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Campaign Finance Justice

Sunday, March 7th, 2004

In the movie Amadeus, composer Antonio Salieri was profoundly jealous of Wolfgang Amadeus Mozart’s innate musical gifts. Not only was Mozart a vastly more talented composer, but his compositions flowed from his pen with apparent ease, as if he were merely transcribing the notes from angels. Mozart could carouse and give himself to debauchery, yet still easily produce heavenly compositions. While Salieri led a pious, contemplative life and diligently labored at his craft, he produced far more pedestrian pieces of music. God’s apparent injustice gnawed at Salieri and ultimately destroyed him. Salieri could never accept that it is often too much to expect justice in this world. Nonetheless, there are precious occasions when we may enjoy the prospect that someone or some group receives their proper comeuppance. Campaign finance reform may yet represent this proper reward for Democrats.

The problem fundamentally lies with the mythology of Democrats, that they are the party of the little guy while vile Republicans represent the upper class interests. This mythology causes them to pursue policies even against their own best interests. The only way Democrats can reconcile the success of Republicans at the polls is to argue that Republicans buy elections with resources provided by moneyed interests. The inevitable logic of this tenet of their faith is that if campaign contributions are limited or even eliminated, electoral success for Democrats would follow.

The first efforts at campaign finance reform could only be made to jive with that pesky First Amendment if it could be argued that campaign finance laws help avoid the appearance of corruption. Hence, money donated directly to a candidate’s campaign could be regulated, but people and institutions would retain the freedom to advocate their positions, independent of the campaigns. Money could only be donated to campaigns in modest increments of $1,000 per donor per election. However, independent organizations could raise amounts from people, corporations, unions, or other interest groups in any amount. Money raised directly for a candidate is called “hard money.” Money contributed to other interest groups has come to be called “soft money.”

Unfortunately for Democrats, Republicans turned out to be much more proficient at raising lots of money from modestly affluent donors, particularly small business people, in increments of $1,000. Democrats, however, had to rely on limousine liberals willing to donate money in far larger chunks. Democrats extricated themselves from this dilemma by campaign finance alchemy, in effect, turning soft money into hard money.

It turned out, the money given to political parties could be considered soft, if it were used for general party building and issue advocacy and not “expressed advocacy” for the election or defeat of any particular candidate. The limit of any contribution to a political party was $20,000 per year. Under President Bill Clinton, Democrats masterfully exploited this loophole and Republicans soon followed. Using soft money, one could argue that Candidate A’s position on public policy was wise and prudent, but one could not expressly advocate for the election of Candidate A with words to the effect, “Vote for A.” However, the cumulative effect of such ads are much the same as expressed advocacy ads.

In addition, issue ads which were not directly tied to a candidate and funded by an organization independent of a political party or candidate could not be regulated. Pro-life and pro-choice groups, for example, could run ads critical of certain positions without limit. The expenditures of closely allied groups could help a campaign as long as there was no provable collusion between a campaign and independent groups. However, for many independent interest groups it is pretty easy to divine the campaign themes of their favorite candidates and run political ads accordingly.

Both political parties used soft money funneled both through political parties and other groups as a means to fund campaigns. As long as political ads did not expressly advocate the election or defeat of a candidate, there was no violation of the law.

Again responding to the mythology that further limiting free speech exercised through the medium of campaign financing would create pristine politics, Congress passed the McCain-Feingold bill. Despite Senator John McCain’s (R) joint sponsorship of the bill, it was largely a Democratic bill. This new law prevented the political parties from acting as conduits for soft money in the same way as before. Political parties could still help out with generic “Vote Democratic” or “Vote Republican” ads, but the money for these activities must come from contributions that are limited to $5,000 increments. Larger donations for general party activities were capped at $25,000. Moreover, within the last 60 days before an election, issue ads (ads that do not expressly advocate the election or rejection of a candidate) are limited. To the benefit of Republicans, the individual contribution limit to candidates was doubled from $1,000 per donor per election to $2,000.

Some of McCain-Feingold, particularly the one limiting independent expenditures in the last 60 days before the election, were challenged in court. In yet another erosion of the First Amendment, the US Supreme Court ruled that the restrictions on third-party expenditures within 60 days of an election were constitutional. Indeed, the ruling was so broad that it blurred the distinction between the actions and contributions permitted of political parties and those permitted of independent groups.

What are Democrats to do now? They appear to be at a permanent disadvantage in raising hard money. They do, however, have extremely wealthy allies like George Soros who donates money in units of wheelbarrows and who has publicly stated that he will spare no expense to defeat President Bush in the November election. The solution Democrats and the Left have conjured up is to create independent organizations that will advocate Democratic themes on state and local levels. By careful coordination these themes will benefit Democratic candidates at the federal level and contribute to organizational efforts and get-out-the-vote activities that will benefit federal Democratic candidates as well. The idea was so good that Soros immediately pledged $10,000,000 to America Coming Together (ACT), one of the umbrella independent organizations set up by the Left.

The Republicans responded by establishing Americans for a Better Country (ABC). The goal of ABC was a clever and cynical attempt to derail the entire Democratic soft money effort. The crucial point to recognize is that the activities that these independent organizations are performing are close to the activities of traditional political parties. They can, in effect, become shadow political parties. Should these independent organizations not be limited to raising money in small increments like political parties?

ABC claims they intend to engage in activities similar to ACT. They then asked the Federal Election Commission for a pre-emptory advisory ruling about any fund-raising restrictions. On February 17, the Federal Election Commission ruled that:

  • If you support or attack any candidate, even if there is no expressed call for election or defeat, the funds for such ads can only come from hard money funds.
  • Generic pro- or anti-Republican and Democratic ads must be funded at least in half by accounts subject to hard money limits.
  • Get out the vote campaigns must also come from hard money accounts.
  • The money for any federal election activities must come from hard money accounts.

In other words, a large fraction of the money donated by Soros and other well-healed Lefties cannot be used to go after Bush, even in indirect ways.

Democrats have gotten what they wanted. They have limited speech through campaign finance reform and it has come back to hit them in the tail. Usually the Democrats could count on the fact that the FEC is usually slow to act against wayward activities. However, in this case the FEC has already issued a ruling. So the Left will have to resort to the old tactic of simply righteously ignoring the law. As reported by USA Today, Carl Pope, the Executive Director of the Sierra Club, has “suggested the Sierra Club would even consider ignoring any new FEC restrictions and proceeding with its activities as planned, letting the chips fall where they may.”

Reference
Tell, David, Who’s Afraid of George Soros, The Weekly Standard, March 9, 2004, 19-25

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Thoughts on The Passion of the Christ

Sunday, February 29th, 2004

“Beyond every personal form of witness, I remain convinced that my Christian faith, in order to be faithful to itself needs the Jewish faith. From every Christianizing theology on Judaism and from every Jewishizing theology on Christianity, I tried to witness all that Martin Buber expressed so well: it is the Alliance of the same living God who makes us exist, Jews and Christians, and who creates a community beyond the breakage” — Cardinal Roger Etchegaray.

