WSJ feature Litigating for Liberty
Litigating for Liberty
Move over, ACLU. Chip Mellor, president of one of America's most influential law groups is expanding freedom on political speech, organ transplants and other economic frontiers.
The Weekend Interview with Chip Mellor l By Collin Levy
The Republican presidential campaign is at full boil, and among the biggest players are so-called super PACs, political-action committees that can raise and spend as much money as they like. Mitt Romney's version helped ruin Newt Gingrich in Iowa, for example. For that right to free speech (not the ads), you can thank or blame Chip Mellor, who runs the most influential legal shop that most people have never heard of.
Mr. Mellor is the 61-year-old chief of the Institute for Justice, which has been celebrating its 20th anniversary of guerrilla legal warfare on behalf of individual freedom. He's worth getting to know because he and his fellow legal battlers are behind a larger campaign to restore some of the Constitution's lost rights. And they're often succeeding.
Take political speech. The Supreme Court's January 2010 ruling in Citizens United v. FEC restored the First Amendment rights of corporations and unions to assemble to influence elections. That was followed in March 2010 by SpeechNow v. FEC, in which the D.C. Circuit Court of Appeals said that political committees may accept unlimited contributions for the purpose of independent political spending.
"That's not to downplay the importance of Citizens United," Mr. Mellor says, "but SpeechNow is the decision that lets people (and corporations and unions) pool their money in Super PACs." Mr. Mellor's outfit represented SpeechNow with the Center for Competitive Politics and IJ argued the case before the court.
The campaign finance reform lobby is going to fight relentlessly, Mr. Mellor says. "There continues to be the false premise that the problem in politics is too much money, when in fact the problem is too much government for sale." Besides, he points out, "these campaign finance laws are really treating only a symptom, not the disease. Until you get to the root cause, which is too much government, you are really not doing anything productive and in many cases you are doing harm."
Sitting in the IJ's brightly colored office in Northern Virginia, Mr. Mellor recalls the satisfactions and challenges since he founded the institute with Clint Bolick in 1991. The best part, Mr. Mellor says, "is that we find these people around the country who are already standing up for the principles we want to help vindicate. They say: All I want to do is earn an honest living, get a good education for my kids, own my home or business [or] speak in a political campaign without being subject to restraints."
In many of its cases, IJ will lose at the trial court and then win on appeal. That was the story in the group's latest foray into medicine, in which it represents cancer patients in their fight for access to bone-marrow donations that can save their lives. Under the 1984 National Organ Donor Transplant Act, Congress made it a felony for anyone to give or receive compensation for donating an organ, sweeping bone marrow into the net along with organs like kidneys and lungs.
IJ filed suit against the U.S. attorney general to challenge the law and saw the case dismissed in the trial court. When the case got to the Ninth Circuit Court of Appeals, however, the judges reversed unanimously, in effect ruling that most bone-marrow donations can be treated like blood donations, making a pilot compensation program legal and handing IJ's clients a major victory.
"Blood can be sold, sperm can be sold, ova can be sold" so this shouldn't be any different, Mr. Mellor explains. Providing a modest stipend for those who donate to the National Bone Marrow Registry could exponentially improve the chances of terminally ill patients finding a donor that could save their life.
As with many of IJ's economic-liberties cases, Mr. Mellor explains, the point is to undo the damage done by courts acting as a rubber stamp for whatever the Congress and executive branch do. "Judicial activism is an empty pejorative invoked by both liberals and conservatives to criticize outcomes they don't like," he says. The more appropriate role of the courts is judicial engagement. "They would start with a presumption of liberty and strike down those laws that exceed constitutional power delegated to the other branches."
The Institute's cases often deal with the burdens of government regulation on the common man and in doing so bring national attention to the core principles of constitutional government. Listen to the GOP presidential debates and "economic freedom" is an idea every candidate invokes to appeal to a sizeable segment of American voters alarmed by the big-government encroachments of the Obama administration.
It wasn't always thus. "I think it's not being immodest to say that when we started the Institute for Justice in 1991, the term [economic liberty] was confined pretty much to libertarian academics," Mr. Mellor grins. "Today even [Supreme Court Justice] Stephen Breyer talks about it, if only to disparage it."
Ironically, the institute's most visible case, 2005's Kelo v. New London, was a loss. Susette Kelo and other homeowners in New London, Conn., had resisted the use of the government's eminent domain powers to take their homes and give the property to a development corporation for condos and other private development adjacent to a new Pfizer plant. The Supreme Court found against them.
But in the national backlash against the decision, they arguably won the war. Since Kelo, 44 states have strengthened their laws protecting property rights from eminent domain and Kelo has become shorthand for insensitive, overreaching government not respecting the rights of ordinary people.
