Redskins Trademark Decision Has Many Problems

On June 18 a divided three-judge panel of the U.S. Trademark Trial and Appeal Board (TTAB) granted a petition brought by a group of Native Americans seeking the cancellation of six federal trademarks related to the Washington Redskins. Federal trademark law prohibits the recognition of any marks “which may disparage…persons…or bring them into contempt, or disrepute.” The Board majority agreed with the petitioners that the use of the term “Redskins” in each of the six marks disparaged Native Americans.

The factual question for the Board was not whether the term “Redskin” is disparaging in contemporary usage, but rather was it considered disparaging at the time the marks were registered. The trademarks at issue here were registered at different times between 1967 and 1990. Accordingly, the Board was tasked with looking at historical evidence. But as the dissenting judge on the panel, Marc A. Bergsman, pointed out, two key pieces of evidence relied upon by the majority were dubious at best.

The first thing the majority looked at was expert testimony on the dictionary definition of “redskin” prior to 1990. Bergsman questioned the qualifications of these experts:

[They] were qualified as expert witnesses in linguistics, none of whom specifically researched the Native American viewpoint of the word “redskin(s)” in connection with football-related services during any time period. Despite the fact that the issue before us is how Native Americans perceive the term “Redskins,” we are presented with the expert testimony of three non-Native American men opining on how other presumptively non-Native American men and women (i.e., the editorial staff of dictionary publishers) perceive the term “Redskins.”

Bergsman goes on to summarize the testimony of one of the experts, who could only identify a single dictionary entry defining “redskin” as derogatory as of 1967, when the first “Redskins” trademark was registered. And there was only one additional dictionary published between 1966 and 1979 that suggested the term was disparaging. The Board majority argued there was a “trend” towards dictionary editors treating “Redskin” as derogatory, but as Bergsman replied, “Two does not make a trend.”

The second major piece of evidence cited by the majority was a 1993 resolution passed by the National Congress of American Indians (NCAI) declaring the “Redskins” name derogatory. The Board took this as evidence a significant number of Native Americans opposed the continued use of the name. But as Bergsman noted, the NCAI passed no such resolution at any point between 1967 and 1992 when the trademarks were initially registered. Furthermore, there was insufficient evidence NCAI actually represented the views of “approximately thirty percent of Native Americans,” as it claimed. Bergsman also dismissed other purported evidence of Native American opposition to the name as highly misleading:

[T]he majority references a 1992 survey by WTOP, a Washington, D.C. radio station, showing 28% of Native American tribal leaders found the name Redskins offensive corroborates the fact that a substantial composite of Native Americans perceive the term “Redskin” to be disparaging. The purpose of the survey was to see how tribal leaders and listeners felt about WTOP not using the name Washington Redskins to refer to the football team. There are numerous problems with this survey for purposes of this proceeding. First, the survey took place in 1992, after the relevant time period about an act that took place after the relevant time period. Second, the “tribal leaders” were asked a leading question: “Do you think the name of the football team, The Washington Redskins, is offensive?” The survey respondents were only given the option to answer “yes” or “no.” They were not given the option of “do not know” or “no opinion.” There was no probe question as a follow-up to the answer to determine why a respondent gave a particular answer. Finally, it is not clear that the universe of “tribal leaders” was correct. Petitioners did not provide any information regarding how the survey company identified tribal leaders or verified that the respondent was, in fact, a tribal leader. Furthermore, there was no verification to determine whether the interviews actually took place.

The Standing Problem

Bergsman did not challenge the majority’s finding on one issue, which I will address here, and that is standing. There are five petitioners in this case. Each is a member of a federally recognized Native American tribe. Each claims to find the use of the term “Redskins” by the football team derogatory and offensive. That’s the entirety of their standing argument. The Board accepted this as proof each petitioner has a “real interest” and “personal stake” in the cancellation of the Redskins trademarks.

This is an unusually generous interpretation of standing. It made me recall a personal experience. About ten years ago, I was following a government antitrust case against a physician group in North Carolina. The parties settled, and federal law required the government to file a copy of the settlement–and all “determinative documents” related thereto–with the court. This was to afford the public a chance to review the case information and file comments supporting or objecting to the settlement.

I had filed an extensive comment opposing the settlement (as an abuse of government power). I also questioned the government’s refusal to disclose a key document in the case. The government argued it was unnecessary. I maintained the law required disclosure. Eventually, I intervened and filed an appeal with the U.S. Court of Appeals in Richmond. The appeals court laughed me out of the room (figuratively), holding that I lacked standing to bring such a challenge.

My argument boiled down to, “The law says the public has the right to this information, therefore as a member of the public I am injured by the government’s refusal to provide said information.” The government–and the court of appeals–replied that while Congress may create a “public” right, that does not give each individual member of the public standing to bring a lawsuit to enforce said right.

And that was not an unreasonable position. While I was annoyed by the lack of disclosure, I was not injured. The “right” in this case was purely a creation of the state, i.e. access to information generated in a government antitrust investigation. It was not a violation of my rights as a person or even a tort in the ordinary civil sense.