When I was growing up my Italian mother and grandmother would remain in prayerful silence on Good Friday marking the three hours Christ suffered on the cross. As a child, this sort of solemn piety seemed remote and almost incomprehensible. Of course, even then I knew the story of Jesus’ death and Resurrection, but it is easy for 2000-year old events to seem remote. However, after spending two hours watching Mel Gibson’s The Passion of the Christ perhaps I can better understand at a deeper emotional level the piety my mother and grandmother appreciated without the crutch of state-of-the-art cinematography.

There is no way events portrayed in The Passion of the Christ could come as a surprise. Christians have told and re-told the story for two millennia. Catholics explicitly recall the Stations of the Cross every Easter. It is also true that the Scriptures from which we learned the story are not a screen play. Therefore, any movie maker, and Gibson is obviously a skilled one, must fill in the structure. After re-reading the relevant portions of the Gospels, despite small quibbles, most reasonable people would conclude that Gibson’s film remains faithful to the story as told in the Gospels. Indeed, a reading of the Gospels is a necessary pre-requisite to meaningfully comment on the movie.

What the film provides is authentic immediacy. The subtitled film is spoken in Latin and Aramaic, the languages of the time. Considerable effort was devoted to re-create the Jerusalem of 2,000 years ago using authentic costumes and actors who appear as Jews and Romans might have looked. There are no blue-eyed, Nordic-looking, carefully-coiffed Jews or Romans in this film. The realism of The Passion of the Christ confronts us with the depth of the sacrifice that Christ experienced and the love for us with which he embraced the suffering. It is just that simple. This is not a movie in the conventional sense with a tidy plot. It is really a scene pulled out of the entire Bible story.

More than one reviewer has written that this is the most violent film they have ever watched. I think that such comments, while honest, miss the true nature of the film’s graphic violence. There are other films with depictions as brutal. Indeed, the popular Lord of the Rings has scenes as violently graphic. Certainly, Natural Born Killers and Pulp Fiction exceed the violence in The Passion of the Christ.

However, it is also true that the violence in this film has far more emotional impact than the violence in other films. We are inured to conventional movie violence. In this film, we are reminded at the beginning that Christ’s suffering is a consequence of our sins. Therefore, with every stroke of the lash on Christ’s back, we not only see the immediate damage to Christ’s body, but feel the sting of our own guilt. Every time Christ falls under the weight of the cross, we understand that our own transgressions have added to the crushing weight. We recognize that the nails used to attach Christ to the cross were forged by our faults.

One of the tenets of deconstructionism is that artistic works have no absolute or fixed meaning. Rather the meaning of a work is dependent on the beliefs of the observer. While I am unwilling to allow artistic works to flail about unanchored with totally arbitrary meaning, it is clear the much of what people who view The Passion of the Christ walk away with will be dependent the viewpoint they walked in with.

Those for whom Scripture and Christ’s death and Resurrection are normative will have a heightened appreciation of the enormous suffering Christ willingly endured as recompense for our sins. For those whose Christian religiosity is latent or forgotten, the film may provide motivation to revisit their churches and re-read Scriptures. For others, it may provide an insight to the source of the faith of their Christian brothers. For those who seek to find fault in the film, fault will be found.

The most damning charge against The Passion of the Christ is that it is anti-Semitic. At present, anti-Semitism is very real and a growing threat. Without going in to personal details, I confess a passionate familial interest to speak out against anti-Semitism wherever it is.

There is real anti-Semitism at Harvard, when the school’s newspaper, the Harvard Crimson, was concerned that there were too many Jewish writers on its editorial page. There is real anti-Semitism in the rantings of Black Muslim leader Louis Farrakhan. It is anti-Semitic when a Canadian Left-wing web site Adbusters finds it appropriate to list American neoconservatives highlighting those that are Jewish. There is a flaming anti-Semitism igniting synagogues in France and blowing them up in Turkey. The popular media in Muslim countries is filled with the vilest anti-Semitism imaginable since the Nazis. Reasonable viewers will not find The Passion of the Christ anti-Semitic.

This controversy is reminiscent, on a much smaller scale, of the arguments that periodically crop out about the use of the n-word in Mark Twain’s Huckleberry Finn. There can be no doubt that the n-word has been deliberately used to degrade and insult the black population. Where the n-word is used, racism is often found. If one focuses only on the use of the n-word with out considering the anti-slavery theme of Huckleberry Finn, it is possible to foolishly conclude that the book is “racist.”

Similarly, Passion plays, particularly in Europe have been the occasion of violence and against Jews and synagogues. Of course, such a reaction is based on a deliberate misreading of the entire Gospels. All humanity is culpable in the suffering of Christ. Blaming all Jews for the death of Christ is like blaming all Germans for the Holocaust based on the movie Schindler’s List, or all whites for the slavery after watching the mini-series Roots. There are both positive and negative portrayals of Jews in The Passion of the Christ and there are positive and negative portrayals of Romans. Indeed, the Roman soldiers are perhaps the most egregiously cruel, taking obvious sporting pleasure in whipping Christ with various implements.

Nonetheless, movies are not made in a vacuum. It is possible there are cultures anxious to willfully misinterpret Gibson’s movie as an excuse for anti-Semitic behavior. Even with positive intentions, a work can foster anti-Semitism. Part of the film maker’s art is calibrating how images will likely effect people. If the showing of The Passion of the Christ were accompanied by a significant up tick in anti-Semitic words or actions by people leaving theaters, then we could rightly concern ourselves with the effect of The Passion of the Christ. The meaning of the Gospels is not anti-Semitic, yet it is possible for clumsy or insensitive re-telling of the Passion story to exacerbate negative emotions.

By all accounts, certainly consistent with my observations of the audience at the showing I attended, the collective mood created by viewing the film was not anger or hatred. Rather the mood was somber and reverent. By this measure, accusations of anti-Semitism seemed thus far to have been empirically proven incorrect.

Given the charitable frame of mind the movie has, at least temporarily, put me in I am disinclined to address some of the more vitriolic criticism of the movie. If anything, the criticism has been so angry and personal against Gibson, that not to address it would be allow animosity to linger in the air unchallenged.

To be sure the most hateful aspect of the movie has been the criticism leveled against Mel Gibson. Gibson’s father appears to be a clearly anti-Semitic Holocaust denier (or at least Holocaust mitigater). While not subscribing to his father’s beliefs, in an act of filial loyalty, Gibson is unwilling to criticize his father. Gibson’s father had no part in the making of this movie, yet he is used to call indirectly Gibson’s motives in to question. The sins of the father should not be placed on the shoulders of the son.

Andy Rooney of CBS, without the benefit of viewing the movie snidely asked of Mel Gibson, “How many million dollars does it look as if you’re going to make off the crucifixion of Christ?” To compound his insensitivity, Rooney told Don Imus in a radio interview he was not going to see the movie. After all, Rooney explained, “I’m not going to spend $9 just for a few laughs.” Does anyone else see an androgynous hooded character slinky behind at least one office at CBS? However, it is difficult to summon too much ire since Rooney has ceased to be a serious commentator. Few take him seriously.

It was much more disappointing to read the review of Leon Wieseltier in The New Republic. That periodical is usually so much more responsible. Wieseltier establishes his snooty credentials by criticizing Jim Caviezel, who played Christ. According to Wieseltier, Caviezel’s “Aramaic, like everybody else’s in the film, is grammatically correct and risibly enunciated.” How relevant is this to the appreciation of the film by Americans who are surely reading the subtitles during the Aramaic speaking? No. The remark was a smug way of saying: I know Aramaic. I am really smart. You should submit to by judgment about the film.

