Fred, Lies, and Audiotape

George Will wrote a scathing piece on Fred Thompson this past week. Among other things, Will took Fred to task for his ramblimg, dis-remembering answer to Laura Ingraham's question regarding Campaign Finance Reform, which Fred valiantly helped push down the throat of angry conservative colleagues and equally angry conservative Americans. From Laura's show:

Laura: One of the things that also happened in the Senate was McCain Feingold, which was initially called McCain Feingol Thompson. OF course, that's Campaign Finance Reform (CFR). Would you today tell us that you. As you know, Senator Thompson, the Supreme Court has struck down part of that as unconstitutional, on first amendment grounds. You know, issue ads that you can't run before a general election, or a primary contest, which for conservartives like me are just anathema to the first amendment. You now say that you've seen unintended consequences resulting from CFR. Would you today tell us that you made a mistake in supporting CFR?

Fred: Laura, ironically enough, all those things you said about congress, I added one more to. And that was the idea of people and companies and corporations, labor unions, if they were allowed they way they were once upon a time, giving larg sums of money to individual politicians. I don't think it is a good idea.

Fred: Well, that's a different story, I'll get to that in a minute. But my main motivation for CFR - the issue ads thing wasn't even being discussed as far as I remember when the first debates were had and when the first bill was proposed - it was a matter of whehter or not you wanted to get rid of soft money. Bill Clinton and Dick Morris showed that you could use soft money in ways that people thought you'd get put in jail for a short time ago. So they poured it in, instead of having the agreed upon limitations that have historically democrats, republicans, conservatives and liberals and everybody else pretty much acknowledged were constitutional, because it had to do with federal elections, and the idea that you don't wanna give too much money to any individual member of congress then come lobbying him for a bill. That's called bribery in the real world. But they came in with this soft money to do the same thing, through the backdoor. We wanted to do away with that. Now they added on something that was a mistake. And that is the issue ads you were talking about, and I voted for all of it, so I support the first part, but I don't support that.

As Will pointed out, this was very disingenuous, citing that this language regarding issue ads and time restrictions had been around a long time, and was not some late addition. In fact it originated in 1997. CFR did not pass until 2001. This egregious slap at the constitution was called the Snowe-Jeffords Amendment, added to the CFR legislation language in 1998. It became part of the base language for this legislation years before the final passage in 2001. And guess what? The amendment had OTHER sponsors as well, not just Snowe and Jeffords. They include one Fred Dalton Thompson. From the Congressional Record:

Ms. SNOWE (for herself, Mr. Jeffords, Mr. Levin, Mr. Lieberman, Mr. McCain, Mr. Feingold, Mr. Chafee, Ms. Collins, and Mr. Thompson proposed an amendment to amendment No. 1646 proposed by Mr. McCain to the bill (S. 1663) to protect individuals from having their money involuntarily collected and used for politics by a corporation or labor organization; as follows: Strike section 201 and insert:

This is where the bans 30 and 60 day bans on independent issue ads originated. And Mr. Thompson was a sponsor, not some bystander plugging his nose. And in the floor debates of 2001, he defended the Snowe-Jeffords-Thompson amendment thusly while arguing about it with Arlen Specter:

I want to make a couple comments, partly in the nature of inquiring of my friend from Pennsylvania to make sure I understand his remarks. We had an opportunity to talk briefly about this. I tried to listen to his explanation.

First of all, I commend him for his good lawyering in recognizing that findings of fact are certainly official in a situation such as this in helping to create a record. From my perusal, I think that is certainly well done. I do have a concern with regard to the other provision of the amendment.

Buckley pretty clearly established that we could only regulate express advocacy under certain conditions or in certain ways. Buckley set forth the so-called magic words. In other words, if you have words in there saying ``vote for'' or ``vote against'' somebody, that is an express ad, and you can require people to have contribution limits, or notice, or disclosure, and whatnot, with regard to those kinds of ads. Clearly, time has proven that to be inadequate in many respects, and what Snowe-Jeffords does—and we will debate that later on—is it comes along and says, in addition to those magic words, we think that also, if within 60 days of an election —and you know an election is around the corner—you use the likeness of a candidate, that that also, in effect—and these are my words—is express advocacy. In other words, it applied its own bright-line test.