Similarly, while the petitioners in the Redskins case may be genuinely offended by the use of the name–and I won’t question their sincerity–I do not think it should rise to the level of a legally remediable injury. Congress may wish to exclude certain words and phrases from trademark protection, but that should not automatically vest standing in any person who claims to be offended in the abstract by such terms.

The Subjectivity Problem

Which brings me to my next problem with the Board’s decision. Here is the extended text of the law prohibiting disparaging trademarks:

No trademark by which the goods of the applicant may be distinguished from the goods of others shall be refused registration on the principal register on account of its nature unless it—

(a) Consists of or comprises immoral, deceptive, or scandalous matter; or matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute;

This is a completely subjective test. There is no reliable way to determine, before the fact, whether a term is “immoral” or “disparaging” to some group of persons. Nor is it clear how one would even define the disparaged group. We saw this in the above discussion. If 30% of Native Americans–a term that itself is quite fluid–find a term offensive, is that enough to deny trademark protection? What about 15%? Or 10%? How many people must object to a term before it runs afoul of the law?

Consider another section of this same law that prohibits trademark protection of any mark that

(c) Consists of or comprises a name, portrait, or signature identifying a particular living individual except by his written consent, or the name, signature, or portrait of a deceased President of the United States during the life of his widow, if any, except by the written consent of the widow.

Now this is an objective rule. Don’t use an actual person in a trademark without their consent. Everyone can understand and abide by this prohibition without difficulty.

The subjectivity problem is compounded here by the fact the initial Redskins trademark was registered nearly 50 years ago. No matter how much due diligence or good faith the Board exercises, it is impossible to recreate a subjective viewpoint that old. Clearly, the Board majority relied in some part–if not great part–on the present-day (and largely negative) coverage of the Redskins name controversy. Which only further undermines the credibility of the trademark disparagement law.

The Monopoly Problem

All that said, the Redskins should not be looked at as an unfortunate victim of “political correctness” run amok. Some commentators have suggested the Board’s decision amounts to a violation of the Redskins’ free speech rights. Actually, the opposite is true. By canceling trademark registration, the Board has deprived the football team of a weapon it can use to deprive others of their free speech rights. And even without trademark registration, the Redskins are still in a position to profit handsomely off their name.

The constitutional justification for federal trademarks has always been suspect. Although trademarks are lumped together with copyrights and patents as types of “intellectual property,” the Constitution only authorizes the latter two. There is no express constitutional basis for trademarks, and the implicit basis–Congress’ authority to regulate interstate commerce–is shaky given the First Amendment’s superseding command that the legislature not regulate against free speech.

A trademark is basically a state-granted monopoly over a word. It is absurd that a football team should claim exclusive commercial rights over the use of a term it did not even invent. In this sense, the Washington Redskins trademark should be canceled–and so should every other NFL trademark. It’s no more ludicrous that a football team in Virginia should have a monopoly on the word “Redskins” than one in Massachusetts should have one over the term “Patriots.”

The Board did not prohibit the Redskins from continuing to use or profit from their traditional name. It simply deprived them of a small package of special state privileges. So the Redskins are no more a victim here than the Native Americans who initiated this case. The only beneficiaries are the lawyers, on both sides, who will likely continue to collect fees well into the next decade.

The Libertarian Marketing Wars

Jeffrey Tucker is the libertarian Ron Popeil. We may remember Mr. Popeil from such classic infomercial products as the Pocket Fisherman, the Ronco Showtime Rotisserie, and of course, the GLH-9 hair in a can. Mr. Tucker, in contrast, does not sell novelty housewares, but he does hawk a very consumer-friendly form of libertarianism through Laissez-Faire Books, where he serves as publisher, and his recently launched social network Liberty.me.

I compare Tucker to Popeil because of their natural showmanship. Anyone who ever watched a Ron Popeil infomercial saw a man joyfully devoted to American consumerism. The same enthusiasm permeates Jeffrey Tucker’s writings. The man worships at the altar of Taco Bell. He thinks Justin Bieber is the crowning achievement of Western civilization. There is no problem that cannot be solved through commerce and a cheerful attitude.

Naturally, some libertarians find Tucker’s act annoying. I’ve always said if you put two libertarians in a room, they’ll somehow divide into three separate factions. Tucker himself recently inflamed his critics with an essay for the The Freeman entitled, “Against Libertarian Brutalism.” What the heck is “libertarian brutalism”? To answer that question, I’d like to take a brief detour and talk about frozen yogurt.

“You’ve got the God yogurt on one side, sex yogurt on the other.”

I live in Charlottesville, Virginia, which despite its modest population features a plethora of frozen dessert retailers. Laura Ingles, a writer for the newspaper C-Ville Weekly, recently reported on a relative newcomer, CUPS Frozen Yogurt, which markets its product using sexual innuendo and has been compared by some media websites as the “Hooters of Frozen Yogurt”:

It’s hard not to notice the night-club-beach-party theme when you walk into the brightly lit space… Top 40 music is blasting from the speakers, and the seating area walls are covered in 1960s-style beach posters, featuring both men and women in skimpy bathing suits, posing with surfboards and frolicking in the sand. High school student Jenna Jansen is working the register, and she’s wearing black leggings, a pink tank top, and a pink zip-up hoodie—the same type of outfit I’d wear to go for a run, and arguably less revealing than what we’ll start seeing around [the nearby University of Virginia] now that the weather’s warming up.

