On Legislation: Liberty Yields, Government Grows

[Originally published in the Front Range Voluntaryist, article by Nick Weber]

Often cloaked in flowery rhetoric and under a cleverly titled piece of legislation, political machinations roll on right before our eyes, subverting liberty and our personal freedoms while continually expanding government control.

Rarely via a massive takeover but rather incrementally, inch by inch, the following is the true story of how liberty disappears. Proposed legislation is often worded to instill confidence in the populace that our benevolent public servants are looking out for us and that they have our best interests at heart. As a populace we are all too easily distracted with the outrage story of the week, too eager to accept the talking points from whatever flavor of news is preferred, and all too consumed with life to sit still and read beyond the headline. We indeed bear a portion of the blame. Deep within wordy legislation that is written in ALL CAPS, TO ENSURE FURTHER DIFFICULTY OF COMPREHENSION (see how annoying that is?) our representatives are writing contradictory legislation rife with loopholes that a complicit media conveniently ignores and a “can’t be bothered” populace intentionally avoids.

I’m reminded of a quote by Thomas B. Reed, Speaker of the U.S. House of Representatives from 1889–1891: “One of the greatest delusions in the world is the hope that the evils in this world are to be cured by legislation.”

To be sure, Reed was no stalwart bastion for liberty; he gratuitously and intentionally expanded the power of the Speaker of the US House; he sought to all but eliminate any effect that the opposing party may have by carefully applying a myriad of existing House procedures. To wit, a second quote from Reed: "The best system is to have one party govern and the other party watch." Ah; representative democracy.

Well over a hundred years on, congressional shenanigans rule the news cycles and the story lines predictably play out like bad sitcoms: be they sit-ins, legislation hidden deep in a basement that must be physically hunted down, or the ever popular “nuclear option.” Senate Confirmation paranoia; take your pick, it changes every week. Amid the chaos, flawed legislation is continually passed at all levels of government, often claiming to solve perceived problems.

This process is evidenced by three recent Colorado bills. These bills seek to expand and protect freedom of thought, expression and association, but all leave glaring loopholes for the government to restrict that which they are intending to protect.

This is not a new concept or concern, as Thomas Jefferson noted, “The natural progress of things is for liberty to yield and government to gain ground.” Not that any piece of paper can truly bind anyone or guarantee anything: Constitution, legislation or otherwise, but I digress.

Signed into law on April 4, 2017, Senate Bill 17-062 is titled “Concerning the Right to Free Speech on Campuses of Public Institutions of Higher Education.” Sounds fantastic, no? Let’s dive right into this gem. From the legislation: “An institution of higher education shall not impose restrictions on the time, place, and manner of student expression in a student forum unless the restrictions: (a) are reasonable.” Full stop right there.

That is, verbatim, the extent of the first exception and this is of seminal importance: you cannot allow the government to infer. Ask yourself, what is reasonable in this particular political climate? What will be reasonable ten years from now? Codifying unconstrained power to an unelected bureaucrat to determine “reasonableness” is the epitome of legislative tyranny.

The second piece of legislation is House Bill 17-1331, titled: “Concerning Protecting Colorado Citizens Who are Engaged in an Act That is Protected by the Colorado Constitution from Outside Agencies.” Are you seeing a pattern with titles of the legislation yet? Everything is great if you read the title and go on about your daily business.

It is a succinct bill (this paragraph is longer than the actual bill text) that has not been passed, but is one that contradicts itself as soon as it gets started. From the definition portion of the bill: “For purposes of this section, "Colorado Constitutional Right" means a right enumerated in the Colorado constitution that has not been declared unconstitutional by a federal or Colorado appellate court.”

So let’s recap, your Colorado enumerated rights will not be infringed, so long as the almighty Federal judiciary hasn’t deemed otherwise. So much for protecting citizens from outside agencies.

Finally, the aptly Orwellian “Election Watchers Bill,” is summarily contradictory similar to the previous two. House Bill 17-1014 was signed into law on March 16, 2017 and is titled: “Concerning The Elimination Of The Criminal Penalty Imposed Upon An Elector For Disclosing The Contents of the Elector's Voted Ballot.”

A quick backstory: during the 2016 General Election, some brave souls in Colorado were taking selfies with their ballots in the voting booth in defiance of leftover antiquated election laws, declaring such laws to be unconstitutional. This bill seeks to decriminalize the action and it starts off pretty well: “any voter may show his or her voted ballot to any other person as long as the disclosure is not undertaken in furtherance of any election violation proscribed in this article.” Hooray! You say? Think again.

Bear with me for making you read this (I’ve truncated it for brevity) but, here is where they get sneaky, in the very next paragraph: “The ability of a voter to disclose his or her voted ballot...is subject to the power of a county clerk and recorder to monitor activity...including placing reasonable restrictions on the use of photography in such settings or imposing other restrictions on activity in such settings as the county clerk and recorder finds necessary, to ensure the fair and efficient conduct of elections.” That’s right, another unelected official will deem whether or not your actions are acceptable, as if they are some magical creature without impulses and prejudices.

In all three cases, the latter statements negate the former. So what’s the point of the legislation?

The point is that you are not free. The government will tell you what you can and can’t do. In fact, they have codified it; overruled your first amendment rights while you were focused on Trump and Russia, or Kathy Griffin, or the cultural appropriation of tacos by white restaurateurs. These bills have all the requisite talking points for the news cycles and grandstanding politicians seeking your vote: “We are protecting your right to free speech on campuses”; “You, Coloradoan, are protected from the overreach of the Trump Administration”; and, “You can now take a selfie in the voting booth!” Buried in the text, however, is the dirty power grab: government always seeks to expand control.

Numerous pages have been added to the Colorado statutes, codifying the government’s ability to restrict your actions. All of these bills have bipartisan support. This is not left versus right; it is liberty versus tyranny. When the power to infer is in the government’s hands, beware: it’s never a problem until it’s used against you.