 Welcome to Free Thoughts from Libertarianism.org and the Cato Institute. I'm Aaron Ross Powell, editor of Libertarianism.org and a research fellow here at the Cato Institute. And I'm Trevor Burrus, a research fellow at the Cato Institute Center for Constitutional Studies. On today's episode of Free Thoughts, Trevor is going to be shifting from host to guest. This is because earlier this summer, the Supreme Court wrapped up a term that contained a lot of really big and often controversial cases. Let's start with maybe the most famous one, the one that seemed to get people the most riled up. And that's the Hobby Lobby decision. Burwell the Hobby Lobby. It was called Sibelius versus Hobby Lobby, but we changed our Secretary of Health and Human Services. It usually just called the Hobby Lobby case. It was actually a mixture of two cases. One of them from a company called the Conestoga Wood Specialties out of Pennsylvania. That company is a Mennonite Wood Company. Hobby Lobby is owned by the Green family, which is the same family that owns or his son does the Mardell Christian Book Stores, a very deep Christian believing company. And also important for this case, closely held meaning there's only about five shareholders of the whole company. It's not publicly traded on Wall Street. The question in that case was whether or not a part of Obamacare, which is actually not part of the law itself. Most of Obamacare is a bunch of things that tell agencies to go forth and create rules. So we always hear the laws 2,000 pages. It's actually longer than that. We're still writing many of the pages. One of the rules that was created required employers to give health insurance to their employees if they have more than 50 employees. But that, of course, was sort of changed to 100 employees at all the little exemptions. But nevertheless, you either have to give health care to employees or pay a fine. So Hobby Lobby, which has many stores and many employees, wants to give health care to its employees, which is actually important. That came up in the oral argument. They want to do right by their employees and give them health care. But one of the things that happens in this sort of centralized health care system is it has to be a qualifying health care plan, which is just going to have to cover certain amounts of things defined by HHS, Health and Human Services. Which makes sense. I mean, because if we just said you have to give them health care but had no definition of health care, then they could do effectively nothing. It only covers amputations. Right. Yeah. And it wouldn't achieve the goal of the law. So the law has to define its terms. Exactly. And so one of this included 20 different abortion – sorry, not abortion – birth control drugs, four of which Hobby Lobby, the Green family and the Conestoga Wood family believe are aborto-facients. I always have a problem saying that word, aborto-facients, meaning the way they perform their birth control function is by prohibiting or keeping a fertilized embryo from implanting in the wall of the uterus. They consider that murder and they don't want to fund that for their employees. Violates their religious beliefs. So they make a claim. Now the first important thing in this claim, it wasn't a First Amendment case. It actually had nothing to do with freedom of religion whatsoever because in 1990 there was a case which Aaron, you know well, the Employment Division versus Smith case where Justice Scalia actually, a well-known religious man, said that individual religious people couldn't get exemptions from generally applicable laws. In that case, it was peyote – it was public and park employees and they were park rangers or something like that. Anyway, they were Indians, Native Americans and they smoked peyote and they got caught and they said this was part of our religion. And so they basically – Scalia said, we're not going to give everyone an exemption. The new rule for the First Amendment is this, that there aren't exemptions for generally applicable rules. Right. As long as you're not targeting a religion, a religious practice, then it's fine. But you can't use your religious beliefs to get out of any law you'd like. Exactly. And there was a lot of people upset about that on both sides of the spectrum. So in 1993 they passed the Religious Freedom Restoration Act, which commanded Congress and commanded the courts to not overly burden religious belief without a compelling interest. So basically it said you had to – you couldn't – you couldn't pass a law that would burden religious belief unless there was a good reason to do so unless it was narrowly tailored. And those are like very important points of this. So what the court was doing and what Hobby Lobby was claiming was that this violated the Religious Freedom Restoration Act and so was the Conestoga Wood Specialties. And so the two big questions in this was basically, can this apply to a for-profit corporation where they say, we don't want to pay for this for these things we disagree with? And then the second thing was, did the government do this in a narrow enough way, basically? Were there other options for them to get birth control to women other than making Hobby Lobby pay for it for their employees? And it was the second – it was the – for the first question, the court didn't actually rule that corporations have religious rights. They said that the rights are the Green Families and the rights are – I can't remember the name of the family in Conestoga Wood but the family that own that, those are the rights that are to play. If you just run a business and you're the only owner and you're a Muslim and you don't agree with alcohol sales and a law makes it mandatory for you to sell alcohol, I'm not sure such law would ever be passed but it's feasible, especially now I guess, we're like mandating things now. But the person that's burdening is you. You know, you may be doing business as a company but it's burdening your religious beliefs. And if you're a partnership, it's burdening both of your religious beliefs and three people. It's hard to figure out when you would lose those rights. They said it's the Green Family that's getting burdened here and then secondly, the government has many other options for achieving this goal other than making Hobby Lobby by insurance for these women, these