On this episode of The Great Antidote podcast with Juliette Sellgren, she is joined by guest Timothy Sandefur. In their discussion, Juliette and Tim discuss the “right-to-privacy”, disclosure, and anonymity of donations.
Timothy Sandefur is the Vice President for Litigation at the Goldwater Institute’s Scharf-Norton Center for Constitutional Litigation and holds the Duncan Chair in Constitutional Government. He litigates important cases for economic liberty, private property rights, and free speech in states across the country.
Timothy is the author of several books, including Frederick Douglass: Self-Made Man (2018), Cornerstone of Liberty: Property Rights in 21st Century America (coauthored with Christina Sandefur, 2016), The Permission Society (2016), The Conscience of The Constitution (2014), and The Right to Earn A Living (2010), as well as dozens of scholarly articles on subjects ranging from Indian law to antitrust, slavery and the Civil War, and political issues in Shakespeare, ancient Greek drama, and Star Trek.
He is an Adjunct Scholar with the Cato Institute and is a graduate of Hillsdale College and Chapman University School of Law.
Juliette: Welcome back. Today I have the honor of speaking with Tim Sandefur. He’s the vice president for litigation at the Goldwater Institute and he holds the Duncan Chair in constitutional government. He litigates cases for economic liberty, private property rights, and free speech in states across the country. He’s also the author of the book, “Frederick Douglass: Self-Made Man” from 2018, “Cornerstone of Liberty: Property Rights in 21st Century America” with Christina Sandefur in 2016.
Today I want to talk to him specifically about an article that he penned for Regulation Magazine titled, “Privacy and Free Speech. Government requirements that non-political nonprofits disclose their donors strike at the First Amendment”. Welcome, Tim.
Tim: Thanks for having me.
Juliette: And thank you for joining me. Before we jump into this, I want to ask you the question that I asked all my guests, which is what is the most important thing that people my age or my generation should know that we don’t?
Tim: History. Honestly, I think the thing that is most important that I notice people younger than myself having difficulty with, is knowing the past or being curious about the past. I know every generation thinks that younger people today just don’t get it or whatever. But it does seem to me that America’s younger people have a real lack of understanding of just what happened when and why it’s important.
Knowing your history is crucial because it allows you to compare what’s going on today with what went on in the past. For one thing, it gives you real gratitude for living in a time that’s as blessed as ours is. But on the other, it allows you to weigh your options more carefully because this is what happened last time, such-and-such was tried. It gives you a sense of your part in the overall drama of American civilization, which is often a really fascinating and dramatic and important thing to know.
So my number one thing would be just curiosity and interest in the history of this country and the world.
Juliette: It’s super relevant to what I’m going through right now. I’m picking classes for college next year — first year. I’m struggling with which area of History. Do I take history class? Do I want to study a country? A religion? I’m not struggling with the curiosity bit as much as — well, I am in the opposite direction.
Tim: Well, here’s my suggestion on that. One thing I wish somebody had told me before I went to college was to follow the professor, not the subject. If you think that you’ll be interested in whatever class there is on the subject of such and such because you’re interested in such and such, no, that’s not right. Find the professor you find compelling, fascinating, and interesting, and take whatever classes you can with that professor. In the long run, you will learn more that way. That would be my advice there. Follow the professor, not the subject.
Juliette: That is some great advice and I’ve never heard that before. I will definitely take your advice. I’ve started with Econ with Philosophy but in other subjects where I don’t yet know who’s out there, once I find them, I will be sure to just follow them through.
Tim: Yeah, that’s the trick. I mean, it takes a while to find somebody whose teaching style or views on the world you find most compelling. Obviously, it doesn’t have to be somebody you agree with. In fact, the professor I consider the best teacher I ever had on any subject is a Professor named David Whalen, an English professor at Hillsdale College. I probably disagree with every single thing he ever uttered, but he was an absolutely spellbinding lecturer and taught me so much about literature. I just have immense respect for him and I wish I had taken more classes with him.
Juliette: That is fascinating. Wow, I will look out for that. So let’s dig into your article. For background, until a few years ago charities that got donations in California were required to register with the state and report their donations to the IRS. But that didn’t disclose the identity of charitable donors. That changed in 2010. What was the change?
