Men in Black (16 page)
Authors: Mark R. Levin
The benefits of retaining power at the state and local level and its implications for protecting individual liberties are considerable. As Professor Michael McConnell, now a federal judge, wrote:
Assume there are only two states, with equal populations of 100 each. Assume further that 70 percent of State A, and only 40 percent of State B, wish to outlaw smoking in public buildings. The others are opposed. If the decision is made on a national basis by a majority rule, 110 people will be pleased, and 90 displeased. If a separate decision is made by majorities in each state, 130 will be pleased, and only 70 displeased. The level of satisfaction will be still greater if some smokers in State A decide to move to State B, and some anti-smokers in State B decide to move to State A.
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State power also allows for societal solutions best suited to satisfy a given locality and permits experimentation with different public policy initiatives. The framers understood that the best way to address the wide variety of issues faced by any culture was not from the top down, but at the grassroots level.
There have been recent but rare acknowledgments by a bare majority of the Supreme Court that it has strayed badly from the Constitution.
In 1995, in
United States v. Lopez
, the Supreme Court considered whether it was constitutional to make possessing a firearm near a school zone a federal crime.
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In a glimmer of sanity, the Court struck down the law. Chief Justice William Rehnquist, writing for the majority, stated the obvious: “The possession of a gun in a local school zone is in no sense an economic activity that might, through repetition elsewhere, substantially affect any sort of interstate commerce.”
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No kidding. But it’s the Court’s past rulings that have made this an issue.
Justice Stephen Breyer’s dissent is a perfect example of how activist judges don’t see their role as simply applying the Constitution, but promoting policies that they personally favor. Breyer wrote:
For one thing, reports, hearings, and other readily available literature make clear that the problem of guns in and around schools is widespread and extremely serious. These materials report, for example, that four percent of American high school students (and six percent of inner-city high school students) carry a gun to school at least occasionally; that 12 percent of urban high school students have had guns fired at them; that 20 percent of those students have been threatened with guns; and that in any 6-month period, several hundred thousand schoolchildren are victims of violent crimes in or near their schools. Based on reports such as these, Congress obviously could have thought that guns and learning are mutually exclusive. Congress could therefore have found a substantial educational problem—teachers unable to teach, students unable to learn—and concluded that guns near schools contribute substantially to the size and scope of that problem.
Having found that guns in schools significantly undermine the quality of education in our Nation’s classrooms, Congress could also have found, given the effect of education upon interstate and foreign commerce, that gun-related violence in and around schools is a commercial, as well as a human, problem. Education, although far more than a matter of economics, has long been inextricably intertwined with the Nation’s economy.
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Breyer’s position is, in essence, that the commerce clause empowers Congress to supersede the Constitution’s limits on federal power without limitation. Keep in mind, state and local representatives have the power to outlaw gun possession near schools, and many have. They are more likely to reflect the viewpoints and desires of their communities. In some rural areas, it’s not unusual, for example, for parents or teachers to possess firearms near or on school property. But Breyer (and a majority of Congress) believes his policy preferences should be imposed on every state and local elected body in the nation.
In 2000, in
United States v. Morrison
, the Supreme Court had another opportunity to reverse course. It was asked whether the Violence Against Women Act of 1994, which allowed victims of gender-based violence to sue in federal civil court, was constitutional based on the commerce clause.
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Again, Rehnquist authored the majority’s decision and determined that “Gender-motivated crimes of violence are not, in any sense of the phrase, economic activity”
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of the sort Congress is authorized to regulate. Rehnquist added that if the link between gender-based violence and interstate commerce was upheld in this case, then as a practical matter, the Court would have to affirm that all crime is federal crime.
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These two baby steps for judicial responsibility, however, have not established precedents beyond their specific cases, nor have they overturned the other Supreme Court rulings that have given the federal government a degree of power the founders rejected.
The federal budget today exceeds $2.3 trillion a year—and that doesn’t factor in the continuing cost of federal regulations, statutes, and rules on individuals and businesses.
