Sovereign impunity.

• Author: Twight, Charlotte
• Position: Essay

Today all branches of America's national government--legislative, executive, and judicial--act with near impunity. Constitutional limits on the government's power have been eroded, institutional checks and balances rendered largely nugatory. Yet many who value liberty profess optimism. Surely the next Congress, the next president, the next executive agency heads, or the next Supreme Court justices will resurrect firm limits on government power. In private, however, people increasingly acknowledge that the Constitution has been largely nullified as an effective limit on government power. In this article, I sketch the politico-economic landscape of ascendant national government power, examining actions by Congress, the president, and the Supreme Court that exemplify today's prevailing sovereign impunity. I conclude by assessing certain dynamics of public choice that brought us to this point.

Congress

Most members of Congress now reflexively claim the power to federalize at will almost any aspect of American life, the Constitution notwithstanding. Congress's actions regarding the laws described in this section--the Bipartisan Campaign Reform Act, the reauthorization of the USA PATRIOT Act, the alternative minimum tax, and REAL ID legislation--provide a window into the unchecked congressional power now undermining America's institutional structure and constitutional foundation. These four cases illustrate not only Congress's willful violation of the Constitution, but also its abiding quest to expand the central government's power at the expense of individual liberty.

The Bipartisan Campaign Reform Act: Regulating Political Issue Advertising

An exceptionally clear example of Congress's deliberate abrogation of the Constitution is its passage of the McCain-Feingold bill in the form of the Bipartisan Campaign Reform Act of 2002 (BCRA, Public Law 107-155, 116 Stat. 81). Although the statute's stated purpose was to amend the 1971 Federal Election Campaign Act (FECA, Public Law 92-225, 86 Stat. 3) to create additional protection against corruption in federal election campaigns, certain BCRA provisions clearly target core political speech. (1) The question is whether the BCRA's expanded regulation of federal election campaigns abridges Americans' freedom of speech and other First Amendment rights by controlling soft-money contributions and previously unregulated expenditures for political issue advertising. (2)

The BCRA's regulation of issue advertising raises these First Amendment questions starkly. Issue ads--created by nonprofit groups such as the American Civil Liberties Union (ACLU) and the National Rifle Association (NRA), as well as by for-profit corporations--do not specifically advocate the election or defeat of a named candidate, but instead focus on a particular political issue. Until the BCRA was enacted, issue ads were not regulated by the Federal Election Commission (FEC) because they did not involve "express advocacy" regarding named candidates. Nonprofit and for-profit corporations therefore could spend their general treasury funds to reach the public with issue ads during the months leading up to a federal election.

The BCRA changed these rules dramatically. Under the rubric of "electioneering communications," BCRA section 203 sweeps issue advertising by corporations (including nonprofits), labor unions, and national banks into the FEC regulatory regime. Behind a fog of statutory definitions, the BCRA makes it a federal crime for corporations to use their general treasury funds to transmit issue ads and other electioneering communications via broadcast, cable, or satellite within sixty days before a general election or thirty days before a primary election if they "refer to a clearly identified candidate for federal office" and are "targeted to the relevant electorate" (BCRA 2002, [section] 201; 2 USC [section] 434[f][3]), except for certain activities specifically allowed.

One statutory escape route allows business firms and nonprofit organizations to avoid the BCRA prohibition if their issue ads do not "refer to a clearly identified candidate" and thus are not "electioneering communications" at all. This is risky, however. The statutory definition of electioneering communication gives the FEC the power to decide whether or not a communication "refers to" a clearly identified candidate, even if the candidate's name or image does not appear in the ad. This provision creates grave uncertainties for those running issue ads, given the criminal penalties involved if the FEC disagrees with the organization's decision. As the NRA pointed out, "An NRA ad, run in New York, that presents a purely intellectual treatment of the Second Amendment without any specific reference to a candidate, in an election where gun control is an issue, could easily be construed as 'referring' to a candidate" (Norell 2003, 6). Alternatively, such organizations can finance issue ads with "separate segregated funds" set aside for political purposes. However, a corporation that chooses this approach, in addition to beating the costs of establishing such accounts and soliciting contributions, must comply with detailed FEC reporting and record-keeping requirements, including mandatory disclosure of donors' identities.