The Court in Buckley was concerned that people know what the rules of the game were before they started speaking and that they not inadvertently get caught up in something not of their own making which would penalize them in some way. They said you will certainly know if the rule is words such as ``vote for'' or ``vote against.'' Anybody can understand that. Those are the rules. You know what you can and cannot do. I think the same thing applies to Snowe-Jeffords. You certainly know if you are running an ad within so many days, and if you are running the likeness of someone. In either of those cases, I think you have a bright-line test. The average person can look at those situations and decide whether or not to put themselves in the middle of that or not.

My concern is the language that is used. I understand that what I would refer to as the unmistakable and unambiguous language of the current amendment would be in addition to the Snowe-Jeffords requirement. In other words, you would still have the likeness and 60-day requirement and, in addition to that, under this amendment, you would have this:

.....when read as a whole, and in the context of external events, is unmistakable, unambiguous and suggestive of no plausible meaning other than an exhortation to vote for or against a specific candidate.......

And so forth. That is my understanding. I think that is done in addition to tightening up Snowe-Jeffords, perhaps, in some way, to lay an additional requirement on Snowe-Jeffords to make it even tighter in some ways. That is a laudable goal, if it can be done. The only problem is that this language being used to do that in and of itself is pretty clearly unconstitutional, it seems to me. We have a vagueness problem because when you ask yourself, do you have the bright line that you had in Buckley, such as ``vote for'' or ``vote against,'' or do you have the bright line, as in Snowe-Jeffords, such as you must use the likeness within 60 days, the answer must be no. The line here is unambiguous and suggestive of no other meaning.

I think the Senator from Pennsylvania and I could agree probably on just about any ad as to whether or not it fit this bill, but certainly it is not definite enough, it seems to me, so that there could be no reasonable disagreement as to whether something was really a campaign ad or not.

I sympathize with the effort, and I discussed this matter with my friend and we jointly discussed what might and might not be done about it.

As I understand the explanation, and as I look at it, it seems to me this misses the mark substantially in trying to apply some bright-line test so the Supreme Court might arguably or possibly uphold this as being, in effect, express advocacy and, therefore, subject to regulation.

Obviously, I am going to listen with great care to my friend from Pennsylvania, but those are my concerns. I yield the floor.

Mr. SPECTER. Mr. President, I thank the Senator from Tennessee for his analysis and observations and the question he raises. I respond by noting that where you have the likeness issue or requirement in Snowe-Jeffords, that does not deal with the Buckley requirement of the magic words ``vote for'' or ``vote against,'' and the likeness factor of Snowe-Jeffords is very similar to the language of McCain-Feingold which has ``refers to a clearly identified candidate for Federal office.''

Buckley has said you have to do something more, and what you have to do is be more explicit on voting for or against.

Furgatch comes to grips with that issue on the language of its holding by the Ninth Circuit that it meets the Buckley test, although it does not use the magic words because it refers to a message being unmistakable, unambiguous, and suggestive of no plausible meaning. The ads which I read saying Clinton was wonderful and Dole was terrible were viewed as being issue ads—you have a clearly identified candidate, which is McCain-Feingold, and you could have a likeness, which would satisfy Snowe-Jeffords, but that does not meet the Buckley test.

I argue as strenuously as I can that if the standard is ``unmistakable, unambiguous, and suggestive of no plausible meaning other than an exhortation to vote for or against a specific candidate,'' that comes to grips directly—directly—with the issue of vagueness. Let's discuss it for a minute or two, I say to Senator THOMPSON. How can the Senator say there is anything vague about a standard which is unmistakable?

Mr. THOMPSON. May I respond to my friend? I think the difference here is the difference between something being unambiguous and something being called unambiguous.

In Buckley and in Snowe-Jeffords, standards are set out that one can look at and conclude they are ambiguous or unambiguous. I do not believe we can in a statute just say that it must be unambiguous. In the eyes of whom? In the eyes of a judge ultimately, I assume. That is like saying your behavior will be legal and you will be punished, in a criminal statute, behavior that is not legal. That begs the question. What behavior is allowed, and what behavior is disallowed? In this case, it seems to me under the Supreme Court you have to have a bright line in the statute itself. You have to have something that you can look at and conclude that it is unambiguous. You cannot just write in the statute that this is unambiguous or it must be unambiguous to pass muster in the eyes of a judge later. That is the distinction I make.

Mr. SPECTER. Mr. President, I disagree forcibly with my colleague from Tennessee. I do not think you have a bright line, you have a dull line. You have a definition which does not come to grips with what Buckley has said.

