In light of the current IRS scandal, one would expect Republicans to avoid appearing to target nonprofit public-policy organizations for extra government scrutiny. Not Representative Metcalfe, who seems to be focusing on one liberal 501(c)(4) in particular, Pennsylvanians for Accountability. The group recently ran issue ads criticizing Republican governor Tom Corbett, and they apparently also ran ads during the 2012 election cycle.

Despite claims that he is not singling out Pennsylvanians for Accountability, Representative Metcalfe publicly worries that the group is too political. However, the facts tell a different story:

But it’s not entirely clear Pennsylvanians for Accountability is operating outside the law.

The state law concerning political advertisements by individuals or groups that are not registered as political action committees is clear. It reads that any person “who makes independent expenditures expressly advocating the election or defeat of a clearly identified candidate” must disclose financial information.

But Pennsylvanians for Accountability did not specifically use words such as “vote against” or “defeat” in their ads targeting House Republicans last year.  The same is true of their current ads attacking Corbett for giving corporate tax breaks while supposedly cutting education funding.

“Anything short of that and you can make a case that it is issue advocacy,” said Ron Ruman, spokesman for the state Department of State. Nonprofits registered with the department are allowed to spend on advertisements for issue advocacy without disclosing donors.

Metcalfe's hearing seems designed to send the message that certain issue-based groups, especially those who oppose decisions by Governor Corbett or his allies, will face retaliation, if not investigations or enforcement actions. 

It is sad to see Pennsylvania Republicans following the lead of their Republican colleagues in Texas in thumbing their nose at the First Amendment. They should be thankful that the First Amendment allows people and organizations to collaborate and express their opinions in ways that shield them from retaliation or harassment. Instead, they seem hellbent on maximizing the advantages of incumbency, by using government's enforcement apparatus to target their political opponents. I’m reminded of this scene from Blazing Saddles. I hope they will forgive me for not offering up a harrumph:

Let's dispose of the waiving issue first:  I agree with the agreeable Hans von Spakovsky that Lerner’s brief statement prior to invoking the Fifth won’t trigger a contempt charge. It was akin to a civil proceeding, a clear distinction from the criminal proceedings that rarely allow a witness to invoke the Fifth Amendment selectively. As with any issue, I am open to hearing other opinions on this waiving business, but as of now I am not persuaded. 

The whole point of the Fifth Amendment is predicated on the risk that criminal charges may be brought against you. For example, if a prosecutor has a witness who is pleading the Fifth, he can immunize that witness and compel him to testify. Anything he says on the stand cannot be used against him as long as he tells the truth. In the Lerner scenario, the House Committee on Oversight and Government Reform can simply have her testify either 1) while not under oath, or 2) after they have conferred immunity for her testimony while under oath. The latter has a powerful advantage over the former since anything she lies about opens her to a perjury prosecution, but as long as she tells the truth she will be in the clear. This has the added advantage of getting to the truth speedily, as opposed to learning the truth from a trial years from now. 

What I find curious is that the administration has not opted to take the one action that could allow the nation “to make sure that we understand all the facts.” If I am reading the case law correctly, this administration could simply compel Lerner to testify or face immediate termination. Since compelling testimony is analogous to a direct order, there is precedence for termination that doesn’t involve the typical procedures used to block the firing of civil-service employees (I recommend Daniel Foster’s excellent piece on the near impossibility of firing civil-service employees under normal circumstances).

As I explained during a speech earlier this year at the University of Arizona College of Law, when the government compels an employee or contractor to testify or otherwise make statements under the threat of job loss, nothing they say can be used against them in a prosecution. In fact, if they are prosecuted subsequent to the compelled statements, the prosecution bears the burden to show those statements were not used, or derivatively used, in any way whatsoever during a Kastigar hearing.

Compelling Lerner to answer specific questions concerning her official duties under the threat of job loss is well within the government’s power. This would accomplish two things at once: 1) free Lerner to testify so we can “make sure that we understand all the facts” and 2) simultaneously immunize her from prosecution for anything she says during that testimony. I have not read any persuasive legal argument from the administration as to why they have not already compelled Lerner’s testimony. The faster we get the truth about our nation’s most powerful government office violating the constitutional rights of citizens, the better. 

[I]n an unexpected twist during a hearing on the merits of a preliminary injunction, the lawyer for the U.S. government argued that accommodating the business owners' religious beliefs could violate the First Amendment as well.…

Alisa Klein, an attorney for the U.S. Department of Justice, said allowing a company to impose a religious framework on a diverse workforce would amount to fostering or enabling religious practice.

“At bottom, the concern is about establishing religion,” Klein said.

There are two good reasons why the DOJ attorney’s argument that vindicating the RFRA rights of the business owners would violate the Establishment Clause was an “unexpected twist.”

First, DOJ never made that argument in either of its Seventh Circuit briefs in the two cases.

Second, there is good reason that it didn’t, for the argument is inane. RFRA imposes against the federal government the general standards of Free Exercise jurisprudence that existed before the Court’s 1990 decision in Employment Division v. Smith. Thus, if a claimant has a meritorious RFRA claim, that means that he would have had a meritorious Free Exercise claim under the pre-Smith regime. Just as vindicating that Free Exercise claim wouldn’t have violated the Establishment Clause, so vindicating business owners’ RFRA rights wouldn’t violate the Establishment Clause.