The BCRA language means that no corporation, not even a nonprofit, can safely--and without costly additional regulatory overhead--use its general treasury funds to broadcast issue ads over the radio and television media through which most voters obtain information in the two months preceding a general federal election. The penalties are severe: any person who "knowingly and willfully" violates any provision of the BCRA regulatory regime is subject to both criminal and civil penalties. For example, a violation involving the "making, receiving, or reporting of any contribution, donation, or expenditure" that has an aggregate value of $25,000 or more during a calendar year "shall be fined ... or imprisoned for not more than 5 years, or both." If the aggregate amount is as little as $2,000 (but less than $25,000), the person may be imprisoned for up to a full year (BCRA 2002, [section] 312; 2 USC [section] 437g[d]).

Legislators well understood that the BCRA would silence core political speech, in violation of the First Amendment, at a critical time during federal election cycles. Congress included statutory language explicitly recognizing that its definition of the term electioneering communication was likely to be found unconstitutional. The provision stated that if BCRA's definition of electioneering communication "is held to be constitutionally insufficient by final judicial decision to support the regulation provided herein, then the term means" something else, and there followed an alternative definition (BCRA 2002, [section] 201[a]; 2 USC [section] 434[f][3][A][ii], emphasis added).

The BCRA contains a great deal more, but the issue ad provisions suffice to demonstrate Congress's deliberate violation of Americans' First Amendment rights through this legislation. President George W. Bush's decision to sign this bill and the Supreme Court's rulings regarding its constitutionality are discussed in subsequent sections.

Reauthorization of the USA PATRIOT Act

Another challenge to the Constitution emerged shortly after the September 11, 2001, terrorist attacks, when Congress passed the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (Public Law 107-56, 115 Stat. 272). The statute's name, crafted so that its acronym would spell out USA PATRIOT, made it difficult for legislators or the public to oppose it. Most legislators had not even read it before the vote and thus endorsed without scrutiny PATRIOT Act provisions that empowered the government to take actions directly threatening rights secured by the First and Fourth Amendments.

Critics have severely criticized this statute. In the most thorough study to date, Stephen J. Schulhofer, while praising parts of the act as necessary and valuable in preventing terrorism, shows that major government powers created by the act are unwisely crafted (2005, 65, 67, 60-72). He states, "[T]he Patriot Act is pervaded with provisions that respond to legitimate needs by granting powers much broader than necessary" and "is full of provisions that needlessly restrict or eliminate executive branch accountability for its actions" (114, 116). Among the provisions that Schulhofer singles out for criticism are those increasing the government's power to carry out secret searches (delayed-notification or "sneak-and-peek" searches) in domestic law enforcement and secret searches of which the targets are never notified in foreign-intelligence investigations (120). Schulhofer also criticizes the government's expanded and ill-supervised power to demand production of documents through national-security letters (NSLs) and its section 215 powers that reach "library and bookstore records as well as the membership lists of religious organizations and political advocacy groups," while "eliminat[ing] virtually all independent oversight" (124).

Instead of reviewing these much-criticized measures, however, I focus here on a little-known provision added when the PATRIOT Act was modified early in 2006 by the USA PATRIOT Improvement and Reauthorization Act (Public Law 109-177, 120 Stat. 192, hereafter referred to as the "Reauthorization Act"). (3) Under the umbrella of the PATRIOT Act, this new provision extends federal wiretapping authority to situations not involving any national-security issue, clearly illustrating Congress's use of terrorism as a pretext for unrelated expansions of government power (Higgs 1987, 2007).

Consistent with its public face, the Reauthorization Act contains certain measures to enhance congressional oversight of Federal Bureau of Investigation (FBI) and Department of Justice (DOJ) antiterrorism...