aborto-phishing drugs. How does this play into the idea that we often hear discussed, especially by those on the left, of corporate personhood? Because it seems like the people on the left are always crying the idea of corporate personhood by saying corporations aren't people. So we can't give them, they can't have these protections or whatever that individual people have. But then this case seems to be saying, right, corporations aren't people. They don't have the religious protections here. It's these individual guys here that are getting protected. And so if there is this separation there between the people who make up the corporation and this notion of corporate personhood, where does that come into, who gets the religious freedom or what's going on with the burdening? Well, the legal term person is used differently than other people use that terms. There are many people who are people, who are actual people who don't have full legal rights such as minors or the mentally incompetent, for example. There are some groups of people who have paired legal rights like a married couple who own a house together. The law likes to operate on them as units. So if a married couple enters into an agreement, we can say that the legal persons that would apply in those situations. The more fascinating question, and actually going back, Citizens United didn't rule their corporations or people. They've been legal persons for a very long time. The more fascinating question with the Hobby Lobby case, and it goes back to things we've talked about on Free Thoughts before, is why going into business does certain things to you or why people think that if you enter into the marketplace you should lose certain rights? I think that's the really fascinating question. Well, let me rephrase my question because I'm not sure that I asked it. Because it's a for-profit part, as I was talking about. Not non-profit. But take corporate liability. So there's this idea that the corporation can be liable but the individual people who make it up might not be. But then, if that's the case, then there's this notion of the corporation existing as something like the corporation takes actions that it then can become liable for which aren't the actions of the people who make it up because they're not liable for it. But then in Hobby Lobby, it's why doesn't this question of religious practice or burdening attach to that abstracted entity that's maybe liable or not and not to the individual people under it? Okay, I see. So the two sides of this question. So first thing in terms of limiting your liability, you could... Some people say that the limited liability corporation is like a gift from the state. I disagree with that because you could actually create a limited liability corporation with all contracts and basic tort law. Like you wouldn't be... So if you're a shareholder of a company and the company does something wrong but you own three shares of it that you bought through a mutual fund, there's no theory of tort liability that would let you get attacked for that, right? Be liable on some level for that. In terms of the closely held aspect, I think the question you're asking is interesting because what we don't know going forward in this case is whether or not this would apply to a large corporation that has more moving parts to it. The Hobby Lobby Corporation only really has. I said the five shareholders, maybe seven. I think it's five though. And every single one of these people is a firm believer in the religion and believe that this isn't a border-officiant birth control pill. So the harm is on them. Now, it seems pretty metaphysical to say, well, the harm is on the entity known as Hobby Lobby. But I think the second part of this question is even more important for the ruling, which is there are many other ways that the government could have done this. And what they're really doing in that case is they're actually just doing what Congress told them to do in the Religious Freedom Restoration Act. Presume religion, protect it fully. That's what basically it said. So don't look for loopholes. If they say they're religious, they're religious. If they say this burdens them, this burdens them. See if the government has any other options available to it. And if it does, they lose. That's basically the way it looks. Don't give outs to corporation forms or nonprofit corporations. And many of the government arguments didn't work because they would admit that, for example, religious, a church is a corporation often under the law. Everyone would say that that is a religious corporation. If you're a nonprofit religious corporation or a nonprofit believing like Amnesty International or something, again, no one had any problems with giving them exemptions. Going back to what I said, the really fascinating question is why when you start doing business, do certain other things apply to you? And I think that that's where the left was coming. As soon as you open a business, you are now a public player in a way that you weren't before. So a church exists to advance a religious agenda or to support people who are members of that religion. But religion is at the heart of its very purpose. Amnesty International has a certain set of ideological beliefs that it exists to advance in the world. Hobby Lobby sells paintbrushes and scrapbooking. The owners of it happen to be Christian. You walk into a Hobby Lobby and there's nothing about it that says, ah, Christianity. And that's a fascinating question, but I think that that's going a little too far. It actually gets to very core questions about what you're doing business for. Because everyone who does something for profit, whether it's a lemonade stand or when I used to mow lawns when I was a kid in the summer, I just wanted baseball cards out of it. That's all I wanted. So you could really say I was trading lawns for baseball cards with an intermediary, right? Everyone has some extra goal on top of the money, right? And so Hobby Lobby, though, they don't just violently pursue profit. And that's a good way of thinking about this, too, because business is, with a conscience, a huge part of the world right now, especially from the left, right? Whole Foods has a conscience. New Belgium Brewery in Colorado has a conscious day. Sustainable world, you know, doing right by unions, doing