Newspaper column: The fight for free speech never ends

Ten years ago this month the U.S. Supreme Court reaffirmed the free speech portion of the First Amendment, declaring in the case of Citizens United v. Federal Election Commission that a federal law prohibiting people from spending their own money to make their political opinions known could not pass constitutional muster. The decision has been under constant attack by Democrats ever since.

The 5-4 ruling overturned a portion of the McCain-Feingold campaign finance law under which the FEC barred the airing of a movie produced by Citizens United that was critical of Hillary Clinton during the 2008 Democratic primary.

The late Justice Antonin Scalia succinctly wrote: “The (First) Amendment is written in terms of ‘speech,’ not speakers. Its text offers no foothold for excluding any category of speaker, from single individuals to partnerships of individuals, to unincorporated associations of individuals, to incorporated associations of individuals — and the dissent offers no evidence about the original meaning of the text to support any such exclusion. We are therefore simply left with the question whether the speech at issue in this case is ‘speech’ covered by the First Amendment. No one says otherwise.”

But Democrats have wheeled out a proposal to amend the Bill of Rights to exclude certain speech because it is paid for by people with money. It is wrongly called the Democracy for All Amendment.

Every Democratic member of the U.S. Senate — including Nevada Democratic Sens. Catherine Cortez Masto and Jacky Rosen — has signed on as sponsors. The amendment would allow Congress and the states to “distinguish between natural persons and corporations or other artificial entities created by law, including by prohibiting such entities from spending money to influence elections.”

Sen. Cortez Masto put out a press release this past summer saying the amendment is intended to get big money out of politics. “Citizens United opened the floodgates for big money in politics by wrongly allowing corporations and special interests to buy undue influence in American elections,” Nevada’s senior senator wrote. “It’s time the effects of this disastrous ruling were reversed. A constitutional amendment putting the democratic process back in the hands of voters will help ensure that our government represents the will of Americans, not just the wealthy few.”

Pay no attention to the fact spending alone does not necessarily determine the outcome of an election. President Trump was outspent two-to-one by the aforementioned Hillary Clinton.

Sen. Rosen over the weekend sent out an email noting the anniversary of Citizens United and saying, “It’s pretty simple: we’ve got to get big money out of politics. That’s why I’m supporting a constitutional amendment that would overturn Citizens United once and for all. … Our elections should be decided by the voters — but because of Citizens United, billionaires and corporate interests can spend as much money as they want to elect politicians to do their bidding.”

Oddly enough, the amendment concludes by stating, “Nothing in this article shall be construed to grant Congress or the States the power to abridge the freedom of the press.’’

Who do they think own the “press” in the United States? Billionaires and corporations, that’s who.

In fact, Justice Anthony Kennedy, who wrote the majority opinion in Citizens United, singled out the media exemption that was written into McCain-Feingold. Kennedy wrote, “The media exemption discloses further difficulties with the law now under consideration. There is no precedent supporting laws that attempt to distinguish between corporations which are deemed to be exempt as media corporations and those which are not. ‘We have consistently rejected the proposition that the institutional press has any constitutional privilege beyond that of other speakers.’”

Justice Kennedy concluded, “The First Amendment confirms the freedom to think for ourselves.”

Earlier this past year the House Democrats got into the act by putting forward the 600-page H.R. 1, dubiously dubbed “For the People Act,” which, along with other things, would require increased disclosure of donors and online advertisers. It is co-sponsored by all three of Nevada’s Democratic representatives — Dina Titus, Susie Lee and Steven Horsford.

Citizens United actually left in place certain financial disclosure requirements under McCain-Feingold. In fact, this prompted Justice Clarence Thomas to write a dissent in which he observed that disclosure requirements have spawned a cottage industry that uses donor information to intimidate, retaliate, threaten and boycott individuals and businesses with whom they disagree.

The Founders frequently engaged in anonymous speech and protected it with the First Amendment. The Federalist Papers were penned under pseudonyms.

The fight for free speech never ends.

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.

Editorial: Courts are solidifying gun rights

The courts in recent years have been nailing down ever more solidly the right to keep and bear arms.

In the District of Columbia the U.S. Supreme Court struck down restrictive ordinances that required that guns be kept at home disassembled or nonfunctional with a trigger lock mechanism, saying this violated the Second Amendment.

Justice Antonin Scalia opined that the Second Amendment reference to a “militia” is a prefatory clause that does not limit the operative clause of the amendment, which guarantees “an individual right to possess and carry weapons in case of confrontation.”