Unfortunately, intellectuals are often the last people to recognize the obvious. He asserts that “The viewing of The Passion of the Christ is a profoundly brutalizing experience.” Collectively recent movie viewers have testified to the intensity of the violence, but not to its brutalization. It is not often, Wieseltier can be proven so empirically wrong so shortly after making an incorrect assertion. I believe Wieseltier when he says, “I see only pious pornography in The Passion of the Christ.” However, the remark probably says more about Wieseltier’s limited vision than it does about The Passion of the Christ.

How do we explain the movie’s obvious popularity and the profound reverential impact it is having on many viewers despite some critical reviews? There are only a couple of choices: There are millions of easily led Christian religious zealots who eagerly gobble up any brutality. Or the movie speaks to some deeply held religiosity and some of the critics represent narrow minded individuals who see brutality where most see sacrifice. Is Wieseltier right when he argues that The Passion of the Christ “without any doubt an anti-Semitic movie, and anybody who says otherwise knows nothing, or chooses to know nothing, about the visual history of anti-Semitism, in art and in film?” Or are people who blindly cling to such a belief about the movie, despite its obvious effect on audiences, mired in cynical distrust of their brothers?

Rabbi Daniel Lapin has lamented that the unrelenting criticism of Gibson and the movie by some will do far more damage to Christian-Jewish relations than the movie itself could. After all the issue of how responsible Christians and Jews deal with the story of the Passion has been settled for a while. Most modern American Christians feel sympathy and genuine brotherhood with the Jews they know. According to Lapin, Christians are left wondering whether Jewish neighbors could really believe that “…exposure to the Gospels in visual form will instantly transform the most philo-Semitic gentiles of history into snarling, Jew-hating predators.” Such a negative reaction has not happened and should there turn out to be isolated pockets of anti-Semites who exploit the movie, Christians who embrace the Gospels should be the first to realize that the sin of anti-Semitism adds to the weight of the cross Christ carried.

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Same Sex Unions and the Political Process

Sunday, February 22nd, 2004

Much of modern Conservatism vigorously sprouted from the fecund mind of William F. Buckley. In 1955 he succinctly expressed, for many, the role of modern Conservatism to “stand athwart history, yelling STOP, at a time when no one is inclined to do so, or to have much patience with those who do.” That was almost 50 years ago. Not even Buckley’s inventive mind could have predicted the social and cultural changes that have reshaped our lives in the intervening time.

Given the congenital libertarianism of most Americans and the concerted effort by the entertainment industry to favorably portray homosexual behavior, it is politically inevitable that we will in some way grant legal recognition to same-sex partners, despite the loudest protests of “STOP.” One important concern now is of process. We are at a point where we may repeat the same mistakes with respect to same-sex unions that we made with regard to abortion law.

The Supreme Court’s Roe v. Wade decision in 1973 forbade states from regulating abortion (at least in the first trimester). At that time, 17 states were already permitting abortions and the trend was in the direction of further liberalization. In 1972, the year before the Supreme Court acted, there were nearly 600,000 legal abortions so the procedure was not rare. If the Supreme Court had allowed individual states to come to grips with the issue, it is likely that virtually all states would now have some form of legal abortion. Some would be more liberal than others. Different states would have regulated abortion during different periods of pregnancy. Different states would have written different laws concerning parental notification and the age when a young woman (girl?) could opt for an abortion. There would have been different rules concerning counseling requirements and waiting periods. These laws would have reflected different solutions and approaches and we could have empirically observed which were the most effective.

Importantly, everyone would realize that the laws represent the collective wisdom of the polity as opposed to the social preference of judges who succumb to the temptation of the law and conjure up rights that do not exist in the Constitution to create the outcome they want. The level of political animosity would have been reduced. The selection of judges for the higher courts would not involve the same rancor and political combat they do now. Major changes in social policy would not depend on the decision of a few judges or the president that might appoint them, but rather by the democratic process. Changes would arrive through political persuasion, not through endless infighting to produce judges that will rule a particular way on one particular issue — a corruption of the judge appointment process introduced in the last couple of decades of the twentieth century.

Are we now on the verge on making the same mistake with respect to same-sex unions, the Supreme Court inflicted upon us 30 years ago? The equal protection clause of the Fourteenth Amendment to the US Constitution has been twisted like a pretzel recently. During the last Supreme Court session, the Court found that selecting students dominantly by race was consistent with the Fourteenth Amendment despite its plain wording that “No state shall…deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” This is a clear demonstration that there is no limit to the wreckage possible by fertile legal minds on a crusade. If the US Supreme Court stretches the equal protection clause to compel states to recognize same-sex marriage, as the Massachusetts Supreme Court did with the Massachusetts state constitution, it will have unforeseen and undesirable consequences. By unnecessarily wielding the sledge hammer of the Fourteenth Amendment, there would be no principled way to prohibit marriages of more than two or among closely related people. What are we to do if groups of three people show up in San Francisco demanding a marriage license? If we institutionalize individual sovereignty in demanding formal legal recognition for private choices, there would be no principled way to deny such recognition.

Certainly, no law prevents any two or more people from making private legal arrangements that largely mimic marital rights in financial and some legal matters. If some states wish to codify such relationships as civil unions or marriages, there is no constitutional impediment at the federal level, though we may have to deal with the issue of recognition across state lines at the Federal level.

State regulations will reflect varying judgments about justice and efficacy, but in manner consistent with the workings of a representative republic. If legislative mistakes are made, it is relatively easy to pull back and modify legislation. If we make dramatic errors in Constitutional interpretation, it may require decades to pull back or force otherwise unnecessary modifications to the Constitution. The legislative process among the different states permits experimentation before we lock in long term social changes. Perhaps we will even be able to avoid national acrimonious fights over judges into the middle of the century.

When Buckley was shouting “STOP” to inexorable change, those on the cultural Left were arguing that marriage was only a “piece of paper,” that love was the true binding force that was somehow diminished by the necessity for a “license” and the approbation of society. Now those on the far side of the cultural divide have come to appreciate the importance of marriage and the necessity for societal support of the institution, ideas that Conservatives insisted upon and the Left disparaged, perhaps the Left will now listen to Conservatives before irreparable damage is done to the culture and the Constitution.

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Anti-Americanism

Sunday, February 15th, 2004

“Benefits are acceptable, while the receiver thinks he may return them; but once exceeding that, hatred is given instead of thanks.” — Tacitus.

Sympathetic, yet critical friends, can sometimes help us look at ourselves in enlightening ways. In 1831, Frenchman Alexis de Tocqueville visited the United States with a view toward explaining American democracy to his countrymen. The result was the seminal book Democracy in America, a remarkably prescient work. The French failure with popular sovereignty during the French Revolution made the French naturally curious as to how the American experiment was proceeding. In retrospect, the Americans may have simply been the beneficiaries of the fortunate circumstance of having a George Washington; a leader strong enough to unite disparate states, yet unwilling to become an American emperor. De Tocqueville found many reasons for the success of the American republic including a free press, the discretion for inheritances to pass to all children rather than just the eldest, and even “the superiority of their woman.”

