Editorial: Groups should not be forced to reveal donors

The uberliberal 9th U.S. Circuit Court of Appeals, whose jurisdiction includes Nevada, recently struck another blow against free speech, saying the state of California may force non-profits to reveal their donors.

According to The Wall Street Journal, in 2016 a federal judge ruled that the Americans for Prosperity Foundation did not have to give its donor list to the California attorney general’s office. 

Judge Manuel Real agreed with the foundation’s lawyers that the state had no legitimate law-enforcement interest in obtaining the names. He also said that the attorney general’s failure to keep donor names confidential subjected donors to a risk of harassment and retaliation.

The 9th Circuit panel shrugged this off and found the attorney general had a “strong interest” in obtaining donor names in order to investigate potential fraud.

This is significant for Nevada because there is a law on the books here that says any group that engages in “express advocacy” in elections must register with the Secretary of State and report donors and expenditures. 

In 2013 a Carson City judge fined a Virginia-based group called Alliance for America’s Future (AAF) more than $100,000 for airing television commercials praising Brian Sandoval’s conservatism during the gubernatorial campaign of 2010. Though the group argued the law was unconstitutional under the First Amendment, the judge found in the penumbra of the Constitution a whole new right.

He wrote, “No amount of civil penalties can redress the injury to Nevada voters caused by refusal to timely provide them with the information to which they are entitled, thus there is no adequate remedy at law.” 

He ruled the voters are entitled to the names of donors who sponsored the message, which would have been a surprise to James Madison, John Jay, Alexander Hamilton and Thomas Paine, all of whom wrote anonymously. 

In 2014 AAF reached a settlement with Secretary of State Ross Miller before the case reached the state Supreme Court. The group paid a $40,000 fine, registered as a political action committee and filed contribution and expenditure reports. 

Even though the U.S. Supreme Court in Citizens United v. FEC let stand the requirement under McCain-Feingold that donors be revealed, Justice Clarence Thomas made a compelling argument that it is clearly an abridgment of free speech  rights to force people to surrender their right to anonymously express their views about elections, candidates and issues with donations to like-minded groups.

Thomas’ dissent concluded that such laws had spawned a cottage industry that uses forcibly disclosed donor information to intimidate, retaliate, threaten and boycott individuals and businesses with whom they disagree. 

Thomas wrote, “The disclosure, disclaimer, and reporting requirements in (the law) are also unconstitutional. … Congress may not abridge the ‘right to anonymous speech’ based on the ‘simple interest in providing voters with additional relevant information …’”

In the recent California case one of the groups siding with the foundation was the NAACP. In 1958 the U.S. Supreme Court ruled that the state of Alabama could not force the NAACP to reveal its donors, citing the potential for intimidation and violence against donors. 

But the 9th Circuit panel dismissed this concern. Though the panel admitted, “The Foundation’s evidence undeniably shows that some individuals publicly associated with the Foundation have been subjected to threats, harassment or economic reprisals,” it shrugged this off by concluding, “Such harassment, however, is not a foregone conclusion.” 

What if the threats had been to the judiciary?

Americans for Prosperity has said it will seek a rehearing before the full 9th Circuit, and appeal to the U.S. Supreme Court if that fails. By all means appeal, and we urge the Nevada attorney general to file a friend of the court brief in support.

A version of this editorial appeared this week in some of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel,  Sparks Tribune and the Lincoln County Record.

9th U.S. Circuit Court of Appeals in San Francisco (Getty Images via WSJ)

Newspaper column: Remember history, don’t erase it

Confederate memorials and statues all across the South are being torn down or moved out of sight. 

In dozens of states the Democratic fundraising dinners once called Jefferson-Jackson dinners have been renamed because Thomas Jefferson owned slaves and Andrew Jackson was an Indian fighter. 

There have even been demands that Washington’s face be removed from our coinage because he was a slaveholder. 

A gubernatorial candidate in Georgia has called for sandblasting the giant etching on Stone Mountain depicting Gens. Robert E. Lee and Stonewall Jackson and Confederate President Jefferson Davis. 

There have been petitions to rename Jeff Davis Peak in Nevada’s Great Basin National Park. 

Books by Mark Twain — including “Roughing It,” which is about his tenure in Nevada — are being pulled from libraries and classrooms because they contain an ethnic slur common, nay, ubiquitous in his day.

This past week a statue erected in 1894 was taken down in San Francisco because it depicted a vaquero and a priest standing over an American Indian sitting on the ground.

Now, a committee at the University of California Berkeley School of Law is calling for the name of a one-time Nevada miner, lawyer and judge to be excised in all its many iterations because he was opposed to Chinese immigration. 