In the case of McDonald v. Chicago the high court overruled a 7th U.S. Circuit Court of Appeals and held that the Fourteenth Amendment makes the Second Amendment right to keep and bear arms for the purpose of self-defense apply to the states. This overturned a Chicago ordinance banning the possession of handguns.

Justice Samuel Alito wrote that rights “fundamental to the Nation’s scheme of ordered liberty” or that are “deeply rooted in this Nation’s history and tradition” are appropriately applied to the states through the Fourteenth Amendment.

Now, a panel of the usually reliably liberal 9th U.S. Circuit Court of Appeals has ruled 2-1, in the case of Young v. Hawaii, that states may not prohibit open carry, though the ruling still lets states require permits for concealed carry.

“But, for better or for worse, the Second Amendment does protect a right to carry a firearm in public for self-defense,” writes Judge Diarmuid O’Scannlain. “We would thus flout the Constitution if we were to hold that, ‘in regulating the manner of bearing arms, the authority of [the State] has no other limit than its own discretion.’ … While many respectable scholars and activists might find virtue in a firearms-carry regime that restricts the right to a privileged few, ‘the enshrinement of constitutional rights necessarily takes certain policy choices off the table.’”

Nevada is one of 30 states that currently allow open carry, while 15 require permits, including neighboring Utah, for open carry and five states, including California of course, plus the District of Columbia prohibit open carry.

Judge Scannlain further pointed out that the right to self protection is one of those unalienable rights that existed prior to the Constitution and the Bill of Rights merely restrained Congress from infringing.

The ruling cited the English Declaration of 1689 as having enshrined “the right of having and using arms for self-preservation and defence.”

“In McDonald, the Court incorporated the Second Amendment against the States through the Fourteenth Amendment, invalidating a Chicago law that effectively banned handgun possession by residents of the city. …” the judge explained. “In determining whether the pre-existing right codified by the Second Amendment was ‘fundamental to our scheme of ordered liberty,’ the Court stressed the centrality of self-defense: ‘Self-defense is a basic right, recognized by many legal systems from ancient times to the present day …’”

Perhaps, such sound reasoning will deter Democratic legislators in 2019 from trying to restrict gun rights, as they have so often in the past.

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.

Democrats demanding deletion of ‘free speech’ clause from First Amendment

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You’ll get your free speech when Nevada Democratic lawmakers say you can — if ever.

On Tuesday an Assembly committee heard testimony on Senate Joint Resolution 4, which would urge Congress to amend the Constitution to strike the free speech portion of the First Amendment. SJR4, sponsored by Las Vegas Democratic state Sen. Nicole Cannizzaro, specifically would erase the Supreme Court ruling in Citizens United v. FEC, which held that it was unconstitutional to forbid the broadcast of a movie critical of then presidential candidate Hillary Clinton just because it was paid for by a corporation.

The summary of SJR4 reads: “Urges Congress to propose an amendment to the United States Constitution to allow the reasonable regulation of political contributions and expenditures by corporations, unions and individuals to protect the integrity of elections and the equal right of all Americans to effective representation.”

It may as well read: “Democracy is dead because the citizens of the United States are too stupid to hear vigorous debate and make rational decisions.”

The resolution argues that large political donations corrupts candidates and dilutes the power of individuals.

Pay no heed to the fact that in the 2016 presidential election, Donald Trump was outspent by Hillary Clinton by two-to-one — $600 million to $1.2 billion.

This proposal goes even further than most arguments against Citizens United — basically that corporations and unions are not people and have no free speech rights — and proposes to allow regulation and limitations on any and all political contributions and expenditures, including those by individuals, by also overturning the Supreme Court ruling in McCutcheon v. FEC.

Democrats think all money belongs to the state except what the state allows you to keep, and now they demand to take control of how you spend that.

Jeff Clements, president of American Promise, an organization pressing for such a constitutional amendment, testified to the Assembly committee by phone.

He said we need to get back our constitutional foundation that “really has gone back in a non-partisan and cross-partisan way for over a century. It is not say there is anything bad corporations and unions or the very, very wealthy … If we allow unlimited deployment of the financial resources from those and other sources, it overwhelms the rights we have as Americans and the duties we have to participate in our self-governing republic, as equal citizens with equal representation.”

He argued that politics is not a marketplace to be bought and sold.