Tim: Well, the Attorney General said, from now on when you file your annual paperwork, you cannot file the redacted paperwork. Now, what that means is in the past, the charities would file their IRS paperwork. Of course, they file it with the IRS but then they have to give a copy of that to the state. So what they would do is they would cross out the names and phone numbers of their prominent donors and then turn that over to the attorney general that way. That wasn’t a big deal because if the Attorney General needed to know that information, she could sue, she could get a subpoena, she could do an audit or whatever to find that information out. It wasn’t like making it impossible for the Attorney General to get that information, but it prevented that info from being disclosed by accident on the Internet, or something like that. That’s the way it was handled up until 2010.
And then the attorney general, who is Kamala Harris at that time, said “No, no. From now on you have to give us the unredacted IRS forms.” The charities were bothered by this because they feared that that information would then be disclosed. She said, “Oh no. You can trust me. We’re the government. We promise we won’t disclose that information publicly.” Well, it turned out that there were some 2,000 or so instances of this information being posted on the Internet publicly accessible by her office in the months that followed.
Juliette: Can you give us some examples? When I think of leaks, I think about the recent IRS leak of taxpayers’ personal information. But can you give us examples relating to the leaking of donor information, particularly in California?
Tim: Oh, yeah. Well, this was a big deal in California. You’ll remember the Proposition 8 Campaign, in which Proposition 8 was a ban on same-sex marriage. What happened was the California Supreme Court declared that there was a right under the state constitution to same-sex marriage. Voters got together and tried to amend the Constitution to prohibit that, and that was Prop 8. It was approved and then was later declared unconstitutional.
Well, that, of course, was a big controversy in this state. It came as a surprise to a lot of people that it passed in California. After that, the opponents of the proposition started posting this information publicly on the Internet. Some people even made a map of the home addresses of people who donated to the “Yes” on Prop 8 Campaign. And as a result, there were cases of vandalism and violence against people who had supported the campaign. Some of this vandalism was directed to churches. The Mormon church, for instance, had been a big supporter of Prop 8, so it was targeted. So, there were instances of that happening, and so it’s understandable why people in California were concerned about the disclosure of their private information.
Of course, this lawsuit involving Kamala Harris’ demand went to trial. The trial court there found several cases in which people’s information — donors to these organizations, these nonprofits, had been posted on the Internet and they too had suffered retaliation, threats, and sometimes violence as a result.
Juliette: What sorts of organizations. Who? We’re on the political spectrum. The people affected by these mandates, where do they fall?
Tim: In this particular case, it was conservative and libertarian organizations. Americans for Prosperity, the Thomas More Law Center — which is a litigation organization that advances religious conservative causes. But a lot of other organizations also. The Goldwater Institute, where I work, received one of these demands that it turns over its information. Now, I’m glad to say we chose not to comply with that demand but a lot of organizations on the right side, you would say, of the political spectrum received these demands.
However, 50 or 60 years ago, it was other organizations on the left that were receiving these kinds of demands. The most infamous being the NAACP in the 1950s when the southern states forced them to turn over their donor lists to the state, to be put in a government file or even publicly disclosed so that they would suffer from retaliation and threats.
Time around it was the right-wing. Last time, it was the left-wing. Someday, it’s going to be you and your information is going to be put on a publicly accessible government list simply because you put your money toward a political cause that you agree with. That’s really problematic.
Juliette: Can you give us more information about the court case? NAACP v Alabama, in 1958.
Tim: So that was actually one of a series of lawsuits. It’s the most famous, but there were several lawsuits that came about when the southern states tried to force the NAACP, the ACLU, and other organizations to disclose this information. Another case called Shelton versus Tucker was also particularly important. What happened at the end of the NAACP versus Alabama case was the NAACP was essentially put out of business in Alabama for several years. It was not allowed to solicit donations from people unless it disclosed its donor lists. Obviously, it put those people at risk so they chose not to do that. Finally, when the case reached the Supreme Court, the Supreme Court said, no, people have a right to donate to these causes and not have their names, phone numbers, and employment information posted on some government accessible list where the public can target them for harassment.
