Chick-fil-A and the Rule of Law

Most stories about the Chicago/Chick-fil-A controversy are missing the larger issue at stake.  This isn’t really a First Amendment battle, despite the freedom of speech and freedom of religion context in which it arises.  The deeper, fundamental issue is one which threatens all of our liberties:  the continuing attack on the rule of law in America through the excessive, unfettered discretion enjoyed by too many government officials.

The rule of law means that everyone must follow the same clear, fair and neutral standards.  That’s what defines a free society.  It’s also our protection against bad laws:  if they apply to everyone equally, their impact is clear and they will be repealed or fixed.  But when politicians are empowered with the discretion to hand out favors to their friends, or to punish their enemies, we are no longer living under the rule of law.

Politicians like laws that give them DISCRETION (or worse, give it to unelected and unaccountable bureaucrats).  People are no longer required simply to conform to what the law says – which, even if it is misguided, is consistent and is public knowledge.  They must conform to the whims of the discretion-makers, which may be hidden, are often inconsistent, and are always subject to corruption.  My former law professor, Richard Epstein, has written an excellent article on the topic of “government by waiver”.

Sure, we could ask how Rahm Emanuel can criticize Chick-fil-A the same day he’s embracing Louis Farrakhan.  Or why it is considered controversial in Chicago to express an opinion about marriage that is, in fact, what Illinois state law says.  Even President Obama claimed he believed marriage was between one man and one woman when he was elected in 2008, and for the entire time Rahm Emanuel worked for him.  (Note to the left:  if you have an Obama ’08 sticker on your Prius, you must be a hateful bigot.)

What we should ask is why it is acceptable that a single alderman can prevent a restaurant – or a Wal-Mart – or any other business from opening simply because he doesn’t like them (or because they haven’t bribed him).

Not surprisingly, the Chicago “aldermanic prerogative” of discretion and nearly complete control of zoning decisions has led to rampant corruption.  A 2009 University of Illinois study found that of the 30 (!) Chicago aldermen convicted of corruption over the past 35 years, “almost all – 25 of 30 convicted aldermen – were guilty of bribery, extortion, conspiracy or tax fraud involving schemes to extract bribes from builders, developers or business owners.  The bribe-payers either assumed or were told that payment was necessary to receive zoning changes, building permits or other similar city action.” 

What eventually brought down Rod Blagojevich?  Not bad laws he supported, but his attempt to sell the Senate seat that was within his sole discretion to fill.  Nationally, automotive “czars” were given discretion to say what car dealerships stayed open, and which ones were terminated.  Under Obamacare, a disproportionate number of discretionary “waivers” have gone to politically favored labor unions and businesses in the House district of former Speaker Nancy Pelosi. 

On a more local level, a Wheaton businessman’s property was taken from him by a vindictive City administration using the discretionary power of eminent domain, then sold by the City at a loss.  A well-connected law firm was able to make sure that while other downtown businesses were included in a special taxing district, its office building was not.  A pro-tax referendum committee raised tens of thousands of dollars from vendors whose no-bid contracts were subject to the school board’s discretion (but few or no reported contributions from companies that had to bid competitively for their contracts and thus, didn’t depend on the board’s good will for their business).

Discretion is raw power, and as Lord Acton told us, absolute power corrupts absolutely.  It destroys democracy, because when it is viewed as necessary to buy or cajole favors, we get an “informal” set of rules.  Cronyism and corruption prevail, instead of needed reform.  Let this be an opportunity to question the abusive discretion that prevails at too many levels of government.