Modern communications have made it much easier for the French to understand Americans and the Americans to understand the French. This does not mean, however, that we have availed ourselves of the capacity. Recently in Anti-Americanism, Jean-Francois Revel, philosopher and member of the French academy, has endeavored to explain the anti-American animosity that has increased recently, but has been a continuing theme during the entire post World War II era. Revel is writing primarily about the French to the French and unfortunately the English translation can be a little stilted in places. Reading the book is like eavesdropping on a family argument. Yet, with each page one is more grateful that the book has become a bestseller in France.

Among Europeans, the French suffer the most virulent form of the anti-American pathology. The British share a common language and culture and are far more pleasantly disposed toward the United States. The Germans underwent such a culture-wrenching experience with the Nazis, the post Cold War era, and difficulties with reunification with East Germany that they are ill-positioned to be too critical of anyone.

While acknowledging that there is a “big difference between being anti-American and being critical of the United States,” Revel explains how, “Europe in general and the Left in particular absolve themselves of their own moral failings and their grotesque intellectual errors by heaping them upon the United States.” Much anti-Americanism is reflexive and warmed-over rhetoric from Socialists and Communists still simmering from the Cold War. It is still hard for the Left to accept that they were so wrong about the economic advantages of socialism or even the evil nature of Soviet Communism. During the Cold War they habitually repeated the insanity of proclaiming the advantages of socialism, while at the same time urging aid for the Soviet Union from the West. This makes it easy to now criticize the US’s economic system while at the same time bemoaning American economic hegemony. Apparently, skill at repeating arguments that are contradictory improves with perpetual practice, until mendacity becomes a comfortable frame of mind.

America, especially in the European media, is continually stereotyped as a capitalist jungle, populated by uncultured Yahoos. According to Revel, anti-Americanism is primarily a consequence of American success. Some loathe America because “for over half a century she has been the most prosperous and creative capitalist society on Earth.” Americans are viewed like the rich uncle who wears loud and unfashionable suits, drives a large garish car, and whose idea of high culture is anything that can fit into a large screen television. It is comfortable for Europeans to assuage feelings of inadequacy with notions of cultural and moral superiority. However, it must be frustrating to adhere to this mythology while seeing ubiquitous American movies dominating the free choices of Europeans, despite heavy government subsidies for European-made movies.

What is most disheartening is the European willingness to believe the worst about America based on scant or even conjured evidence, revealing an eagerness to be deceived. In March 2002, shortly after the September 11 attacks, Thierry Meyssan published L’Effroyable Imposture (The Frightening Fraud), a grotesque and insulting book that asserted that no plane struck the Pentagon. One wing of the Pentagon was supposedly struck with a missile as part of a US plot. This fabrication is reminiscent of a small-scale Holocaust denial. It is not so bad that this book was published, but that so many of the French were sufficiently convinced of its veracity to make it a bestseller there.

Much of this anti-Americanism is intellectually incoherent and contradictory, unified only by reflexive and blind animosity. Revel provides several examples. At one point, the US was criticized as being “isolationist” for not engaging sufficiently in the Middle East. Just months later, the US was criticized for imperialistically insisting the Palestinians hold elections to choose a successor to Arafat. It is possible to be isolationist or imperialist, but difficult to be both.

On one hand, the French whine about free trade and globalization bulldozing French culture. Yet they complain just as fervently if the US erects trade barriers inhibiting free trade? Are American critics for free trade or not. American self-confidence in the universal applicability of its founding principles and in economic freedom are labeled as arrogant, while the French celebrate France’s “universal radiance” as the “country of human rights.” French culture has made many contributions, but modesty has never been one of them. It is more than disingenuous for the French to call Americans arrogant.

In many ways, there is little that Americans can do about anti-Americanism. Indeed Revel concedes that anti-Americanism is self perpetuating. Revel explains that “By criticizing the Americans whatever they do, and on every occasion — even when they are in the right — we Europeans compel them to disregard our objections — even when we are in the right.” By always opting out of leadership and always choosing complaint and pique, Europeans compel Americans to believe that Europeans are not really serious.

Until Europeans manage to free their culture and economy from the stifling state and until they are willing to embrace freedom and free trade, they will fall further behind the US economically, militarily, and even culturally. Unfortunately, the larger the gap the greater the animosity will likely be. Moreover as Revel concludes, “The fallacies of anti-American bias encourage American unilateralism. The tendentious blindness and systematic hostility of most of the governments that deal with the United States can only lead to their own weakness … condemning themselves to impotence … [and] strengthen the country they claim to fear.”

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Intrusive Boob Tube

Sunday, February 8th, 2004

By and large, the country is imbued with a libertarian ethos. We may applaud or criticize what other people do and how they act, but generally we recognize that tolerance of differences is just one price we pay for a free society. However, prickly individuality and rough-hewn differences, that might otherwise chafe social interactions, are soothed by a general recognition of social conventions. Do pretty much what you want to, but do it at appropriate times and places. Intrusiveness in an open society consists of “in your face inappropriateness,” forcing others to confront or accept behavior they would prefer not to.

Examples of intrusiveness abound. For example, we all recognize the unhealthful aspects of smoking, but trying to ban smoking in bars, where people anticipate it, is intrusive bullying. We all recognize the importance of familial warmth, yet excessive displays of affection can be intrusive making others feel awkward. We all recognize the importance of spirituality and faith, but aggressive proselytizing when quiet witness would be more persuasive is intrusive. No one wishes to inadvertently insult anyone, but the exquisite sensitivity of political correctness when used as an implement of thought control is intrusive.

Intrusiveness may be hard to unequivocally define and some behaviors straddle the borders, but the half-time show at Superbowl XXXVIII in Houston clearly qualifies as intrusive. It is easy to poke fun of puritanical Americans scandalized by a bare breast, but such analysis misses the entire point. If anyone wants to glare at female breasts, there are many web sites just a few clicks away, freely available magazines everywhere, and cable TV channels that will provide more than a fragmentary glimpse. The problem with the halftime show has to do with its bullying intrusiveness.

The Superbowl is more than a football game. It is a collective celebration. It is a time when many Americans of all ages and social groups gather together, party, and watch the game and especially the commercials. The brief exposure of Janet Jackson’s breast was actually one of the least offensive parts the MTV-produced half-time show. The US-flag-poncho-wearing, crotch-grabbing, bump-and-grind spectacular could be expected on the MTV cable network, but not at the presumably G-rated Superbowl half-time show. What most found objectionable was not the fact that such shows exist and are in some quarters popular, but that it was foisted unexpectedly on a Superbowl half-time audience. It was pushy behavior at its most obnoxious; bringing the unexpected and unwanted into people’s living rooms. The exposed breast was only a symbol of the poor-taste of much of the show.

It is not clear who is to blame. CBS booked MTV to produce the show, so they might have expected the sort of show they got. Maybe they got the show they largely wanted (perhaps minus the breast.) Janet Jackson has accepted responsibility saying, “I am really sorry if I offended anyone. That was truly not my intention.” While she may not have wanted to “offend” anyone, it is a safe bet she wanted to garner attention. In that effort, she succeeded.