Now in the years that followed, the court seems to water that down a bit. That was kind of what led to the most recent round of lawsuits. But it should have sent a clear message that the government can’t make these kinds of demands. In the Shelton case that I talked about, that was a case out of Arkansas where the state said if you want to work as a school teacher, you have to give us the names of every organization that you have donated to or supported in the past 5 or 10 years or whatever it was. So that’s a little bit different than publicly disclosing the information, but that information was being put on the list anyway. And they’ve said again, just like California said, “Well, we promise we won’t disclose this information.” But nevertheless, if you’re a school teacher in Arkansas in the 1960s, are you going to be willing to donate to the NAACP or the ACLU knowing that doing so is going to put you at risk of losing your job? Of course not. So the Supreme Court said, no, that’s unconstitutional.
Juliette: Can you explain why the court found these disclosure requirements as a violation of the First Amendment. They took a very strong stand.
Tim: They did. They said they said that requirements like these are subject to what lawyers call “strict scrutiny”. What that means is some kinds of laws that infringe on your rights, the court says, “Well, we’re going to let the government have a lot of leeway here.” And that’s subject to rational basis scrutiny. That means that as long as the government was basically doing something that’s more or less reasonable, that’s okay.
On the other hand, if the government intrudes on other kinds of rights that the courts think are really important, they use this strict scrutiny standard. They say only in extremely rare cases can the government infringe on these rights. Well, free speech is one of those rights. Free assembly is another one of those rights. And so, the court said these kinds of mandatory disclosure requirements violate freedom of speech and freedom of assembly because they do what’s called a “chilling speech”. They cause a person to self-censor, hesitate to speak, decline to speak out or join an organization because they fear that they might be punished at some point in the future. If you think about it, that’s very hard to prove, right? It’s hard to prove that you’re going to be punished someday in the future.
A lot of times it’s hard to demonstrate that the government is censoring people this way. So what the court said was we’re going to take this strict scrutiny approach, which means virtually never is the government allowed to do this. Well, fast forward to the 1970s, you got a couple of cases like Buckley versus Valeo where the court said, “Well, if a person is donating to a political candidate, maybe that’s a little different. The public has a right to know some of this information.” And so, they started to water down that strict scrutiny test a little bit.
In this most recent round of cases in the Supreme Court that was decided this past month, what the court said there was, no. When it comes to these organizations since they aren’t political campaigns, those rules from the NAACP cases still stand. That means strict scrutiny applies. Virtually, never can the government force people — well, high scrutiny, I should say. The court didn’t actually say “strict scrutiny”. But nevertheless, a very stringent form of constitutional protection applies. That means that the government can virtually never make these kinds of demands.
Juliette: What are the details of the Buckley v Valeo case, and what were the implications of the Supreme Court’s decision?
Tim: Well, Buckley is one of those complicated landmark cases in American constitutional law. That’s a lot to ask. The bottom line is Buckley was the big case on Campaign Finance reform. That involved a law that required people who are running for office who are limited in what they could spend, what kind of money they could receive. The Supreme Court issued a long and complicated opinion that said, for instance, the government cannot prohibit a candidate from spending his own money because that violates the candidate’s Free Speech rights. But it can impose certain limits on receiving money because receiving money runs the risk of possible corruption and that sort of thing. So the government can impose certain limits there.
When it comes to reporting requirements, like who donated you this money, the government said it has some leeway there because candidates could be corrupted. They could be controlled by somebody so we’ll let the government force candidates to tell the public where they’re getting their money. But then, there are other complications. The Buckley case did not involve ballot initiatives. What do you do about ballot initiatives? Can you force the Yes campaign for a ballot initiative to turn over its donor lists? You can’t corrupt a ballot initiative because it’s not a candidate. How does Buckley affect things like that? That’s never actually been made clear. The Supreme Court never really told us, and that’s important.