Directly across the street there’s another frozen yogurt store, Sweet Frog, where the ownership chooses to emphasize a more traditional family-friendly theme. The word “Frog” is actually an acronym for “Fully Rely on God.” One customer told C-Ville’s Ingles, “You’ve got the God yogurt on one side, sex yogurt on the other.” And despite the divergent marketing approaches, both stores sell the same thing–frozen yogurt with a wide assortment of toppings.

Libertarianism. Now with a 30-Day Money Back Guarantee!

Although libertarians tend to present their internal disagreements as some grand philosophical battle, at the end of the day they’re basically no different than the retailers selling frozen yogurt. In his essay, Jeffrey Tucker argued for a more “humanitarian” libertarianism embracing “the well-being of the human person and the flourishing of society in all its complexity”–as opposed to “brutalist” libertarians who only care about “the pure theory of the rights of individuals to live their values whatever they may be.” Tucker claims libertarian brutalism is bad because it does not address social ills such as misogyny, antisemitism or just plain rude behavior.

As I read this, Tucker is saying, “Why buy plain old-fashioned libertarianism when you can have libertarianism with lots of extra toppings?” Jeffrey Tucker’s libertarianism won’t simply uphold individual rights and defeat the state–it will also wipe out sexism and racism at NO EXTRA CHARGE. And if you order now, Tucker will even throw in a State of Kansas Jell-O mold (pay only shipping and handling)!

Meanwhile, across the proverbial street, the more established libertarian outlets take offense to Tucker’s marketing puffery. “We sell pure libertarianism made with only the best philosophers and no unnecessary filler!” The product may be simple and lack Tucker’s fancier website packaging, but it is time-tested and guaranteed to last a lifetime.

Both sides are marketing to a different niche within libertarianism. Tucker wants to attract the younger, underemployed libertarians. His competition markets to older customers with steady jobs. But unlike traditional market competition, “ideological” competition tends to quickly degenerate into personal attacks. Within the past few days, one of Tucker’s acolytes launched a public attack against the competition, labeling them as a bunch of racists. That’s not the sort of advertising tactic one typically employs when marketing frozen yogurt.

When you’re selling libertarianism–or any ideology–what you’re really selling is a sense of personal identity. Nobody defines themselves by the frozen yogurt they buy, even if they might have a particular brand preference. But if you decide you’re a libertarian–or a socialist or a conservative–than anyone else who calls himself or herself a libertarian poses a potential threat to your identity. Because what if that libertarian doesn’t believe exactly the same things as you, or chooses to emphasize certain positions differently than you would? One of you has to be wrong–and it can’t possibly be you. So your first instinct is to declare the other person isn’t really a libertarian at all, and their version of the philosophy is somehow corrupt or inadequate.

These so-called libertarian civil wars are really just the inevitable consequence of the limited demand for the product offered by the combatants. The Internet age has produced an abundant supply of would-be libertarian pundits–people who are neither scholars nor journalists, but what some have called “celebritarians” (I credit Angela Keaton with introducing me to this term). These are people who use the term “libertarian” primarily to market themselves and whatever causes they support.

And this is the marketplace that folks like Jeffrey Tucker (and his competition) seek to exploit. As belies their love of free markets, libertarians compete for scarce dollars, whether from donors to nonprofit organizations or paid subscribers to a website. I take no position on which store you should buy your libertarianism from. But when people start throwing buzzwords like “brutalism” or “thick libertarianism” around, understand you’re not a participant in some philosophical seminar but the target of a sophisticated marketing scheme. It doesn’t matter if you’re hawking cheap rotisseries or second-rate ideology; it all comes back to marketing.

The NBA’s Feudal Punishment of Donald Sterling

NBA Commissioner Adam Silver’s decision to depose Donald Sterling as owner of the Los Angeles Clippers represents the latest step in a sports industry trend towards the consolidation of authority in the commissioner’s office. Although commissioners are nominally hired and fired by owners to act as their representatives, Silver’s action suggests that in the near future, owners will serve at the pleasure of the commissioner, not vice versa. As long as the “New Media Army” of traditional pundits and Twitter mobs back these de facto dictatorships–and the Sterling case suggests they will–we may finally see the decline and fall of the traditional feudal model of sports ownership.

I use the word “feudal” to rebut the more conventional argument that U.S. sports leagues represent some form of socialism. I have always found this puzzling. Socialism would imply a “dictatorship of the proletariat,” or a league owned entirely by the players. There would be no need for a commissioner or franchise “owners” in such a system.

Of course, when people speak of sports socialism, they refer to various price controls used to subsidize poorly managed clubs. Sterling’s Clippers, for example, received years of high draft picks as a result of poor performance. The draft itself is a restriction on the free movement of labor. A new player may not negotiate or sign with the team of his choice; rather, the league grants the player’s “rights” to a single club.

