Montana’s Gary Marbut wants to sell his homemade rifles, but he doesn’t want to follow federal laws that require him to “to record transactions, pay license fees and open his business to government inspectors.” So Marbut’s come up with an unusual solution — convince state legislatures to pass an unconstitutional law saying he’s free to violate federal law:

A personal firearm, a firearm accessory, or ammunition that is manufactured commercially or privately in Montana and that remains within the borders of Montana is not subject to federal law or federal regulation, including registration, under the authority of congress to regulate interstate commerce. It is declared by the legislature that those items have not traveled in interstate commerce.

Marbut’s bill, which is now law in eight states, runs headlong into the Constitution. For nearly 200 years, the Supreme Court has recognized that Congress has the power to regulate commerce that “concerns more States than one,” and this includes sweeping authority to regulate local merchants who sell products in the nation’s gun market. Without this power, Congress cannot prevent a barbecue restaurant in Alabama from only serving white patrons, and a long list of laws ranging from “the Fair Labor Standards Act, the Age Discrimination in Employment Act, the Controlled Substances Act, the Endangered Species Act, the Consumer Product Safety Act and the Americans with Disabilities Act [and] the Civil Rights Act of 1964, which outlawed segregated hotels, restaurants and theaters” are endangered.

Yet, while Marbut’s bill is clearly and unambiguously unconstitutional, it is not unprecedented. Just as Marbut objects to the Supreme Court’s understanding of the Constitution today, in 1956, Virginia lawmakers objected to a different Supreme Court decision — Brown v. Board of Education. Rather than acknowledging that they are bound by the Constitution, these lawmakers instead enacted a “resolution of interposition” claiming that they were “duty bound” to defy the Supreme Court. That resolution included many of the same attacks on Congress’ power to regulate commerce that Marbut repeats today:

[W]e have watched with growing concern as the power delegated to the Congress to regulate commerce among the several States has been stretched into a power to control local enterprises remote from interstate commerce; we have witnessed with disquietude the advancing tendency to read into a power to lay taxes for the general welfare a power to confiscate the earnings of our people for purposes unrelated to the general welfare as we conceive it. [...]

Virginia can remain silent no longer. Recognizing, as this Assembly does, the prospect of incalculable harm to the public schools of this State and the disruption of the education of her children, Virginia is duty bound to interpose against these most serious consequences, and earnestly to challenge the usurped authority that would inflict them upon her citizens.

Interposition is no more constitutional now than it was five decades ago — the states simply do not have the power to give the middle finger to the Constitution and the Supreme Court. Sadly, however, Marbut’s apparent belief that the Constitution says whatever he wants it to say is now shared by eight states.

Earlier this week, Senate Minority Leader Mitch McConnell (R-KY) proposed an odd way to end the debt ceiling crisis: Republicans will stop holding the economy hostage and effectively allow the debt ceiling to be raised without requiring any budget cuts, if Obama gives them 12 opportunities to bash his fiscal policies.

McConnell’s plan to accept political theater as an alternative to drowning the federal government in a bathtub does not please the far right, so they’ve once again fabricated an utterly nonsensical argument why something they don’t like is unconstitutional. Former Alaska Gov. Sarah Palin (R) laid out this argument last night on Fox News:

We will not hand over more power, which I think is unconstitutional, to President Obama to further manipulate our economy. You know, Article I, Section 8 of our Constitution spells out that Congress has the power of the purse strings, so this plan of McConnell’s I think makes no sense because it does cede power to our president and takes away that authority that is inherent in Congress to control the economic decisions that have to be made when it comes to debt.

Watch it:

Here we go again. When President Obama signed a health care law they don’t like, the far right immediately invented an utterly meritless constitutional argument against it. They don’t just support the House GOP’s plan to phase out Medicare, they embrace an absurd claim that Medicare violates the Constitution. If a waiter brings these people a steak that is slightly overcooked, they demand that he take it back because it’s unconstitutional.

So it’s pretty obvious that Palin’s kneejerk attack on the McConnell plan is wholly without merit. First of all, the debt ceiling fight has absolutely nothing to do with whether Congress retains the “power of the purse strings.” Congress exercises this power by passing appropriation bills that authorize the executive branch to spend money, and President Obama is still forbidden from spending money in excess of a congressional appropriation regardless of whether or not we have a debt ceiling.

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Our Guest Blogger is Mark Ladov, counsel for the Brennan Center’s Democracy Program.

Public financing of elections can curb the corrupting influence of large campaign contributions. But has the Supreme Court doomed this important political reform?

Certainly, by striking down a piece of Arizona’s public financing law (in yet another divisive 5-4 campaign finance opinion), the Roberts Court set back one particular model of public financing. But the Arizona ruling was limited to a narrow question: whether states can award additional funding to publicly financed candidates who face a high-spending opponent or unexpectedly expensive outside attack ads. The Court expressly refused to cast doubt on the constitutionality of public financing generally. Nor did the Court question its long-standing belief (from the 1976 case of Buckley v. Valeo) that public financing helps “to facilitate and enlarge public discussion and participation in the electoral process, goals vital to a self-governing people.”

Based on this narrow victory, some opponents of campaign finance reform will crow about the death of public financing. But don’t believe the hype. Public financing is alive and well…and living in New York City.

For more than two decades, New York City candidates have participated in a voluntary public financing program. As is too often the case, this reform was born out of scandal and tragedy — including the 1986 suicide of former Queens Borough President Donald Manes following revelations about extortion and bribery among contractors and city officials. The City Council overwhelmingly passed a voluntary public financing program as part of the ensuing political reforms. New York City has been at the forefront of public financing ever since.

The City’s most notable innovation is its use of multiple matching funds to encourage small donor outreach.

Under current rules, the City gives participating candidates a $6 to $1 match in public financing for the first $175 they raise from New York City voters. A voter’s $175 donation to her local City Council candidate is now worth as much as a $1,225 contribution from a special-interest lobbyist. This encourages candidates to target average New Yorkers — and allows candidates with grassroots support to run viable campaigns, even without the backing of big money.

New York City’s pioneering experiment has been a resounding success. The program has enjoyed robust participation by serious, credible candidates. It has promoted voter choice by increasing diversity and competition in City elections. It has dramatically expanded the number of New Yorkers who participate in electoral campaigns. And it is a powerful weapon against the corrupting influence of special interest money; research suggests that large donors, unions and PACs exert less influence on publicly-financed candidates who depend heavily on small donors.
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