I’m actually doing a case right now in the Tenth Circuit Court of Appeals. I represent an organization called the Rio Grande Foundation, a free-market think tank in New Mexico. The Rio Grande Foundation posted on their Facebook a video that somebody else had made opposing a 2-cent soda tax in Santa Fe, New Mexico. As a result, the city said, “Oh. Well, that video must have cost a lot to make. Therefore you exceeded the spending threshold. Therefore, you have to disclose the names of every donor to your organization who gave you money to oppose a ballot initiative.” Even if they only gave you a penny, you have to turn this information over to be put on a publicly accessible government list. Well, that’s very intrusive. That means if I’m going to donate to the Rio Grande Foundation because I’m opposed to this 2-cent sales tax on sodas, I don’t want my home address to be put on some government list, so I’m not going to do that. That’s the “chilling effect”. That’s the infringement on free speech.
What the Buckley case suggested was that there are some places where the government can mandate disclosure. But that shouldn’t have changed the old rule that said virtually never is the government allowed to force people to give up their privacy in exchange for exercising their free speech.
Juliette: I often make the case that, yes, even a penny — even being forced to disclose that is intrusive. And a common argument I hear in response is that if you haven’t violated the law or if you have nothing to hide, then you shouldn’t care about sharing your information. Even if it’s political, even if people would disagree, people shouldn’t care about disclosure requirements. You have an entire section about this issue in the article. What are the dangers of disclosure?
Tim: Well, there’s a lot of dangers. First of all, let me say I think it’s very foolish whenever you hear somebody say, “Well if you’re following the law, you have nothing to hide.” That is usually the signal that you’re speaking to a moron. The same argument could be made for eliminating all search warrants. “Well, if you have nothing to hide, then what’s the problem?” No, that would have been a foolish and stupid thing to say. It’s always a risk.
One reason why these mandatory disclosure things are a real risk is that you can’t predict today what is going to incur retaliation someday in the future. Let’s take an organization. For example, The Claremont Institute in California. I think of them because there’s an article in The Bulwark today, which is an online magazine, about the evolution of the Claremont Institute. Twenty years ago, it stood for one thing, and nowadays it stands for a very different thing — a very controversial thing. If you had donated to that institute 20 years ago and your name was put on a publicly accessible government list on the internet, your name will still be out there 20 years later even if you don’t agree with something the institute supports now. Somebody who disagrees with what that Institute does could come after you. Why wouldn’t they? They’ve got your home address, your phone number, your employment information. You can’t know what’s going to incur retaliation into the indefinite future. So that’s a real problem with these disclosure requirements. These do incur violence and retaliation across the political spectrum.
Another problem with the disclosure mandates is that they kind of are premised on this idea that more information is always good. That’s not really true. For one thing, we have a secret ballot in this country even though that actually deprives you of information. Why shouldn’t I know if my neighbor voted for or against proposition X? The answer is because he has a privacy right. It would interfere with the workings of democracy to deprive him of that privacy in exchange for his right to vote. So, if we know that that’s the case, then we know that there is a point at which more information is not a good thing. In fact, these information disclosure requirements can often be manipulated in a way that serves the interests of one political side over another.
There was a Supreme Court case several years ago about a law that said if you were running for office in — I think it was Missouri. Next to your name on the ballot, you had to put whether you supported term limits for congress or not. Well, for some people that’s going to destroy their candidacy. That’s going to infringe and it’s going to send the message to the voter that that’s the only issue they should care about. So, it manipulates the system. It biases the system to disclose or mandate the disclosure of that information. Information disclosure mandates can be manipulated in ways that serve an ideological agenda. It’s not always just inherently good to require the disclosure of information.
Juliette: What are some of the other arguments that politicians and pro disclosure people make in defense of this?
Tim: Well, I think the typical argument that resonates with a lot of people is, “Oh, well. Out-of-state interests, dark money, secret cabals of evil billionaires in smoky backrooms are manipulating the Democratic process. Therefore the people need to know, and so forth.” Obviously, to some extent that has some degree of merit. The question is at what point does that justify forcing people to give up their privacy when they donate a single penny to an organization? What the Tenth Circuit Court of Appeals said in a case some years ago was, it’s sort of a sliding scale. When you mandate the disclosure of small amounts of money — if you get down to forcing people to give up their information if they’ve given even a penny to one side or another, well, that’s indistinguishable from eliminating the secret ballot. That’s not disclosing support or disclosing funding. You’re just forcing the disclosure of support which runs contrary to the idea of the secret ballot.