What we are really dealing with a modern type of feudalism, a term I use in the sense defined by the 20th century historian and economist Murray Rothbard:

The term “feudalism,” as used here, is not intended to apply to any specific landed or other relation during the Middle Ages; it is used here to cover a single kind of action: the seizure of land by conquest and the continuing assertion and enforcement of ownership over that land and the extraction of rent from the peasants continuing to till the soil.

In the case of professional sports, we are not talking about land, but rather the labor created and owned in the first instance by the players. The NBA (and other leagues) use government privileges to seize and assign themselves a monopoly over this labor. These privileges include taxpayer subsidies to finance arena construction, labor laws that enable a management-friendly union to collude with ownership, and a political and media culture that strongly favors authority in the form of the commissioner’s office. As a result, the NBA deprives players the full use and control of their labor. The NBA owners are not entrepreneurs earning profit, but feudal lords extracting rent from a carefully controlled working class.

Obviously, many will object to the term “feudalism” on the grounds that NBA players are not Medieval serfs but highly paid professionals. But as Professor Rothbard advised, feudalism describes a type of action, not a specific historic practice. What defines the NBA as feudal is its rigid caste system designed to protect the rent-seeking behavior of ownership. The fact the players retain a portion of their rightful income is irrelevant.

Indeed, what distinguishes professional sports ownership from entrepreneurship is the near-total absence of employee equity. Consider a typical startup firm. A sole proprietor may initially hold 100% equity. But then she needs to hire key employees to help launch the company. Unable to offer competitive salaries at the outset, the proprietor offers equity or stock options to recruit and retain staff. A venture capitalist may also invest funds in exchange for equity. Eventually, the startup goes public and raises additional capital through a sale of shares. The employees then benefit from the IPO windfall.

None of this happens in professional sports. All of the leagues tightly control the creation and transfer of franchise titles. The goal is to consolidate equity in the fewest hands possible–and prevent employee ownership at all costs. This is a key reason the NBA and other leagues insist on a player “salary cap.” A principal consequence of such caps is that franchises cannot offer ownership stakes to key players as an incentive to sign.

There is also no such thing as public ownership of a sports franchise outside of the Green Bay Packers. The Packers are famously owned by a non-profit shareholder corporation. But even here, the NFL has gone to great lengths to render the Packers shareholders owners in name only. Packers shares may not be bought and sold on the open market. No dividends are ever paid. And at all times, the shareholders may not challenge the authority of the NFL commissioner.

The league commissioner himself is akin to a feudal monarch. The NBA commissioner may not own a team, but he does control a substantial force in the form of the league’s rules and bureaucracy. In theory, a feudal monarch answered to his barons, but in practice, the modern sports king rules with the consent of the public–or at least the media whose attention and support fuel the league’s popularity.

In moving against Sterling, Commissioner Silver acted to protect the league’s feudal structure from a potentially fatal challenge. In the hours leading up to Silver’s decision, numerous reports suggested Clippers players might boycott the team’s playoff games in protest of the scandal surrounding Silver. Had that occurred, it would have marked the first serious breach of the NBA owners’ feudal title claims over NBA labor. That was a precedent Silver was unwilling to set.

Removing Sterling also provides Silver with a player- and media-sanctioned opportunity to handpick a new Clippers owner who will not challenge the commissioner’s authority in the future. After all, the new owner will owe his franchise to Silver’s Royal benevolence. And it sends a message to every other owner that he, too, can be replaced if he displeases the commissioner and his media allies.

The players, however, are in no better position today than before the Sterling scandal. They remain stuck in a feudal labor system that denies them ownership of their own labor. They are no closer to abolishing the caste system and state privilege that deprives them of equity in the franchises they’ve built. And in a few weeks, when this scandal is a distant memory, the commissioner’s office and the press will go looking for new enemies, presumably among the ranks of players rather than owners. All in all, the overthrow of Donald Sterling will not be remembered as the dawn of a new era for NBA players, but as just another step on Adam Silver’s long march towards NBA absolute monarchy.

The NFL’s Unsustainable Draft Limit

The National Football League recently announced that 98 underclassmen have been “granted special eligibility” to enter the 2014 NFL Draft. The “special eligibility” language refers to the Collective Bargaining Agreement (CBA) between the NFL and the NFL Players Association. Under the CBA, no player may enter the Draft “until three regular NFL seasons have begun and ended following either his graduation from high school or graduation of the class with which he entered high school, whichever is earlier.”

The CBA actually modified an even stricter rule in the NFL’s Constitution that dates back to the 1920s. This rule states that before a player can enter the Draft, he must either (1) graduate from college, (2) have no more college football eligibility or (3) wait five years from the date he first entered college. Since the modified, three-year eligibility rule is part of a labor agreement, federal law protects it from challenges under antitrust law.

Not that players haven’t tried. Most famously, former Ohio State running back Maurice Clarett attempted to enter the NFL Draft after his freshman year. He sued the NFL in New York, claiming the three-year wait illegally restrained competition for “player services.” Future Supreme Court Justice Sonia Sotomayor, writing for a federal appeals court panel in 2004, rejected Clarett’s arguments, noting that federal labor law—which protects unions over individual workers—overruled Clarett’s right to seek employment. She noted that the eligibility rule, in particular, protects “veteran players” whose jobs may be threatened by the unrestricted entry of cheaper, younger college players.

