As federal agencies have grown in size and scope, they have increasingly viewed their regulatory functions as powers to reward or punish citizens and groups. The Internal Revenue Service offers another good example. Like the patent office, it was created for a relatively narrow function: tax collection. Yet the agency also determines which groups don't have to pay taxes. Historically, the IRS adopted a neutral rule that avoided not-for-profit determinations based on the content of organizations' beliefs and practices. Then, in 1970, came the Bob Jones University case. The IRS withdrew the tax-exempt status from the religious institution because of its rule against interracial dating on campus. The Supreme Court affirmed in 1983 that the IRS could yank tax exemption whenever it decided that an organization is behaving "contrary to established public policy" -- whatever that public policy may be. Bob Jones had to choose between financial ruin and conforming its religious practices. It did the latter.
There is an obvious problem when the sanctioning of free exercise of religion or speech becomes a matter of discretionary agency action. And it goes beyond trademarks and taxes. Consider the Federal Election Commission's claim of authority to sit in judgment of whether a film is a prohibited "electioneering communication." While the anti-George W. Bush film "Fahrenheit 9/11" was not treated as such in 2004, the anti-Clinton "Hillary: The Movie" was barred by the FEC in 2008. The agency appeared Caesar-like in its approval and disapproval -- authority that was curtailed in 2010 by the Supreme Court's decision in Citizens United.
Reading this reminded me of Milton Friedman's argument, early in his 1962 classic, Capitalism and Freedom, about how it would be very difficult to have freedom of speech or freedom of the press in a socialist or socialistic economy because the government would own a large percent of the resources and would inevitably use this power over resources to favor particular viewpoints. (I don't have the book handy, but it's in either the first or the second chapter.) Friedman made the argument about a socialist economy. Turley makes the broader point: even if the government doesn't own the resources but simply has a lot of control over resources, it can and will go after freedom of speech.
Turley also goes further than Friedman in another way, but a way that Milton would surely have agreed with. Turley writes:
Even water has become a vehicle for federal agency overreach. Recently, the Obama administration took punitive agency action against Washington state and Colorado for legalizing marijuana possession and sales. While the administration said it would not enforce criminal drug laws against marijuana growers -- gaining points among the increasing number of citizens who support legalization and the right of states to pass such laws -- it used a little-known agency, the U.S. Bureau of Reclamation, to cut off water to those farms. The Bureau of Reclamation was created as a neutral supplier of water and a manager of water projects out West, not an agency that would open or close a valve to punish noncompliant states.
I recently argued against a local ballot measure in Monterey County to study the feasibility of forcing, and, if feasible, take steps to force, a private water monopoly to sell its assets to a government monopoly. I argued for property rights, and that was and is a good argument. But I didn't think to make the point that Turley makes: the allocation of water would become more politicized.
Turley's solution? He closes:
What is needed is a new law returning these agencies to their core regulatory responsibilities and requiring speech neutrality in enforcement. We do not need faceless federal officials to become arbiters of our social controversies. There are valid objections to the Redskins name, but it is a public controversy that demands a public resolution, not a bureaucratic one.
I bet even he would be skeptical of his own solution. Who would enforce that law? That selfsame government that is, in the normal course of things, abusing its power. So what would be a solution? As much as possible, get the government out. End the Bureau of Reclamation. Cut taxes with a meat axe so that the IRS is less important.
Personal note: I met Jonathan Turley at an antiwar event we both spoke at in northern Virginia in 2008. I liked him. Part of it was his message. Another part, to be honest, is that his smile reminded me of the smile of my mentor, Harold Demsetz, who got me into economics. I've enjoyed much of what I've read by Turley since then. That's why I was a little surprised when one or two libertarian lawyer friends on Facebook made catty remarks about him. I challenged one of them at the time and didn't get much of an argument back.