Up until 2008, what is now referred to as Berkeley Law was called Boalt Hall, after John and Elizabeth Boalt. After John Boalt’s death his widow gave the money that eventually led to the construction in 1911 of “Boalt Memorial Hall of Law.”

John Boalt

According to the San Francisco Chronicle, there is now a Boalt Hall instructional wing, Boalt Hall Alumni Association, Boalt Hall Fund, Boalt Hall Student Association, Boalt Environmental Law Society and even the Boalt Hall Committee on Human Rights. The school’s Facebook page is called “UC Berkeley School of Law, Boalt Hall.” Alumni call themselves “Boalties.”

The deed that warrants the proposed erasure of the Boalt name is that in 1877 he wrote a 16-page pamphlet titled, “The Chinese question: A paper read before the Berkeley Club.”

According to a Berkeley Law article about the school name, Boalt argued in the paper for restricting Chinese immigration, saying two “non-assimilating races” could not live harmoniously together because the two races were too physically and intellectually dissimilar. 

“The two races are further separated by fundamental differences in language, in dress, in customs, in habits, and social peculiarities and prejudices,” Boalt declared. “In all these respects, the Chinese differ from us more than any known race.”

It was not an uncommon position. In 1879 the voters of California approved an initiative to prohibit Chinese immigration, and in 1882 Congress passed The Chinese Exclusion Act. 

John Boalt may well have come by his animus for the Chinese while living in Nevada. He and his wife moved to Nevada to seek their fortune in the Comstock Lode, which also attracted a number of Chinese laborers. 

In many areas the Chinese were prohibited from staking mining claims or working in the underground mines. They were segregated into what was dubbed Chinatown.

Boalt Hall, dedicated in 1912

Dan De Quille, a staffer at the Territorial Enterprise in Virginia City during the mining days, wrote in his book “Big Bonanza,” “The Chinese are a curious people and have curious notions on all subjects. They are like Europeans in nothing.”

Twain, a contemporary of De Quille in Virginia City, wrote in “Roughing It” of the Chinese, “They are a harmless race when white men either let them alone or treat them no worse than dogs; in fact they are almost entirely harmless anyhow, for they seldom think of resenting the vilest insults or the cruelest injuries. … Any white man can swear a Chinaman’s life away in the courts, but no Chinaman can testify against a white man. … As I write, news comes that in broad daylight in San Francisco, some boys have stoned an inoffensive Chinaman to death, and that although a large crowd witnessed the shameful deed, no one interfered.”

We wonder how those who wish to eradicate the names of people who behaved contrary to modern standards would have comported themselves had they been born in another era and lived in a culture with a different way of thinking.

We should learn from past mistakes, not blot it from memory. I was once advised that when writing about someone that I should include warts and all, but not all warts either. Shortcomings, by current standards, are a part of the whole story. 

It seems paradoxical that these censors are effectively shouting: “We will not tolerate intolerance.”

A version of this column appeared this week in many of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel and the Lincoln County Record — and the Elko Daily Free Press.

 

Bottom line: Is the allegation itself grounds for denying a seat on the court?

What if?

What if Judge Brett Kavanaugh were to sit down in front of the Senate Judiciary Committee on Monday and say he has searched his memory and now recalls groping a young woman at a party when he was 17 but she resisted and ran off? What if he were to apologize and say it was a rare indiscretion that he truly regrets?

Would that be grounds for disqualifying him from serving as a Supreme Court justice?

Never mind the shameful lateness of the allegation. Never mind the politics of the accuser or the accuracy or plausibility of her accusation.

Brett Kavanaugh

The question can be boiled down to: Should allegations of boorish behavior by a teenager forever doom the now mature adult with an impeccable reputation and outstanding character from any advancement in his career?

Townhall columnist Dennis Prager offers an apropos analogy:

Every one of us has a moral bank account. Our good deeds are deposits, and our bad deeds are withdrawals. We therefore assess a person the same way we assess our bank account. If our good actions outweigh our bad actions, we are morally in the black; if our bad actions greatly outweigh our good actions, we are morally in the red.

By all accounts — literally all — Brett Kavanaugh’s moral bank account is way in the black. He has led a life of decency, integrity, commitment to family and commitment to community few Americans can match. On these grounds alone, the charges against him as a teenager should be ignored.

How many presidents, members of Congress, businessmen can be so weighed and not found wanting?

“Let him who is without sin among you be the first to throw a stone at her.” — John 8:7

 

Two contrasting editorials about what is at stake in the November election

The Las Vegas Sun has an editorial that is nothing more than lengthy excerpts from a recent Obama speech under the headline: “Don’t sit on the sidelines for the most consequential election of your life.”