Obviously, the NFLPA has little incentive to challenge the three-year rule. Indeed, the rule was expressly reaffirmed in the two CBAs negotiated after Justice Sotomayor’s decision. In the most recent CBA, the NFLPA even agreed to further NFL restrictions on rookie salaries and contracts. (In fairness, the NFLPA has negotiated down the length of the NFL Draft from what was 17 rounds in the 1960s to just seven today.)

Is Change Coming?

But while the union may be content with the status quo, what about the NFL? That may seem like an odd question since it’s the league’s rule we’re talking about. Consider, however, the NFL’s seemingly unquenchable thirst for expansion. NFL Commissioner Roger Goodell has hinted at new teams in Los Angeles and London. It’s not unreasonable to project the NFL may add as many as four clubs by the end of this decade. Given each NFL team currently has 61 players—53 active and eight practice squad members—that would require nearly 250 additional players annually.

Add to that the likelihood that individual player careers will only get shorter as the decade continues. The impact of repeated brain injuries will continue to challenge football at the NFL, college, high school and even youth levels. No doubt health concerns played a part in the record number of underclassmen who entered the 2014 Draft. Players are more acutely aware the clock is running on their football careers; there’s little sense in wasting their potentially valuable time in college.

At some point, the NFL’s high player turnover will make continued enforcement of the three-year eligibility rule impractical. By 2020, there’s a good chance the NFL and the NFLPA will agree to a two-year rule. Even a one-year rule may not be off the table before the decade is out.

That said, the NFL is unlikely to abolish college eligibility altogether. The league does not want “raw” high school players. And the major college programs serve as a valuable filtering and scouting service. If the NFL tried to bypass the colleges altogether, it would then have to expend additional resources to scout high schools. As any college recruiter will tell you, that’s an enormous undertaking, even with the NFL’s resources.

An Upside for the Colleges
Would allowing freshman and sophomores to enter the NFL Draft negatively impact college football? Probably not. Even this year’s record exodus of talent is unlikely to reduce the quality of college football this fall. Football is not basketball, where one or two star players produce an immediate difference. Even at the critical quarterback position, the different set of skills required in the college and NFL games will offset the early loss of a Johnny Manziel-type player.There’s also an important upside for college football if the NFL moves to admit first- and second-year players: It reduces the critical demand for the schools to “pay” the players. Many of the problems associated with amateurism are, in fact, a consequence of the NFL-NFLPA eligibility restrictions. If and when they allow younger players to leave school, it robs the media of their perennial sob stories about “exploited” athletes.

Questioning Canada’s “Reform Act”

Always be weary of political “reform” proposals that add without subtracting from the total volume of laws imposed upon a society. A case in point is the aptly named Reform Act, a bill introduced in the Canadian House of Commons today by Michael Chong, a Conservative MP from Ontario. Chong has already received substantial media praise for his bill, and MPs from all Canadian parties have declared their support.

Getting Parties Off the Ballot

So what does the Reform Act do? It proposes additions to the Canada Elections Act and the Parliament of Canada Act. The overall intent is to restrict the power of party leaders over MPs and potential MPs. Under the present Elections Act, a candidate for the House of Commons cannot run under a party label without an endorsement from that party’s leader. This means, for example, that Prime Minister Stephen Harper, as the Conservative Party leader, could veto a local riding (electoral district) association’s nominee for Parliament.

Chong and his allies argue this makes MPs beholden to the leader for their own re-election, making them less likely to challenge the leader in the House. The Reform Act would therefore transfer the leader’s sign-off power to a “nomination officer” appointed by the riding association. The leader would then have no legal authority to exclude candidates he disapproved of.

This strikes me as a case of attempting to solve the wrong problem. As I read the Elections Act, anyone can run for Parliament without a party endorsement. Unlike the United States, where state laws generally restrict ballot access for anyone but nominees of the Democratic and Republican Parties, the Elections Act only requires a nominal of petition signatures–50 or 100 depending on the population of the riding–and a $1,000 deposit. The leadership “veto” rule only comes into play when a candidate wants to be listed on the ballot with a party affiliation.

Rather than worry about who should be responsible for party endorsements, it would be much simpler to eliminate party affiliations from the ballot altogether. If voters are, in fact, electing representatives, then there’s no reason party should play a role in the official electoral process. That’s not to say political parties can’t exist and endorse candidates, but the state need not subsidize such actions.

Should Canada Follow the British or Australian Model?

The next part of the Reform Act is even more troubling. Chong’s bill would require all registered political parties to amend their internal procedures governing “leadership reviews.” This is the process whereby an existing leader may be forced to either resign or face a new internal leadership election. In the Conservative Party, for example, such a review can only be triggered after a general election where the party does not form the government, and only then if a majority of delegates to the party’s next convention vote in favor of a new leadership election. This means that Stephen Harper, first elected leader in 2004, has never had to seek re-election as leader.

The Reform Act would insert members of Parliament into the review process. The bill would enable a party’s caucus within the House of Commons to initiate a leadership review on its own if 15% of the members so request. A majority of the caucus could then remove the leader by secret ballot, triggering a new leadership election.