Yes, it is a marketplace of ideas. But no matter how much someone spends trying to persuade us to buy, we don’t have to buy it.

As for it being a non-partisan issue as Clements claimed, the vote on SJR4 in the state Senate this past week was on a party-line vote of 12-9. All Democrats in favor. All Republicans opposed.

Let’s hear what the court had to say about free speech in McCutcheon:

The Government has a strong interest, no less critical to our democratic system, in combatting corruption and its appearance. We have, however, held that this interest must be limited to a specific kind of corruption — quid pro quo corruption — in order to ensure that the Government’s efforts do not have the effect of restricting the First Amendment right of citizens to choose who shall govern them. For the reasons set forth, we conclude that the aggregate limits on contributions do not further the only governmental interest this Court accepted as legitimate in Buckley. They instead intrude without justification on a citizen’s ability to exercise “the most fundamental First Amendment activities.”

In Citizens United, the late Justice Antonin Scalia wrote:

The (First) Amendment is written in terms of “speech,” not speakers. Its text offers no foothold for excluding any category of speaker, from single individuals to partnerships of individuals, to unincorporated associations of individuals, to incorporated associations of individuals — and the dissent offers no evidence about the original meaning of the text to support any such exclusion. We are therefore simply left with the question whether the speech at issue in this case is “speech” covered by the First Amendment. No one says otherwise. A documentary film critical of a potential Presidential candidate is core political speech, and its nature as such does not change simply because it was funded by a corporation. Nor does the character of that funding produce any reduction whatever in the “inherent worth of the speech” and “its capacity for informing the public,” … Indeed, to exclude or impede corporate speech is to muzzle the principal agents of the modern free economy. We should celebrate rather than condemn the addition of this speech to the public debate.

I’ll put that up against the Democrats’ bleating about money corrupting the political process.

Newspaper column: Reid hypocritical about Supreme Court nomination

Some people are ambidextrous. Harry Reid is ambioratory. He speaks out of both sides of his mouth.

This past week one of Sen. Reid’s staffers penned an op-ed column that ran under his name in The Washington Post on the topic of replacing the late, great, conservative Supreme Court Justice Antonin Scalia, who had died only days earlier.

The Democratic Senate minority leader took umbrage with something the Republican Senate majority leader, Mitch McConnell, said shortly after Scalia was found dead at a West Texas hunting resort. McConnell said the American people should have a voice in the replacement process, meaning no new justice should be confirmed until the next president is seated, rather than allow lame-duck Obama to nominate someone like his two liberal rubber stamps on the court — Elena Kagan and Sonia Sotomayor.

Reid countered that the American people voiced their opinions by twice electing Obama president and handing him the constitutional power to nominate Supreme Court justices.

“That is how our system works and has worked for more than 200 years,” the op-ed proclaims. “Until now, even through all the partisan battles of recent decades, the Senate’s constitutional duty to give a fair and timely hearing and a floor vote to the president’s Supreme Court nominees has remained inviolable. This Republican Senate would be the first in history to abdicate that vital duty.”

A couple of days later Republicans McConnell and Sen. Chuck Grassley, chairman of the Senate Judiciary Committee, took to the same pages of the same newspaper to remind the same senator who had lectured them days earlier of what he had said in 2005 on the floor of the U.S. Senate.

According to a transcript of that speech, Reid chided President George W. Bush for rewriting the Constitution and reinventing reality when he said two days earlier that the Senate had a duty to promptly consider each nominee, debate their qualifications and give them an up-or-down vote.

“Referring to the president’s words, duty to whom?” Reid asked rhetorically back then. “The radical right who see within their reach the destruction of America’s mainstream values. Certainly not duty to the tenets of our Constitution or to the American people who are waiting for progress and promise, not partisanship and petty debates.

“The duties of the Senate are set forth in the U.S. Constitution. Nowhere in that document does it say the Senate has a duty to give presidential appointees a vote. It says appointments shall be made with the advice and consent of the Senate. That is very different than saying every nominee receives a vote.”

Reid later lectured, “The Senate is not a rubber stamp for the executive branch. Rather, we are the one institution where the minority has the voice and ability to check the power of the majority.”

Fast forward to this past week’s op-ed in the Post. Reid concluded his thundering accusation against Republicans by saying, “Pursuing their radical strategy in a quixotic quest to deny the basic fact that the American people elected President Obama — twice — would rank among the most rash and reckless actions in the history of the Senate. And the consequences will reverberate for decades.”

