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Why the Constitution is such a loser

by Jim Babka

I witnessed history last week - the Supreme

Court arguments over the Bipartisan Campaign

Reform Act (BCRA), better known as McCain-

Feingold.

And now I know why the Constitution keeps

getting lost.

The people allegedly defending the Constitution

yield ground the instant the battle is

underway. Yet those who seek to gain power for

the State never give up an inch.

Former Solicitor General Kenneth Starr was the

first to address the Court. Rather than

vigorously advocate for the Constitution, he

sought to play Solomon and show the Court how

to cut the baby in half.

Starr opened by telling the Court he didn't

_really_ object to the law in principle.

He said that the Senate had an (Republican)

alternative to the soft-money limits that was

perfectly acceptable, the Hagel Amendment. It

also limited soft money, just not as much.

Another BCRA provision makes electioneering

communications -- the airing of some issue ads

by non-profit corporations within 60 days of an

election - a criminal violation, punishable by

up to five years in prison. Starr said the

Republicans had a kinder, gentler version of

that too, the Ney-Winn Amendment in the U.S

House.

Starr indicated that his clients, Senator Mitch

McConnell, the National Association of

Broadcasters, National Right to Life, et al,

did not object to the rest of law - in fact,

they thought it was good.

He was on a roll -- downhill.

To top off his presentation, Starr described

the case record of campaign finances abuses

built by his opponents as "lavish", which they

then used to bludgeon his position throughout

the hearing.

It was hard to believe that this was the best

representation the well-heeled McConnell

plaintiffs could buy.

But they were probably quite pleased with

Starr's rambling, monotone performance. Neither

Senator McConnell, nor the RNC, nor the other

incumbent politicians and parties represented

at the hearing believe in such old-fashioned

concepts as "Congress shall make no law..."

The anti-First Amendment precedent set by

Buckley v. Valeo (1976) suits them just fine.

They just don't like the provisions of BCRA

that would weaken their particular incumbent

positions.

It was Buckley that established the incumbent

protection system we have today, with over 98

percent of U.S. House members winning re-

election. No wonder incumbents don't want

Buckley overturned.

Their support of Buckley over the Constitution

was evident during the questioning. Justice

Breyer, a BCRA supporter, asked Starr to try to

explain why Buckley and its progeny were

Constitutional but BCRA wasn't.

"Congress should've calibrated more carefully,"

replied Starr. Now there's an inspiring defense

of the Constitution.

Justice O'Conner, the likely swing vote in this

case, then asked Starr the most important

question of all. Was Buckley invalid?

Starr answered, "No, not at all."

Some "defender" of the Constitution.

Contrast Starr's lackluster performance with

that of former Solicitor General Seth Waxman,

representing Senators McCain and Feingold and

defending BCRA.

First some background: There's ample indication

that the "empirical" evidence BCRA proponents

offered to validate a key provision of the

bill, a study called "Buying Time," published

by intervening defendant the Brennan Center was

fraudulent--deliberately faked.

Without getting into the detailed particulars

(which you can read at)  

http://www.weeklystandard.com/Content/Public/Ar

ticles/000/000/002/692anfkd.asp,

it's probably safe to say that the

"electioneering communications" provision in

BCRA probably would've been defeated without

this report.

The study funded by the Pew Charitable Trust

and commissioned by the Brennan Center,

involved a professor and a group of research

assistants who reviewed issue ads. The ads were

placed on story boards and the research

assistants labeled each ad, genuine (i.e.

strictly about the issue of concern to the

group that paid for the ad) or sham (i.e.

intended to affect the outcome of a political

campaign).

Pew wasn't satisfied with an advance report of

the results and complained to Brennan. Brennan

called the professor and located him at an

airport. Apparently, he changed the results

right over the phone so that more of the ads

would appear to be "sham." All of this came out

under deposition in the lower court.

However, unlike Starr and the others

challenging BCRA, Waxman didn't retreat an

inch. Amazingly, he re-introduced this

impeached evidence.

Chief Justice Rehnquist was stunned. He asked

if this was the same study that had been

repudiated. Waxman didn't miss a beat - he was

clearly waiting for the question.

Waxman pointed to comments made by District

Court Judge Leon, who said that while the study

had flaws, it provided important evidence. He

told the Court they didn't need to take Judge

Leon's word for it, they could look at all the

storyboards for themselves. Or, they could

merely review the handful that Mr. Starr and

friends had included to attack the study. Even

there, Waxman said, the problem would be clear.

Here's the contrast: high-profile politicians

like Starr, who allegedly stand to defend

Constitution, concede it almost immediately.

But those who seek to expand State power, like

Waxman, go to extraordinary lengths to make

their case. Frankly, it's hard to imagine Starr

even attempting such a bold maneuver - which

Waxman pulled off with aplomb.

Unfortunately, we rarely get to choose who

"defends" the Constitution. But it seems that

those who purport to defend the Constitution

always choose a watered-down, uninspiring,

compromise position.

That is why the Constitution is such a loser.

And when the Constitution loses, we all lose.

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Dear Friends,

Today's commentary answers the question, "Why

is the Constitution such a loser?" The title is

purposely provocative. Obviously, we just

expended a great deal of energy and effort as

the only plaintiffs who attacked the Bipartisan

Campaign Reform Act (BCRA) on an entirely

constitutional basis. Our so-called "allies"

were much more concerned with policy effects.

The Constitution provides a framework that,

when taken literally, insures our liberty.

Somewhere in the 20th Century, the Constitution

became a "living document" that meant whatever

the whims of nine robed princes said it meant.

As Walter Williams astutely points out, if you

really believe in "living rules," I'd love to

play poker with you.

But what's worse, as I point out in this op-ed

is that those who are "anointed" as the

defenders of the Constitution, no longer care

what the document says either. Only one

plaintiff group fought campaign finance laws on

a sound Constitutional basis. Only one

plaintiff group had attorneys that took the

time to remind and instruct the District Court

and the Supreme Court what the First Amendment

really said. That was the Paul Plaintiffs.

It is safe to say that without Bill Olson this

case wouldn't have happened. Bill recruited

Herb Titus who devised our free press strategy.

He recruited additional plaintiffs. He located

other sources of funding. He paid the bills -

occasionally out of his own pocket. He chose to

forgo other paying clients to keep this battle

moving forward.

Our debt of gratitude should be deep because

Bill's law firm, William J. Olson, PC (WJO) is

still mired with debt from this case. Now we've

made great progress this week. WJO's debt has

been reduced by $5,000.

Please help us say "Thanks." Let's get WJO back

in the fight for liberty - back in the battle

for the Constitution. You can make a tax-

deductible donation to our partners at the US

Justice Foundation here: 

https://www.fbs.net/rcr/usjfcontribute.cfm 

All funds donated in this account are strictly

for the FEC legal challenge effort and are not

co-mingled with other USJF projects. We're

grateful to USJF for their assistance with this

case as well.

I hope you enjoy today's editorial.

Jim Babka

President

RealCampaignReform.org

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