence that this has caused even an iota of harm to anyone, but the implication is clear: we’ll all be confined to the toilets soon as E. coli swamps the country. He marshals no evidence to confront whether state regulators can adequately fill this role, or whether tort law and market forces can suffice.

Libertarians envision a society in which many roles currently served by government can find contractual and common-law counterparts (or not, if it turns out no one wants the service). Libertarians certainly don’t believe in blasting holes in long-standing social structures without warning, without forethought, or without transition.

Ironically, to the extent we do confront Krugman’s silly claims, it appears that the shutdown’s impact has been minimal despite huge numbers of furloughed employees. The New York Times, aside from Krugman’s disposable rhetoric, also published a comparison of the number of furloughed employees (800,000 by their estimation) to private industries. The number of furloughed employees, for example, exceeds twice the number of people employed by Target. I don’t think this tells us what the New York Times thinks it tells us. These stats beg the question as to whether these positions are necessary at all. That said, any negative impact from the shutdown that actually does exist–aside from the furloughed workers losing money–should be attributed to social and economic disruption resulting from spending turbulence, not to the actual necessity of the government programs affected.