The good news is that major league baseball pitchers report for spring training in a couple of weeks so we can soon retreat to the bucolic and sublime joys of a pastime that does not require half-time shows. And unlike football, where the time ran out on a great Superbowl game between the New England Patriots and the Carolina Panthers, a baseball World Series would never have ended just because of a lack of time.

The one thing that football has managed to copy from baseball properly is the tradition of beginning games with the national anthem. At the Superbowl a classy and beautiful Beyonce, who knows when to dress conservatively and when not to, belted out a beautiful rendition of the national anthem. In many ways, it was a highlight of the day.

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Assessment of Intelligence

Sunday, February 1st, 2004

It seems that in the last two years and indeed over the last few decades, we have suffered from intelligence shortcomings. Though we suspected Osama bin Laden and Al Qaeda were involved in bombings of American Embassies in Africa, the suicide attack on the USS Cole, and perhaps in the 1993 bombings of the World Center, the attacks of September 11, 2001 still surprised us. Key indicators were missed and 19 terrorists hijacked four planes and managed to crash three of them into the World Trade Centers and the Pentagon. There had not been such a deadly intelligence failure since Pearl Harbor.

There have been other miscalculations partially based on incorrect or incomplete intelligence. The US was caught unawares by the Soviet Attack on Afghanistan in 1979. Before the first Gulf War, US intelligence radically underestimated the extent of chemical, biological, and nuclear weapons development in Iraq. In 1998, US intelligence failed to foresee India’s test of nuclear weapons. The list is much longer, but the point is made.

It is unfortunate and not entirely fair that it is difficult to weigh successful intelligence efforts against intelligence snafus since successful operations rarely come to light. For example, it was not until decades later that we learned that British intelligence broke the codes produced by the Nazi Enigma Machine or the fact that US submarines had secretly placed listening devices on Soviet underwater communications cables.

After the removal of the Saddam Hussein regime in Iraq by Coalition Forces, the expected large stockpiles of weapons of mass destruction were not found. There were facilities designed to ramp up production and illegal development of long range missile, but so far no stockpiles have been found. And the former leader of the effort to find such weapons, David Kay, does not believe that is likely that we will. We need an accounting of where the problems in intelligence were.

Kay has concluded that was Iraq indeed very dangerous to the US but in a different way than anticipated. Kay found a society ruled with ruthlessness, but nonetheless collapsing. Kay now believes that in such chaos the matching of WMD production capability and the terrorist need for such weapons was becoming more likely. Not appreciating this danger also represents an intelligence failure.

Although we should still pursue a thorough look at intelligence gathering, it is hard to believe that intelligence can be fairly faulted. If British, German, and French intelligence services also came to the wrong conclusion, it is seems unlikely that US intelligence agencies exhibited any gross negligence. It is difficult to penetrate any totalitarian regime, especially one that may have even been fooling itself with regard to WMD. If people were deceiving Saddam, if different commanders have said they did not have WMD but they believed other commanders did, it is difficult to imagine a scenario that we, as a foreign intelligence service, could tally military capabilities with better accuracy than Iraqi commanders.

In a different context, “malpractice” is defined as “a dereliction of professional duty or a failure to exercise an accepted degree of professional skill or learning …” If many doctors make a similar diagnosis, it is harder to argue malpractice. In the case before us, the diagnosis of the Iraq, by all major intelligence services was similar, the arguments were over the prescriptions for remedy.

Even in retrospect, David Kay concludes, “if you read the total body of intelligence in the last 12 to 15 years that flowed on Iraq, I quite frankly think it would be hard to come to a conclusion other than Iraq was a gathering, serious threat to the world with regard to WMD.”

Nonetheless, we often learn far more from difficult failures than we do from easy successes. An independent commission should be established to determine what about our Iraq intelligence worked and what did not. One possible positive outcome would be to place error bars on just how good optimum intelligence can be.

Unfortunately, the country is politically polarized and in an election year many Democrats would view such a commission less as an opportunity to improve intelligence gathering and more as a chance to play “gotcha” with the Bush Administration. The natural response of the Bush Administration would be to become defensive rather than open. Indeed, there is a dangerous possibility that the outcome of such a commission would be to place restrictions on the intelligence services that could reduce their effectiveness even more. A careful review may find that the intelligence services were hobbled by restrictions on using unsavory characters as informants and operatives.

Three years ago, the Bush Administration, enunciated a pre-emption doctrine holding that the United States could take military action against threats that were growing but had not yet become imminent. For countries that care little for their people and terrorist organizations willing to engage in suicide, deterrence was no longer adequate. However, anyone will concede that such a policy relies on high-quality and reliable intelligence. It is incumbent on the President and Congress to do what is necessary improve intelligence.

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Keep an Eye on Edwards

Sunday, January 25th, 2004

Traditional political wisdom adheres to the Caligula Theory of Presidential Politics, named after the first century Roman Emperor noted for viciousness and ruthless cruelty. The central tenet of the theory is that if either major political party nominated Caligula for president, Caligula would still get a third of the vote as a consequence of party loyalty. The real competition in a presidential campaign is for the relatively independent and moderate middle third. A corollary of this theory is that in the nomination process, candidates move to the Left or Right, depending on party, to secure the nomination from the ideologically motivated partisans. Once nominated, candidates race to the center to grab the moderate votes necessary for victory.

This year some political analysts are wondering out loud whether this theory is no longer valid. What if the electorate has been thoroughly polarized so that we are a 50-50 country? The winner may not be the one who appeals to the center, but the one who energizes his partisans the most and generates the greatest turnout. Forget the center and just pump up your partisans until they explode all over the polls.

This latter theory was dealt a blow last week with the unexpectedly poor showing of Howard Dean in Iowa after he led in the polls for so long. There is little doubt, that Dean has still captured the angry anti-Bush vote. However, one consequence is that Dean has developed a reputation for meanness and rashness. Giving voice to an unsubstantiated theory that President George Bush had advance knowledge of the 9/11 attacks, is reckless and indecent. When Iowa Democrats began to seriously consider Dean they were chafed by his abrasiveness. They began to doubt whether they wanted Dean to be periodically visiting their living rooms for at least the next four years through the medium of television.

We should add a note of caution here. Perhaps the new conventional wisdom is wrong about Dean. If the rest of the country does not share the uncomfortable feeling of Iowans, perhaps Dean could now be immunized from future criticism of intemperance. Much like the Clinton campaign dismissed womanizing issues as old news after the 1992 New Hampshire primary, a Dean campaign could say that the issue of rashness has already been dealt with.

Conservative commentator Charles Krauthammer was lamenting this week that the democratic process had succeeded in weeding out the most unelectable candidate. He was “hoping against hope that he [Dean] could just hang on — project sanity — long enough to win Iowa and New Hampshire and wrap up the nomination before the Democrats could come to their senses.” There may still be hope for Krauthammer.