Obama is quoted as saying:

This November’s election is more important than any I can remember in my lifetime. And I know politicians say that all the time, but this time it really is different. This time the stakes are higher. …

Politicians try to keep us angry, keep us cynical, and they appeal to our tribal instincts and appeal to fear. They try to pit one group against another. And they tell us order and security will be restored if it weren’t for those people who don’t look like us or sound like us or pray like we do. …

On Nov. 6, we have a chance to restore some sanity to our politics. We can tip the balance of power back to the American people. Because you are the only check on bad policy, you’re the only real check on abuses of power. It’s you and your vote.

Hollow and pompous rhetoric without any specifics.

On the other hand, The Wall Street Journal has an editorial under the headline, “The Election Tax Divide,” that says precisely what is at stake in November.

Republicans are pushing a bill that would make the tax cuts for individuals and families permanent. Currently, obscure rules about deficit scoring force the expiration of individual tax cuts at the end of 2025.

Democrats want to repeal the tax cuts outright. They especially are foaming at the mouth about the $10,000 cap on the state and local tax deduction that means fewer IRS deductions for rich Democrats in high-tax states like California and New York.

Come Election Day, WSJ implores: “If nothing else, the House proposal makes clear that Republicans want to cut taxes while Democrats want to raise them. Voters who want to continue the economy’s robust growth should keep that in mind.”

 

 

Happy Constitution Day

Today marks the anniversary of one of the most propitious days in the history of this country. On this day in 1787, the representatives at the Constitutional Convention in Philadelphia signed the Constitution. It was ratified by the states and went into effect on March 4, 1789.

You remember the Constitution don’t you?

That’s the document that says the president “shall take Care that the Laws be faithfully executed …” Not waive, delay or ignore parts of laws the president doesn’t like, such as immigration laws, which the Constitution says: “The Congress shall have Power To … establish an uniform Rule of Naturalization …”

The Constitution also says, “All Bills for raising Revenue shall originate in the House of Representatives …”

But when it came to ObamaCare, which is replete with a panoply of revenue generating taxes to offset its expenses, the Senate grabbed an unrelated bill that had passed the House, cut the existing language and substituted the ObamaCare verbiage. The bill number was the only thing that originated in the House.

Yes, it’s those four-handwritten pages that give Congress the power “To regulate Commerce with foreign Nations, and among the several States …” Not to force people to engage in commerce by buying health insurance or pay a fine or a tax for not doing so.

That Commerce Clause also has been stretched to prohibit a farmer from growing grain to feed his own cattle because that affected demand for grain on the interstate market. The same rationale allows Congress to set minimum wages for jobs that have nothing to do with interstate commerce.

It also gave Congress the power to “declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water.” Some wars get declared, while others are just military exercises.

The instrument also says the “President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.” Not decide for himself when the Senate is in session. At least the judiciary slapped Obama’s wrist on that one.

During ratification the Founders added the Bill of Rights, including the First Amendment that says Congress “shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof …” That probably means Congress can’t order a religion to pay for contraceptions, abortifacients and sterilization against its beliefs.

We’re pretty sure the document did not envision a president’s administration creating by regulation laws the Congress refused to pass — think immigration enforcement and rules promulgated by the EPA, FEC, HHS, HUD or USDA without the consent of Congress.

Another clause gives Congress the power “to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States …” though the foregoing powers and powers vested by the Constitution part is largely ignored.

The Constitution also gave Congress the power “To exercise exclusive Legislation in all Cases whatsoever … to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings …” And just when did Congress purchase and the state Legislature consent to turning over 85 percent of Nevada’s land mass to the federal government?

As James Madison said, “I believe there are more instances of the abridgement of the freedom of the people by gradual and silent encroachments of those in power than by violent and sudden usurpations …”

Happy Constitution Day, while it lasts.

A version of this first appeared in 2014.

Editorial: Democrats pushing for socialized health care

In a speech in Illinois this past week former President Obama called “Medicare for all” a “good new idea.”

He said, “It’s harder for young people to save for a rainy day, let alone retirement. So Democrats aren’t just running on good old ideas like a higher minimum wage, they’re running on good new ideas like Medicare for all, giving workers seats on corporate boards, reversing the most egregious corporate tax cuts to make sure college students graduate debt-free.”

Sen. Bernie Sanders actually has such a bill pending that would nationalize and socialize the U.S. health care system and claims he has 16 Democratic senators supporting it. Sanders has argued that the United States spends almost three times as much on health care per capita as the British, who have a socialized system.

Nevada Democratic Sen. Catherine Cortez Masto said in August she supports an eventual move to a “Medicare-for-All” but that it is not immediately plausible.

“I applaud the concept, I understand what they’re trying to do at the end of the day, which is get us to the day where we have health care that everybody has and they can afford,” she said in an interview with the online news site The Nevada Independent. “And what it looks like, you can call it whatever you want, but we’ve got to take incremental steps along the way and bring everybody along.”

