Ending Corporate Welfare
Posted on August 3, 2006
The ACLU is indignant that there are members of Congress pushing to pass a law that would bar awards of attorney fees when groups sue to get religion out of the public square. These award of legal fees are very directly responsible to a vast increase in the body of law that has gone so far to protect against the appearances of government endorsement of religion, that even private individuals have been sanctioned for daring to utter the unutterable name of Jesus Christ in public.
It has been the ACLU’s influence that not only is the government (rightly) prevented from taking sides on the matter of religion, but when private individuals happen to be speaking on government property, the First Amendment is brought to bear against them. It is unthinkable in the highest degree that the Founders or anything in the Constitution intended to restrict the free expression rights of citizens. The First Amendment was designed to create institutional separation between the agencies of government and the houses of religion, not to be a pre-regulated restriction on what private people can or cannot say.
The ACLU has used attorney fees to bully schools into submission in questionable cases or in matters where no settled law exists. School budgets are already tight (mostly because of bloated bureaucracy, but that’s not the point). Many schools will capitulate to avoid having to fork out money to defend a winning case. As in most areas of law, he who has the most money wins. With the award of legal fees, it only encourages entrepreneurial lawyers to build cases where none may exist. It also prevents the ACLU from browbeating agencies into avoiding situations where those agencies may be right.
However, the money schools have is not their own. The money sitting in government accounts is not their own. They are merely stewards of assets they have been given to perform tasks they have been assigned. Their masters are the citizens who fund those organizations and who elect their leaders.
There is something profoundly wrong when, because of the actions of a politician, the entire society that funds that politician’s organization is made to pay. There is much talk about making politicians and bureaucrats accountable, awarding legal fees for cases like this don’t make the politicians accountable, it makes society accountable. It is irresponsible in the extreme to make other people pay for someone’s “bad” actions. I’d prefer courts punish those people who are actually doing the deeds, not finding someone who has big enough pockets and make them pay, no matter how peripheral they may be. We’ll throw them out of office the next election if the case warrants it.
Preventing the default award of legal fees makes good economic sense and it is good policy. The First Amendment is a simple area of constitutional law that does not, nor should not, take millions of dollars to litigate. It is about time this case of corporate welfare comes to an end.
John Bambenek is an academic professional for the University of Illinois and a columnist for the Daily Illini and blogs at Part-Time Pundit deep from the corn fields of Illinois.
» Filed Under 1st Amendment, ACLU, News
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3 Responses to “Ending Corporate Welfare”
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ACLU must be stopped. This looks like as good a way as is possible!!
Nice post
I’ve replied to this post at my blog. I’m curious to see whether you’ll apply your reasoning in a coherent and consistent manner, or whether you’ll apply it hypocritically. If it’s “profoundly wrong” and “irresponsible in the extreme” to make taxpayers pay for bad actions by politicians they elect, then do you also support ending fee shifting in free exercise or free speech cases? If you’re consistent, you have to. If not, you’re contradicting yourself.
At the outset, I want to say that Ed Brayton is a lousy hypocrite who pretends to be open-minded but has permanently banned me from his blog, Dispatches from the Culture Wars, because he disagreed with me.
Now in regard to HR 2679, the bill that would bar attorney fee awards in establishment clause cases: Ed is only concerned with the chilling effect that HR 2679 would have on would-be plaintiffs and is not at all concerned about the chilling effect that the threats of exorbitant attorney fee awards have on government actions that the courts might rule to be constitutional. Ed also tries to justify these exorbitant attorney fee awards by pointing out that the plaintiffs or their attorneys get paid only if they win, but the governments do not get paid when they win.
I support HR 2679, but I think that it would be better to just have a cap on fee awards in both establishment clause cases and free exercise clause cases. My reasons are as follows:
(1) A cap on fee awards should be able to cover the attorney fees for the worst violations.
(2) Public officials often find themselves between a rock and a hard place in regard to public expressions of religion, e.g., where there is a question of whether to allow a private individual or organization to express religion in a public place, there is a threat of a free exercise lawsuit if such expression is censored and a threat of an establishment clause lawsuit if such expression is allowed. With just a ban on fee awards in establishment clause lawsuits, public officials would rather avoid a free exercise lawsuit than avoid an establishment clause lawsuit and hence would tend to lean too far towards protecting free exercise at the expense of church-state separation. Having a cap on fee awards for both establishment clause and free exercise clause lawsuits would keep the playing field level.
(3) I think that this fee cap would have a much better chance of passing than an outright ban on fee awards in establishment clause cases.
However, I still feel that HR 2679 is better than nothing.
My blog has commented extensively on HR 2679. My latest article on the subject, at the following address, includes a list of my earlier articles on the subject –
http://im-from-missouri.blogspot.com/2006/08/hr-2679-now-has-senate-companion-bill.html