right by your workers, fair trade coffee, whatever it would be. Hobby Lobby does many things that are not just trying to get profit. They don't – are not open on Sundays. They play religious music in their stores. They have declined to use trucks to ship alcohol in like a sharing arrangement between different states. They do many things that are part of their conscience, too. So the really profound question, as I said, is that I think they all deserve exemptions. And that's the other really big point of this. You had a problem that should never have existed. You have this problem because people are getting health insurance to their jobs. This was seen as like a war on women versus the religious rights of employers, which by itself is a manufactured problem. It never should have existed in the first place. Women have many other options to get birth control. This is why over-the-counter birth control is a really good idea, and then you would never have this problem in the first place. But if your business does have these beliefs and it runs itself up against a government healthcare system that's highly centralized, I think everyone deserves an exemption. People ask about the slippery slope. I'm saying everyone deserves an exemption. That's one of the reasons why you don't pass Obamacare. It's like you just reversed engineer the principles of a free society from the back end by realizing that everyone deserves an exemption and therefore the law won't work. You just figured out why we don't pass laws like Obamacare. Let's open the door to employers being potentially more controlling of our lives because if the issue here is, you know, they don't want to – Hobby Lobby doesn't want to give money to something that then the employee is going to turn around and use for a service that Hobby Lobby finds against their religion. So they're going to pay money into a pool and then some of that money is going to go towards these drugs that they don't like. What happens then when they say, well, we don't want you to spend part of your paycheck? I mean, this is kind of the like fears I hear from especially left-wing people in my Twitter stream. Is this like they're going to control your bodies. They're going to say you can't do this and you can't do this. If you want to keep your job, you've got to do these things that we like and not spend your money in certain ways and things like that. Is there some sort of line there between refusing to pay for a given service and starting to say, well, now you can't even use? That would require another line, yes, because this was the women are now under the system that is set up. Now, one of the reasons the Hobby Lobby won this case is because the Obama administration had already given exemptions to non-profits and churches and things like this and set up a system to let them to figure out how, okay, you can just provide this and then here's a different system by which we'll get women these birth control pills. So the system already existed. But Hobby Lobby would have no objection or no legal objection to being like, here's your wages now and then you wouldn't spend it on something else. So we're objecting to that. That would be a new level of intrusion that no one should be afraid of. And it's also important to remember that this is a very narrow decision. We will not see many other decisions like this. If the Obama administration had not actually created as many exemptions as they did, like I said, they might have won this case. But because they did this, they sort of dug their own grave and it's hard to imagine many other future claims going forward that are going to be of this nature. Now, again, like I said, I think most of them should succeed, but we're not going to see many of them. Let's turn now to the case NLRB versus Noel Canning. This is the Resets Appointments case now. First important point in this, Noel Canning is not a person. Noel Canning is a company that cans things. I don't know what they can, but they do some sort of canning. And in 2012, in January of 2012, actually I first had to take a few steps back. In 2006, I think it was, Harry Reid, when Bush was president, innovated this new idea. There is a clause in the Constitution that says that the general way that you appoint high-level officers to a government position is with presidential nomination and the advice and consent of the Senate. There is an alternative way of doing it where if the Senate is not available and it's in recess, then the president can appoint a person sort of provisionally until the end of the next session. Now, for a long time, the question has been what is a recess and this has been going back even to the first decades of the country. So the Senate takes lunch breaks. Those are recesses. And they also take two-month breaks in between official sessions of the Senate. And of course, in 1795, they were six-month breaks or eight-month breaks. During those periods of time, the idea was that the executive was the only person who was in Washington all the time. And so if he really needed to appoint someone to a position like the attorney general dies while the Senate is out of Washington and he needs an attorney general, then he can appoint someone on a recess appointment. Now, of course, many presidents, including Bush, including Clinton, going back decades with a bipartisan affair, get upset when the Senate wouldn't approve someone that they wanted to be approved. And so during the Bush administration in 2006 in order to block the ability of George Bush to push people through the Senate without confirmation during small little recesses, such as a break for Easter or Christmas, particularly Christmas, Harry Reid decided that a very unlucky senator who probably made him mad, who was either from Maryland or Virginia, had to drive into the Senate every Tuesday and Thursday, gavel the Senate to order of an empty chamber, even if it was December 23rd, even if it was the day after Christmas, even possibly if it was Christmas, well, probably not because it's an official holiday Senate, but every three days he would gavel an empty Senate to order and then say, thank you gentlemen, maybe have a puppet theater or something and say, thank you gentlemen, and then they would go away. And so by this definition of the Senate, by their own rules, they were only out