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I was previously a constitutional law and civil rights litigator and am now a journalist. I am the author of three New York Times bestselling books -- "How Would a Patriot Act" (a critique of Bush executive power theories), "Tragic Legacy" (documenting the Bush legacy), and With Liberty and Justice for Some (critiquing America's two-tiered justice system and the collapse of the rule of law for its political and financial elites). My fifth book - No Place to Hide: Edward Snowden, the NSA and the US Surveillance State - will be released on April 29, 2014 by Holt/Metropolitan.

Thursday, October 12, 2006

The GOP war on the private sphere

(updated below)

With the bulk of the nation's political attention devoted to the Bush administration's radical terrorism and war policies, the relentless domestic invasions into the private realm of adult Americans usually go unnoticed. But underneath the media radar, the administration and its Congressional allies have been actively placating the religious "conservative" wing of the Republican Party through all sorts of liberty-infringing and highly invasive measures. On every level, it is difficult to envision a political party more hostile to individual liberty than the current Bush-led Republicans.

One of the leading items on the agenda of religious conservatives is their desire to prevent adult citizens who want to gamble from doing so -- not by persuading them of the evils of gambling, but by abusing the power of the federal government to make it a criminal offense for those adults to choose to gamble. Two weeks ago, Congressional Republicans, led by Sens. Bill Frist and John Kyl, attached a broad anti-gambling provision onto a bill designed to enhance port security, which means that nobody could vote against it. That provision "prohibit[s] gamblers [i.e., adults] from using credit cards, checks and electronic fund transfers to settle their online wagers," and it also dramatically enhances the enforcement powers of the federal government to arrest and imprison adults who choose to spend the money they earn by sitting in their homes and gambling online.

As reflected by the observations at National Review's Corner of Andrew Stuttaford (a genuine believer in individual liberty), Republicans have now almost completely abandoned any belief in limitations on the power and reach of the federal government to regulate every aspect of our lives, while Democrats, imperfect though they are, have taken the role of insisting upon the right of citizens to be free from unwarranted federal government intervention. Here is Stuttaford, quoting Barney Frank:

[Frank]: "If an adult in this country, with his or her own money, wants to engage in an activity that harms no one, how dare we prohibit it because it doesn't add to the GDP or it has no macroeconomic benefit. Are we all to take home calculators and, until we have satisfied the gentleman from Iowa that we are being socially useful, we abstain from recreational activities that we choose?... People have said, What is the value of gambling ? Here is the value. Some human beings enjoy doing it. Shouldn't that be our principle? If individuals like doing something and they harm no one, we will allow them to do it, even if other people disapprove of what they do."

[Stuttaford]: Barney Frank talking sense, Senator Frist not. Draw your own conclusions.

Barney Frank is typically held up (for less than noble reasons) as the face of contemporary big government liberalism, yet Frank's formulation here -- "If individuals like doing something and they harm no one, we will allow them to do it, even if other people disapprove of what they do" -- is an expression of the core, defining libertarian principle, which previously defined (at least ostensibly) small-government conservative ideology. Those principles are ones which the Republican Party, under power-crazed authoritarians like Bill Frist, not only clearly reject, but actively work to undermine in virtually every realm.

The Bush administration and its GOP Congressional allies have been waging a similar war against the evils of adult pornography. The Mark Foley-sponsored so-called "Adam Walsh Child Protection Act of 2006" has as one of its principal, hidden purposes the imposition of a regulatory scheme designed to make it as prohibitively expensive and burdensome as possible to produce and distribute adult pornographic products or to maintain adult websites.

The First Amendment bars them from doing what they really want to do, which is criminalize the production and distribution of any material they consider to be pornographic (just like they have criminalized gambling). As a result, they are attempting to accomplish the same objective via the indirect strategy of imposing so many record-keeping and other bureaucratic requirements on companies that produce pornography -- compliance is virtually impossible without hiring attorneys and new employees strictly to work on record-keeping -- that companies can no longer afford to do so and are scared out of operating or are driven out of business.

What makes all of this even more indefensible is that these provisions are not only being enacted, but that federal law enforcement resources -- substantial amounts of them -- are being devoted to enforcing these new laws even though we are currently fighting an Epic War of Civilizations. FBI agents are not being used to search for IslamoFascistJihadists sleeper cells because they are too busy satisfying James Dobson by searching for poker players and spending the day at the homes of single-person pornographers ensuring that their record-keeping is in compliance with the Byzantine requirements of Mark Foley's new law. Anti-gambling activities have increased dramatically as of late: "Federal officials have made recent arrests involving offshore companies operating Internet gambling sites."

And in the lead-up to the November election, the FBI has also been dispatching agents to various pornography companies around the country to conduct so-called "2257 inspections," a reference to the provision of Mark Foley's new law (as well as a prior one also co-sponsored by him) which has been dramatically expanded in numerous ways over the past year. The FBI has been forcing agents to spend literally all day at small, obscure companies that are not suspected of any wrongdoing. And the FBI has announced that they intend to conduct numerous additional inspections from now until November. The work is so frivolous that FBI agents have refused the assignment and complained bitterly about being tasked to such matters during the War on Terrorism.

The same people who relentlessly insist that this war against The Terrorists which we are fighting is so grave and of such overriding danger that we have to dismantle the Constitution and vest unprecedented domestic powers in the President to fight it, are simultaneously causing the FBI to devote its resources to finding and arresting adults who choose to spend their time and money on gambling and adult pornography, all because James Dobson and Bill First think those activities are immoral and irreligious and, therefore, the Federal Government can and should use its vast law enforcement powers to dictate how adult citizens conduct themselves in their private lives.

It has been obvious for quite some time, and certainly since the Schiavo travesty, that the Bush-led Republican Party is the very antithesis of individual liberty and a limited federal government. The administration and its Congressional loyalists not only seek unlimited state power in name of combating terrorism but also in the name of enforcing private morality.

UPDATE: Several commenters have suggested that one impetus for this bill, if not the primary impetus, was a desire to protect the offline gaming industry from the competitive threat posed by online gambling. I understand that view, and have written before about one of the lowest forms of political manipulation imaginable -- the way Ralph Reed mobilized his anti-gambling moralist base by making them think the anti-gambling legislation he advocated was achieving some moral good when, in reality, it was all designed to protect the interests of Jack Abramoff's casino clients, who were paying Reed high fees.

But in this case, the anti-gambling legislation seems clearly aimed at the religious "conservative" component of the GOP and, as this interesting article covering the new law suggests, Bill Frist's presidential ambitions (and his need to curry favor with that voting segment) in particular. Additionally, this new post from Andrew Stuttaford makes a convincing case that Las Vegas and Native American casino interests strongly opposed this bill.

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