From a tactical standpoint, Republicans would have the most difficulty running against Joe Lieberman. Lieberman voted for the resolution granting President George Bush the authority to attack Iraq and has had the intellectual consistency to not flee from the vote. This makes Senators John Kerry and John Edwards appear mercurial and politically expedient. Kerry and Edwards voted for the war when it appeared to be the politically wise strategy and distanced themselves from the vote when political calculations changed. Lieberman could make the argument that he, like Bush, takes national security seriously and believes the world is better off without another Islamofascist dictator. Lieberman argues that he would exercise greater expertise in execution of foreign policy. Lieberman is at least as affable as Bush and Americans know Lieberman and are comfortable with him. His primary downside is that he is close enough to Bush on the key issue of Iraq that the electorate might simply decide, in the words of Abraham Lincoln, “it was not best to swap horses in mid-stream.” However, this speculation is entirely academic. The Democratic electorate is too angry this year to nominate such a decent and comfortable candidate.

Though John Kerry can run as a legitimate war hero, he cannot run away from his long legislative record. It is hard for any legislator to run for the presidency because legislative process is murky. It is easy to find votes that are now embarrassing and Kerry has had 19 years of votes to comb through. Moreover, Kerry is a laconic northeasterner that may be able to win the Liberal northeast that will vote for any Democratic candidate, but who will find it difficult to develop a rapport with Southerners.

At the current time, General Wesley Clark’s star seems to be rapidly setting. He appears a slave to ambition and a little too opportunistic in his party affiliation. Calling the president “unpatriotic” may draw cheers and howls among Democratic partisans, but will appear rash and unfair to moderates. It appears that the Clinton Administration fired Wesley Clark for character-related issues. If Clark is nominated, expect to hear former head of the Joint Chiefs of Staff General Hugh Shelton explain what happened. It will likely not be flattering to Clark.

While it remains to be seen whether he can appeal sufficiently well to New Hampshire voters to keep his candidacy viable, Senator John Edwards represents the most serious threat to Bush. His relative inexperience could be a negative, but voters have been willing to elect others with modest experience. An embarrassingly successful personal injury trial lawyer, Edwards has a smooth easy Southern charm that was apparently very effective at swaying juries. Those who have heard him deliver stump speeches testify to his effectiveness. James Carville has been quoted as saying that Edwards gives the best stump speech he has ever heard. At times Edwards can seem a little smarmy, but as long as he remains disciplined he is amazing effective at retail politics.

The fact that Edwards’s campaign enjoys the generous support of trial lawyers eager to prevent tort reform could prove to be an embarrassing negative. Of all the candidates he has been the least forth-coming in his campaign finances and has more contributors who have made the maximum $2000 contribution. Nonetheless, if he can appeal sufficiently to Southerners he might loosen Republican dominance in the South and pose as serious threat to Bush’s re-election prospects. If he manages to become the front-runner after the Southern primaries, it will be interesting to see how well he stands up to the media scrutiny that is sure to follow. While it is never wise to under-estimate any candidate, at this point, Republicans have more to fear from Edwards than Kerry.

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Charelie’s Hustle

Sunday, January 11th, 2004

Ty Cobb accumulated 4,189 hits during his professional baseball career, surpassed only by Pete Rose with 4,256 hits. Cobb earned more than 200 hits in each of 9 seasons, more than anyone else save Rose who accomplished the same feat in 10 seasons. Cobb led the league in hitting for a record eight seasons, while Rose nearly duplicated this feat by leading his league for seven seasons. Ty Cobb was a self-centered mean-spirited vicious competitor and an avowed racist. We all suspected and now Pete Rose admits that he wagered on baseball while a manager. Ty Cobb is in the Baseball Hall of Fame. For betting on baseball, late Baseball Commissioner Bart Giamatti declared Rose declared “ineligible” to participate in baseball, including the Hall of Fame.

Over the last 18 years, Rose steadfastly denied having bet on baseball despite a formal report by John Dowd, former special counsel to the Commissioner of Baseball. Rose even had some convincing defenders, like Bill James, baseball analyst, now with the Boston Red Sox and historian of the game, who found Dowd’s evidence unpersuasive. Rose’s latest admissions make his supporters and friends now look like chumps and naive fools.

Baseball rules provide a window of 20 years for sports writers to vote retired players and others into the Hall of Fame. In two years, this window slams shut for Rose. Perhaps realizing that his continual denial has not managed to pry open the doors of Cooperstown, Rose has apparently decided to come clean about his betting [1]. The question now is whether it is just and fair to have players of clearly disreputable character, like Cobbs, in the Hall of Fame, while Rose, who bet on baseball, is excluded. Is betting on baseball really worse than racism, womanizing, or drug consumption? Is not admission to the Hall of Fame an acknowledgement of contributions to baseball and not a place to canonize saints? By admitting players like Cobb, baseball has clearly suggested that only contributions directly to baseball and not character are relevant.

Every clubhouse in baseball posts this rule:

“Any player, umpire, or club or league official or employee,who shall bet any sum whatsoever upon any baseball game in connection with which the bettor has a duty to perform shall be declared permanently ineligible.”

This rule and its consequent punishment for violation are categorical and clear. Rose’s on field accomplishments are, by a large margin, worthy of the Hall of Fame. But if one subtracts from these the harm done to the game by undermining its integrity, where should Rose’s contributions be historically placed? His chronic betting and continual denial certainly place a heavy thumb on the other side of the balance.

Americans are a forgiving people and baseball fans are eager to believe the best about Rose If Pete Rose had admitted his transgressions when caught and spent the last 18 year asking for forgiveness and perhaps counseling other players, there would be a stronger case for the Commissioner of Baseball to wave the ineligibility rule on Rose’s behalf. Perhaps, Rose could have been made eligible for the Hall of Fame, while not eligible to join a baseball franchise in any capacity. The last 18 years could have served to mend part of the damage his betting caused. Rather his 18 years of denial have compounded his damage to the game to say nothing of the embarrassment he now causes his stout defenders. His admissions, just as his eligibility for the Hall of Fame is about to expire, smack of just more self-centered behavior rather than true remorse. His recent appearances on television have promoting his book, clearly convey the image of faux sincerity. As others have noted, who exactly is “Charlie Hustle” trying to hustle?

It could reasonably be argued that other transgressions like racism, drug use, or the “jerk factor” should also weigh against admission to the Hall of Fame. These activities detract from the game just as surely as wagering. However, such peripheral though important negatives are best weighed by the baseball writers as they vote for Hall of Fame admission. The sport writers need to consider whether, taken as a whole, a particular player’s baseball career and overall demeanor brought honor and credit to game. There is a strong case that under such a regime, Cobb should not be in the Hall of Fame, but he was voted in a different time and place in our culture. Moreover, much of Cobb’s disgracefulness became common knowledge after his admission to the Hall of Fame.

If Rose’s transgressions had not extended so far after he left the game if he had not compounded his original sin with years of lying, it would be reasonable to allow the balance of his baseball feats and how his other acts to be decided by the sports writers. However, too much time has passed and Rose has not acted to redeem himself. Unfortunately, Rose will and probably should remain the best baseball player to not be enshrined in the Baseball Hall of Fame.

[1] Rose denies having bet as a player.

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Why America Slept

Sunday, January 4th, 2004

President John F. Kennedy’s senior thesis at Harvard University eventually grew into the short book Why England Slept. It explained how the enormous human losses of World War I cemented the minds of many in England, especially in the intellectual classes, into a hard pacifism of denial. English leadership slept while the German military under the Nazis grew well past that necessary for defense. Even when slightly awakened by the German threat against Czechoslovakia, it was possible to accept verbal assurances from the Nazis, declare “peace in our time,” and fall once again into a blithe slumber until crisis made sleep impossible.