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Milton Friedman, the Nobel Prize–winning economist, has estimated that in addition to the 40 percent of our income that is taken and spent by government at all levels, we and American businesses spend an additional 10 percent of our income on government rules and mandates.
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A common barometer of this ever-increasing regulatory maze is the size of the Federal Register, the official compendium of federal rules. The Federal Register issued in 2002 set a new record at 75,606 pages, nearly a 9 percent increase over the previous year.
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This increase even tops the previous record set in 2000, the year Bill Clinton was pushing through “midnight regulations” in the last days of his presidency.
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In dollar terms, the Cato Institute, a libertarian think tank, has estimated that the cost of regulatory compliance to our economy is $860 billion a year. To put this number in perspective, that’s 8.2 percent of our gross domestic product,
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and exceeds the economic output of some entire countries, like Canada and Mexico.
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Rather than upholding the Constitution, the Supreme Court has energetically helped Congress use the commerce clause to accumulate power at the expense of state and local authority, in direct violation of the Constitution. The framers wanted to increase commerce between the states and trade between their citizens. But the Court has turned the commerce clause into precisely the opposite—and worse: a vehicle to strengthen federal power, deny authority to the states, and deny liberty to the American people.
ILENCING
P
OLITICAL
D
EBATE
“If men are to be precluded from offering their sentiments on a matter which may involve the most serious and alarming consequences that can invite the consideration of mankind, reason is of no use to us; the freedom of speech may be taken away, and dumb and silent we may be led, like sheep to the slaughter.”
George Washington
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W
hat was once unthinkable is now law. Your right to free speech—especially political speech—is being suppressed with the active support of the courts. So absurd and dangerous has the Supreme Court’s view of free speech become that it struck down an anti–virtual child pornography statute as a violation of the First Amendment, but upheld prohibitions against running a political ad during the month before a federal general election as criminal.
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Indeed, you can burn an American flag as a form of protest,
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but you can’t distribute pro-life leaflets within one hundred feet of an abortion clinic.
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When students wear armbands to school, they are engaging in protected speech,
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but mentioning God at a commencement ceremony is unconstitutional.
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The illogic of these rulings, and the extent to which the justices are willing to split hairs and manufacture various standards when interpreting the First Amendment’s free speech clause, is mind-boggling.
Here’s what the First Amendment says about free speech: “Congress shall make no law…abridging the freedom of speech.”
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That’s it, all of it. The framers could not have been clearer about what they meant or about their intentions. Ten simple and straightforward words. Yet our most cherished form of speech, political speech, is not so free anymore.
The Supreme Court used to understand this. In 1966 it noted that “[w]hatever differences may exist about interpretations of the First Amendment, there is practically universal agreement that a major purpose of that Amendment was to protect the free discussion of governmental affairs.”
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I’d like to think that it’s beyond argument that open and free political debate is central to our freedoms, but according to the Supreme Court, I’m wrong. I’m wrong because Senators John McCain of Arizona and Russ Feingold of Wisconsin drafted a bill, passed by Congress, and signed into law by the president, which uses words like “reform,” “corruption,” and “special interests” to justify restricting and even criminalizing political speech under the guise of “campaign reform.”
But who, exactly, is being “corrupted” by our political system? Don’t ask McCain. While he’s quick to make the charge, he seems unable to back it up. During a key debate on the Senate floor with Senator Mitch McConnell of Kentucky, the Senate’s leading opponent of McCain-Feingold, McConnell challenged McCain for evidence:
McConnell: I am just interested in engaging in some discussion here about what specifically—which specific senators he believes have been engaged in corruption. I know he [McCain] said from time to time the process is corrupt. But I think it is important to note, for there to be corruption, someone must be corrupt. Someone must be corrupt for there to be corruption. So I just ask my friend from Arizona what he has in mind here, in suggesting corruption is permeating our body and listing these [spending] projects for the benefit of several states as examples.