Mr. Mellor is an optimist about the outcome of future private property cases before the Supreme Court. Justice Antonin Scalia, he notes, "just recently said that there have been three cases that have been wrongly decided by the Supreme Court, and that two of them have been undone and one of them soon will be. He cited Dred Scott, Plessy, and Kelo."
The Institute's first client was not famous at all but what Mr. Mellor calls a "paradigmatic" one who framed an injustice with crystal clarity. IJ represented Taalib-Din Uqdah, who wanted to make his living braiding hair in Washington, D.C. But he couldn't do that without becoming a licensed cosmetologist, a requirement that would have cost him thousands of dollars. IJ got the city council to back down and allow Mr. Uqdah and his wife to get back in business without the onerous regulation.
"The constitutional principle was very, very important, it went far beyond hair braiding," Mr. Mellor says. "So it really was a perfect platform to start awakening people to what's at stake and what the solutions are."
In the years since, IJ has taken on regulations that suffocate entrepreneurs from ferry operators, taxi drivers and stadium vendors to food-truck operators, tour guides and interior designers. Behind each is a small business owner suffering under government regulations that, in most cases, aren't about protecting the public or some general interest—but about awarding anticompetitive privileges to an influential company or interest group.
If entrepreneurs are often the good guys, at the top of IJ's hit list are corporations looking for government favors and handouts. "We do recognize that there is a profound difference between being pro-free enterprise and being pro-business," Mr. Mellor notes. "When it comes to businesses, Adam Smith recognized that it will only be a matter of time before business interests get together and try to monopolize to achieve some kind of control over the market. But without government, they can't do that for any length of time."
Mr. Mellor traces his political evolution back to his days as a student protester at Ohio State University in the late 1960s. This was the time of the Vietnam War and Mr. Mellor, while marching against it, had the "epiphany of my life," he says. "It became undeniably obvious to me that both the left, which I was a part of, and the right were really after the same thing, which was power. And I didn't want any part of that."
So began an intellectual odyssey that took him from Whittaker Chambers to Ayn Rand and Friedrich Hayek and led to law school at the University of Denver. He went into private practice "in hopes that I could be an independent Clarence Darrow type," but he "quickly became disabused of the notion that you could ever control your own schedule," let alone do it all pro-bono. He went the public interest route and met legal eagle and school-choice specialist Clint Bolick in 1982, founding IJ in 1991.
The language of student protest became a key part of the IJ way. The group—it consists of some 33 lawyers and 65 staffers—is fighting not just to overturn precedents and restore constitutional jurisprudence, but to frame the debate in a way that educates and embeds those ideas in the national consciousness.
"We learned our lesson from the NAACP," Mr. Mellor continues. "Back in 1934 if you look at their annual report, there is a paragraph to the effect that the goal of the campaign must be to affect broad public opinion as well as [to win] individual cases. So every case we take is an educational vehicle designed to manifest the constitutional principles and how they apply to countless other people around the country."
Public interest law is traditionally practiced by liberal groups like the ACLU and the NAACP. Adapting the model to the kind of libertarian goals espoused by IJ has a unique set of challenges. The left fights to pass laws and create new bureaucracies to enforce them, which in turn fosters a permanent interest group to defend the left's gains.
"Groups on the left can fight for their goals through statutory law, and then count on an army of other activist groups to continue to build on their work . . . The left has tremendous advantage," Mr. Mellor explains.
In a broader legal context, Mr. Mellor notes, restoring the Privileges or Immunities Clause, a portion of the 14th Amendment which was intended to protect the economic freedom of freed slaves and other Americans, is at the core of IJs mission when it comes to economic liberty. When the Supreme Court dismantled its protections in what were known as the "Slaughter House cases" in 1873, he says, it began "the whole progressive era of economic regulation and property regulation." If you have a recognition of enumerated powers, "the potential for expansive mischief or creating new rights out of whole cloth is limited if not nonexistent," he says.
"The Supreme Court is really the culprit in creating a lot of the problems we have today," he adds. "They gutted provisions of the Constitution that were intended to constrain government or transformed them, like the Commerce Clause, into an affirmative grant of power."
If the Supreme Court is the problem, then it is also eventually the solution, and Mr. Mellor sees promise in today's court. Justice Clarence Thomas, he says, has "developed a very coherent and consistent constitutional philosophy," Chief Justice John Roberts has "said some amazingly powerful things in the campaign finance cases." And "Justice Kennedy has also evidenced some libertarian streaks over time."
As for IJ, he says, don't worry about them becoming victims of their own success. "We're not going to run out of arrogant and avaricious officials out there." he smiles. "We're going to have lots to do for a long time."
Ms. Levy is a senior editorial writer at the Journal, based in Washington.