"A REPUBLIC, IF YOU CAN KEEP IT" :

Wellstone's folly? : The Wisconsin senator's amendment could be McCain-Feingold's poison pill (Mickey Kaus, April 5, 2002, SLATE.COM)

[A]long came Paul Wellstone, the Senate's most liberal member. Wellstone saw McCain-Feingold's protection of 'advocacy' groups as a 'loophole' allowing 'special interests' to run last-minute election ads. (Since corporate and union money was already banished in the bill, Wellstone was presumably worried mainly about money from rich individuals.) Last year, Wellstone pushed an amendment to extend McCain Feingold's ban on last-minute ads to non-profits like 'the NRA, the Sierra Club, the Christian Coalition, and others'.

Under the Wellstone Amendment, these organizations could only advertise using money raised under strict 'hard money' limits - no more than $5,000 per individual. So if you wanted to give the Sierra Club $6,000 to denounce some environment - raping legislator, you'd be out of luck.

Because Wellstone's addition wasn't 'drafted with a close eye to past Supreme Court decisions,' McCain-Feingold backers saw the amendment as a poison pill, inviting the Court to strike down their law. Both McCain and Feingold cast votes against it. 'If I thought it was constitutional, I would have voted for it,' McCain explained. But, in a highly embarrassing episode, Wellstone's amendment passed. (Some votes came from reform opponents who wanted to screw up the McCain-Feingold bill. But mainly Wellstone's win revealed a dirty little secret about campaign finance reform - it was the most unconstitutional parts of the bill that were most popular in Congress,
precisely because they suppressed the last-minute TV ads that incumbent Congressmen worry will be used against them.)

At the outset let us admit that The Brothers Judd are not believers in the doctrine of judicial review. There seems to us no compelling reason why after Congress has passed a law and the President has signed it the Court should have the final word on its constitutionality. This stands the notion of coequal branches of government on its head. It is often argued that this provides a kind of last line of defense of our rights, but in practice the Court has displayed a consistent contempt for those rights. From Dred Scott to Plessy v. Ferguson to Koromatsu to Buckley v. Valeo to Roe v. Wade, the Court rather than overturning the most contemptible violations of civil rights has effectively enshrined them and given them the weight of Law, as if the Constitution required such results.

That said, as conservatives we would be reluctant to simply dispose of the tradition of judicial review. Instead, we would support a Constitutional Amendment that would require the Court to muster a 2/3 majority before ruling that a law violates the Constitution and that would allow Congress to override the Court's rulings by a simple majority and a Presidential signature. And we recognize that judicial review is a fact of life and understand why McCain and Feingold would have tried crafting legislation that would survive the Court's scrutiny, but find it strange that even folks who are as bright and opinionated as Mr. Kaus would analyze the bill as if the constitutionality of the bill depended on its compliance with past Court decisions. If the law violates the Constitution, which we believe it does and Mr. Kaus certainly seems to think it does, then just say so; the Court be damned.

In fact, we don't think the standard of constitutionality even depends on what Congress, the Executive, and the Courts together have to say. We consider ourselves and our fellow citizens to be perfectly capable of reading the Constitution and understanding both its intent and its language. And nothing seems more obvious than that the free speech protections of the First Amendment should apply most strictly to political speech, the Constitution after all is first and foremost a political document. Since time immemorial, those who wield political power have always sought to limit the rights of those who don't; little surprise then that our elected and appointed officials would want to shut the rest of us up. But this is precisely the eventuality that the Founders sought to prevent by means of a written constitution.

So when even supporters of campaign finance reform acknowledge that it is constitutionally dubious, and commentators from the pages of Slate to those of the National Review are openly skeptical, and citizens groups from the NRA to the ACLU to the Sierra Club to the Christian Coalition are adamantly opposed, we feel no compunction about suggesting that this is a case where concerned citizens should practice civil disobedience in order to stop a violation of all of our constitutional rights. Just as it was wrong to enslave blacks, even though Congress, Presidents and the Court allowed it; just as it was wrong to segregate blacks from whites, even though Congress, Presidents and the Court allowed it; just as it was wrong to put Americans of Japanese descent in concentration camps, even though Congress, Presidents and the Court allowed it; it is wrong to accept limitations on our political speech just because Congress, Presidents and the Court may allow them. It is therefore incumbent on all right thinking Americans to resist this abrogation of our rights.

As Mr. Kaus asks later in his essay :

Which America do you want to live in - one where citizens are free to join together to proselytize for causes they believe in, or one where they are free up to $5,000 and go to jail if they spend $5,001?

We would ask : does the mere fact that Congress and the executive branch have passed and the Court has allowed certain limits on "hard money" contributions in the past mean that we should accept them as constitutional? Which America do you want to live in--one where the political class can send you to prison for spending money on political activities or one where we refuse to accept limitations on the very type of speech that resides at the heart of the First Amendment? If Congress, the President, and the Court are creating a kind of America that we don't want to live in, should we continue to follow, like sheep to the slaughter, or should we seek to vindicate the principles of our Constitution? The individuals and groups who oppose this legislation should band together and violate its provisions en masse, then let's see if Congress and the President and the Courts have the stomach to see Bible toters and gun nuts and tree huggers and all the rest of us who make up their constituencies prosecuted for these "crimes".

It will be said that it is hypocritical for law and order conservatives to advocate violating the law. Perhaps it is. But the Constitution exists to protect us from the illegitimate exercise of power by our government. The Constitution is supposed to stop the government from passing legislation that violates its express provisions. But it frequently fails. When it does so, it is the duty of patriots to say so and to resist.

It will be said that if everyone is allowed to resist the law whenever they think it is unconstitutional that mere anarchy will be loosed upon the nation. This is just wrong. For the most part, laws exist because there is a broad consensus of opinion in support of them. The few who object and who would violate them will be dealt with and few will raise a peep in their defense. It is only when enforcement of the law forces a society to view itself with shame--as when whites had to confront the despicable treatment of blacks in the Jim Crow South--that civil disobedience is effective. And who will fail to be ashamed when we start arresting people for attempting to speak their minds on political issues?

Posted by Orrin Judd at April 8, 2002 10:48 AM