This is similar to a process employed by parties in the United Kingdom. The British Conservative Party has a similar 15% rule to trigger a vote of no-confidence in the leader, which was most recently used in 2003 to remove Iain Duncan Smith as leader. There was also the highy publicized turmoil earlier this year in the Australian Labor Party, where the parliamentary caucus removed leader (and then-prime minister) Julia Gillard and reinstated Kevin Rudd, the former leader that Gillard defeated in a parliamentary vote three years earlier.

Of course, in neither the United Kingdom or Australia is the leadership election process dictated by law, as Chong’s Reform Act proposes. Furthermore, those countries have traditionally included parliamentary caucuses in leadership elections while Canada does not. Chong seeks to emulate the other Westminster countries because it will make leaders, including the prime minister, more accountable to the parliamentary caucus. But it’s far from clear why that is a desirable goal.

Let’s take the recent case of the Australian Labor Party. The parliamentary caucus–which includes Australian senators, as they are directly elected like members of the lower house–voted 57-45 to replace Gillard with Rudd. So a group of 57 people, representing less than one-quarter of all elected Australian parliamentarians–decided who the prime minister would be in a closed-door vote. That doesn’t sound like accountability so much as a backroom coup.

Now, the Reform Act would not enable caucuses to elect new leaders, only depose existing ones. And by my reading of the bill, there’s nothing that would prevent the deposed leader from winning re-election in the subsequent party vote. Still, the Reform Act would allow a bare majority of caucus members–a small fraction of the total House–to depose a sitting prime minister or party leader. I don’t see how that promotes accountability so much as hostage negotiating.

It’s also worth noting that even under the existing systen, disgruntled MPs from the governing party retain the right to bring down a sitting prime minister by ganging up with opposition MPs on a confidence vote against the government. At least then you need a majority of the entire House to force a prime minister out–and call a new general election to boot.

In any case, the basic problem remains interjecting the force of law into the internal governance of a political party, which should be a private association. There’s nothing preventing any Canadian party from adopting a different leadership selection-and-review procedure. And Chong’s bill offers no compelling reason to intervene.

Promoting Party Membership, Ignoring Party Privilege

The next section of the Reform Act deals with the role of party caucuses within the House of Commons. The bill specifies no caucus may expel a member without going through the same 15%-followed-by-secret-ballot process specified for leadership reviews. The purpose here is to prevent party leaders from unilaterally forcing members out of caucus, as Stephen Harper has done several times with respect to Conservative MPs, most recently his former parliamentary secretary, Dean Del Mastro, who was ejected after being accused of violating campaign finance laws.

As I discussed above, there’s no compelling argument here for using legislation to intervene in internal party politics. More to the point, it seems counterintuitive that a “reform” bill would emphasize the supremacy of party. A truly independent Parliament would encourage independent members. Ejecting members arbitrarily and capriciously only weakens the party’s leader. Why discourage that?

Chong again seems to be solving the wrong problem. A true reform would be reducing party subsidies within Parliament itself. For example, if you look at the Parliament of Canada Act, various MPs get additional allowances–on top of their estimated $160,000 parliamentary salary–for holding partisan offices. This includes not only government parliamentary secretaries but whips–the people charged with enforcing party discipline–and even opposition leaders. Eliminating these party bonuses would do more to encourage MP indepdence while saving Canadian taxpayers some real money.

Conclusion

It’s easy to see why so many Canadian politicians and pundits have eagerly embraced the Reform Act–it doesn’t reform anything of substance. All it does is add more laws to the books. It does nothing to address the very real problem of excessive consolidation of executive power in the office of the Prime Minister. Nor will the Reform Act make Parliament more transparent and accountable to Canadian voters.

North Carolina Rejects Maryland’s “Sovereign Immunity”

The North Carolina Court of Appeals today rejected the University of Maryland’s attempt to end a lawsuit over the school’s planned move from the Atlantic Coast Conference to the Big Ten Conference next year. The ACC sued Maryland last November to enforce a $52,266,342 “withdrawal penalty” assessed under a series of amendments to the conference’s governing agreement adopted in 2011 and 2012. Maryland moved to dismiss the lawsuit this past January, alleging that as an agency of the State of Maryland, it enjoyed “sovereign immunity” depriving North Carolina state courts of jurisdiction. The trial court disagreed and denied the motion.

In today’s ruling, a three-judge panel of the court of appeals affirmed the trial judge. Maryland argued the common law principle of comity should apply; that is, North Carolina courts should extend the sovereign immunity enjoyed by that state in its courts to its sister state. The court of appeals noted this issue had not been previously addressed in North Carolina. Judge Robert N. Hunter, Jr., writing for the panel, noted that comity must be judged solely under the common law of North Carolina. Judge Hunter said the “rights acquired under the laws or judgments of a sister state will be given force and effect in North Carolina if they are not against public policy.”

This means that whether Maryland might be entitled to sovereign immunity under Maryland law is irrelevant. The issue is whether Maryland is entitled to such immunity under North Carolina law. And as Judge Hunter explained, “In the context of the sovereign immunity doctrine, our Supreme Court has used public policy to effectively waive the State’s sovereign immunity in causes of action grounded in contract.” Since the ACC accuses Maryland of a breach of contract–failure to pay the withdrawal penalty–the university cannot defeat jurisdiction merely by asserting sovereign immunity.