So the argument that politicians make is, “Well, people should know who supports one group or another.” Not always. In fact, virtually never when you’re talking about small-scale donors. You can sort of make that argument with large-scale donors, but even there it’s more of an ad hominem kind of argument. Then it turns into, “Well, I don’t like the Koch brothers, or whoever it might be.” Instead of the merits of the initiative, which is what voters are supposed to be paying attention to.
So mandating disclosure even of large-scale donors, again, biases the outcome, manipulates the system, and serves this narrative — especially a leftist narrative, but really it’s both — that is the idea that there are these secretive forces that are controlling democracy. And if only we eliminated them, then we would have the situation where the people’s true voice is heard, which ignores how politics actually works in the welfare state where the government takes money from some people and gives it to others.
In such a situation where the government is shifting wealth from one group to another, lobbying groups spring up because they want to attain profits from the political process. It’s inevitable. So if you want to truly take money out of politics, there’s only one way to do that. That’s to take politics out of money but nobody’s willing to do that. You end up arguing this silly stuff about campaign regulation and stuff because you’re trying to attain some platonic ideal of the perfect election where nobody is biased by their personal interests or something like that. It’s just a hopeless exercise. If you separated the government from taking people’s earnings away and giving them to other people, well, then that would solve your election problem.
Juliette: An argument that you mentioned that people cite that the Supreme Court also mentioned in Buckley v. Valeo is dark money. The need to prevent corruption and bribery of politicians.
Juliette: At that time and even now, is there data showing that corruption and bribery like this were actually super rampant everywhere?
Tim: Well, that’s a good question. Obviously, The answer is there are cases of corruption and bribery — no question. But is campaign spending really manipulating the political process so those wealthy candidates who spend a lot of money win and candidates who don’t have that money lose? The answer is no. Actually, the data does not support that conclusion. There are obvious, very important examples of the opposite of that happening. I think the Trump campaign in 2016 is a perfect example of how money does not buy elections. In California, when Michael Huffington ran for Senate — I don’t know if people remember that in the ’90s. A huge amount of money was spent on that campaign, and the candidate still lost. So there is example after example to show that the assumption that money buys votes just is not true. Popular candidates win, unpopular candidates don’t win.
Also, campaign finance regulations serve the interests of incumbents over their challengers regardless of wealth or political party.
If you’re John McCain running for Senate in Arizona, you don’t really need to raise a ton of money because you’re on Meet the Press every weekend. You’re on C-Span all the time. You’re on the evening news all the time. You get all this free publicity. But if you’re John Smith running against John McCain, you need to raise a lot of money because you need to buy a lot of political campaign ads in order to run against him. When you limit the ability to raise money, what you’re really doing is serving the interests of incumbents. I think we can all agree that that’s not a good thing.
Juliette: I think we can agree. So, the most recent Supreme Court decision. You mentioned it earlier. It’s Americans for Prosperity Foundation versus Bonta — I don’t know how that’s pronounced. Correct me if I’m wrong.
Tim: Oh, you got me. He’s the new Attorney General of California. I don’t know how that’s pronounced.
Juliette: That one was triggered by the 2010 rule changes in California. I read somewhere that the case was quote, “the most ideologically broad coalition of amicus briefs on the same side of a case in Supreme Court history. All of the briefs agreed that the facts were bad, even the Biden administration’s brief through the California Attorney General’s office under the bus.”, end quote. The case was heard in April and we got the decision back, something like two weeks ago. Can you tell us the details about the case? What we need to know about the argument before the Supreme Court?
Tim: Yeah, it actually began as two cases. Americans for Prosperity and Thomas More Law Center both sued over this. Actually, there were other organizations that filed other lawsuits that didn’t make it to the Supreme Court. But eventually, after 10 years of litigation, this whole issue finally reached the Supreme Court. What had happened was that the trial court had found that this demand was unconstitutional because it exposed donors to these organizations to an unreasonable risk of retaliation and harassment, compared to what the Attorney General said was the reason for making this demand. So the court said, “I’m going to compare why the state is doing this and how important that is, with the burden on people who are donating to organizations.”