We seem to recall that by 2005 Bush had been elected twice, but efforts to circumvent his high court appointees seem not to reverberate a single decade later.

It is just as we have come to expect from Harry Reid and his ilk — politics first, last and always. No argument is so compelling that it can’t be reversed, refuted or abandoned. Reid says Obama will nominate someone in two weeks.

If McConnell’s call to give the American people a voice in Scalia’s successor sounds familiar, perhaps it is because Reid’s Democratic Senate colleague Chuck Schumer said in 2007, two years before the end of Bush’s second term:

“For the rest of this president’s term and if there is another Republican elected with the same selection criteria let me say this: We should reverse the presumption of confirmation. The Supreme Court is dangerously out of balance. We cannot afford to see Justice Stevens replaced by another (John) Roberts; or Justice Ginsburg by another (Samuel) Alito. Given the track record of this President and the experience of obfuscation at the hearings, with respect to the Supreme Court, at least: I will recommend to my colleagues that we should not confirm a Supreme Court nominee except in extraordinary circumstances.”

Reid, Schumer, then-Sen. Obama, Hillary Clinton and Joe Biden all voted to filibuster Alito and Roberts.

All ambioratory and hypocritical.

A version of this column appears 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, the Lincoln County Record and the Sparks Tribune — and the Elko Daily Free Press.

How do you solve a problem like Scalia? … redux

Justice Antonin Scalia (Getty Images via WSJ)

The death of Justice Antonin Scalia has ignited a political firestorm over how and when and who should be appointed to replace this irreplaceable conservative legal scholar. There has also been a torrent of articles about the man’s legacy. The Wall Street Journal alone has a dozen pieces recounting his effluence on the law and his “greatest hits.”

The one thing he should most be remembered for, perhaps, is his ardent defense of the First Amendment.

In July 2002 I wrote a column for the Las Vegas newspaper under the headline: “How do you solve a problem like Scalia?” It has long since disappeared from the ether.

The headline was lifted from a lyric by a liberal/satirical Washington, D.C.-based singing and dancing group who called themselves the Capitol Steps. It, of course, is a parody of the “Sound of Music” song about Maria.

The ditty includes these lines:

How do you solve a problem like Scalia?
How do you fix the mess Scalia made?
How do you find a legal panacea?
If he doesn’t go, we’ll overturn Roe v. Wade

Oh, maybe now Bush owes Antonin a favor
Maybe our reputation isn’t sound
Remember when they’d report
The president picks the court
It’s gotten to be the other way around

My column’s solution to the problem was: cloning, because there aren’t enough like him on the court.

The specific topic was the court’s ruling and Scalia’s 5-4 majority opinion in the case of Republican Party of Minnesota v. White, which had been handed down a couple of weeks earlier.

It upheld the free speech rights of state judicial candidates. A number of states, including Nevada, had laws on the books that basically gagged elected judges from speaking out about matters they might someday have to rule on.

Nevada had fined two judges for answering a radio host’s question about their political party affiliation.

The American Bar Association had a conniption fit over the ruling, saying it would turn judicial elections into unseemly free-for-alls. Of course, the Bar didn’t and doesn’t think voters are smart enough to elect judges.

Scalia quoted an earlier dissent by Justice Thurgood Marshall: “[T]he greater power to dispense with elections altogether does not include the lesser power to conduct elections under conditions of state-imposed voter ignorance. If the State chooses to tap the energy and the legitimizing power of the democratic process, it must accord the participants in that process … the First Amendment rights that attach to their roles.”

Scalia went on to reason: “Moreover, the notion that the special context of electioneering justifies an abridgment of the right to speak out on disputed issues sets our First Amendment jurisprudence on its head. ‘[D]ebate on the qualifications of candidates’ is ‘at the core of our electoral process and of the First Amendment freedoms,’  not at the edges. … ‘The role that elected officials play in our society makes it all the more imperative that they be allowed freely to express themselves on matters of current public importance.’ … ‘It is simply not the function of government to select which issues are worth discussing or debating in the course of a political campaign.’  … We have never allowed the government to prohibit candidates from communicating relevant information to voters during an election.”

Of course, such matters are never truly settled and judges find ways to dance around those “edges.”

Just a couple of weeks ago the 9th U.S. Circuit Court of Appeals sitting en banc managed to uphold an Arizona law that limits judges’ right to free speech about judicial elections.