of session for three days with a session in between that they were doing nothing. Obama decided that that was not acceptable and he appointed four people, three people to the National Labor Relations Board and one person to the Consumer Finance Protection Bureau, basically declaring the Senate to not actually be in session when it said it wasn't session and took about two years to get the case up to the Supreme Court. I have always said this was the silliest, most egregious thing that he has done. It was just over the line. His legal team's memo about this was caused me to laugh out loud more than once in a way that you shouldn't do when you're reading a government document prepared by serious government lawyers presumably trying to seriously do their job and the Supreme Court, like I predicted for years, since it has been years since this happened, they unanimously said that Obama went over the line by declaring that the Senate, that he could define whether or not the Senate was in session. Is there a limit to this though? Because you've got, obviously having the guy drive up there every three days is a total gimmick. The Senate for all meaningful senses is in recess during those times. And so it seems like, this is just this weird cascade of gimmicks. Welcome to Washington, weird cascade of gimmicks. That's what it is. That's an interesting point. The interesting question though from a constitutional interpretation and just a good governance interpretation is people are allowed to do gimmicks. I mean, there's no constitutional obligation to be a serious governing official or many presidents would never have been elected and of course many congressmen especially. There's no constitutional obligation to not play politics, to not block people for purposes that you just don't like. That guy's haircut, you know, there's no reason you can't do that. This is something that they wanted to do. The only really important question in this case, I would say the most basic question, was who gets to decide if the Senate is in session? And the answer to that is not the president. Because even if, because the, well the advantage here is that if you just say the Senate gets to decide it's in session, then you don't have to figure anything else out. If you say the president can sometimes decide if the Senate's in session, then you just give the president the ability to be like, well, they're not really doing that much work. So I think this is not really a session. And sometimes when they're actually in session, they don't actually do anything. I mean, you know, in real sessions, I'm making scare quotes here. They have like quorum calls where they just read the names of senators for hours and hours and hours. So you give the president that power and you've opened up something that no one wants any president. And that's the rule that I have in constitutional interpretation. And Justice Breyer, I think, realized this because he wrote the majority opinion in this. If you want to propose a rule, imagine proposing giving it to your worst enemy. Just if this is your rule, the president gets to decide when the Senate's in session. Imagine giving that to president, you know, Bush if you're most hated. I mean, isn't that exactly what happened here because as you said, this popped up originally under Bush. So the Democrats, you know, instituted these gimmicks in order to prevent the guy they didn't like from appointing people, but then when the tables turned and now the Republicans can stop the Democrats from appointing people, well then they get all upset. Yeah, and of course, Harry Reid made his same little try to differentiate these two situations in a way that was just embarrassing. Well, this time is different because the Republicans are particularly bad or they're particularly recalcitrant. None of these things were principles. One of the advantages of having a Constitution which libertarians can debate, you know, the virtues and vices of a Constitution a lot and there's a very interesting debate, but at least have a rule that maybe the other side will adhere to even when it goes against them. That's the whole point of it. And now we have this basic rule which was always in the Constitution. The Senate decides when it's in session. The president doesn't and therefore the appointments were invalidated. Going forward is going to be some interesting things about what happened to all the rulings of the National Labor Relations Board for these now invalidated appointees and stuff, but most of those will have to be re-heard. So it'll be interesting going forward, but it was an important decision the first time the Supreme Court had ever heard the question of the recess appointments clause. So a little bit of constitutional history, too. Let's look now at another one that caused lots of people to get really mad. And that's Harris v. Quinn. Yes, as usual. This is a union, so really people don't think straight when they start talking about unions, especially pro-union people who think it's the plight of the working man against everyone else. This case arose from Rod Blagojevich, inmate number, XX whatever, in the governor's wing of the Illinois State President who made a deal with the unions basically, designating that the SEIU would be a union representative for the home healthcare workers of the state of Illinois. Going back a little bit, we have to think about what a union is, and this is important conceptually. So I have common interest with many people in my neighborhood, right? And I could say I could go out and I could clean the streets and things like this, and that I could go and say, I don't have the money, right? I don't have the ability to take the surrounding 10 blocks of my neighborhood, force them all to pay me money even if they don't want to be a member of that surrounding 10 blocks, and then pay me to clean the streets and do things like this. Now, homeowner associations do, but I don't have the ability to just be like, the surrounding 10 blocks are all going to pay me money now because I'm going to help them out and I'll let them vote on what they want to do. And I don't have the ability to do that. It would be like creating a sub-government run by me. I was just thinking that you've given a mini-version of the argument against social contract theories of the state, which is