Well, what was the benefit that the Attorney General claimed? The Attorney General claimed, “It makes it easier to do my job.” That was what she said. It wasn’t that it’s essential to National Security or there’s no other way to get this information — because as I said when we started this, she could get this information easily in any other way. It just was more convenient. The state interest was convenience.
I argued in the brief I filed in the case that convenience is simply not an important enough government interest to justify these kinds of burdens at all. In any case, the court weighed one versus the other and said that the risk of retaliation against these people and harassment was very significant. There were real cases of this going on. Nevertheless, the Ninth Circuit Court of Appeals reversed that and said, “Well, we think it’s significant and it’s worthwhile for the state to demand this kind of information.”
Now, why did they do that? There’s a lot of people who would point out that the Ninth Circuit tends to be pretty far on the left on political issues. So that case got appealed to the US Supreme Court, and the Supreme Court said these kinds of demands are not justified by the burden — or by the benefit that the state is asserting here. They are too broad because you’re requiring information from everybody that this organization receives donations from to serve the minor interest of the possibility of some kind of law-breaking. What kind of law-breaking you’re talking about anyway? The state never really made it clear what they thought was going on. So the Supreme Court said that’s not enough and said no.
Juliette: What are the implications of that decision moving forward?
Tim: Well, unfortunately, I think it’s a fairly limited decision because it’s limited to this rather unusual situation where the Attorney General says the only interest being advanced is convenience. Most of the time, these mandatory disclosure things are justified by something more than mere convenience. The state claims that it needs this information vitally for some really important issues. This case doesn’t really talk about what you do in those circumstances. I suspect that it’s fairly limited in its application. That’s unfortunate because… I mentioned that Tenth Circuit case that I’m working on with the Rio Grande Foundation. I had hoped that the Supreme Court would be clearer on the limitations of these disclosure mandates than it was. Nevertheless, it makes clear that this very stringent scrutiny applies, that the government can’t just mandate disclosure across the board for relatively insignificant purposes, and that convenience is not really good enough.
So it’s a significant victory but until the Supreme Court tells us things like, “Does the Buckley principle apply to ballot initiatives?” — things like that. Until they really come out and tell us those answers, I think this decision is going to be pretty limited.
You started out, by the way, saying “very broad ideological spectrum”. That’s absolutely true. You had hundreds of amicus briefs filed by groups such as the NAACP, the Cato Institute, the Institute for Free Speech, the Goldwater Institute, and all sorts of different groups. They all said that this went too far.
Juliette: And something about the NAACP relating to this case. The plaintiff, the Americans for Prosperity Foundation, is a 501(c)(3). It means it’s prohibited from engaging in electoral politics… is not involved in politics. But then, Benjamin Chavis, the former head of the NAACP, described the case as quote, “a home run for civil rights”, end quote. Do you agree with that?
Tim: Oh, yeah. I certainly do. I think there are lots of organizations out there that even if I myself disagree with their perspectives on things, nonetheless, they are doing the work of civil rights litigation or advocacy groups like NAACP or Thomas More Law Center that are not out there contributing money to candidates. If you’re not contributing money to candidates, then the whole rationale of, “Well, we don’t want to have Boss Tweed or somebody getting elected office or something.” That rationale kind of falls away. Then you’re talking about just people who donate to groups you don’t like. You should not be able to retaliate against those groups either by stripping them of their privacy rights, or possibly actually harassing and committing violations against them.
So, yes. This was definitely a home run for civil rights, and I very much hope that the next time around the court hits an even bigger home run.
Juliette: What is the next step in this issue? What are your worries? What are your hopes?
Tim: Well, the Tenth Circuit is still considering the case with the Rio Grande Foundation. We’re waiting for a decision. I argued that in, I think, April. It’s been a while. As I said, that case is slightly different because it involves a ballot initiative and it involves an organization that came out and said, “We are opposed to a 2-cent sales tax on soda.” Under the city’s law, they were forced to disclose all the information about any donor who has donated money for opposing the ballot initiative, even if it was a tiny amount of money.