Maryland pointed to a prior North Carolina Court of Appeals decision, Cox. v. Roach, decided last year. In that case, the court agreed to extend sovereign immunity to the University of Virginia and dismiss it as a defendant in a civil case. “As North Carolina extends sovereign immunity to its own public universities,” the court said, “we conclude that Virginia’s extension of sovereign immunity to UVA is in line with North Carolina’s public policy.” Unlike the Maryland case, however, the Virginia litigation involved tort claims, not an alleged breach of contract.

More to the point, Judge Hunter said, “it does not follow that because we decided to extend comity to the University of Virginia in Cox we must, ipso facto, extend sovereign immunity to all the educational institutions of our sister states irrespective of the attendant circumstances.” Extending comity in the Maryland case would, in fact, violate North Carolina public policy. As North Carolina courts don’t allow their own state “to avoid its obligations in contract,” it cannot permit other states do so either.

Stephen Harper Is Wasting Everybody’s Time

The Supreme Court of Canada began three days of oral arguments today in an unusual case. The government of Canada, led by Conservative Prime Minister Stephen Harper, has asked the court to clarify the constitutional steps necessary to enact various reforms of the Canadian Senate, including term limits, advisory elections and outright abolition. Unlike the United States, where the Supreme Court will not issue advisory opinions, such “reference” cases are a longstanding feature of Canadian constitutional law.

Canada’s Senate is a weird hybrid of the British House of Lords and the U.S. Senate. Like the House of Lords, members are appointed by the Crown on the advice of the sitting prime minister. But in a nod to U.S.-style federalism, Canadian senators are equally apportioned among four regions—Ontario, Quebec, the Atlantic provinces and the western provinces—without regard to differences in population. On paper, the Senate is the equal of the House of Commons and can reject or amend any legislation passed by the lower house. In practice, the Senate has rarely asserted itself against government-sponsored legislation.

One such instance occurred in 1990, when the Senate, still controlled by appointees of former Liberal prime minister Pierre Trudeau, refused to pass Progressive Conservative Prime Minister Brian Mulroney’s bill to create a national Goods and Services Tax. Mulroney invoked a previously unused provision of Canada’s Constitution to appoint eight additional senators—enough to give him a majority.

The Senate’s revolt came during a period of constitutional upheaval in Canada. Mulroney’s government twice failed to pass amendment packages that would have provided a system for electing, rather than appointing, senators. The Reform Party, which later merged with the Progressive Conservatives to form the Conservative Party now led by Harper, started out as a western regional party dedicated to the idea of a “triple-E” Senate—one that was “equal, elected and effective.”

Harper’s Constitutional End-Run

Harper has abandoned the triple-E rhetoric but not the cause of Senate reform. In 2011, the government introduced legislation that would provide for indirect Senate elections. Senators would still be appointed on the advice of prime minister, but provinces could choose to hold elections for Senate nominees that the prime minister “must consider” in advising the Crown. Presently, Alberta holds such elections under provincial law, although only one of the “winners” has actually been appointed to the Senate.

Why would Harper support indirect—rather than direct—elections? Because direct elections would require a constitutional amendment, a process Harper is loathe to undertake given the failed reform efforts of the Mulroney government. Under a 1982 formula adopted under the Trudeau government, Parliament can only amend “the powers of the Senate and the method of selecting Senators” with the consent of at least seven provincial legislatures representing 50% of the population. Indirect elections, Harper argues, don’t technically change the “method of selecting Senators,” as the prime minister would still have the right to ignore the voters and recommend his own nominee to the Crown. Therefore, he contends, this reform can be adopted through ordinary parliamentary legislation instead of a constitutional amendment.

Which brings us to this week’s Supreme Court reference. More than two years after introducing his reform bill, Harper referred the proposal to the Court after provincial leaders, opposition lawmakers and legal scholars criticized indirect elections as an end-run around the Constitution. The government has asked the Court not only to consider the constitutional standard applicable to implementing indirect elections, but also to outright abolition of the Senate.

Here’s where things get (more) confusing. As noted above, the “7/50” rule applies to amendments dealing the powers and selection of the Senate. But the Constitution requires unanimous consent of the provinces for other types of amendments, including those affecting the position of the Crown or changes to the amendment process itself. Many of the provinces contend, in their Supreme Court filings, that the unanimity rule should apply to any effort to abolish the Senate.

The Constitution itself is silent on Senate abolition. But since the Senate plays a role in the constitutional amendment process—and that process can only be amended by unanimous provincial consent—the provinces argue that, logically, abolition must also require unanimity. The Harper government disagrees and argues the Senate may be abolished under the lower “7/50” standard.

The Myth of Senate Reform

Abolition appears more politically feasible than reform. The New Democratic Party, which forms the official opposition to Harper’s government, has long supported abolition, as do several provincial leaders. There’s no reason to doubt the NDP’s sincerity. There are no NDP senators. If NDP leader Thomas Mulcair forms the next government, the Conservative-dominated Senate would only serve as a roadblock to his social democratic agenda.

