Clay Admits Voting Against 1st Amendment:Democrat Says He Supported McCain-Feingold...

A special three-member panel of federal judges ruled last week that major elements of the McCain-Feingold campaign finance law violated the1st Amendment right of free speech.

Specifically, the panel said Congress could not prohibit soft money contributions to political parties or election-time advertisements by interest groups that mention a federal candidate.

The panel was split and wrote its own complicated law on both these matters, however. Soft money, it said, cannot be used for party-paid advertisements promoting or attacking a specific candidate, nor can advertisements paid for by interest groups support or attack a specific candidate even implicitly.

HUMAN EVENTS Assistant Editor David Freddoso asked House members if they regretted enacting a law that violated free speech. Remarkably, Rep. William Lacy Clay (D.-Mo.) admitted he regretted voting for the law and had done so only "under duress" from his party.

Last week, a federal court issued a 1,700 page opinion striking down key parts of the campaign finance law. Looking back, was this bill an ill-considered regulation of free speech?

Rep. Mike Capuano (D.-Mass.): Well, I always had my concerns about it relative to free speech, but at the same time I thought it was a good attempt to make things a little bit better. I had my constitutional concerns and I still do, but I’m not the Supreme Court. Let the Supreme Court make those decisions. At the same time, just because you think you may be doing something that might violate the Constitution, if you think it’s the right thing to do, you try it. If the court knocks it down, well, you deal with it again, see if you can make it better within the constitutional parameters, whatever the court says. So I don’t think it’s necessarily ill-conceived to try something. But it’s also immature to think that you’re not pushing the line a bit. I was one of the ones who knew we were, but I thought it was worth trying…

Capuano: Yeah, I never liked that provision, because I actually think free speech is an important thing. . . . It was always the one I thought was most likely to be found unconstitutional.

Capuano: Yeah, you don’t vote for one piece at a time. You vote for the whole package.

Last week, a federal court returned a 1,700-page decision striking key parts of the campaign finance reform law. In retrospect, do you think maybe this bill was an ill-considered regulation of free speech? Or would you stand by it?

Rep. William Lacy Clay (D.-Mo.): No, I wouldn’t stand by it. Under duress, I voted for it, only because my party brought it to us in that manner. And you can probably recall all of the acrimony around it, with the party leadership wanting the Democrats to solidly be behind it. And it turned out to be a disaster. And it was an assault on 1st Amendment rights, and the court has rectified that. But we’ll see what the Supreme Court does next.

What kind of pressure was being put on you at the time that made you vote for what you considered an assault on the Constitution?

Clay: It was that this was a party issue, that this was how we eliminate soft money, which is so bad for the Democrats, and the court said, hey, it’s constitutional to have soft money, that’s the way people express their opinions in elections. And that’s okay. It’s more of a matter of a vote-getting strategy for the Democrats at the time. I took the vote, voted in favor of it, and lost my lunch afterwards. I just didn’t feel good about it, but this is how the system is supposed to work: the courts will clear up those issues. And now it’s time to move on and get back to the electioneering in American politics.

You’re saying, ‘I took an oath to uphold the Constitution. Even though I feel this is an assault on the Constitution, there’s a lot of pressure on me, I’m going to have to vote for it anyway.’ How do you sort out that dilemma of conscience?

Clay: Not really, because I think about my campaign pledge in my first election in 2000 for the House, where I pushed for campaign finance reform, although we didn’t go far enough, because we didn’t remove the influence of money in American elections. And that still remains the problem. As a matter of fact, we went in the wrong direction by increasing the limits from $1,000 to $2,000 per individual. So it was a bad bill—a poorly conceived bill, and a bad idea for American politics. And the courts have just restated that. We’ll see what the Supreme Court does. But I’m pleased it worked out the way it did. And that’s what our process, our system is about.

The campaign finance reform decision from last week—it’s 1,700 pages long—it struck some of the bill’s important parts. In retrospect, was this bill an attack on 1st Amendment rights, or would you stand by the bill and the vote you cast on it?

Rep. Danny Davis (D.-Il.): Well, I would stand by the vote that I cast, because I think the intent was to try and reduce some of the big money influence on public policy decision-making. Now I agree that it is difficult to legislate certain kinds of behavior. . . .I think there were those who had reservations about the 1st Amendment being usurped all the time—I certainly had some concerns, and reservations, and possibilities. But I guess the difference between politics, in some sense, and government, is government is what you get and politics is what you want. And of course, the courts have the responsibility to uphold the law, so I wouldn’t be surprised, when the deal went down, if the court’s decision didn’t hold.