exactly what like, well, these people got together and signed this thing and so now all of us are bound. Exactly. And when I've debated union people on this, I've tried to bring up that point and it ends up being a weird subset of a debate about political authority because I did debate a guy who told me that either I believe in forcibly unionizing home healthcare workers or I should move to Somalia like anarchy because there was nothing in between those two because democracy was what was controlling the union and democracy creates justified political authority on behalf of the union who can now steal from people. So going back a little bit, public-centered unions are an interesting thing. They're organizing public-centered workers. It didn't even come into existence until 1958 when the state of Wisconsin was the first to allow it. People like George Meany of the AFL-CIO in the 50s, he was completely against the idea of public-centered unions. He thought that there would be no way that you could collectively bargain against the state because the state has no ability to go out of business. There's no, you can't take firefighters and have them going on strike. They're just basic things that don't make sense in a union in a union situation. FDR also disagree with public-centered unions. He thought for the same reasons. So they're fairly new and more specifically what they do is to sort of debate over policy. A teacher's union is basically a political party on behalf of teachers searching for certain policy changes from the government that benefit them, which is what everyone basically does with the government. Political parties and different unions. So if you let teachers or anyone else who works for the government forcibly unionize themselves and compel people to be in the union and support it who don't want to be in the union, then you've given them the extraordinary power to tax people who don't want to be taxed and then to petition the government for things that they may not want. So that's the conceptual groundwork here. So we do let people unionize into public-centered unions, but we only do it on a limited basis and that basis is defined by a case called ABUD, A-B-O-O-D which says teachers can unionize, but you cannot take dues from members to spend on political activity. You can only take dues from members to spend on basic bargaining union activities. This case dealt with how far you can draw that logic because the people who were unionized in this case. But teachers' unions engage in all sorts of political activity, right? Well, that's part of the big theory because it seems like everything they do is political. Every bargaining over the contract where you're talking about how many classes you can teach a day, how many kids can be in the class, what the curriculum's going to look like, all that seems political, but they basically say that's not political. What I mean for political in that sense is like ads supporting candidates, opposing candidates, things like that. So public-sector unions don't do those sorts of things? They do, but they can't take the money from non-union members to spend on those things because it violates their First Amendment rights. In Harris v. Quinn, the workers here were home healthcare workers who took care of usually invalid or very sick people in their homes who got Medicaid. So the sick people got Medicaid and then they paid the home healthcare workers out of the Medicaid that they got dispersed. And these people don't work in the same place, obviously. They work in the homes of sick people, often family members, people, mothers and fathers taking care of sons or vice versa. They can't bargain for workplace condition rules. They can't be like, you need another coffee maker in their kitchen because they're working in someone's home. They're very limited in what they can do. They're just getting money from the state. What the unions realize is that this is a huge bonanza to get more and more union members. And they've done this in 10 states. They've gotten home healthcare workers to be unionized via executive order who then paid in terms of dues. The SEIU was then designated the representative of these people in Illinois. And over the course of 10 years, the SEIU took $35 million from people who didn't want to be a part of the SEIU. Now the funniest thing is that you do hear this democracy argument. You have to have a union voted on to establish it. There's a whole procedure for establishing the initial unionization. And then there are secondary procedures for voting on representatives and things like this. So this is when people who I debated on this would say, this is democracy. It's fine. We certainly gave them the power to tax, but they're giving them the benefit of representation, right? And so they had the power to tax, but it's just like the state, right? But again what you actually saw in the situation was so imagine that you are home healthcare worker taking care of your son who gets some money from Medicaid and then one day in your mail you see an envelope from SEIU, right? Just says SEIU on the outside important materials enclosed. You say, why am I getting something from SEIU? I might throw it away or toss it to the side, right? Well that was actually your ballot. Your ballot of whether or not you wanted to be unionized. And the way the rules are set up in most states is that non-returned ballots are not counted. It's a majority of those that are returned. And so then all of a sudden this piece of mail you threw in the trash you didn't even notice. Now you're in the union because a majority of the returned ballots said to vote for the union and every single month $16 is taken out of the disbursement that you're getting every two weeks or whatever rate it is over thousands and thousands of people. And what the Supreme Court was asked was was this okay? Could you was there any reason to unionize home healthcare workers other than just basically trying to get money from them to petition the government? And was it violating their rights to petition the government by basically designating representatives for them? I mean that's basically what you did. You had the representatives, Bob Bogovitch and the Illinois Legislator designate representatives for all the home healthcare workers in the ICU and it's all very corrupt as you