Using that situation as a metaphor for our current one, Gerald Posner’s Why America Slept explores how it was possible for America to largely ignore the grave and gathering threat of Muslim extremism. Like the English exhausted after World War I, the West and particularly the United States, after the end of the 50-year Cold War felt entitled to pull away from international matters.

Posner’s tale takes us through the administrations of Ronald Reagan, George Bush, Bill Clinton, and George W. Bush. When Ronald Reagan withdrew troops from Lebanon after over 200 American marines were killed by a suicide bomber, anti-Western forces in the Middle East began to believe that America was a paper tiger, a degenerate colossus unwilling to act even in its own self interest. This notion was amplified during the Clinton Administration that was unwilling to take meaningful forceful action when a former American president was targeted for assassination, when American soldiers where ambushed during a humanitarian mission in Somalia, and when 17 sailors on the US Navy’s Cole were killed by a explosives-laden small craft.

Some of the reluctance to deal with Islamic extremism was a consequence of genuine efforts by the Clinton Administration to break the impasse between Palestinians and Israelis. As former Clinton political advisor Dick Morris explained, “In Bill Clinton’s epoch, terror was primarily a criminal justice problem which must not be allowed to get in the way of the `real’ foreign policy issues.” According to Posner, “Clinton rejected efforts to name Hamas as a terror organization for fear it might upset” Middle East negotiations. Vice President Al Gore led a commission on aviation safety and security that recommended dozens of changes, while Clinton “made no effort to implement any of the suggestions, considering them too disruptive to travel.”

This focus on a criminal justice approach explains why at least two (and perhaps more) opportunities to apprehend Osma bin Laden were squandered. According to Posner, even Clinton acknowledges that the failure to seize bin Laden was the biggest mistake of his Administration.

Perhaps most discouraging was failure after failure by the FBI, CIA, and INS in protecting the homeland. Part of this was associated with constraints by Congress imposed in the early 1970’s and further constraints that emerged as a consequence of the Iran-Contra scandal. The INS had plans to keep track of people entering the United States on student visas that might have netted some of the September 11th hijackers. These plans were circumvented when American universities, that earn $11 billion dollars a year from 550,000 foreign students, refused to cooperate with the program.

The FBI was particularly inept as middle-level management fear of failure or criticism allowed the FBI to ignore key signs that might have given us a shot at preventing the attacks of September 11. A flight school instructor in Minneapolis became suspicious when student Zacarious Moussaoui was only interested in how to steer planes and how much damage a 747 could cause if it crashed into anything. The instructor notified the local FBI and Moussaoui was detained for visa violations. The local FBI contacted the CIA and found that the French were interested in Moussaoui as a potential airplane hijacker. When local FBI agent Coleen Rowley contacted the FBI in Washington for a warrant to search Moussaoui’s computer, FBI headquarters, misinterpreting their own rules, dismissed the request. Instead Rowley was reprimanded for contacting the CIA without going through channels. According to Posner, if Moussaoui’s computer had been searched, key clues that might have helped prevent 9/11 would have been obtained. Given the timing, in all likelihood, the attacks of September 11th would have still have happened, but we “could have gotten lucky” and possibly managed to stop them

When the Bush Administration arrived in 2001, they too were inclined to focus on domestic issues much as the Clinton Administration had. Indeed, Bush boasted a less interventionist and humbler foreign policy, disinclined to engage in the same nation building efforts that Clinton championed in Bosnia. This passive foreign policy is at odds with the caricature of a Bush committed to going after Iraq to complete his father’s unfinished business. At the time of the 9/11 attacks, the new FBI Director, Robert Mueller, had just assumed office, the CIA was run by George Tenet, a Clinton appointee, and National Security Advisor Condoleezza Rice was just tasked with determining what was happening domestically with Al Qaeda. With regard to terrorism, the Bush Administration did not hit the ground running when they assumed office.

It is bad enough when somnolent policies or bureaucratic inertia allow nefarious terrorists to plan and execute a large-scale terrorist attack on US soil. Those are sins of omission. It is quite another thing when ostensible friends like the Saudis work against American interests. The Faustian bargain the Saudis made with Al Qaeda was to provide financial support in exchange for Al Qaeda refraining from attacks on Saudi soil. Recent attacks in Saudi Arabia suggest that this bargain has collapsed.

On March 28, 2002, seven months after the attacks of September 11, US Special and Pakistani forces captured Abu Zubaydah, one of Al Qaeda’s top leaders. After capture, Zubdaydah was uncooperative.

One method used to break the will of a captured prisoner is to fool the prisoner into believing that he is being placed into the custody of another country; a country decidedly pre-Miranda in its interrogation techniques.

Using US soldiers fluent in Saudi-accented Arabic, Zubaydah was convinced that he was transported into Saudi custody. Rather than becoming apprehensive when Zubaydah believed he was alone with Saudis out of ear shot of Americans, he attempted to play his “Get Out of Jail Free” card. Zubaydah asked his supposed Saudi jailors to contact Prince Ahmed bin Salman bin Abdul-Aziz, a nephew of King Fahd. Suddenly, Zubaydah was a fount of information as he tried to persuade his captors that he indeed did have high level benefactors. Zubaydah explained how Prince Ahmed and Mushaf Ali Mir, chief of Pakastani intelligence, both knew an attack was scheduled for September 11, although they did not know the details of the plot.

Of course, when confronted, the Saudi and Pakistani governments denied helping Al Qaeda. However, four months later, Prince Ahmed died of a heart attack at the age of 43. Another Saudi cited by Zubaydah died in a car accident and yet another “died of thirst” in the dessert. Pakistani Mushaf Ali Mir and a plane load of associates died in a plane crash a little while later. Posner suggests that these deaths were not coincidental.

Although Posner’s book is disheartening, it also offers hope. The terrorists who carried out the September 11 attacks, were not particularly clever. Any number of relatively small changes in homeland security would have made it much easier to track and capture these terrorists. Now that we have been re-awakened, we must not be lulled to sleep once again.

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A Little Less Free

Wednesday, December 31st, 2003

It has been said that here are really only two choices with respect to campaign finance reform. Either such “reforms” will be ineffective as people and associations find alternative routes to convey their message and ideas, or they will violate First Amendment protections. Campaign finance reform cannot be successful in its own terms unless there are some messages that people and groups cannot convey under a reform regime that they can now.

In upholding key provisions of the Bi-partisan Campaign Reform Act (BCRA) in McConnell v. Federal Elections Commission (FEC), the US Supreme Court has managed to whittle away at the First Amendment. This is especially true with respect to the provision that prevents third parties from running ads critical of candidates within 60 days of an election.

The Constitution is very unequivocal. The First Amendment explicitly states that “Congress shall make no law … abridging the freedom of speech …or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” It does not say that these rights can be abridged, limited, or constrained if convenient of if some other government purpose is at stake. Usually limitations, if they are upheld at all, must pass severe tests.

There are some forms of expression which fall outside of protected speech. For example, it is constitutional to prevent the announcement of secret troop movements if such an announcement presents a “clear and present danger.” This is a very high standard and does not prohibit even publication of all classified material. The US Supreme Court upheld the publication of Pentagon Papers because the standard is not met.