When the Senator from Tennessee makes an argument that it begs the question to say something is legal or not, that is a fact that turns on a great many considerations as to whether something is legal or not. It involves a judgment and inferences.

When you are talking about a factual matter, about ``no plausible meaning other than an exhortation to vote for or against a specific candidate,'' I again direct a question to the Senator from Tennessee: In dealing with the standard of vagueness, how can you have language which is more definitive on its face?

Obviously, it is going to have to be applied. There is no question about that. I read at some length, if the Senator from Tennessee had an opportunity to listen to the Dole ads, the Clinton ads, the Bush ads, or the Gore ads—let me start with that question.

Mr. THOMPSON. And a good deal of them would come under Snowe-Jeffords, I believe, for starters.

Mr. THOMPSON. They mentioned the name of the candidate and came within 60 days of the election. Some of them can.

Let me get back, if I may, to the original issue. My question is, when the statute says that the words must be unambiguous, I ask: Unambiguous in whose eyes? Unambiguous to whom?

Mr. SPECTER. If I may respond, that is always going to be a matter of application, no matter what legal standard you have. However specific it is, it has to be applied.

When you refer, if I may direct this question to the Senator from Tennessee, to Snowe-Jeffords covering the Dole ads, the Clinton ads, the Gore ads, or the Bush ads, I think Snowe-Jeffords would cover the clearly identified candidate within a time limit, but it would not satisfy Buckley. Those are viewed as issue ads. They do not satisfy Buckley.

With Furgatch, you advance the definition very substantially. You advance the definition with as much precision as the English language can give you. If you want to stick in ``vote for'' or ``vote against,'' OK, that is the language of Buckley.

My own legal judgment—and this is a legal issue which is susceptible to different interpretations; it is not like being unambiguous or susceptible to no other interpretation—my view is that the language of a specified candidate and a time limit and a likeness has not come to grips with the specificity that Buckley looks for. They want something which is not vague. Perhaps the challenge is to come up with language which satisfies the Senator from Tennessee that it is not vague. I am open to suggestions, but I think we are not coming to grips with that clear-cut core issue on avoiding vagueness with what you have absent a definition such as Furgatch.

Mr. THOMPSON. I suppose my thinking is that the Snowe-Jeffords language is much closer to the bright line requirement than this language would be.

Mr. SPECTER. May I ask my friend from Tennessee what language he refers to specifically?

Mr. THOMPSON. The language requiring the likeness of candidate used within 60 days of an election. That is an objective standard.

The Supreme Court in Buckley didn't say you must have an ad that is unambiguously a campaign ad. They said in that case, words such as ``vote for'' or words such as ``vote against.'' Anybody can look at that, even the Members of this body would have to all agree whether or not that was in a particular ad.

Now Snowe-Jeffords comes along and provides its own bright line. We will be debating that, as to whether or not it is sufficient, whether or not it complies with Buckley, or whether or not the Supreme Court might take a look at it again and say it was unconstitutional in light of other circumstances.

Again, one can objectively look at an ad and tell whether or not it has a likeness of a candidate. But you can't look at an ad and tell whether or not it is unambiguous unless you get to court.

Mr. SPECTER. If I may direct this question to my colleague from Tennessee, if the Clinton ads don't have the likeness but simply talk about Gore, then would that satisfy the Snowe-Jeffords test?

Mr. THOMPSON. I think it would—no, it would not. It requires the likeness, as I recall—or does it require both?

It says ``refers to a clearly identified candidate.'' The answer is yes. I was wrong.

Mr. SPECTER. If I may reclaim the floor for the argument, if it refers to a clearly identified candidate, it does not advance the issue beyond the face of McCain-Feingold, which has ``refer to a clearly identified candidate for Federal office.''

You have all of these ads which extol Clinton and defame Dole or vice versa, or extol Gore and defame Bush, which are held to be issue ads. But you have a clearly identified candidate.

So I ask my friend, the Senator from Tennessee, how does that meet the Buckley test, which was not met by these horrendous ads on both sides which, in any event, advocated the election of Clinton and the defeat of Dole? How does this language of Snowe-Jeffords, with a clearly identified candidate—which is the same as McCain-Feingold—advance to any extent the ads in the 1996 or 2000 election which were viewed as issue ads?

Mr. THOMPSON. If I may respond to my friend, I am not suggesting they advance those ads. What I am suggesting is in McCain-Feingold, in the Snowe-Jeffords provisions of McCain-Feingold, it requires clear reference to mention of a fact that would be undisputable; that is, whether or not a fellow's name, a person's name, is mentioned.

