TCS Daily

The Earle of Criminalizing Politics

By James Pinkerton - December 21, 2005 12:00 AM

Sometimes, one is reminded that when it comes to the power of the state, the key distinction isn't left vs. right; instead, it's up vs. down, or to put it more bluntly, top vs. bottom. V.I. Lenin knew whereof he spoke when he said that politics was a question of kto kgo -- who does what to whom. As Lenin's Bolshevik career proved, it's usually the state that does the you-know-what-ing to the people. 

My latest reminder of this grim but persistent truth comes from America, here and now. It comes from Ronnie Earle, the Travis County, Texas district attorney who is seeking to harass and intimidate a group with which I am affiliated, the Free Enterprise Fund

The Free Enterprise Fund, as its name suggests, is a free-market/limited-government advocacy group, based in Washington DC.

And while most of what the FEF does concerns taxes, entitlement reform, and regulation, occasionally we veer into the political arena. A case in point is the spot we ran in Texas attacking Ronnie Earle for his September 28 indictment of Cong. Tom DeLay. The spot was tough: We ripped into Earle for launching a "partisan prosecution" of DeLay, thereby "criminalizing politics."

Some might disagree with our view of the case. Some might hate our view of the case.

Fair enough. That's where the First Amendment comes in: The Free Enterprise Fund, and its staffers, have a right to speak up and speak out, even if others view our views as obnoxious. As Supreme Court Justice Oliver Wendell Holmes always maintained, freedom of speech applies not just to the speech we like, but to the speech we hate.

But Earle doesn't seem to agree. He seems to think that his governmental position entitles him to special power, specifically, the power to crush individuals who get in his way. During his three-decade reign in Austin -- his constituency is that liberal college-bureaucrat town, but by a quirk in Texas law his power extends across the state -- Earle, a Democrat, has used investigations and prosecutions as a tool against enemies and rivals of both parties, including former Democratic lieutenant governor Bob Bullock (no charges ever filed) and current Republican senator Kay Bailey Hutchison (case dismissed).

Even ideological allies were not exempt from Earle's ambition. One such was former Texas attorney general Jim Mattox, who was not only a fellow D, but a liberal populist, to boot. But that didn't matter. Back in 1983, Earle indicted Mattox on dubious corruption allegations. "Ronnie Earle had visions of grandeur," recalled Mattox years later, adding that Earle had seen the indictment as a "stepping stone" in his own career. Mattox was eventually acquitted. And Earle has never climbed higher than Travis County.

Of course, Earle's sense of grandeur isn't entirely delusional; we now know that he has a deal with friendly filmmakers to make a documentary about his life. Higher political office may be out of reach for him, but why shouldn't Earle aspire to Michael Moore-dom if he can bring down "The Hammer"?

But now Earle has gone even further. He has indicated to the Free Enterprise Fund that he will be subpoenaing our records pertaining to that Texas ad buy. His argument seems to be that the FEF was somehow trying to influence a potential DeLay trial jury in Texas. Uh, sure. As if every press conference and press release Earle has issued in the DeLay case wasn't also an attempt to influence a potential jury. As if every utterance of free speech, everywhere, isn't some form of attempted persuasion aimed at somebody.

For our part, the Fund has said "no" to Earle -- in fact, hell no. As our lawyer, Ted Olson puts it:

"The First Amendment protects the political advocacy in which the Free Enterprise Fund engaged when it broadcast its messages regarding this prosecutor. When law enforcement officials compel citizens to come forward to explain and defend their political views, vital First Amendment freedoms are chilled and stifled."     

Once again, the "F-word." That is, the First Amendment, which includes not only "freedom of the speech, or of the press," but also, "the right of the people peaceably to assemble," and "to petition the Government for a redress of grievances."

As Constitutional law has evolved over the past 214 years, the First Amendment is now understood to include a wide berth for Burkean "little platoons" -- especially when those private little platoons might be involved in political activity.

The key case is NAACP vs. Alabama (1958), in which the US Supreme Court ruled unanimously that the civil rights group did not have to turn its membership list over to state officials in Montgomery. The High Court agreed that the NAACP had good reason -- the physical safety of its members -- for withholding such information. Writing for all nine justices, John Marshall Harlan declared that "privacy in group association may in many circumstances be indispensable to preservation of freedom of association, particularly where a group espouses dissident beliefs." And other cases since have reinforced this strong decision, especially when disclosure of a group's membership would put those members in harm's way.

That's why, if there's any justice in Texas, Earle can't win his case against the Free Enterprise Fund, because given Earle's record of promiscuous indictments, it's easy to demonstrate that folks associated with the FEF might suffer legal jeopardy -- however farfetched Earle's "reasoning" might be -- if the prosecutor man gets his talons on their names.

But in the meantime, we must fight a public battle, as well as a legal battle. Reacting to Earle's threat, we issued a press release on December 16 declaring, "Ronnie Earle has declared war on the First Amendment. Not satisfied with trying to criminalize politics, he is now trying to criminalize political free speech, interfere with legitimate political association, and also undermine the constitutional right of people to engage in private, voluntary activity."

Happily we have allies, including Rush Limbaugh, who sees the bigger picture here -- that a threat to the freedom of one political association is a threat to the freedom of all political associations. As Limbaugh put it last week, "And now this hack, Ronnie Earle, is out there issuing subpoenas to a group that ran some TV ads attacking him in Travis County, Texas that called him an 'attack dog.' What is this, the Soviet Union? This is Stalinist. So Ronnie Earle is going out; he's subpoenaing enemies of the state."

Enemies of the state. Those are familiar -- familiarly ominous -- words. Lenin knew all about Enemies of the State, and what to do about them. Don't get me wrong: Ronnie Earle is no Lenin.

But Earle is a government official, and as he has proven he is ready, willing, and able to overuse and abuse his powerful position. And so the rest of us are on notice: We, and our freedoms, are never completely safe when this "public servant," or others of his ilk, are "serving" us.

So in my more libertarian moment -- which come more frequently these days -- I am reminded of the words of Pierre-Joseph Proudhon, the 19th century French anarchist-socialist: "To be governed is to be watched, inspected, directed, indoctrinated, numbered, estimated, regulated, commanded, controlled, law-driven, preached at, spied upon, censored, checked, valued, enrolled, by creatures who have neither the right, nor the wisdom nor the virtue to do so." 

Proudhon lived and died long before Lenin, but he would have recognized Lenin. And I suspect that he would have recognized at least a glimmer of the bygone Russian dictator in today's Texas prosecutor.



Mike Pence to replace Tom Delay?
House Conservative Won't Rule Out Leadership Job
Human Events, December 6, 2005

Indiana Representative Mike Pence, leader of the House Republican Study Committee (a group of 107 conservatives), was UNANIMOUSLY ELECTED to his post and has made strides for conservatives in the House. Shortly after Hurricane Katrina, it was Pence who spearheaded "OPERATION OFFSET," which forced House Speaker Dennis Hastert to put forth a deficit reduction bill.

Said Pence, "I felt very strongly that the only cir***stance under which I would accept [chairmanship] would be if we reformed the bylaws of the RSC to embrace free elections within the caucus ... And you can imagine how humbled and surprised I was when we did have elections, and the floor was open for nominations, and I was elected unanimously. I really believe some of the progress we've made this year is a direct result of how I came to this position."

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