One of the judges supporting this free speech restriction was Nevada’s own Johnnie B. Rawlinson, who was appointed to the court by Bill Clinton at the urging of Sen. Harry Reid.

A story in today’s Review-Journal quotes a law professor as saying Reid had once touted Rawlinson as a potential candidate for the Supreme Court.

Not exactly someone who could fill Scalia’s shoes.

Court stops costly EPA rules, but Nevada has already taken the leap

The Supreme Court today stopped the EPA from imposing strict limits on power plant emissions, mostly from coal-fired plants, because it failed to take into account the cost would hugely exceed any potential benefits.

But Nevada’s lawmakers have already jumped off this cliff, deciding to shut down all the state’s coal-fired power plants no matter what the cost to ratepayers and the economy.

Writing for the 5-4 majority today, Justice Antonin Scalia found the EPA acted unreasonably when it deemed cost irrelevant to its regulations. He noted that the EPA claimed it had the power to act even if its rules caused more damage to the environment than they prevented.

“In accordance with Executive Order, the Agency issued a ‘Regulatory Impact Analysis’ alongside its regulation,” Scalia wrote. “This analysis estimated that the regulation would force power plants to bear costs of $9.6 billion per year. The Agency could not fully quantify the benefits of reducing power plants’ emissions of hazardous air pollutants; to the extent it could, it estimated that these benefits were worth $4 (million) to $6 million per year. The costs to power plants were thus between 1,600 and 2,400 times as great as the quantifiable benefits from reduced emissions of hazardous air pollutants.”

I wonder if that ratio could be applied to cost of SB123, which was passed by the 2013 Nevada Legislature? If I recall correctly, one of the arguments in support of SB123 was that the EPA would eventually shut down coal plants anyway.

Twenty-one states did not cave in, but successfully sued to stop the EPA rules. Hold onto your wallets, Nevadans, we are about to pay the price.

Reid Gardner power plant. (R-J file photo by Gary Thompson)

 

The rules are precisely what the court says they are on any given day due to any given whim

Cato’s Michael Cannon accused the Supreme Court of playing Calvinball in its decision upholding ObamaCare.

In the old Calvin and Hobbes cartoon strip the characters played Calvinball, a game in which the rules were constantly changing to suit a player’s advantage.

You might conclude the court was playing Calvinball in three cases in two days.

In King v. Burwell on Thursday, the court said the words “established by the state” also mean established by a federal agency, when it comes of doling out subsidies.

Also on Thursday in Texas Dept. of Housing and Community Affairs v. Inclusive Communities Project, Inc., the court ruled that discrimination can be proven by mere disparate outcomes rather than actual evidence.

In Obergefell v. Hodges, today the court ruled, in its customary 5-4 split, that there is a right to gay marriage in every state, no matter how the citizens of any given state may have voted.

In the ruling today, Justice Antonin Scalia wrote in dissent a sentiment probably held by many libertarians:

Those civil consequences — and the public approval that conferring the name of marriage evidences — can perhaps have adverse social effects, but no more adverse than the effects of many other controversial laws. So it is not of special importance to me what the law says about marriage. It is of overwhelming importance, however, who it is that rules me. Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court. The opinion in these cases is the furthest extension in fact — and the furthest extension one can even imagine — of the Court’s claimed power to create “liberties” that the Constitution and its Amendments neglect to mention. This practice of constitutional revision by an unelected committee of nine, always accompanied (as it is today) by extravagant praise of liberty, robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves.

Justice John Roberts, back from his sojourn in Humpty Dumpty land in the ObamaCare ruling, opined:

Petitioners make strong arguments rooted in social policy and considerations of fairness. They contend that same-sex couples should be allowed to affirm their love and commitment through marriage, just like opposite-sex couples. That position has undeniable appeal; over the past six years, voters and legislators in eleven States and the District of Columbia have revised their laws to allow marriage between two people of the same sex. But this Court is not a legislature. Whether same-sex marriage is a good idea should be of no concern to us. Under the Constitution, judges have power to say what the law is, not what it should be. The people who ratified the Constitution authorized courts to exercise “neither force nor will but merely judgment.” The Federalist No. 78 …

Justice Clarence Thomas in his dissent took apart the Due Process argument of the majority:

The Court’s decision today is at odds not only with the Constitution, but with the principles upon which our Nation was built. Since well before 1787, liberty has been understood as freedom from government action, not entitlement to government benefits. The Framers created our Constitution to preserve that understanding of liberty. Yet the majority invokes our Constitution in the name of a “liberty” that the Framers would not have recognized, to the detriment of the liberty they sought to protect. Along the way, it rejects the idea — captured in our Declaration of Independence — that human dignity is innate and suggests instead that it comes from the Government. This distortion of our Constitution not only ignores the text, it inverts the relationship between the individual and the state in our Republic. I cannot agree with it.