might imagine. And at the end of the day the Supreme Court said these are partial public employees they don't have enough characteristics of employees to be unionized so we're not going to let them be unionized. How does this how does this notion of forced unionization play into say the freedom of association protected institution? Because I mean this seems to be compelling people to associate against their will. It is. I am against forced unionization as any well there is some dispute in libertarianism about this but the entire problem in the history of labor law is what do you do with people who don't want to be a member of your union? That is the reason there was labor violence back in the day that's the reason you go and slash someone's tires because they're working when everyone else is supposed to be striking right? And so the main piece of labor legislation the Wagner Act passed during the New Deal gave it put a thumb on the scale on the side of unions it gave them the ability to forcibly unionize people who don't want to be in the union if they go through these voting procedures and it mandated that the business has to deal with just that union if these procedures have been followed. Now usually the arguments for this deal with like I said political authority type of arguments that we've talked about before like benefit theory well everyone benefits from being a part of the union so you have to pay up type of thing right? Which is not usually it's not usually transferred to other areas so for example book the booksellers trade union for example right the national organization of booksellers doesn't have the ability to make every bookseller in the United States a member of it because they might benefit from the book what the booksellers trade association does right? They don't have the ability to cartelize themselves and then forcibly extract dues from booksellers who refuse to become a member of the trade association and there are of course hundreds of trade associations that do things that create free rider effects where people benefit from it who don't have to contribute and they don't have this extraordinary power to tax private people and make them associate with you. I'm just seeing I'm having a difficult time seeing how you distinguish this from all sorts of counter examples that almost no one would support I mean I'm imagining like you know I'm a cable TV subscriber I get some benefit from it and then a handful of cable TV subscribers or worse yet the cable company is like well you know we're going to send all of our subscribers or everyone who gets cable period no matter who it's from a ballot in the mail saying hey do you want to be entered into this package that we offer and we're going to forcibly take $50 out of your bank account each month and look we voted and we said yes and now we're going to give you cable TV because hey you you benefit from it like no one in the right mind would support that sort of thing but I'm having an awfully difficult time seeing how that and all the iterations of it we might come up with are distinguished from unions. I have a difficult time too the best argument against that is definitely the unequal bargaining power argument which has been of course paraded out for a long time I have problems with that argument but I think that the arguments against that you would hear from the union side are not very principled in the way that we would talk about them as principled they're more like well it's really important that the rights of the workers are heard right or something like that or this is the only voice for the working man that is out there in the world it's very important that this gets heard so we deserve the right to forcibly unionize people and take money from them so we have more of a power in the marketplace of ideas. I've had people on panels tell me this I've had people say a guy from the AFL CIO I asked him this question I said I think that at least 70% of your members really want to be there and if you were a voluntary union you would still have a ton of money you'd still have a political clout but you wouldn't be able to take money from these 30% who don't want to be there so my question was basically what I just said the AFL CIO is the only thing out there fighting against the autocratic billionaires who want to change the world and favor the 1% or so like that and I said in response did you just tell me that you should be able to steal money from people because you're right is that what you just told me because I think Kato is pretty right so why don't we just let everyone have a 2 cents on their tax returns we wouldn't accept it of course and they can get it back if they're dissenting you have to fill out 37 forms to get it back but it's so important what we say that we're going to do exactly what you were saying a similar type of compulsory dues extraction it seems like a particularly odd argument to make when we're talking about public sector unions where the person they're bargaining with is the state because in that instance doesn't the working man already have a way of making his voice heard which is called voting and that's exactly what Harris V. Quinn was about that was the basic argument of saying that you're ruining their ability to petition the government for their grievances on their own terms if they wanted to create their own the people who didn't want to be a member of SEIU create their own organization or just petition their own governor then they would be actually working at cross purposes with themselves but they're at $16 they give every week or month to the SEIU who is doing one thing and then they're calling their legislative the other thing, yes the whole thing ends up being an absurdity especially when it comes to government you have an ability to petition the government as imperfect and problematic as it is and you can't just unionize people for the purposes of trading off between union loving politicians and the unions themselves let's move on from the controversial topic of unions to the uncontroversial topic of campaign spending with McCutcheon BFEC McCutcheon, Sean McCutcheon a friend of mine, acquaintance I've met him since this case started is a Alabama businessman who wanted to give $1,776 to about 30 candidates both challengers and incumbents and the really important thing