The campaign finance reform decision from last week—it’s 1,700 pages long—it struck down some important parts of the law. In retrospect, was this bill an attack on 1st Amendment rights?

Rep. Jeff Flake (R.-Ariz. ): Oh, you bet. And let’s hope the Supreme Court finishes the job and kills the whole thing.

In retrospect, do you have any second thoughts—maybe that this bill was an attack on free speech?

Rep. Marty Meehan (D.-Mass.): Well, the decision was actually a very good decision. It said that the ban on federal candidates raising soft money is constitutional, and that the political parties spending soft money on political advertisements—sham issue ads—is constitutional as well. So that’s the core of our bill.

Meehan: Well, they threw that out, but they substituted that with another standard, that if it’s an ad that’s meant to influence—to elect or defeat a candidate, then it could be regulated. That’s better than many observers thought we would do . . . as long as it’s a group that prevents using corporate money and soft money for political advertising.

Meehan: No, the law now is, as long as the ad doesn’t say "vote for" or "vote against" someone [then it’s permissible]. So this was a very good opinion. . . . It’s mixed, but it’s more positive than negative.

Rep. Bill Pascrell (D.-N.J.): Absolutely not. The Congress can be divided into two camps—one camp thinks there’s too much money being spent on campaigns, and the other camp thinks there’s never enough money in any particular campaign. And I’m very proud to belong to the first group. I think this is a mockery. I think that what we’ve done is dragged the very character of this House and Senate—I don’t know how far below this it can go. . . .I’m very proud of my vote, and I would do it all over again and make it stronger.

"The Constitution is whatever the judges say it is."

Congress, the Court, and the Constitution

1. Congress assumed that the Court is properly the enforcer of the First Amendment.

This is by now a very old error, and one so venerable that to speak in correction of it is to raise questions about one's sanity in most circles. So deep runs the popular myth that the Supreme Court is properly the final authority in enforcing virtually every provision of the Constitution that a digression is necessary here into the more general question of judicial review. As Professor Robert Clinton has shown, the judicial power to invalidate the actions of other branches of the national government was widely understood at the founding to be ''departmental'' or ''coordinate''—a power he calls ''functional review'' enabling the judiciary to pronounce authoritatively on the constitutionality of laws touching on the integrity of the courts' own functions, for instance where a case concerns jurisdictional issues, standards of evidence, or the provision of simple due process. This limited version of judicial review was all that was either exercised or claimed for the Court by John Marshall in the 1803 case of Marbury v. Madison.(see footnote 131) On the other hand, the legislative and executive branches have a like authority to have the ''last word'' on those constitutional questions bearing on the exercise of their own powers, arising from the provisions of the Constitution addressed to themselves. Thus, that same John Marshall, for instance, held that the reach of Congress's power over commerce among the states was to be controlled authoritatively not by the judiciary, but by the people through democratic processes: such are ''the restraints on which the people must often rely solely, in all representative governments.''(see footnote 132)

Now obviously, the terms of the First Amendment address themselves to the Congress and not to the judiciary, and in no way would an infringement of one of the rights therein have an adverse effect on the proper functioning of judicial processes. Moreover, if the First Amendment had been expected to be the subject of routine judicial enforcement, we would expect the subject to have come up frequently in the First Congress that debated and drafted the Bill of Rights. Yet, in his brilliant account of how the Bill of Rights came to be added to the Constitution, Professor Robert Goldwin manages to tell the whole story in complete detail without ever once mentioning that the subject of judicial enforcement of the Bill arose at all. The point of the Bill of Rights was not to trigger judicial review, but to weave a love of liberty into the American political culture. Here ''is how it works,'' Goldwin tells us in his recent book:

[T]o the extent that these principles of free government [in the Bill of Rights] have become a part of our ''national sentiment,'' they do, indeed, often enable us, the majority, to restrain ourselves, the majority, from oppressive actions. That is the import of the first five words of the Bill of Rights: ''Congress shall make no law'' that attempts to accomplish certain prohibited things. It means that even if a majority in Congress, representing a majority of us, the people, wants to make a law that the Constitution forbids it to make, we, all of us, superior to any majority, say it must not be done, because the Constitution is the will of all of us, not just a majority of us.(see footnote 133)

So as not to be misunderstood, I should add that certain provisions in the Bill of Rights do address themselves to the courts, and so are fit subjects for judicial review—obviously amendments five through seven, arguably four through eight—but the First Amendment is not one of them. It is only in this century, with the expansion of judicial authority in every direction, that we have come to think otherwise. And RFRA played right into that modern myth, insisting that a clause of the First Amendment be enforced by courts in a certain way when, at the very least, clear doubt exists that it was meant to be judicially enforced at all.

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