I believe that is closer to the Buckley standard, which says you have to have something objective. That is closer to the Buckley standard than language which says ``in the context of external events, is unmistakable, unambiguous, and suggestive of no plausible meaning, other than an exhortation to vote.''

Again, that begs the question. Here is something that is unambiguous. Here is something you call unambiguous. That is the difference to me.

Mr. SPECTER. If I may refocus to the Senator from Tennessee: Put aside the language of Furgatch, assume you are right about the language of Furgatch—and maybe we need some other language—how does Snowe-Jeffords or language of a clearly identified candidate for Federal office satisfy Buckley when the ads extolling Clinton and defaming Dole, where there was a clearly identified candidate and you were within the time-frame and they were issue ads—would Snowe-Jeffords cover the Clinton ads in 1996?

Mr. THOMPSON. I see what the Senator is getting at. I think if this were passed and this were considered in the light of a similar ad, this would catch it. Yes, I do. Because they would be referring to a clearly identified candidate. If and when the Court considers the Snowe-Jeffords language, I think there is a reasonably good chance they will uphold it as constitutional. If that becomes the operative language, or some operative language, along with the language they had in Buckley—if all of that now is permissible and such an ad is run which mentions a clearly identified candidate, then it will be applicable at that time.

Mr. SPECTER. If I may further pinpoint the question, does the Senator say if Snowe-Jeffords had been in the Act, that the advertisement extolling Clinton and defaming Dole would have been held an advocacy ad in 1996?

Here is David Tell's National Review take on the Snowe-Jeffords portion of CFR from May 2003:

Far and away the most controversial element of the McCain-Feingold scheme is the so-called Snowe-Jeffords Amendment. It prohibits labor unions, businesses, and most nonprofits from making direct, unregulated expenditures on "electioneering communications," defined as broadcast messages that refer to a federal candidate by name and appear in that candidate's home-district media market within 30 days of a primary election or 60 days of a general election. This rule, which by its own account the Brennan Center "played a role in crafting," is designed to repair what campaign-finance reformers consider the terrible damage wrought by a single footnote in the Supreme Court's 1976 Buckley v. Valeo decision—still the constitutional rosetta stone for federal election law. Buckley's footnote 52, addressing a similar rule enacted by an earlier Congress, forbade restrictions on political broadcasts unless they contained "express words of advocacy of election or defeat," like Vote for Smith or Let's Defeat Jones.

http://www.weeklystandard.com/Content/Public/Articles/000/000/002/692anfkd.asp?pg=2

I remember the controversy that happened with the Hunter Campaign when he ran issue ads in New Hampshire:

http://www.boston.com/news/local/politics/primarysource/2007/02/hunters_campaig.html
Hunter’s campaign ads may violate campaign laws

The ad:

http://www.youtube.com/watch?v=Ow1L4MsmUGM
Duncan Hunter on the Border Fence

But wait, that can’t be.. Fred has 22 PUBLIC supporters here on FR.. I can name ALL 22 of them but that would be a posting violation..

4 posted on 09/15/2007 3:01:06 PM PDT by fetal heart beats by 21st day (Defending human life is not a federalist issue. It is the business of all of humanity.)

Emphasis: Fred is trying to distance himself from his involvement in the CFR. AJ caught him in a bold faced lie and has called him on it

Ok, carry on.

You know there are more than that, the Admins pulled two of your threads for this crap.

Knock it off. You are getting close to having yourself REMOVED from the population.

Excellent post. It proves that Fred Thompson wasn't just duped on CFR, he was one of the ring leaders.

And anytime somebody points it out, the Fredheads are all over us, calling us stupid because we support Duncan Hunter. The list of RINOs who helped stick this legislation on us doesn't speak well of those who went along with it.

Sorry, I just can't see what another RINO adds to the race. Thompson may be a better RINO than McCain or Guilani, but I'd rate him behind Romney. At least Romney has the excuse of having had to govern the most Lieberal state in the union. Thompson, on the other hand, was supposed to be representing a fairly conservative state.

I don’t understand what makes one RINO better than another. If one is better, then that might actually mean the better RINO is worse because he is better at lying.

Just a thought.

..maybe he\she doesn’t want any opposing views LOL—I am NOT going say the punchline on that one ROFL...

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