to know in this case and in campaign finance in general is the difference between contributions and expenditures a contribution is something you give to a candidate who then presumably goes and uses it to do their campaign activities usually ads and other types of speaking and expenditure is just something you spend on your own if you want to buy a sound truck and drive it up and down shouting about how much you love Barack Obama or something like that whatever you're not giving it to them that's an expenditure and that's the fundamental distinction at the heart of campaign finance law Citizens United was about expenditures but McCutcheon here is about contributions so he wants to give this money to candidates $1,776 there is a $2,600 limit on what you can give to candidates for the general election for the primary and then the general election so total $5,200 for each candidate every two years cycle that contribution limit has been upheld by the Supreme Court is an important way feasible way of combating corruption of candidates buying candidates by walking up to them and saying here's $100,000 contribution vote for me on oil or whatever so in those pieces you're giving non-corrupting contributions or at least Congress has determined their non-corrupting contributions individually there is another limit on top of those limits for each individual contribution which is just the total amount of contributions and that's about $48,600 $48,600 per two year period so you could give each contribution themselves would be non-corrupting according to Congress so the nine would be okay but the tenth would suddenly be violating the law and this case asked whether or not that distinction made any sense whatsoever and it was important but it wasn't that important it was important just because we can't talk about campaign finance like normal people anymore the way that the left talks about campaign finance is quite frankly terrifying to me in the sense of you just hear them talk about drying up spending I suggest to everyone every single time you hear someone say get the money out of politics drying up spending I suggest just replacing all the spending and the money with just speech and then just listen to a bunch of elected representatives literally complaining that people are speaking about politics but that is an aside every campaign finance decision has to be a huge event McCutcheon is he's a nice guy I just wanted to participate in the political system he wasn't trying to buy anyone and the court asks this question does it make any sense to say that the nine donations are okay but the tenth one is wrong and a five four court as it usually is in these campaign finance cases said yes you can do that there is no good reason for that law the really disturbing thing in that case is just as Brier's descent which I nominate as the most terrifying descent of the year it is absolutely terrifying in what he thinks what his vision of a campaign finance regime is which is when the government is involved in regulating the relative voices of the empowered and the disempowered of course always in the name of ultimately incumbent protection rackets or the very surreal system where you actually give elected politicians the ability to regulate the system by which they're elected and expect them to do that honestly and forthrightly I won't go much more into that but I do suggest reading Justice Brier's descent in that to see what we're up against in this fighting campaign finance over the next couple of decades that we're going to keep fighting especially when we're holding just a one vote majority on a incredibly easy question but did the government have any reason to put an aggregate limit on these contributions if it said that individual contribution was okay let me see if I can push back just a little bit on this notion of the tenth contribution being a problem given that these are contributions to lawmakers right and lawmakers tend to operate in a system where they get together in a group and then vote on some policy then it does seem like if you if your contributions in some way influence what that lawmaker is going to do and there's question of whether that's the case but let's assume that it does then giving the money to just a couple of those guys isn't going to have a huge effect on the policies that come out of this system because their votes are just one or two among many but if you can give it to most of them or all of them some level some number then suddenly you can tip over into actually influencing the policies that come out of this voting process yes I'm being somewhat flippant here but yes you would be influencing government and that's what we do here we in America we speak and we write and we do things to influence government now if you can show me that person the person who in $500 limits which is not a lot of money can buy congress in that way I mean then people think that congress are even more of my french horrors than I even think they are I think it costs way more than $5200 to buy a congressman and it still is not the case that you can give more than that individually to them right and the second point on this of course is that money doesn't buy elections it just doesn't I think that people's ideas of campaign finance would be very different if they understood that money doesn't buy elections if we just saw it we've seen it this year we saw everything the Cokes did pretty much in the last election Sheldon Adelson almost all their candidates lost and money doesn't correlate with party there aren't more rich republicans or poor democrats and money actually informs voters and so I think there should be more money in the system I'm a big believer that I would double people can be more informed by voting there should be more money in the system because then that's more rich and a better robust political dialogue let's close with a big victory for libertarian interpretation of the constitution and one that was was rather surprising in its strength and that's the Riley decision is a combination of two cases Riley v California and worry the like Maryland I believe both of them dealt with a question of whether or not after you get arrested the police can then search your smart phone without another warrant to search your smart phone and it might seem to be oh well you get