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After McCain gave a long and unresponsive reply, McConnell persisted.
McConnell: I ask the Senator from Arizona, how can it be corruption if no one is corrupt? That is like saying the gang is corrupt but none of the gangsters are. If there is corruption, someone must be corrupt…. I repeat my question to the Senatorfrom Arizona. Who is corrupt?
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McCain: First of all, I have already responded to the senator that I will not get into people’s names.
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The McCain-Feingold Act, signed into law in 2002, ignores the clear wording of the free speech clause and imposes draconian limits on political speech. The act, among other things, bans contributions to political parties from corporations, labor unions, and other groups, and prohibits certain forms of political advertising in the crucial days leading up to elections.
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The McCain-Feingold Act is obviously unconstitutional. The First Amendment specifically protects the right of the people to influence their representatives. It states, in part, that “Congress shall make no law…abridging the right of the people…to petition the government for a redress of grievances.”
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If that isn’t clear enough, the Supreme Court ruled in 1976 in
Buckley v. Valeo
that giving money to support political campaigns was protected by the First Amendment.
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While limits on contributions to campaigns were permissible in order to prevent corruption or the appearance of corruption, individuals or groups were permitted to spend as much money as they desired in running advertisements that supported a particular issue rather than a specific candidate.
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The Court also ruled that individuals and groups could make unlimited financial contributions to political parties.
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There are aspects of
Buckley v. Valeo
that I believe violate the First Amendment, but it’s a bulwark of constitutionality compared with the Supreme Court’s 2003 opinion upholding most parts of the McCain-Feingold bill in
McConnell v
.
Federal Election Commission
.
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The Court stamped its approval on prohibiting national parties from raising or spending so-called “soft money” (money
not
spent in direct support of a specified candidate); regulating how state political parties can spend soft money in federal elections;
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banning federal officeholders or candidates from raising or spending soft money; prohibiting political parties from transferring or soliciting soft money for politically active tax-exempt groups; banning state candidates from spending soft money on public communications that promote or attack federal candidates; defining “electioneering communication” as a broadcast advertisement mentioning a federal candidate, targeted at their electorate, and aired within thirty days of a primary or sixty days of a general election; requiring corporations and unions to use only “hard money” (money that
is
spent in direct support of a specified candidate) to pay for electioneering communication; requiring that individuals disclose their spending on electioneering communications to the Federal Election Commission (FEC); requiring that “coordinated” electioneering communications be treated as contributions to candidates and parties; defining “coordination” as “Congress has always treated expenditure made after a wink or nod as coordinated”; and affirming the new FEC requirements for candidate disclosure.
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Confusing? Do the terms “soft money,” “hard money,” and “coordination” mean anything to you? Probably not. They are all inventions of the federal government. Remember, the Constitution’s free speech clause states: “Congress shall make no law…abridging the freedom of speech.” Yet McCain-Feingold creates an environment in which anyone who dares to enter the political arena, and hopes to have a real influence on the outcome of an election, will risk fines or even imprisonment if he runs afoul of this law while merely trying to exercise his free speech. He’ll need a team of election-law experts to help steer him through this legal minefield. Even then, he can’t be certain he’ll escape allegations of wrongdoing.
Now, you might think that the members of Congress who voted for this law would have read it and understood it before passing it. You might think that McCain-Feingold supporters, who insisted that this law was critical to cleaning up rampant corruption in politics, would have had some idea before supporting it as to how it would supposedly eradicate that corruption. But, for the most part, you’d be wrong.
In February 2003, the
New York Times
reported how McCain-Feingold was confounding even members of Congress and quoted Robert F. Bauer, a lawyer for the Democrats’ House and Senate campaign committees who gives seminars on the law, as saying: “We sometimes leave our audiences in a state of complete shock,” with the congressmen expressing a “sort of slack-jawed amazement at how far this thing reached,” followed by “a lot of very anxious questions.” The article goes on:
The new chairman of the Democratic Congressional Campaign Committee, Representative Robert T. Matsui…who voted for McCain-Feingold, says he has been surprised by its fine print.