Other times, governments are allowed to limit the “time and manner” of speech in the name of other government priorities. For example, the National Park Service may grant licenses for protests on public property as a way to address concerns of public safety. However, any such restrictions must be generally applied and must be content neutral. However, the BCRA targets particular speech. It bands the purchase of broadcast “electioneering” ads within 60 days of an election. Such speech is defined as any speech that “refers to a clearly identified candidate for federal office.” There are no restrictions on other types of speech. The content neutrality test is not met.

Moreover, in weighing whether time and manner provisions curtail First Amendments rights, courts must apply “strict scrutiny.” Any time and manner restrictions must serve a compelling interest and must impose the minimum restrictions possible. The Court realized that the under such standard, BCRA would not survive. Instead, in McConnell v. FEC, the majority said it could bypass the necessity of strict scrutiny on First Amendment restrictions to allow Congress “to protect the integrity of the political process.”

This could represent the first step in greater erosion of First Amendment protection. The goal of protecting the “integrity of the political process” is sufficient loose to allow all manner of mischief. Might a future Congress decide to restrict ads that mention a candidate 90 or 120 days before an election instead of just 60 to protect the “integrity of the political process?” Might a future Congress ration the number of press ads, fliers, or e-mails that could advocate the election or rejection of a candidate to protect the “integrity of the political process?” How could this standard be limited to broadcast ads? What if in the future most people receive most of their information from the Internet? Indeed, the BCRA limits communication that is sent via “broadcast, satellite, or cable” and it is not hard to stretch this to cover the Internet. Under the vague standard of protecting the “integrity of the political process” there is no principled way to limit Congress from constraining political spending and hence speech on anything from the Internet to bill boards.

The saddest point is that, if anything, protections on political speech should enjoy the highest level of protection. Despite any positive social consequences that might accrue from limiting simulated child pornography or sexually explicit programming on cable broadcast, the US Supreme Court has accorded these forms of expression First Amendment protection. The vital public good of unrestrained speech is so valuable even these vulgar and relatively unimportant expressions are not balanced against any positive social good that might accrue from even modest limitation of these forms of expression. How much more important must be political speech; speech the First Amendment was designed to protect? Apparently, such speech is not very important to this Court.

The majority in this case tries to avoid bumping against the walls of First Amendment protections by arguing that no speech is being limited, only spending on the means to procure such speech. However, the means to speech must be defended if speech is to be protected. Except by getting up on a soap box (assuming the soap box is free) and orating or handwriting a pamphlet (on free paper) any speech requires the interaction of people and that interaction is often mediated by money. As Justice Antonin Scalia in his dissent explained: “An author may write a novel, but he will seldom publish and distribute it himself. A freelance reporter may write a story, but he will rarely edit, print, and deliver it to subscribers. To a government bent on suppressing speech, this mod of organization presents opportunities: Control any cog in the machine, and you can halt the whole apparatus. License printers and it matters little whether authors are still free to write. Restrict the sale of books, and it matters little who prints them.”

The Founding Fathers would have been familiar with such circuitous methods to limit expression. That is why the First Amendment was so categorical: to prevent the very sort of usurpation of freedom endorsed by the Court in this decision. The Stamp Act of 1712 in Great Britain applied a tax on newspapers resulting in increased prices and decreased circulation. This was done with the express purpose of punishing and limiting negative coverage. Under the jurisprudence of the present Court, freedom of speech or of the press was not being regulated because the economics of speech were constrained, but not necessarily the content. When Great Britain applied similar legislation to the Colonies in Stamp Act of 1765, it probably hastened the American Revolution.

The BCRA may have been passed under the auspices of attempting to curb corruption, but its true intent is to curb speech, particularly speech directed against incumbents. In explaining the need for the BCRA Senator Barbra Boxer of California complained that “so-called issues ads are not regulated at all and mention candidates. They directly attack candidates without any accountability. It is brutal … We have an opportunity in the … [BCRA] to stop that…” It is a measure of how drug of campaign finance reform has so numbed the mind of a Senator that she can even utter the words “regulate” and “issue ads” in the same sentence. Clearly speech, i.e., critical political speech is what they are trying to regulate.

If Congress were really concerned about the effects of corruption, they would have not have constrained non-profit corporations like the National Rifle Association or the American Civil Liberties Union. Non-profit organizations are not usually looking for graft but to “petition the Government for a redress of grievances.” If Congress were concerned about corruption, why are third parties unassociated with political parties or candidates so regulated 60 days before an election.

Indeed, the proposition that money induces corruption itself is not borne by the facts. Usually money follows candidates with certain positions rather and driving candidates to other positions. A recent study by Ansolabehere et al. of the Massachusetts Institute of Technology published in the Journal of Economic Perspectives demonstrates that “campaign contributions as a percent of GDP [Gross National Product] have not risen appreciably in over 100 years — if anything, they have probably fallen” and “that when one controls for unobserved constituent and legislator effects, there is little relationship between money and legislator votes.” They found that “Legislators’ votes depend almost entirely on their own beliefs and the preferences of their voters and their party. Contributions explain a miniscule fraction of the variation in voting behavior in the US Congress.”

The final principle of campaign finance reform that appears always to be true is that laws will be so written as to increase the power and security of those writing the bills: incumbents. Incumbents enjoy natural advantages. They usually have high name recognition and their duties require them to be constantly in the public eye. It is a conventional wisdom for those practiced in the martial arts of electioneering that challengers often have to spend substantial sums just to achieve the same name recognition as incumbents. The more speech is limited, even if it is limited even-handedly, the more incumbents are protected from accountability. In the short run, this will benefit Republicans at the national level, but only at the cost of liberty. One day Democrats may enjoy a majority of incumbents and Republicans will suffer a similar fate. It seems that Democrats were the most fool hardly. They sacrificed political liberties without even the advantage of temporary electoral benefit.

BCRA also increases the power of the major media, because they will now alone be the filter of campaign messages, particular in the last 60 days of a campaign when independent ads by third parties endorsing or criticizing candidates cannot be purchased. It is ironic that the press that enjoys the freedom accorded by the First Amendment were among the most vocal proponents of limiting the speech of others.

The media fail to appreciate that there is no principled distinction between limiting third party from “electioneering communication” and limiting similar expressions from the press. In name of protecting the “integrity of the political process,” why could not Congress limit editorials by the press 60 days before an election? If not, could not wealthy corporations and individuals purchase media corporations and use them for electioneering. Indeed, in the early days of the republic, newspapers where generally organs of political parities.

Congress was irresponsible in passing BCRA, but sometimes Congressmen are like lemmings following the popular lead of the press. After all, at best they are only vote in 535 and can separate themselves emotionally from responsibility for their actions. Five of the nine justices on the Supreme Court should now be embarrassed by their complicity in limiting speech. We can only hope this aberration will be undone in some future decision when the Court is compelled to revisit the issue as Congress becomes more emboldened to fend away criticism via legislation. The severest criticism should be leveled at President George W. Bush who probably in his heart of hearts believed the BCRA was unconstitutional. He shirked his responsibility to “preserve and protect” the Constitution. He hoped that the courts would be shield him from the responsibility of taking the unpopular action of vetoing the legislation. He knew better, but did not act.

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