Thursday, March 31, 2005

THE EMPEROR'S NEW ROBES


All of Anne Coulter's article with the above title is here.

The opening paragraph:
On the bright side, after two weeks of TV coverage of the Terri Schiavo case, I think we have almost all liberals in America on record saying we can pull the plug on them. Of course, if my only means of entertainment were Air America radio, Barbra Streisand albums and reruns of "The West Wing," I too would be asking: "What kind of quality of life is this?
Recommended.

SCOTUS Unbound


Headline in the Fort Wayne Journal-Gazette:

"Deliberate bias not needed to win age discrimination suits"


Does bias no longer require some tiny bit of intent? If not, what distinguishes it from "bsai"; i.e., random anagrams?

According to AARP senior attorney Laurie McCann, even evidence is a questionable concept:.
“This is a major boost for the fight to eliminate age discrimination in the workplace. Evidence that an employer is intentionally out to get older workers is very hard to come by.”
When was the evidentiary requirement modified by "too hard to get"? Maybe she means, "if it's non-existent, we need friendly judges"?

Full article here.

We can be thankful that the French have finally realized the folly of their law prohibiting a work week longer than 35 hours, lest Justices Breyer and Kennedy make it US law. But what is this about?
"The Supreme Court made it easier Wednesday for any worker older than 40 to allege age discrimination, ruling employers can be held liable even if they never intended any harm."
[
Emphasis mine]
It really is time we took a hard look at all the Constitutionally provided methods for reining in the judiciary. For those of you who don't know, this ranges from Congress' ability to define the court system - length of term, for example; or as FDR demonstrated, the number of SCOTUS judges - through impeachment to Constitutional Amendment.

Wednesday, March 30, 2005

Anti-Constitutional - Business as Usual

Winfield Meyers at The Democracy Project has an excellent post on the travesty that is McCain-Feingold.

Sean Treglia is discussed. If you don't know who Traglia is, check this and this.

Check the video links of Mr. Traglia's announcements/admissions/boasting at the bottom of the latter link.

Mr. Traglia explains that the passage of McCain-Feingold was a vast left-wing conspiracy.

Monday, March 28, 2005

Abject Apologies


I read Chrenkoff all the time and I can't figure out how I neglected getting this onto the blogroll.

If you want to know what's going on in Iraq that the US MSM can't be bothered with, this Australian is required reading. Lots of other good stuff, too.

Check this out.

Other Views on Terri Schiavo

Paladin points out that my post “Justice and Mercy Strain’d” reads better without the interrupting references to Krauthammer and Card. It started out as a shorter vehicle for the references and grew.

Then I got distracted by the excellent Michigan State/Kentucky basketball game and I’m claiming that the need to repeatedly shout “Go Green!” interrupted my final read of “Justice and Mercy Strain’d”.

In short, I agree with Paladin. So I have modified that post by removing the references and reposting them here.

I give you the two best essays I have read on Terri Schiavo. They approach it from the question of what it means to be civilized.

In Between Travesty and Tragedy, Charles Krauthammer dismisses the partisan bullshit continuum: from James Carville’s glee to Randall Terry’s threatening Republicans with “hell-to-pay” if Jeb Bush doesn’t pull a “Reno v. Elian Gonzales” and force Terri’s feeding tube to be reinserted at gunpoint.

Krauthammer:

“[T]he law, while scrupulous, has been merciless, and its conclusion very troubling morally. We ended up having to choose between a legal travesty on the one hand and human tragedy on the other.”

Read the whole thing. Between Travesty and Tragedy.

Orson Scott Card’s writings have always reflected his concern with moral questions.

"We care about moral issues, nobility, decency, happiness, goodness—the issues that matter in the real world, but which can only be addressed, in their purity, in fiction."

In his article, Whose Life Is Worth Living? he finds in Terri Schiavo’s story a real situation with purity sufficient unto the moral discussion. An excerpt:

It wasn’t that many years ago when I happened to be in Raleigh at a gathering of literary folk who were quite full of their own superiority. They started talking about people who (gasp!) let years go by without reading a single book.

“Why do they even bother being alive?” asked one of them. Almost everyone laughed.

They went on and on about the worthlessness of the lives of non-intellectuals. Shopping in malls. Eating at McDonald’s. Driving their gas-guzzling cars.