How many other rights will now be found in the penumbra of the Constitution now that we have a right to health insurance subsidies no matter what the law actually says, a right to claim discrimination based on statistics (lies, damned lies and statistics) and a right to the benefits of marriage no matter what the law or constitution of a state may say.

Justice Anthony Kennedy, who wrote today’s gay marriage ruling, also wrote the opinion striking down the federal Defense of Marriage Act of 1996, signed by Bill Clinton.

In the that earlier ruling, Kennedy wrote:

The State’s power in defining the marital relation is of central relevance in this case quite apart from principles of federalism. Here the State’s decision to give this class of persons the right to marry conferred upon them a dignity and status of immense import. When the State used its historic and essential authority to define the marital relation in this way, its role and its power in making the decision enhanced the recognition, dignity, and protection of the class in their own community. DOMA, because of its reach and extent, departs from this history and tradition of reliance on state law to define marriage.

That was then, this is now in the game of Calvinball.

Polygamy must be a right, too. It is in the Bible. If Kennedy can cite Cicero and Confucius, why not the Bible?

In fact, Roberts asked that very question: “If not having the opportunity to marry ‘serves to disrespect and subordinate’ gay and lesbian couples, why wouldn’t the same ‘imposition of this disability,’ … serve to disrespect and subordinate people who find fulfillment in polyamorous relationships?”

 

 

 

 

 

Wording and intent of ObamaCare law meant nothing … law is written on the wind

Remember how Jonathan Gruber, one of the architects of ObamaCare, explained why the law was written in such a way that states had to establish healthcare exchanges in order for citizens to get subsidies?

The Supreme Court ruled today that the clear wording and the intent of the law are meaningless.

“I think what’s important to remember politically about this is if you’re a state and you don’t set up an exchange that means your citizens don’t get their tax credits,” Gruber had said.

“But your citizens still pay the taxes that support this bill. So you’re essentially saying to your citizens, you’re going to pay all the taxes to help all the other states in the country. I hope that that’s a blatant enough political reality that states will get their act together and realize there are billions of dollars at stake here in setting up these exchanges and that they’ll do it, but you know once again the politics can get ugly around this,” he continued

Here are the opening paragraphs of Antonin Scalia’s dissent in King v. Burwell, which was joined by Clarence Thomas and Samuel Alito (cites deleted):

The Court holds that when the Patient Protection and Affordable Care Act says “Exchange established by the State” it means “Exchange established by the State or the Federal Government.” That is of course quite absurd, and the Court’s 21 pages of explanation make it no less so.

The Patient Protection and Affordable Care Act makes major reforms to the American health-insurance market. It provides, among other things, that every State “shall . . . establish an American Health Benefit Exchange” — a marketplace where people can shop for health-insurance plans. And it provides that if a State does not comply with this instruction, the Secretary of Health and Human Services must “establish and operate such Exchange within the State.”

A separate part of the Act — housed in §36B of the Internal Revenue Code — grants “premium tax credits” to subsidize certain purchases of health insurance made on Exchanges. The tax credit consists of “premium assistance amounts” for “coverage months.” An individual has a coverage month only when he is covered by an insurance plan “that was enrolled in through an Exchange established by the State under [§18031].”  And the law ties the size of the premium assistance amount to the premiums for health plans which cover the individual “and which were enrolled in through an Exchange established by the State under [§18031].”  The premium assistance amount further depends on the cost of certain other insurance plans “offered through the same Exchange.”

This case requires us to decide whether someone who buys insurance on an Exchange established by the Secretary gets tax credits. You would think the answer would be obvious — so obvious there would hardly be a need for the Supreme Court to hear a case about it. In order to receive any money under §36B, an individual must enroll in an insurance plan through an “Exchange established by the State.” The Secretary of Health and Human Services is not a State. So an Exchange established by the Secretary is not an Exchange established by the State — which means people who buy health insurance through such an Exchange get no money under §36B.