Nevada Republican Sen. Dean Heller meanwhile is said to be leaning toward supporting a move by Republican Sens. Lindsey Graham of South Carolina and Bill Cassidy of Louisiana, who would take money spent under the Affordable Care Act and give it to states in the form of block grants.

As for Medicare for all, a recent George Mason University’s Mercatus Center study found Sanders’ plan would add $32.6 trillion to federal spending in its first 10 years and costs would steadily rise from there. Doubling corporate and individual income taxes wouldn’t cover the costs.

The proposal also would amount to a roughly 40 percent cut across the board in payments to doctors and hospitals, a devastating blow to the economy. With rural hospitals already going out of business, image how many more would have to close and how many doctors would retire or change professions.

As if the costs were not enough, that aforementioned British socialized health system earlier this year was forced to cancel 50,000 non-emergency surgeries due to hospital overcrowding. Emergency room waits were said to be as long as 12 hours.

You don’t have to pay as much for something you don’t get.

A version of this editorial appeared this week in some of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel,  Sparks Tribune and the Lincoln County Record.

Obama calls for Medicare for all. (Getty Images pix)

 

Newspaper column: Parents need to weigh ‘social’ promotion options

Up until the third grade, students are learning to read. After that, they should be reading to learn.

That is why in 2015 Nevada lawmakers passed a bill dubbed Read by 3, requiring schools to have students who have not achieved a certain level of literacy to be retained in the third grade. It was modeled after a law passed in Florida in 2002 that quickly increased reading proficiency by catching deficiencies early and providing extra tutoring — greatly reducing third grade illiteracy in less than a decade.

Back in 2011 former Florida Gov. Jeb Bush wrote an op-ed for The Wall Street Journal explaining the purpose of the law and what it had accomplished already, “While preparing kids for college and careers starts on the first day of kindergarten, the first good indicator of their chances for success may come in fourth grade. That is when students transition from learning to read to reading to learn.”

Bush recounted, “Florida ended automatic, ‘social’ promotion for third-grade students who couldn’t read. Again, the opposition to this hard-edged policy was fierce. Holding back illiterate students seemed to generate a far greater outcry than did the disturbing reality that more than 25% of students couldn’t read by the time they entered fourth grade. But today? According to Florida state reading tests, illiteracy in the third grade is down to 16%.”

In order to give students, parents and teachers a chance to prepare, Nevada’s law does not go into effect until July 1, 2019.

If the law had been in effect a year ago, according to newspaper accounts, 55 percent of third graders statewide could have been eligible for retention, while this year the percentage is said to be 29 percent, though about half could qualify for what are called “good-cause” exemptions.

In 2017 Democratic lawmakers were unsuccessful in an attempt to repeal the law. At the time, Gov. Brain Sandoval, an ardent backer of the original bill, put out a statement saying, “The Read by Grade 3 initiative placed nearly $30 million directly in classrooms in more than 300 schools across Nevada with a clear line of accountability and singular focus on developmental reading. The Governor will not compromise on the goal of ensuring every student in Nevada is reading at grade level by third grade.”

Nevada’s State Board of Education may have just watered down the law with its recent policy determinations. The law requires the board to select a standard reading examination and set a cut-off score for promotion to the fourth grade.

According to a board press release, the test to be used under the law beginning in the 2020-2021 academic year will be the Smarter Balanced English Language Arts examination. The test ranks students in four different levels of reading achievement  — exceeds standards, meets standards, approaching standards or emerging/developing standards. Only those in the lowest level would be identified for possible retention in the third grade.

But, as allowed by law, the board adopted an alternative test for those who fail the Smarter Balanced one. That is the Northwest Evaluation Association reading test and the cut-off score on that test will be a rather law 30th percentile.

But then the board created, as the law allows, a number of other “good-cause” exemptions for those with disabilities, English learners, ones who demonstrate reading proficiency through a portfolio of school work and those who were retained in earlier grades.

“While initial data indicates a significant number of students may be retained in third grade, the good-cause exemptions ensure fairness in this process,” Steve Canavero, superintendent of public instruction, was quoted as saying in the press release. “I can’t emphasize enough, the goal of Read by Grade 3 is not to punish anyone, rather the goal of this program is to enhance a student’s ability to read successfully — thus ensuring success throughout his/her entire academic experience.”

But the law itself does require considerable input from pupils’ parents or legal guardians. Hopefully they will make sound judgments as to whether a good-cause exemption is better than retention. Social promotion often does not work out for the best.

A version of this column appeared this week in many of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel and the Lincoln County Record — and the Elko Daily Free Press.

Nevada Department of Education pix