Harper himself has proffered abolition as a “nuclear option” if he can’t get indirect elections. At first glance it seems like a strange threat. The Senate poses no threat to his position, notwithstanding a recent scandal involving the improper reimbursement of expenses to three Harper-appointed senators. But there’s nothing to suggest the Senate is likely to pull another revolt like the one against Mulroney’s 1990 tax increase.

In truth, Harper’s Senate reform-or-abolish campaign is just political smoke and mirrors. He seems less interested in doing something about the Senate than he is talking about doing something about the Senate. It’s become a symbolic issue to fire up his western base. Lacking any personal charisma, Harper’s electoral success relies heavily on demonizing real or imagined opponents. The Supreme Court reference offers him a no-lose scenario. If the Court says Parliament can’t enact indirect elections without a constitutional amendment, Harper can rail against “elitist” judges fighting his “commonsense” reforms. If the justices rule the other way, Harper will attack the NDP for obstructing his plan in the House (even though the opposition can’t actually stop him).

If Harper were truly serious about Senate reform or abolition, he could simply call for a national referendum. Canada has done this before. Mulroney called one in 1992 on his second attempt at comprehensive constitutional reform. Of course, that referendum failed, which is why Harper won’t risk calling one now.

The funny thing is, Harper probably prefers abolition to reform. The only political reason for Harper to support indirect elections is to appease the vestige of the old Reform Party base that rallied around the triple-E concept. But for a third-term prime minister like Harper, an elected Senate is at worst useless and at best a roadblock. An elected Senate doesn’t advance his larger agenda or help the Conservative Party.

Canada’s Problem Isn’t the Senate, It’s the House

Actually, the distraction of Senate reform does advance Harper’s agenda in one important way—it shifts the focus away from the mess he’s made of the House of Commons. Buried in all the talk of making the Senate more democratic and accountable is the fact the elected House no longer maintains even the pretense of holding the government to account. The House posed some threat to Harper in his first two terms—where the Conservatives won only a plurality of seats—but that ended when the 2011 election produced a decisive Tory majority.

Harper has systematically assaulted parliamentary process in the current House. He routinely uses procedural motions to restrict debate and limit the ability of opposition lawmakers to even propose amendments to government bills. And Conservative members have few rights other than the right to support Harper’s leadership without question. As party leader, Harper must approve all Conservative candidates for the House, in effect making the House just as much of an appointed body as the Senate.

In other parliamentary democracies, backbench members have some mechanism for holding a leader accountable. This most recently played out in Australia, where the Labor Party changed leaders twice in a three-year period, dumping Prime Minister Kevin Rudd for Julia Gillard in 2010, then reinstating Rudd just before this year’s election. And one of the most famous historical parliamentary revolts took place in the United Kingdom in 1990, when three-term Prime Minister Margaret Thatcher resigned after failing to secure the necessary margin to quell a challenge from former cabinet minister Michael Heseltine. (John Major won the leadership following Thatcher’s withdrawal before the second ballot took place.)

Unlike the United Kingdom and Australia, Canadian parties generally do not allow parliamentary members to unilaterally seek the removal of a leader. In Harper’s Conservative Party, only a national convention of the party membership can call a leadership review. In theory this promotes greater democracy by involving a larger group of party activists. In practice, it leaves elected members of the House with little recourse against an abusive prime minister.

Would Senate Abolition Even Matter?

On the one hand, it’s always heartening—from a libertarian-anarchist perspective—to hear any government even consider abolishing one of its organs. There’s a prima facie argument that abolishing the Senate is a good thing for its own sake. If nothing else, it saves the Canadian taxpayers the cost of paying 105 largely ornamental politicians and their staffs.

But it’s hard to argue that Senate abolition, or even Harper’s ridiculous reform proposal, will lead to a less-intrusive Canadian federal government. The Senate may not be an active threat to executive power, but at least it poses a potential threat. The House in its current form has no real ability to check the executive. Unless the next election produces another minority government, this problem will only continue indefinitely.

A more productive vehicle for reform would be greater decentralization of the state. Canada already has a federal structure. Their provinces arguably exercise greater control over day-to-day government operations than U.S. states. Provincial premiers could pool their efforts and advocate replacing the Senate with, say, a stronger provincial veto over federal acts. (I believe this idea was pursued in some form by the failed Mulroney reforms.) This is precisely the sort of thing Harper wants to avoid with his backdoor Senate reform. He doesn’t want to “negotiate” with the provincial governments because he knows they could make such demands.

On a final note, all this talk about Canada’s Constitution and how to interpret it overlooks the fact that in any constitutional system, informal and unwritten conventions often trump text. This may come as a surprise to U.S. readers, for instance, but the office of prime minister exists nowhere in the Canadian Constitution. It is a convention derived from the Privy Council, the formal constitutional body that advises the Crown on the use of its executive authority. The cabinet is merely a committee of the Privy Council, and the prime minister its chairman. The fact that such an officer now exercises near-dictatorial control over the formal instruments of government should serve as an important reminder that constitutions have always been a lousy means of trying to restrict state power.