Words no longer have meaning if an Exchange that is not established by a State is “established by the State.” It is hard to come up with a clearer way to limit tax credits to state Exchanges than to use the words “established by the State.” And it is hard to come up with a reason to include the words “by the State” other than the purpose of limiting credits to state Exchanges. “[T]he plain, obvious, and rational meaning of a statute is always to be preferred to any curious, narrow, hidden sense that nothing but the exigency of a hard case and the ingenuity and study of an acute and powerful intellect would discover.”

Newspaper column: U.S. Supreme Court ruling is another push to appoint judges instead of electing them

No doubt about it, the recent U.S. Supreme Court ruling that allows Florida to bar judicial candidates from personally soliciting campaign funding is not just a blow to free speech, but is another volley in the ongoing campaign to have judges appointed by elite committees of lawyers and judges and not voted into office by ignorant citizens who don’t know a judicial canon from a howitzer.

The court ruled 5-4, with Chief Justice John Roberts joining the court’s liberal faction, against Lanell Williams-Yulee, a 2009 county court judge candidate in Tampa. The Florida’s Supreme Court reprimanded her for a mailer asking for donations.

Though the Florida Bar code does not allow candidates to solicit funds, they may set up committees to seek funding, and the candidate may send personal thank you notes to donors, which seems to obviate the whole concept of separating judicial candidates from the squalor of being beholding to donors. It is all a ruse.

Campaign flier.

The dissent in the case by Justice Antonin Scalia, joined by Justice Clarence Thomas, makes clear the court’s ulterior motives.

Scalia wrote that the Florida code “scope suggests that it has nothing to do with the appearances created by judges’ asking for money, and everything to do with hostility toward judicial campaigning. How else to explain the Florida Supreme Court’s decision to ban all personal appeals for campaign funds (even when the solicitee could never appear before the candidate), but to tolerate appeals for other kinds of funds (even when the solicitee will surely appear before the candidate)? It should come as no surprise that the ABA (American Bar Association),whose model rules the Florida Supreme Court followed when framing Canon 7C(1), opposes judicial elections — preferring instead a system in which (surprise!) a committee of lawyers proposes candidates from among whom the Governor must make his selection.”

Thirty-nine states elect judges, including Nevada. An effort in 2010 to have Nevada judges appointed failed by a 58-42 margin, despite a vigorous campaign on its behalf.

U.S. Supreme Court Justice Sandra Day O’Connor, former Nevada Supreme Court Justice Bill Maupin and former Arizona Supreme Court Justice Ruth McGregor appeared at a Las Vegas newspaper editorial board seeking support for the ballot measure. The newspaper editorially opposed it, and I wrote a column against the idea.

“I think Americans want and expect to have one safe place in government, and that’s the court,” Justice O’Connor testified before the assembled journalists, “where somebody with a legal dispute can go and have somebody deciding the issue, based on the law, who is fair, independent and qualified. And I think your best chance of getting that is with this kind of a system. And it doesn’t take away people’s right to vote, it postpones it for whatever time is set in the legislation, one or two years. And then the voter can receive the information about the judge, the performance record, and cast a more intelligent ballot. Do you want to keep the person on the bench? Yes or no.”

She was dismissive of my argument that it is harder to bribe a million voters than one governor, even though I personally knew a governor who went to prison for that.

The Wall Street Journal pointed out at the time, “States using this so-called merit selection method have had their judicial selections manipulated by lawyers and bar associations that nominate guild favorites. In most cases this has pushed courts to the activist left.”

Yes, there is a problem with voters not being well enough informed about judicial candidates, but that is partly the fault of the legal community, which sets itself up as some bastion of virtuous objectivity, prohibited from sullying its robes in the mud wrestle that is electioneering.

Scalia also noted that the Florida ruling “banning candidates from asking for money personally ‘favors some candidates over others — incumbent judges (who benefit from their current status) over non-judicial candidates, the well-to-do (who may not need to raise any money at all) over lower-income candidates, and the well-connected (who have an army of potential fundraisers) over outsiders.’ … This danger of legislated (or judicially imposed) favoritism is the very reason the First Amendment exists.”

The court majority danced around so many precedents in law — using speculative phrases like “possible temptation,” “might lead” and “even unknowingly” — that Scalia at one point exclaimed: “This is not strict scrutiny; it is sleight of hand.”

Let’s hope this ruling doesn’t give anyone in Nevada ideas.