I did ask where they shopped, and which of them had arrived at the party by balloon. I have not been invited to such gatherings since.

It’s so easy to decide that someone else’s life is not worth living. Lacking something that we regard as essential, we cannot fathom how they get through a day.

Are we all comfortable, then that where there are individuals willing to care for a disabled human, that some other person can, and should, decide that she must die?

Orson Scott Card is a prolific author in several categories. His Ender’s Game and Speaker for the Dead are the only novels ever to win both the Hugo and the Nebula awards (Science Fiction) in consecutive years.

Ender's Game was based on a short story in the August 1977 issue of Analog. You can read it here.

You will also find Mr. Card at The Ornery American.



Sunday, March 27, 2005

Justice and Mercy Strain'd

The quality of mercy is not strain'd,
It droppeth as the gentle rain from heaven
Upon the place beneath: it is twice blest;
It blesseth him that gives and him that takes:

'Tis mightiest in the mightiest: it becomes

The throned monarch better than his crown;

His sceptre shows the force of temporal power,

The attribute to awe and majesty,

Wherein doth sit the dread and fear of kings;

But mercy is above this sceptred sway;

It is enthroned in the hearts of kings,

It is an attribute to God himself;

And earthly power doth then show likest God's

When mercy seasons justice. Therefore, Jew,

Though justice be thy plea, consider this,

That, in the course of justice, none of us

Should see salvation: we do pray for mercy;

And that same prayer doth teach us all to render

The deeds of mercy. I have spoke thus much

To mitigate the justice of thy plea;

Which if thou follow, this strict court of Venice

Must needs give sentence 'gainst the merchant there.

- William Shakespeare, The Merchant of
Venice, Act IV

If Terri Schiavo’s imminent death inspires any long term benefit, it will certainly not be the heightened awareness of living wills the MSM is chattering about at the moment.

If her death can make a contribution to posterity, we could hope for a re-examination of ethics and the law.

Many of us have a nagging feeling there is something wrong with this result; this legal and ethical process.

Almost everyone will agree that the political point scoring, by all sides, is grotesque.

We all feel the clammy hand of the state caressing our own secret dignity.

Why?

Because the argument that someone with obvious conflicts of interest should hold your life in their hands begs some obvious questions. Because the state’s willingness to be an accomplice in your death based on long delayed hearsay evidence is frightening.

Because the idea that the state gains an interest in your very existence, by paying part of the cost of maintaining that existence, is first astonishing; and second, an argument against the state being allowed to provide the money.

Because the argument that there is “no one home” posits certainty about another human’s mental processes that no one can have.

Because Terri Schiavo has people willing to take care of her who don’t care who the state thinks she “is”.

How can we not wonder if Terri’s death is the act of a society we would call civilized?

How can we not be reminded of our ultimate individual isolation?

In the event, our tragedy is that we cannot be sure. Such reservation calls into question some of the human bonds we hold most dear; that we would like never to have had the occasion to question.

In the face of such existential uncertainty, it is no wonder a virulent schism may develop between those who value human life in and of itself, and those who prefer the state’s judgment of the value of that life.

Religion quite aside, any philosophy that does not hold individual human life as a moral standard leads to the collectivist mentality of termites.

Peace, Terri.

Updated 28-Mar-05, 12:34PM

Wednesday, March 23, 2005

"Press Campaign" Finance Reform Needed


So it isn't just elections
.
Over a five-day span, ending last Thursday, TV and radio stations and print publications from around the country featured at least 290 stories either about a controversial junket he [Majority Leader Tom DeLay (R-Texas)] took to Scotland in 2000, his response to criticism about the propriety of that trip or his offer to discuss the matter with the House ethics committee, according to a survey. The articles by The Associated Press, Reuters, Knight Ridder and The Washington Post were picked up by news outlets around the country.
The press "reporting" glut appears to be connected to funding from George Soros, Citizens for Responsibility and Ethics, and Democracy 21.

What will the CFR lobby do about this? Ooops, forgot, this
is the CFR lobby.

Tuesday, March 22, 2005

Now What, Justice Kennedy?

The First Amendment and the application of foreign law to the US Constitution come together in a British Court, where an American author has "lost" a defamation lawsuit by default after being sued by a billionaire Saudi.

The book upon which the case turned was never even published in Britain.