“[I] didn’t realize what all was in it,” Matsui said. “We have cautioned members: ‘You have to really understand this law. And if you have any ambiguity, err on the side of caution.’”
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The confusion surrounding McCain-Feingold involves virtually every aspect of what used to be considered perfectly legitimate, legal, and even important politicking:
For example, members of Congress have been informed that while they can attend annual state party dinners back home, they cannot permit their names to appear on the invitation as members of the host committee, since most state parties are permitted to raise money in excess of the $2,000 hard-money limit embodied in the federal law.
And, while the lawmakers are allowed at least to show up, socialize, and speak at those state party dinners, the law may be less forgiving when it comes to their attendance at bread-and-butter fund-raisers held by candidates running for state and local office. Some party lawyers have concluded that a member of Congress can attend and even speak at a fund-raising dinner for a local politician, but others argue that the question is open to interpretation, involving everything from what the candidate says to the maximum level of contributions at the dinner.
Those are among the issues that will surely be litigated in the months to come. Given the confusion in the meantime, party officials are urging members of Congress to consult their lawyers about every political invitation.
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Of course, the courts will now decide all nuances involving myriad political issues, no matter how intricate. The slippery slope has been greased by the Supreme Court itself. Rather than striking down McCain-Feingold as blatantly unconstitutional, it has unleashed what will be never-ending litigation and court oversight of the political process, something the framers never would have sanctioned.
Nor could the framers ever have envisioned prohibiting groups from running advertisements about a candidate’s positions thirty days before a primary election and sixty days before a general election. As Justice Anthony Kennedy said in his partial dissent:
The majority permits a new and serious intrusion on speech when it…prohibits corporations and labor unions from using money from their general treasury to fund electioneering communications. [The majority] silences political speech central to the civic discourse that sustains and informs our democratic processes. Unions and corporations, including nonprofit corporations, now face severe criminal penalties for broadcasting advocacy messages that “refer to a clearly identified candidate.”
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During the debates leading to the enactment of McCain-Feingold, Congressman Steve Chabot noted how the media was exempted from anti-corruption campaign reforms: “[Campaign finance] would ban corporations, labor unions, social welfare groups and political groups from advocating issues important to them during specific times in campaigns, subjecting them to not only new speech restrictions, but also increased penalties beyond those imposed by current law. At the same time, [McCain-Feingold] exempts the media.”
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And so it does. The media is not regulated by campaign finance law—not that it should be, of course. Besides specifically protecting free speech, peaceable assembly, and petitioning the government, the First Amendment also singles out freedom of the press for protection. But interestingly, this is the only First Amendment right entirely exempt from McCain-Feingold’s reach. It’s troubling to note that, with its own freedom preserved, much of the press rushed to embrace McCain-Feingold.
The reaction of the
New York Times
editorial page was typical of the mainstream media:
The Supreme Court delivered a stunning victory for political reform yesterday, upholding the McCain-Feingold campaign finance law virtually in its entirety. The court rejected claims that the law violates the First Amendment, making it clear that Congress has broad authority in acting against the corrupting power of money in politics. The ruling is cause for celebration, but it should also spur Congress to do more to clean up our political system.
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On Sunday, October 17, 2004, a mere sixteen days before the 2004 presidential election, the
New York Times—
well within the sixty-day prohibition against the broadcasting of political advocacy advertisements—continued its long practice of endorsing Democrat nominees for president with an editorial titled “John Kerry for President.”
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The
Washington Post
called the Court’s McCain-Feingold decision “one of its most important decisions in a generation.”
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It would be more accurate to call it one of its worst.
But more is on the way. The Court acknowledged as much in its McCain-Feingold decision when it said, “We are under no illusion that [the law] will be the last congressional statement on the matter. Money, like water, will always find an outlet.”
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