arrested you get searched but the Supreme Court has heard many of these cases where your ability to be searched when you get arrested is limited they can't just search everything that you own search the immediate trunk everything in your trunk if you have a lock box they have to have a justification to get into new areas and the reason you're allowed to search but when they were arrested was because you wanted to make sure they didn't have a pin knife or a knife or gun when you put them in the cell that was the biggest one was officer safety so the question here was about whether or not it required another search warrant and the really important ruling this could be the biggest case of the year in many ways because we have a lot of fourth amendment questions still to be answered about your digital life we still don't know what the fourth amendment status is of your Gmail account because Google owns or at least your mail resides in some weird sense in Google's possession we're not sure about other parts of the cloud and how other companies are holding this but at the same time everyone is putting their life online in such huge ways and it affects our privacy so much to allow the government to just go through everything we have in our private life our Facebook account all these things and just let them go through it and I think the justices realize that your phone has as much on it as a strip search basically and it probably helped that the justices I think all have smartphones I'm not sure but if they all have them but that they understand the sensitivity of the information on the smartphone and the most important thing about this decision is that there's a lot of language that we repeated in every brief going forward that the digital life is protected strongly by the Fourth Amendment it's incredibly important part of your life and that language will be used when we talk about the cloud that language will be used we talk about NSA searches all these things going forward it's a major victory for privacy a major victory for the Fourth Amendment to establish these protections in your digital life does any of this protection hinge on whether the because you talk about lock boxes and things like that and opening the trunk of your car whether the cell phone is locked in a sense so I mean I've got my iPhone sitting on the table in front of me and it's got the fingerprint scanner and so in order to get into it you either need a code or my fingerprint but I could turn that off and I can have it where you just push the button and you're into the phone does that does that make a difference that's an interesting question in this in this case that wasn't a huge part of because the question was so basic did they need any secondary any warrant to do anything whatsoever with the phone there could be future cases as you know a lot of these Fourth Amendment cases hinge upon really small fact changes like having something in plain view because your phone is already off of its lock screen and they saw something maybe like a piece of child pornography or something on your phone like looking over your shoulder things like that would allow them to search further into your phone and things like that and whether that would allow them to make you give them your fingerprint or your passcode could be a very specific situation but I think generally speaking the general rule outside of those exceptional circumstances doesn't matter after they get a warrant they can ask you to open it as they can if they say we got a warrant for this lock box in your trunk then they can say give us the key or we'll bust it open after they get a warrant they can do the same thing with the phone so the security levels on your phone doesn't change it at this point I'm struck by the fact that all of the cases we talked about today were victories that the position that we would advocate as libertarians seemed to be the one that the court embraced and so I'm wondering is this is there something going on here is there something tying all these cases together or is this part of a larger trend maybe of the court moving in the right direction I think it is a trend and you have seen people writing usually hit pieces about the libertarian Supreme Court some of that is because Justice Kennedy the swing vote has been called the libertarian justice of the court because he supports gay rights for example in a way that the conservative justices don't we are seeing the end of a trend where libertarian scholarship has had the biggest effect in academia which is in the legal academy since the creation of the federal society in the early 80s there's been so much more libertarian legal scholarship out there that is changing how people are looking at the world how people are looking at the constitution how people are looking at important provisions of our day life that guarantee the freedom that the constitution guarantees us in our basic common law legal system guarantees us so I think it's going to get better on the libertarian side for the justices who have those libertarian leanings but on the other side there are as many cross currents pushing the other side so what we're actually going to see over the next foreseeable future is an incredibly divided court because there are two very different judicial interpretations out there but the one that we're winning on right now is libertarian and it's good to see sort of a general trend of protecting our cell phones protecting us against forceful extraction of money from unions that are looking to spend politically protecting the basic freedoms of the constitution because of recess appointments that are good that it give too much power to the president at the expense of the senate and the separation of powers and protecting the right of people to have religious conscience in the workplace as well as in their private home all of these things are good trends that have a libertarian vein through them and I think we'll see more of that in the future thank you for listening to free thoughts if you have any questions or comments about today's show you can find us on twitter at free thoughts pod that's free thoughts pod free thoughts is a project of libertarianism.org and the Cato Institute and is produced by Evan Banks to learn more about libertarianism visit us on the web at www.libertarianism.org