DAILY BRIEFINGWednesday Constitutional
Dec. 17 - I'd like to begin today by quoting one of my favorite articles in its entirety. It goes like this:
"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."
It's Article I of the Bill of Rights, the first ten amendments to the U.S. Constitution. It's a hell of an article.
I quote it because last week the Supreme Court of the United States (or SCOTUS, if you're the kind of person that likes to call the president POTUS) delivered a 5-4 ruling in favor of certain aspects of the McCain-Feingold campaign finance reform law that include a restriction on political speech.
Specifically, the law bans "issue ads" paid for by unions, wealthy donors, or corporations within sixty days of a federal election.
Proponents of this part of the law have argued that it isn't about regulating speech; it's about preventing candidates from getting around campaign finance regulations by coordinating expensive advertisements by "outside" donors that less-funded, less-supported candidates can't compete with.
Fair enough. There are problems with campaign finance regulations, they believe, and here's one way to help level the playing field.
But admitting that we need to reform campaign finance regulations hardly justifies bitch-slapping our constitution. Look at Article I again:
"Congress shall make no law... abridging the freedom of speech."
Now Congress has passed a law, which President Bush signed, and which the Supreme Court has now validated, that abridges the freedom of speech quite clearly.
And the outrage is... where? You'd expect a nation that goes all wobbly over the Patriot Act and John Ashcroft's supposed Intifada against civil rights would rise up in spontaneous righteous fury over such an obvious assault on the Constitution.
Instead there are a few nervous editorials, a few angry columns in a few newspapers, and a collective sigh and a shrug.
Maybe the problem is that this was bipartisan legislation. Maybe Americans can't get worked up about something unless it's attached to a single political party. After all, if this had been "John Ashcroft's Campaign Reform Act" (which isn't technically possible, but leave me in my hypothetical bubble), every Democrat in the nation would have howled for blood. And if it had been "The Hillary Clinton Campaign Reform Act," the Republicans would have gone loopy. Instead, it's got the built-in bipartisanship of its name ("The Bipartisan Campaign Reform Act," originally known as the "McCain-Feingold Campaign Finance Reform Bill," McCain being the Republican and Feingold the Democratic sponsors of the original bill), and most Americans—including myself!—are more likely to trust anything with a bipartisan label.
"Well," we like to think, "if members of both parties could get together on it, it can't be that bad."
But bipartisan is hardly a synonym for untainted. After all, Congress routinely votes itself pay-raises in the middle of the night with bipartisan support.
Anyway, the decision is being condemned on a bipartisan basis, so the logic of approving anything with bipartisan support is going to put you in a real bind.
I apologize for this foray into the purely political, but when I notice something that's not getting the play it deserves I feel compelled to give it whatever little play I can myself. And one thing this law will do is prevent me from saying anything about any political candidate within 60 days of a federal election. Don't believe me? Check this out:
"A couple years ago, Leo Smith of Connecticut decided he would use his business website to do just that – urge the defeat of his congressional representative, Republican Nancy L. Johnson. He decided to add a new section to an already existing Internet site to advance the cause of her challenger, Charlotte Koskoff.
"Just a few days later, Smith was contacted by Koskoff's campaign manager. No, it wasn't a call to thank him for his efforts. It was a warning of legal problems he might encounter because of campaign-finance regulations.
"Smith was told by the Federal Election Commission that he was in violation of federal law because he had spent more than $250 in expressing his political views without disclosing his identity and filing the required reports.
"Never mind that Smith didn't spend anything (except time) creating the new page. The FEC, however, insisted in an advisory opinion that the value of the computer hardware and software is factored into its calculations. If a computer used to express political viewpoints cost more than $250, the FEC said, its owner would have to meet the filing requirements."
Now, that example (excerpted from an article on WorldNetDaily) actually predates McCain-Feingold, which will only make these kinds of absurdities more common.
We may well have a problem with money and political campaigns in America. We probably do. And maybe people are doing end-runs around the law through the use of "soft money." (Huge gobs of cash raised by "outside" groups that can spend that money in ways an individual campaign cannot.) They probably are.
As Justice Rehnquist writes in his dissent, "Because,
in reality, Title I is much broader than the Court allows,
regulating a good deal of speech that does not have the potential to corrupt federal candidates and officeholders, I dissent."
"Congress," he later observes, "could have sought to have the existing restrictions enforced or to enact other restrictions that are 'closely drawn' to its legitimate concerns. But it should not be able to broadly restrict political speech in the fashion it has chosen. Today's decision, by not requiring tailored restrictions, has significantly reduced the protection for political speech having little or nothing to do with corruption or the appearance of corruption."
I'll shut up now—but not, thank God, because I have to.
* * *
As pretty much anyone with access to broadcast or print media probably already knows by now, it was 100 years ago today that Orville Wright made the first recorded flight at Kitty Hawk, North Carolina, in a plane he built with his brother. The flight lasted a mere twelve seconds and covered only 120 feet, but a short flight had been expected: after all, two Wrights don't make it long.
* * *
76 years ago today, U.S. Secretary of State Frank B. Kellogg suggested a worldwide pact renouncing war as an instrument of national policy. Virtually all of the major powers of the world signed the Kellogg-Briand pact in Paris on August 27, 1928.
Really. These were educated people, presumably, acting on behalf of actual governments, with actual interests, and they didn't even giggle as they signed.
The pact went into force on July 24, 1929. War was finally outlawed and the people of the earth were filled with joy.
The peace achieved by the Kellogg-Briand Pact was an idyll like none other and is still referred to as the happiest seven minutes in human history.
Ah, 1929, that sweet summer of human happiness!
But maybe I'm not giving sufficient credit to the authors and signers of that ill-fated pact for their ironic sense. It was signed on the 149th birthday of Humphrey Davy, the inventor of laughing gas.
* * *
William Safire would probably be able to explain why he's "turning" 74 today, rather than flipping, busting, or tripping over that milestone. He shares his birthday with Bob Guccione (1930), Arthur Fiedler (1894), and John Greenleaf Whittier (1807).
It's National Day in Bhutan. Celebrate responsibly.
Happy Hump Day!
© 2003, The Moron's Almanac