Sheik Khalid Salim a bin Mahfouz, according to author Rachel Ehrenfeld, “... currently [faces] over 10 lawsuits ... by numerous plaintiffs in the United States claiming billions of dollars in damages from Mahfouz's alleged involvement in financing the 9/11 attack of the World Trade Center."

The Sheik did not like this, so he sued. He has a habit of it, having sued for defamation or libel over 30 times.

Britain's libel law, of course, is far more generous to the plaintiff than is US law. In fact, the burden of proof is entirely reversed, falling on the defendant.

Ehrenfeld ignored the suit and the judgment.

I want to know how our Supreme Court
can let the scofflaw Ehrenfeld get away with ignoring this judgment, since they've accepted that foreign jurisprudence can modify our Constitution. See Roper v. Simmons, as reported in the NYT - "Supreme Court Bars Death Penalty for Juvenile Killers"

Monday, March 21, 2005

The Founders' Constitution


There has been a fair bit of discussion regarding the Constitution on The Other Club of late. I commend this site, run by The University of Chicago, if you'd like to research the title of the post.

On the opposite pole from the ideas of the Founders, you'll find a couple of high profile Democrats puffing about what's wrong with our current constitutional processes, though it's likely one of them doesn't even know what those are.

P. J. O'Rourke reports that John Kerry is
seeking control over what information is allowed to be given to the benighted red-state voters (presaging Howard Dean's comments this weekend in Canada), and Barbara Boxer demonstrates her incredible lightness of mind by actually revealing her anti-constitutional thinking regarding judicial appointments not made by a Clinton.

Boxer admits she has changed her mind on the filibuster since she has been in the minority. She neglects to mention that the Republicans never filibustered judicial appointments, or that the constitution explicitly gives the Senate the right to write its own rules.

Kerry and Boxer have not proposed constitutional amendments to enact their desires. They're probably thinking, respectively, that the FEC will accomplish the first and the filibuster against Bush judicial appointees will last until Hillary can be elected.

These two are out of step with Judicial Activism's Perfect Storm, as Thomas Lifson points out on Real Clear Politics.

Along with Dean, they must look in the mirror every morning and say to their reflections, "The American people can't be that stupid!... Well, actually, they are. We're just not getting our message out in a simple enough form."

I hope they keep having that little conversation. They do listen to themselves.

Sunday, March 20, 2005

International Law


A couple of items come together here regarding Constitutional interpretation in the United States (several more await attention).

This post examines the wisdom of looking to other countries for jurisprudence (or maybe jurisimprudence). I.e., the idea that foreign legal practice supplies appropriate counsel for the Supreme Court of the United States.

In the case of the “juvenile” death penalty decision Justices Kennedy and Breyer looked to alien law. So far as we know, that was Europe. They certainly paid homage to foreign countries’ "respected and significant confirmation" of the Court's judgments.

Looking to foreign jurisdictions is a slippery slope that allows justification for almost any “legal” interpretation. That this is not obvious to 5 members of SCOTUS is worrying at the very least.

SCOTUS could just as easily defer American constitutional principle to sharia (the Islam-derived legal code whose meaning and interpretation vary according to different theological schools).

Certain interpretations of sharia demand that homosexuals be put to death; the question of their age being entirely subsidiary to the method of execution: either being thrown off a tall building or having a wall collapsed on them.

Kennedy and Breyer avoid citing this theory of punishment in their majority opinion on the “juvenile” death penalty. Instead they found foreign legal practice that reinforced their preexisting policy preferences. In principle, such as they possess, nothing would prevent them from looking to sharia for guidance in the next case.

That case could be a further ruling on first amendment free speech provisions, depending on what the Federal Election Commission perpetrates regarding Internet speech.

Our Supreme Court has already mangled free speech in upholding the McCain-Feingold campaign finance reform act, and our District Courts have demanded regulation of such speech on the Internet.

These threads come together, strangely enough, in Canada.

Ontario is now considering changes to its family law act that would place domestic (family) legal disputes under sharia.

This seems very strange. Isn’t it in domestic situations that women need the most protection? Off the top of your head, what code of laws offers them the least protection?

Given sharia as family law in Ontario, Justices Breyer and Kennedy are hoist by their own petard. Canada is about to give us an example wherein women’s status is variable based on theological sectarianism. Under some of those sectarian interpretations, women are property, as evidenced by their treatment in Saudi Arabia (where the Quran is considered the constitution), Iran
, formerly in Afghanistan, and, indeed, most of the Muslim world.