So if the Tenth Circuit says that that’s constitutional, of course, we will petition the Supreme Court in that case. There are similar cases going on across the country on those kinds of issues. I think until the court recognizes that people have, first of all, a constitutional right to anonymous speech — that’s another issue that the court has never really been terribly clear about, and that people should not be stripped of their privacy rights when they exercise their free speech rights. Until the court is clear about that, I think you’re going to see case, after case, after case going up.
This thing about anonymous speech. It’s pretty ironic and it’s been pointed out before how the Supreme Court has never said you have a right — a First Amendment right to anonymous speech. They said it sort of in passing in some of their cases. They never came around[?] and held it. Even though the Federalist Papers themselves were written anonymously. Of course, the founding fathers thought that you have a right to freedom of speech without disclosing your name to the general public. That was how speech normally was conducted at the time of the writing of the First Amendment. So for people now to say, “Oh, well. The founding fathers never intended to protect your right to speak anonymously.” That is just ludicrous.
Juliette: Do you think that the Supreme Court will accept the case that you just presented?
Tim: Oh, that’s a kind of question you can never ask a lawyer. The court takes about 1% of the cases it’s presented with. It’s asked to take less than that. I think it’s asked to take about 10,000 cases a year, and a year’s somewhere around 80 cases a year. Fewer and fewer every year, by the way. I think it’s unfortunate that the court seems to be trying to put itself out of business. Every year it takes fewer cases and when it does take cases, it tends to be cases that are not of particular interests — complicated, sophisticated, obscure questions of law instead of the big issues that everybody really cares about. Anyway…
Juliette: They stay away[?] from politics type of thing.
Tim: They do that. They’re hoping to maintain this era of objectivity. But as a result, what ends up happening is you have the lower courts as the final word on these constitutional questions. They often disagree with each other and that’s not good. So that’s a real problem. In any case, it’s never a sure thing that a case goes to the Supreme Court. But of course, we will certainly hope so and we will do our best to get there.
Juliette: Have you ever spoken in front of the Supreme Court, like argued a case?
Tim: No. However, I was once at a presentation. Justice Scalia, a few years before he died, was giving a talk about… actually, he started talking about an old case called The Slaughterhouse Cases from 1873, which I think was wrongly decided. He was up there saying that it was rightly decided and I started shouting from the audience. He said, “Nobody thinks this was wrongly decided.” And I shouted out, “I do.” And Scalia said, “Nobody but that guy thinks it was wrongly decided.” And some people came up to me afterward and said, “Well, Tim, you finally got to argue The Slaughterhouse Cases in front of Justice Scalia.”
Juliette: Do you think you ever will? I mean, that’s kind of the same question I already asked. Would you like to?
Tim: Oh, every lawyer would love to get up there in the big seat. Actually, we have another case that we’re hoping to get to the Supreme Court. It’s on a First Amendment issue that we just filed a certain[?] petition that I have a lot of high hopes for. That’s a case about state laws that force lawyers to join bar associations, even if they don’t want to.
Now the bar association is in from the bar exam. To practice at all, you have to pass the bar exam. Everyone has to do that. But then in a lot of states, you’re also forced to join the bar association, which is a private trade organization and pay them 400 or so dollars a year, which they then spend lobbying the government or publishing editorials on political issues that you might disagree with. That violates your First Amendment rights. You shouldn’t be forced to subsidize a political message that you disagree with.
Just a few weeks ago, we won cases in the Ninth Circuit, the Fifth Circuit, and the Tenth Circuit, saying that at the very least we should be able to make our case in court on these issues. We have asked the Supreme Court to take one of those cases from the Ninth Circuit and we will probably soon ask them to take another one of those cases in the Fifth Circuit. So, this is an issue that’s not going away.
A lot of times when I tell people about this, they’re like, “Well, who cares about lawyers?” But actually, this is very important to you because lawyers exercise — or the bar associations exercise a really disproportionate influence in state legislatures. A lot of the time legislature is kind of just assumed that the State Bar Association speaks for the legal profession. The legal profession is very far on the left politically speaking. They’re doing that with money stolen out of my paycheck every year. That’s unconstitutional and it should stop, so we’re hopeful that that case will get to the Supreme Court soon.
Juliette: That does not seem right or justified.