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

Court ruling gagging judicial candidates really a ploy to stop electing judges

“I know no safe depositary of the ultimate powers of the society but the people themselves; and if we think them not enlightened enough to exercise their control with a wholesome discretion, the remedy is not to take it from them, but to inform their discretion by education. This is the true corrective of abuses of constitutional power.”

— Thomas Jefferson to William C. Jarvis, 1820

No doubt about it, the recent U.S. Supreme Court ruling that allows Florida to bar judicial candidates from personally soliciting campaign funding is not just a blow to free speech, but is another volley in the ongoing campaign to have judges appointed by elite committees of lawyers and judges and not voted into office by ignorant citizens who don’t know a judicial canon from a howitzer.

The court ruled 5-4, with Chief Justice John Roberts joining the court’s liberal faction, against Lanell Williams-Yulee, a 2009 county court judge candidate in Tampa. The Florida’s Supreme Court reprimanded her for a mailer asking for donations.

The offending flier

Though the Florida Bar code does not allow candidates to solicit funds, they may set up committees to seek funding, and the candidate may send personal thank you notes to donors, which seems to obviate the whole concept of separating judicial candidates from the squalor of being beholding to donors. It is all a ruse.

The dissent in the case by Justice Antonin Scalia, joined by Justice Clarence Thomas, makes clear the court’s ulterior motives.

Scalia wrote that the Florida code “scope suggests that it has nothing to do with the appearances created by judges’ asking for money, and everything to do with hostility toward judicial campaigning. How else to explain the Florida Supreme Court’s decision to ban all personal appeals for campaign funds (even when the solicitee could never appear before the candidate), but to tolerate appeals for other kinds of funds (even when the solicitee will surely appear before the candidate)? It should come as no surprise that the ABA (American Bar Association),whose model rules the Florida Supreme Court followed when framing Canon 7C(1), opposes judicial elections — preferring instead a system in which (surprise!) a committee of lawyers proposes candidates from among whom the Governor must make his selection.”

Thirty-nine states elect judges, including Nevada. An effort in 2010 to have Nevada judges appointed failed by a 58-42 margin, despite a vigorous campaign on its behalf.

U.S. Supreme Court Justice Sandra Day O’Connor, former Nevada Supreme Court Justice Bill Maupin and former Arizona Supreme Court Justice Ruth McGregor appeared at a Las Vegas newspaper editorial board seeking support for the ballot measure. The newspaper editorially opposed it, and I wrote a column against the idea.

“I think Americans want and expect to have one safe place in government, and that’s the court,” Justice O’Connor testified before the assembled journalists, “where somebody with a legal dispute can go and have somebody deciding the issue, based on the law, who is fair, independent and qualified. And I think your best chance of getting that is with this kind of a system. And it doesn’t take away people’s right to vote, it postpones it for whatever time is set in the legislation, one or two years. And then the voter can receive the information about the judge, the performance record, and cast a more intelligent ballot. Do you want to keep the person on the bench? Yes or no.”

She was dismissive of my argument that it is harder to bribe a million voters than one governor, even though I personally knew a governor who went to prison for that.

The Wall Street Journal pointed out at the time, “States using this so-called merit selection method have had their judicial selections manipulated by lawyers and bar associations that nominate guild favorites. In most cases this has pushed courts to the activist left.”

Yes, there is a problem with voters not being well enough informed about judicial candidates, but that is partly the fault of the legal community, which sets itself up as some bastion of virtuous objectivity, prohibited from sullying its robes in the mud wrestle that is electioneering.

The current ruling in Florida case runs counter to a Supreme Court ruling in the case of Republican Party of Minnesota v. White, in which the court said judicial canons limiting judges’ ability to address legal and political issues violates the First Amendment. Asking for money is also a free speech right.

If selection panels are needed to help a governor appoint and evaluation panels are needed to give voters information about whether or not to retain a judge, why not create them informally and present the information directly to the voters? I asked at the time.

Scalia also noted that the Florida ruling “banning candidates from asking for money personally ‘favors some candidates over others — incumbent judges (who benefit from their current status) over non-judicial candidates, the well-to-do (who may not need to raise any money at all) over lower-income candidates, and the well-connected (who have an army of potential fundraisers) over outsiders.’ … This danger of legislated (or judicially imposed) favoritism is the very reason the First Amendment exists.”

The court majority danced around so many precedents in law — using speculative phrases like “possible temptation,” “might lead” and “even unknowingly” — that Scalia at one point exclaimed: “This is not strict scrutiny; it is sleight of hand.”

This 2010 commercial supported appointing judges: