David McFadden

Glasnost and Perestroika: An Agenda for the Trump Administration

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Although President Trump is confident of his ability to deal with Vladimir Putin, he should carefully avoid emulating Putin. It would be far better for the president to look to the example of Putin’s predecessor, Mikhail Gorbachev, who transformed the Soviet Union. The first steps in the transformation were glasnost and perestroika. Glasnost, introduced in 1985, roughly means openness and was a step toward open discussion of political and social issues. Perestroika, introduced the following year, roughly means restructuring. Perestroika reduced central economic planning and allowed some private business ownership. These and later reforms resulted in a sharp increase in political freedom (from nil), which peaked in 1991. Sadly, the gains were short lived. Freedom steadily and drastically declined under Yeltsin and Putin for a complex of reasons debated at a recent symposium at the Cato Institute.

The United States as it emerges from the Obama Administration, while not as bad off as the Soviet Union as it emerged from communism, is badly in need of both glasnost and perestroika. They should be the twin priorities of the dawning Trump Administration.

Glasnost

The American left has come to despise freedom of speech as much as it has traditionally despised freedom of contract. It has followed the normal progression of leftist movements toward viewing the protection of its social objectives as more important than human rights. The earliest and still worst manifestation of this trend is on college campuses. Campus speech codes began to appear in the late 1980’s and spread rapidly. Within a few years sixty percent of colleges had them. According to a report of the Foundation for Individual Rights in Education, the percentage has declined over the last nine years to forty percent.

In 1998, Congress declared that it was the sense of Congress that “an institution of higher education should facilitate the free and open exchange of ideas” and that “students should not be intimidated, harassed, discouraged from speaking out, or discriminated against.” 20 U.S.C. § 1011a(a)(2)(C), (D). While the sponsors of this provision may have thought (or wanted to give the impression) that they were doing something, they did not do very much. The provision imposes no consequences on institutions that act contrary to the sense of Congress on this subject. It needs an amendment putting federal funds at stake, as anti-discrimination sections in title 20 do. Although speech codes are less common than they were, universities still do a lot to stifle “the free and open exchange of ideas.” In particular, they fail to prevent students from being intimidated, harassed, and discouraged from speaking out by other students, using increasingly violent methods.

Intolerance of dissent, especially on a fixed dogma like climate change, is not limited to college campuses. A few years ago, a cabal of environmentalists enlisted sympathetic state attorneys general to investigate climate change dissidents. With a vague objective of finding a RICO violation, a group of twenty attorneys general (“AGs United for Clean Power”) have subpoenaed forty years of records from ExxonMobil in a retaliatory effort to find evidence that it has had information on climate change that differs from what it has said publicly. The attorney general of the Virgin Islands subpoenaed documents from academic institutions, scientists, and the Competitive Enterprise Institute, a think tank. He withdrew that subpoena after getting some pushback from a congressional committee and a lawsuit from the Competitive Enterprise Institute.

A venerable weapon is available for the Justice Department to use against oppressive state universities and attorneys general, the Enforcement Act of 1870. The second section of the act, 18 U.S.C. § 242, makes it a crime for anyone under color of state law to deprive a person of rights, privileges, or immunities secured or protected by the Constitution. The first section of the act, 18 U.S.C. § 241, provides criminal penalties for conspiracy to injure, oppress, threaten, or intimidate any person in the enjoyment of any right secured to him by the Constitution. State action is not an element of the crime under § 241. Could not the Civil Rights Division of the Justice Department, under new leadership, go after, for example, a group of students who prevent Milo Yiannopoulos from speaking? That would be fun.

These tools may or may not work, but they should be tried. Assaults on civil liberties should no longer be costless.

Perestroika

In Federalist No. 72, Hamilton said, “To reverse and undo what has been done by a predecessor, is very often considered by a successor as the best proof he can give of his own capacity and desert.” This has to be the best standard now, as everyone in the Trump Administration should understand.

Perestroika in the modern context ought to begin with reversing and undoing the Obama Administration’s impositions on the economy. Amity Shlaes, who, it should be recalled, wrote The Forgotten Man, observed that “smaller firms–the ones unready for the lawsuit, the investigation or the audit–bear the greater share of regulatory costs.” The regulatory burdens in need of repeal extend far beyond the Affordable Care Act and its progeny. Daniel Pérez of George Washington University’s Regulatory Studies Center has determined that Obama issued about 33% more “economically significant” regulations than either Bill Clinton or George W. Bush.

It will be a challenge for the political appointees in all the departments of the federal government to sift through the regulations and begin the process of liberating the economy from the worst of them. Fortunately, litigation has already left some of the Department of Labor’s output in ruins. The Persuader Rule, which I warned about in this blog before its adoption, and the Fiduciary Rule are controversial intrusions of the Labor Department into professional relationships. Both the Persuader Rule and an anti-business revision of overtime regulations have been enjoined by federal district courts in Texas. Five different lawsuits challenging the Fiduciary Rule are pending.

Withdrawing appeals of the rulings against the Persuader Rule and the overtime regulations is the simplest way to dispatch those rules. Other recently adopted regulations can by nullified by using the Congressional Review Act, 5 U.S.C. § § 801-808. A joint resolution of disapproval has to be introduced within sixty days of Congress’s receipt of a report of rulemaking. The act provides an expedited procedure for a joint resolution and limits debate in the Senate. In June, President Obama vetoed a joint resolution disapproving the Fiduciary Rule.

For that rule, and so many others, the arduous notice and comment process of the Administrative Procedure Act will be the only method of repeal. The ultimate goal should be that the Code of Federal Regulations will bear no trace that the Obama Administration ever existed and, more generally, that this time glasnost and perestroika will have a more lasting imprint.

Celebrating the Fiftieth Anniversary of the Voting Rights Act by Leaving it Alone

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The fiftieth anniversary of the Voting Rights Act of 1965, signed by President Lyndon Johnson August 6, 1965, has revived proposals to fill a much-needed gap in the Act, to borrow one of Hanna Gray’s favorite expressions.

The gap is thanks to the felicitous 2013 Supreme Court case of Shelby County, Alabama v. Holder, which I discussed last year in these pages. The Court held unconstitutional the Act’s archaic test for determining which states must get preclearance from the Justice Department or from the U.S. District Court for the District of Columbia to change their election laws. The preclearance requirement–Section 5 of the Voting Rights Act–was supposed to be a temporary, emergency provision expiring five years after the Voting Rights Act became effective. But as Milton Friedman said, “Nothing is so permanent as a temporary government program.” Congress renewed Section 5 four times, most recently in 2006, when Congress renewed it for another 25 years.

Writing for the Court in Shelby County v. Holder, Chief Justice Roberts said that preclearance sharply departs from basic constitutional principles by allowing the federal government to veto state laws before they go into effect, reversing the burden of proof, and forcing an oddly selected group of the states to beseech the Civil Rights Division of the Justice Department or a distant court to allow them to implement a new election law.

The Court held that this onerous regime can no longer be based on a coverage formula that sweeps in states because in the 1960s or 1970s they had low voter turnout or a literacy test. Striking down the coverage formula left Section 2 of the Act still in effect. Under Section 2, state voting laws can still be challenged in court. Section 2 does not reverse the burden of proof but leaves it where it normally is in the law—on the challenger.

Nonetheless, the party line still compels liberals to recite, in nearly every article in which they mention the subject, that in Shelby County the Supreme Court “gutted” the Voting Rights Act–or better yet committed an “Historic Gutting.” Substituting a synonym for “gutted” seems to be frowned upon and may even require a trigger warning.

“Congress must restore the Voting Rights Act,” wrote the President in a letter to the editor of the New York Times last week. He and others on left remain under the misconception that in striking down the coverage formula for preclearance, the Supreme Court invited Congress to write a new one and now Congress just needs to get about the business of accepting his invitation. There was no invitation, just a warning that a new preclearance formula based on current conditions would raise the question of whether the preclearance requirement itself is unconstitutional.

Republicans in Congress do not need to help set the stage for that controversy. Instead, they should take the offensive and counter that as the states ought not to be treated like vassals, it’s time to consider repealing Section 5 altogether. Short of that, they should leave to languish in committee proposals to rehabilitate an anachronistic affront to federalism.

How the Voting Rights Act Was Gutted and Why It Should Stay that Way

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The word that liberals are assigned to use when writing about what the Supreme Court did to the Voting Rights Act of 1965 last term in Shelby County, Alabama v. Holder, 133 S. Ct. 2612 (2013), is “gut.” The Supreme Court “gutted” the Voting Rights Act, countless editorials, blogs, and articles say, while urgently pressing Congress to repair the damage. It’s not such a bad metaphor, actually, as gutting can mean removing the parts of a dead fish that are unwanted.

In the case of the Voting Rights Act, what the Court removed was Section 4(b) of the Act, an anachronistic test for the application of an extraordinarily intrusive (and theoretically temporary) provision, Section 5. Critics of Shelby County v. Holder obscure what those two sections actually say and do. If a state or political subdivision is covered by Section 5, it must obtain a declaration from the U.S. District Court for the District of Columbia or the attorney general of the United States that any change in a “voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting” does not abridge voting rights. Without that declaration, no one “shall be denied the right to vote for failure to comply with such qualification, prerequisite, standard, practice, or procedure.” Despite its text, this provision has been interpreted to mean that any change in a covered jurisdiction’s election law has to get preclearance from the Justice Department or the U.S. District Court for the District of Columbia—including laws that draw electoral districts, which are not a “procedure with respect to voting” and do not deny anyone the right to vote for failure to comply with them. (A voter can’t comply—or not comply—with an ordinance that says councilman shall be elected at large.)

Section 5 was supposed to be a temporary, emergency provision expiring five years after the Voting Rights Act was adopted in 1965. It applied to states and political subdivisions that met two criteria set out in Section 4(b). The first was that the attorney general determined that on November 1, 1964, the jurisdiction had a “test or device” requiring a voter to prove his education, character, or morals. The second was that less than 50% of voting age citizens in the jurisdiction were registered on November 1, 1964 or less than 50% of such persons voted in the 1964 presidential election. At the time, this coverage formula was a good measure of whether blacks were being kept from voting. Southern states had been very resourceful in finding ways to do that without violating earlier civil rights laws.

Early on, these provisions were found to be within Congress’s constitutional powers. The Fifteenth Amendment says that the right of citizens to vote “shall not be abridged by the United States or by any State on account of race. . . .” Section 2 of the Fifteenth Amendment gives Congress the power to enforce the amendment “by appropriate legislation.” In 1966, the Supreme Court held that Section 5 of the Voting Rights Act, although “an uncommon exercise of congressional power,” was appropriate under the “unique circumstances” of the time, namely, pervasive defiance of voting rights that previous congressional remedies had been unable to stop. South Carolina v. Katzenbach, 383 U.S. 301, 309-10, 335 (1966). The Court found that Section 4(b)’s coverage formula “was relevant to the problem of voting discrimination” and was “rational in practice and theory.”

It did not remain rational in practice or in theory. Section 5, the eternal temporary provision, was renewed in 1970, 1975, 1982, and finally was renewed once more in 2006—until 2032! Although Congress repeatedly renewed Section 5, it never updated the coverage formula in the sense of basing it on recent conditions alone. In the first two renewals, Congress overlaid upon Section 4(b) the same tests with different years. So in 1970 jurisdictions that had a literacy test in November 1968 or less than 50% registration and turnout in the 1968 presidential election became subject to preclearance, in addition to jurisdictions already covered. In 1975, jurisdictions that had a literacy test in November 1972 and less than 50% registration or turnout in the 1972 presidential election also became subject to preclearance, in addition to jurisdictions already covered. The coverage formula was not changed when Section 5 was renewed in 1982 and 2006. All of the tests, including those based upon events long past, remained in effect.

The only way a jurisdiction entrapped by one of the tests could get out was to prove to the satisfaction of the D.C. District Court that no test or device had been used in the jurisdiction for ten years, that it had not committed any other voting rights violation, and that it had made an effort to eliminate intimidation and harassment of voters.

This “bail out” provision allowed the Supreme Court to avoid deciding whether the preclearance requirement was still appropriate in 2009. That happened after a Texas utility district filed suit in the D.C. District Court seeking a declaration that it could bail out or, in the alternative, that Section 5’s preclearance requirement was unconstitutional. On appeal, the Supreme Court held in Northwest Austin Municipal Utility District No. 1 v. Holder, 557 U.S. 193 (2009), that the utility district was eligible to bail out and, as a result, avoided deciding whether Section 5 or Section 4(b) was constitutional. But the Court had plenty to say about it nonetheless. Writing for the Court, Chief Justice Roberts cast doubt on the constitutionality of the preclearance requirement. The chief justice discussed the dramatic increases in registration and election of minorities (for which the Act deserves credit), the substantial federalism costs imposed by preclearance, and the antiquity of the coverage formula. Justice Thomas, concurring in part and dissenting in part, contended that the Court should have reached the constitutional questions and held Section 5 unconstitutional. No one wrote separately to defend Section 5. Justice Thomas wrote, “The Court quite properly alerts Congress that § 5 tests the outer boundaries of its Fifteenth Amendment enforcement authority and may not be constitutional.”

Congress ignored the warning and left Section 5’s preclearance requirement and Section 4(b)’s coverage formula unchanged. Rep. Robert Scott (Democrat of Virginia) even issued an obtuse press release boasting that the decision validated Congress’s work in establishing the continuing need for Section 5.

The issue returned to the Court four years later in a case brought by a county that was ineligible to bail out. In Shelby County v. Holder, the Court could not avoid the constitutional issues, or not all of them.

The Court wasn’t ready to declare Section 5 preclearance unconstitutional (although Justice Thomas was), but it did declare Section 4(b)’s coverage formula for preclearance unconstitutional. Again Chief Justice Roberts wrote the majority opinion. He said that preclearance is extraordinarily intrusive into the reserved powers of the states under the Tenth Amendment. It reverses the burden of proof, requiring some of the states to come, hat in hand, before the civil rights division of the Justice Department or a distant court to prove that a new law does not violate the Act and to beg for permission to implement it. Only some states are subject to this indignity despite the equal sovereignty of the states.

The purpose of the Fifteenth Amendment (often ignored in discussions of the Voting Rights Act) is to prevent denial of suffrage based on race. “To serve that purpose,” Chief Justice Roberts wrote, “Congress—if it is to divide the States—must identify those jurisdictions to be singled out on a basis that makes sense in the light of current conditions.” Apparently that’s the standard of review the Court used. If so, the Court side-stepped a question the lower courts debated and Northwest Austin acknowledged. The Court’s precedent had suggested that the test for whether a law was within Congress’s power under section 2 of the Fifteenth Amendment was either that the law was congruent and proportional to the constitutional violation or just that it was a rational means to enforce the Fifteenth Amendment. Foregoing the choice between the two, the Court seems to have created a special test for laws that divide the states, i.e., they must “makes sense in the light of current conditions.”

Section 4(b) failed that test miserably. The House Report acknowledged progress made in minority registration, turnout, and office holding; yet Congress reauthorized the same requirements and coverage formula as if nothing had changed. Congress compiled a voluminous record full of stories about “second-generation barriers,” that is, electoral districts that allegedly dilute minority voting strength. Those so-called barriers did not bar anyone from voting and aren’t even prohibited by the terms of the Voting Rights Act. More to the point, such barriers as there are today did not inform the design of the test. The coverage formula based upon literacy tests no longer in force and turnout in the 1964-72 presidential elections was reenacted as if out of habit.

While that’s hardly sensible policy, how it adds up to a violation of some constitutional provision or other is not exactly clear. After completing his critique of the coverage formula and relating the unheeded warning in Northwest Austin, the chief justice simply announces that Congress’s “failure to act leaves us today with no choice but to declare §4(b) unconstitutional.” We’re not told if by some measure Congress exceeded its power under the Fifteenth Amendment or the Fourteenth Amendment or if Section 4(b) violated the Tenth Amendment, which Shelby County also argued. In this respect, the opinion is as bad as the one the Court rendered the next day in United States v. Windsor, 133 S. Ct. 2675 (2013), in which Justice Kennedy follows his social and sentimental objections to the Defense of Marriage Act with “legalistic argle-bargle” abruptly leading to the conclusion that the Defense of Marriage Act violated the Fifth Amendment’s due process clause, the equal protection component of the Fifth Amendment’s due process clause or of the Fourteenth Amendment, or something like that.

The declaration of the unconstitutionality of Section 4(b) is followed by dicta that have been misinterpreted as an “invitation” to Congress to come up with a better formula. Actually, the Court said, “Congress may draft another formula based on current conditions. Such a formula is a prerequisite to a determination that exceptional conditions still exist justifying such an ‘extraordinary departure from the traditional course of relations between the States and the Federal Government.’” Shelby County, 133 S. Ct. at 2631 (quoting Presley v. Etowah County Comm’n, 502 U.S. 491, 500-501 (1992)). A new coverage formula is not a goal the Court is setting for Congress; it’s a prerequisite to deciding whether Section 5’s preclearance requirement remains constitutional even with a sensible test for its application. If Congress were to establish that prerequisite by devising a new coverage formula and then the Court were to strike down the whole preclearance edifice, the howls of the Left that the Court had played whack-a-mole with the civil rights community would be entertaining indeed.

The president has shown uncharacteristic respect for the separation of powers by refraining from enacting a new coverage formula by his own fiat. And true to form, the 113th Congress, one of the best Congresses ever (using the correct metric of fewest bills passed), hasn’t enacted anything either.

There have been proposals, though, ranging from the ridiculous to the not terrible. On the ridiculous end of the spectrum, Michael Lind in Salon and Dylan Matthews in the Washington Post‘s Wonkblog imagined that the Court would have no choice but to uphold blanket coverage of all fifty states. On the contrary, the Court’s choice would be easy: imposition of the extraordinary burdens of Section 5 on each state, regardless of whether pervasive violations of the Fifteenth Amendment or none at all occurred in the state, would not survive any constitutional standard that the Court would apply.

More seriously, Sen. Patrick Leahy (Democrat of Vermont) and Rep. Jim Sensenbrenner (Republican of Wisconsin) introduced in January a bill (S. 1945 and H.R. 3899) prescribing a coverage formula based on violations of the Voting Rights Act and low turnout in the last fifteen years. Violations resulting from a requirement that voters present a photo ID would not count. That’s a welcome concession, but Republicans should insist that the bill clarify that statutory voter ID requirements are not a violation of the Voting Rights Act at all. To its discredit, the bill also imposes on the states meddlesome reporting requirements regarding polling places, changes in election laws, registration, and election results.

In March the bill was referred to the House Subcommittee on the Constitution and Civil Justice. It was referred to the Senate Judiciary Committee in January. Neither committee has held hearings. That’s just as well. It is past time to allow Section 5 to expire, but Congress has never had the courage to let that happen. Inaction on the coverage formula is the next best thing, at least until Republicans control more than the House of Representatives. What we need now is a do-nothing Congress.

We the Serfs

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The Preamble is one of the few parts of the Constitution that President Obama did not abuse in his first term. He corrected that omission in his second inaugural address by using “We the People” as a refrain. Democratic politicians love to use refrains in their speeches. At Democratic National Conventions the rabble gleefully and robotically chants the refrain with the speaker. The particular refrain Obama used reminded me of a fascinating talk Professor Richard Epstein gave during a panel discussion at the November 2010 Federalist Society Convention. At the time, I was surprised to hear Professor Epstein characterize “We the People” as the “most dangerous words in the American Constitution.” Now I understand that he explained exactly what Obama was up to:

We have a deep ambiguity in our own minds when we start to evoke the image of “the people” in dealing with American constitutional law or indeed with any system of governance. . . . Sometimes we treat it as a celebration: “The American people have spoken and have decided x, y, and z ought to be president,” and what they really mean is that 54% of the voters happen to agree with one side and only 46 with the other, and what we do is we create a kind of an illusion of collective unanimity by taking a term like “people” and turning a majority into a total number. And in fact our Constitution does that in one place where I think it’s most misleading and most dangerous. I think the single most dangerous words in the American Constitution in one sense are the words “We the People,” which begin the Preamble. Now you would ask, now why is it that I would take such a negative view with respect to our document, particularly on this occasion? . . . You have to go back and see what the original draft of this particular provision was, and it said, “We the undersigned delegates of the following states,” and then you go through the rest of the thing. What it does in effect in one way is to kind of create this image of sort of coercive unanimity, and that’s the kind of language that you see also when you’re talking about the People’s Republic of China or the People’s Republic of East Germany–or closer to home, the People’s Republic of Cambridge, the People’s Republic of Berkeley–in which what you’re looking at is the notion that if you can get a majority, what you can do is to design and to organize the preferences of everybody. So the aggressive application of “the people” in terms of its ability to create and make law is in my mind a real open invitation to totalitarianism.

Well, then you look at the other uses of the word people in the Constitution, and by detailed and sophisticated empirical techniques I was able to identify four such uses in the Constitution, all of which are contained in the Bill of Rights, one of them having to do with the right of assembly, one of them having to do with the various issues on searches and seizures, and one having to do with the Ninth and Tenth Amendments on reverse power. [The Second Amendment has another.] Well, this is what I call the benign use of the term people . . . because what you are doing is you are saying every individual within the society is going to be protected against the impositions of government so that the people can be secure in their homes. We do not mean by that sentence that all of us live in one giant tepee in which we have various separate rooms and they are going to be protected. What we mean is that each of us have private and individual rights and that each and every one of them should be protected against government. So the defensive use of the term people in the Bill of Rights has a completely different resonance and a completely different tone than the rather offensive use, i.e., attacking use, of the term when it starts to go into the Preamble. And this, of course, had real consequences with the design of the original Constitution because every time you start hearing the term people in the Preamble being invoked, it’s to sort of indicate the direct relationship of individuals to the central government, which necessarily is meant to sort of underplay and degrade the role of the states in the original system. So it’s not as though this is simply a rhetorical flourish without institutional consequences. It surely has those kinds of institutional consequences.

As if to illustrate Professor Epstein’s point, Obama uses the phrase “We the People” five times to create an illusion of collective unanimity about (1) redistributionism, (2) the welfare state, (3) climate change (formerly known as global warming), (4) something opaque and equivocal about the war formerly known as the War on Terror, and (5) certain civil rights movements guided by equality “just as it guided all those men and women, sung and unsung, who left footprints along this great Mall.”

Regarding that last one, he probably did not have in mind the men and women, or their predecessors, who would leave footprints along the Mall a few days later in the fortieth March for Life. And in addressing the illusory collective unanimity on the welfare state, Obama used another of his favorite rhetorical devices, the false choice. Those who say we have to choose between having our cake and eating it too are presenting a false choice, Obama argues. We can have our cake, preserving it for our children, and eat it too, he insists. (Actually, he said, “we reject the belief that America must choose between caring for the generation that built this country and investing in the generation that will build its future,” but it’s the same thing).

The inaugural address refers to “collective action” and shows Obama eager to use it to turn the illusory collective unanimity he claims into coercive unanimity. From the perspective of Obama and his infatuates, the Senate, with its advice and consent duty and its tradition of unlimited debate, is a problem to be “fixed,” for it stands in the way of the will of the people. Happily, that effort was checked on both fronts last week.

It was to be expected, I suppose, that a demagogue par excellence would eventually find the Constitution’s “most misleading and most dangerous” phrase and exploit it to lend legitimacy to his program of undermining liberty and the constitutional structure.

Labor Regulations Take Aim at the Economy and Free Speech

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Alongside evidence of weak job growth, there are also signs of recovery. What may be recovering, however, is the recession. New orders for manufactured goods declined 13.2% in August, the steepest decline since January 2009. Real average hourly earnings declined 0.6% in August and 0.3% more in September. And the number of persons working only part-time because full-time work was unavailable increased from 7.9 million in August to 8.5 million in September.

Overall, the state of the economy is somewhere between retrogressive and woeful. Detailing the policies and initiatives of the Obama administration that have kept the economy down as it struggled to recover is an immense task, but it needs to be done.

A good place to start is the regulatory burden that has given businesses reasons to think twice about hiring more people. In his last State of the Union Address, Obama claimed, “I’ve approved fewer regulations in the last three years of my presidency than my Republican predecessor did in his.” The Heritage Foundation pointed out that Obama was counting all regulations no matter their size or cost as the same. Many Bush-era regulations eased compliance costs. The Heritage Foundation calculated that in its first three years the Obama administration adopted 106 major regulations that increased costs on private-sector activity compared to 28 such regulations in the first three years of the Bush administration. The regulations of the first three years of the Obama administration imposed $46 billion in annual costs while those of the Bush administration imposed $8.1 billion in annual costs.

Proposed regulations of the Obama administration also have to be added to the toll. Businessmen—as well as farmers—have also had to be concerned about mischievous regulations that, so far, they have been able to fend off. For example, a pair of proposed labor regulations combine Obama’s antipathy for employers with his antipathy for the Constitution. One regulation coerces speech, and the other restrains speech.

The regulation that would coerce speech was adopted by the National Labor Relations Board in August 2011. Observing that union organizing efforts were badly in need of some publicity, the NLRB adopted a regulation requiring employers to post a notice with a rather slanted list of rights. The notice states that employees have a right to join a union, negotiate with an employer through the union, bargain collectively, strike, picket, and lastly choose to do none of those things. The notice does not inform employees of their right to decertify a union, refuse to pay union dues in a right-to-work state, and refuse to pay dues greater than what is required for representational purposes. The rule makes failure to hang up the notice an unfair labor practice.

The NLRB’s statutory authority for this command is dubious. Board member Brian Hayes wrote a withering dissent that opened with Justice Scalia’s observation that “agencies may play the sorcerer’s apprentice but not the sorcerer himself” and concluded that the regulation is “both unauthorized and arbitrary and capricious.”

Lawsuits were filed against the rule in federal courts in South Carolina and the District of Columbia. The lawsuits argued that the National Labor Relations Act did not authorize the National Labor Relations Board to require a poster and that the regulation compelled employers to present a pro-union message on their property and was therefore unconstitutional, like the New Hampshire law that had required “Live Free or Die” to be on every license plate. During the litigation, the NLRB repeatedly postponed implementing the rule.

The courts split on whether the NLRB exceeded its authority. The South Carolina district court said there are many federal statutes that call for the posting of notices, and the National Labor Relations Act is not one of them. Nonetheless, the D.C. district court held that the rule was somewhere within the NLRB’s rulemaking powers. Regarding the constitutional issue, the D.C. district court said the rule does not compel employers to say anything. The notice is the government’s speech, the government’s message.

Both cases are on appeal. The D.C. district court enjoined enforcement of the rule during the appeals.

The U.S. Department of Labor Unions proposed the regulation that would restrain free speech. That regulation would constrict an exemption from a reporting requirement under the Labor-Management Reporting and Disclosure Act of 1959. The Act requires employers to report in detail any agreements with or payments to a consultant who undertakes activities to persuade employees on whether or not to organize and bargain collectively. The Act has an exemption providing that reports are not required on account of advice to an employer. For years the Labor Department had interpreted the exemption to cover activities that involved both advice to the employer and persuasion of employees. In June 2011 the Department proposed a regulation, known as “the persuader rule,” changing its interpretation of the exemption so that it covers only services related exclusively to advice. If any part of the service is to persuade employees, directly or indirectly, then the exemption is lost.

The Department received hostile comments on the proposal not only from the Chamber of Commerce, as you might expect, but also from the American Bar Association. The Chamber and the Bar Association said the persuader rule’s new subjective test made the advice exemption meaningless. The Bar Association said that the persuader rule would thwart the will of Congress, conflict with the ABA Model Rule on confidentiality, and undermine both the confidential lawyer-client relationship and employers’ right to counsel.

Faced with that opposition, the Labor Department has taken no further action on the persuader rule. The Department may be waiting until after the election. The rule could be part of the unknown, unspoken agenda for a second term.

If the persuader rule ever is adopted, it too should be challenged on constitutional grounds. The Supreme Court has not yet directly addressed whether attorney advice is protected speech and, if so, what level of scrutiny should be given to regulation of it. Renee Knake argues in a recent law review article that attorney advice is protected speech and restraints on attorney advice should be given strict scrutiny. That is, they are unconstitutional unless they are necessary to further a compelling governmental interest and are narrowly tailored to do so using the least restrictive means.

These two latent regulations of the NLRB and the Department of Labor are not “regulations on Wall Street,” as Obama likes to refer to all of his regulations. Wall Street firms, not being labor intensive, would be among the enterprises least burdened by these rules.

The rules are far from the administration’s worst insult to the First Amendment (that prize goes to the suppression of the free exercise of religion by the Department of Health and Human Services), but they are part of a pattern of not allowing the First Amendment, the Recess Clause, the Presentment Clause, the Commerce Clause, or anything else get in the way of the task of suppressing the economy.

With mischief like these regulations in mind, Mitt Romney said at the second debate, “I talk to small business across the country. They say, ‘We feel like we’re under attack from our own government.’” Denying that Obama is hostile to business, Democrats insist that his infamous taunt “You didn’t build that” has to be taken in context. I agree. The context is his presidency.