Tim: No, of course not. In fact, the Supreme Court has said — and it just said very recently, that you can’t force other people to subsidize political messages they disagree with, like labor unions. In the Janice case, the Supreme Court made it clear, again, that you can’t force public employees to join a public sector, labor union, and subsidize it every year. For exactly the same reason, you shouldn’t be able to force lawyers to subsidize the politics of a state bar association.
Juliette: Seems pretty legit to me. I have to tell you, I’m obsessed with law and the Supreme Court.
Tim: You should be. It’s fascinating stuff.
Juliette: All of it.
Tim: Yeah. Honestly, it is. The law is an endlessly fascinating and interesting enterprise because the law to some extent is philosophy, which is always interesting. But it’s also history, which is always interesting. There are so many stories in the wall, all of the law. And when we’re talking about American law, you’re talking about the Anglo-American common law that reaches back to roughly 1189 AD. This is the history and the drama of the human experience for a thousand years. So it’s full of everything that a budding intellect could enjoy.
Juliette: I don’t know. I want to go into it and I don’t know if that’s what will happen but right now, that’s all I can think about at all.
Tim: Yeah. Well, I love it but I always do tell people to be sure that they really want to do it before they invest the time and energy in law school. I do know law can be very stressful and very frustrating for people because a lot of people go into law thinking it’s going to be one thing, and then it turns out to be something else. They go to law thinking it’ll be about lots of big fascinating questions like I’m talking about. But then they end up doing stuff that they find boring and unrewarding. That can be a real problem, especially when you have loans to pay off — law school loans to pay off. So it’s something you don’t want to do lightly. But for me, it was definitely the right choice and I think it’s just a fascinating and very enjoyable career.
Juliette: Thank you so much for sharing. That gives me a bit of hope and more confidence because then I can’t just be whatever about it. I actually have to think about my choices in the future. That’s good. We like feeling a little bit of responsibility because It’s the future. It’s kind of important.
Tim: People underestimate the fact that every human being, I think, wants to be responsible. We often talk about responsibility as if it’s something that’s inflicted upon people, but the reality is just about all of us want to be responsible. We want to, first of all, have the freedom to choose. Secondly, we want to be able to enjoy the rewards and, yes, pay the costs of our bad decisions. Everybody wants to be responsible.
One of the big problems with our always growing intrusive regulatory welfare state is that it takes that responsibility away. It often claims that it’s doing you a favor when it does that, and that’s a real shame. But that’s a lecture for another day.
Juliette: And you are currently helping fight that fight, which is amazing. So thank you for that, and thank you for being on the podcast. Before we wrap up, what is one thing you believed at one time in your life that you later changed your position on, and why?
Tim: Well, the first one that comes to mind is actually a very big issue. That is the Civil War. When I was very young, I got very interested in Thomas Jefferson. As a result of that, I was led into reading about his views on the Constitution and things. That kind of led me into the writings of people who thought that states have a right to secede from the union and that Lincoln was a tyrant, and all these sorts of things.
When I got into college, I started really reconsidering those views and I saw that they were completely wrong, completely misguided as a legal matter and as a philosophical matter. Now, it’s interesting to me because this is an issue that of course comes up time and time again. Ron Paul has often spoken on this, insisting that the southern states had the right to secede in the 1860s and that Lincoln was a tyrant for preventing that. So this is an issue that you hear people talk about a lot, and there was a time when I agreed with those views.
But it was largely through the work of people like Harry Jaffa, a historian named Drew McCoy, and of course, the writings of James Madison that persuaded — oh, and William Lee Miller, who wrote a marvelous book called “Arguing About Slavery”. I just love that book. It was largely through their work that I came to see the fallacy in that pro-secession view and see why Lincoln was not just victorious and not just a great leader, but was legally correct that states have no right to secede and that the union is indeed perpetual.
I’ve written extensively on that subject. Anybody who wants to learn more about should look into my writings on that subject. Particularly my essay, “How Libertarians should think about the Civil War”, from Reason Papers in 2003.
Juliette: We should do a podcast episode on that at some point because that’s fascinating. I would love to talk about it.
Tim: That could easily fill an entire podcast, no question.
Juliette: Thank you so much. I’m looking forward to speaking again at some point in the future. I had a great time.
Tim: Thank you.