In sum, whether or not the business owners have a valid RFRA claim should be determined by applying the terms of RFRA. There is no basis for invoking Establishment Clause concerns to read RFRA in a manner that is less protective of religious liberty.

The DOJ lawyer’s argument (as paraphrased by the article) that the business owners are seeking “to impose a religious framework on a diverse workforce” is also wrong. As I explain (in the first hyperlinked item), the business owners are seeking merely not to be dragooned by the federal government into violating their religious beliefs, and the federal government has ample alternative means of providing contraceptive/abortifacient coverage to their employees.

In Mapp v. Ohio (1961), the Supreme Court, by a vote of 5 to 3, overrules its own 1949 precedent that held that the Constitution does not require that evidence obtained in violation of the Constitution be excluded from criminal trials in state court. The Court instead applies to state criminal trials the exclusionary rule that it first imposed on federal criminal trials in 1914. In dissent, Justice Harlan (joined by Justices Frankfurter and Whittaker) concludes his analysis with this observation: “I regret that I find so unwise in principle and so inexpedient in policy a decision motivated by the high purpose of increasing respect for Constitutional rights. But in the last analysis I think this Court can increase respect for the Constitution only if it rigidly respects the limitations which the Constitution places upon it, and respects as well the principles inherent in its own processes. In the present case I think we exceed both, and that our voice becomes only a voice of power, not of reason.” 

In 2012, independent political spending by 501(c)(4)s and 501(c)(6)s made up about 1% of overall election spending in Texas, hardly a political juggernaut. But the Texas saga shows that the only people who like campaign finance restrictions more than liberals are incumbents, who want to limit potential donations or advertising support for challengers. . . .

Mr. Seliger's bill passed the Senate unanimously in April. But when Republicans realized what they'd voted for, two-thirds of the chamber voted to recall the bill from the House for a revote. That courtesy is routinely extended within the Texas legislature, but this time Mr. Geren refused. To force the bill directly to the Governor's desk, he moved the bill through the House unamended and it passed 94-51 with 51 Republicans opposed.

Governor Rick Perry has until the end of the week to veto the bill or it becomes law. A spokesman says he is "reviewing" the measure, and the staffer didn't seem happy that we were asking the question. This veto should an easy call for a Governor who claims to dislike the self-interested ways of President Obama's Washington.

As I wrote last week, Governor Perry has said that the McCain-Feingold campaign-finance law was an “unconstitutional . . . restriction of free speech,” so he should have no problem vetoing this bill -- unless his devotion to the Constitution was just a campaign gimmick.

As I outlined, Justice Scalia wrote the majority opinion (joined by Justices Thomas, Ginsburg, Sotomayor, and Kagan) in a ruling issued yesterday in City of Arlington v. FCC. Early in his opinion, Scalia refers to an entity named CTIA—The Wireless Association and appends this footnote:

This is not a typographical error. CTIA—The Wireless Association was the name of the petitioner. CTIA is presumably an (unpronounceable) acronym, but even the organization’s website does not say what it stands for. That secret, known only to wireless-service-provider insiders, we will not disclose here.

On the Volokh Conspiracy, law professor David Post lambastes the footnote as “a really embarrassing bit of nonsense—smarmy and snarky and extraordinarily stupid.” Alas, Post’s name-calling better applies to his own post.

According to Post:

0.45 seconds of work reveals that CTIA originally stood for the “Cellular Telephone Industry Association.” It’s not a big mystery, “known only to wireless-service-provider insiders”: that’s what it says on the organization’s Wikipedia page. So Scalia’s footnote communicates, to me, that he has never heard of “the Internet” and the very amazing things called “search engines” that let you “retrieve information” very, very quickly[.]

Post supposes that neither Scalia nor any of his clerks nor any of the other joining justices or their clerks managed to figure out what “CTIA originally stood for” (Post’s phrase) or “what it stands for” now (Scalia’s). He seems not to consider the obvious alternative possibility that Scalia’s talk of a “secret” is lighthearted (as the matter of what the letters stand for is irrelevant to the purpose of his footnote, which is to confirm for the attentive reader that the ridiculously ungainly name of the organization is indeed its actual name, not a typo).

What’s funnier is that the unhinged Post doesn’t even get his facts right or complete. According to the Wikipedia page of CTIA—The Wireless Assocation, CTIA “originally stood for Cellular Telecommunications Industry Association” (emphasis added), not “Cellular Telephone Industry Association.”* Then, from 2000 to 2004, CTIA stood for “Cellular Telecommunications and Internet Association.” And now, according to the organization’s blog, CTIA is an “orphan acronym” that stands for nothing.

(I learned about the organization’s blog post from this BLT item by Tony Mauro, which shows its own signs of ASDS in its bizarre title, “Scalia Fumes Over Name of Telecom Trade Group.” Yes, that footnote is just seething with anger.)

* 10:25 a.m.: I now see that the Wikipedia entry has been edited since yesterday to make a change to this sentence, so Post accurately quoted the (evidently) mistaken Wikipedia entry.

The court doesn't need the judges. The D.C. Circuit is among the most underworked court in the federal system.…

Last year the D.C. Circuit saw 108 appeals per authorized judge, compared to roughly four times as many on the Second and Eleventh Circuits—the country's busiest. And the court's workload is trending down. Even if the court had only eight authorized judges, its docket would still be among the lightest in the country.