Female attire is dictated by the state, unwed mothers are flogged, adulterous women are stoned to death, and “honor killing” of females is perfectly reasonable. Under sharia, the husband has the unilateral right to divorce his wife without cause. He can accomplish this by uttering the phrase “I divorce you” three times over the course of three months.

What will SCOTUS do when CAIR brings a religious discrimination suit regarding polygamy?

At one time, Breyer and Kennedy may have been able to argue that none of this is in the “western tradition”. They’ve abandoned that, however. If international law is a principle of guidance as they’ve claimed, they would have to accept that Canada’s Constitution and the laws it underpins are perfectly reasonable sources upon which to draw for American Constitutional interpretation.

This brings us, yet again, to a question of construct vs. application.

For example, the Canadian Charter of Rights and Freedoms (somewhat analogous to our Bill of Rights) says this about freedom of speech and religion in Section 2(b):

Everyone has the following fundamental freedoms:
a) freedom of conscience and religion;
b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;
c) freedom of peaceful assembly; and
d) freedom of association.

This would qualify as the construct. Let us see what that means in terms of application.

Here’s what passes for free speech in our socialist neighbor to the north:

In 1995 the Mayor of Hamilton, Ontario, was fined $5,000 by an Ontario Human Rights Commission tribunal for refusing to proclaim Gay Pride Day. In the same year the Mayor of London, Ontario, was fined $10,000 for the same offense.

Is this more case law upon which to justify de-facto (de-jure having become meaningless) constitutional modification from the SCOTUS bench?

We can hope not, because the ideas expressed in Ontario regarding family law are not American values, and the Canadian interpretation of the right to free speech is, well, that of a different country.

So far.

Friday, March 18, 2005

MoveOn Culpa? Not.


The liberation of Iraq began two years ago tomorrow, and the MoveOn types have plans for public displays around the country. They will get good TV coverage.

What will we see?

We cannot expect these people to be carrying large banners saying, “Our apologies to the Iraqi people.”, or waving signs reading, “George, maybe you were right!” or “It wasn’t in our name… Oops.”.

They will not be celebrating the dismantling of their assumption that Arabs are sub-humans whose slave mentality and masochism makes them prefer iron-fisted, murdering dictators to freedom.

No we can’t expect that.

We can’t expect any solidarity with the Lebanese demonstrators feeling safe enough, brave enough, to demand free elections. We will see no appreciation of Iraqi courage in giving the purple finger to terrorists.

Neither will we hear any sympathy for military families, nor a moment of silent respect for the Americans who’ve died to make this possible.

No, we’re more likely to hear screaming that Pat Tilman was a fool and rants that Bushitler did this for the oil.

Neither will we hear… well, if you’ve read this far, you get it.

There’s a longer list of the achievements the Moveonbats will ignore here.

It would be on the plus side if a few said they support the troops, and we will hear this. But, as Michelle Malkin has eloquently pointed out, that’s Bull.

Michelle is being polite.

There is some comfort in knowing that the children and grandchildren of tomorrow’s protestors will someday view 30-Jan-2005 as a watershed in world freedom. And consider their forbears as confused - to be charitable.


Thursday, March 17, 2005

Other looks at McCain-Feingold:


Created by the methods it bans

Campaign-Finance reform has been an immense scam perpetrated on the American people by a cadre of left-wing foundations and disguised as a "mass movement."
More-> New York Post, Buying Reform


Not so popular as you might expect… even with its authors
Failure is an orphan, the cliché may claim, but Russ Feingold is its daddy.
More-> Democracy Project


Either/Or. The application universe under this particular construct
Sooner or later, liberals like Feingold, McCain and the MSM folks who supported campaign finance reform will have to make a choice - are they for the First Amendment or are they for campaign finance reform. They cannot have both.
More-> Tapscott’s Copy Desk

Wednesday, March 16, 2005

Construct and Application - Opportunity and Outcome


JPM comments on a previous Hershblogger post and inspires another post (or two).

JPM writes:
The following excerpt speaks to a very important point:
Recognizing government as incompetent does not carry us all the way to chaos. One needn’t postulate anarchy in order to object to a specific infringement on civil liberty as beyond the federal government’s constitutional power.

The First Amendment, in common with the rest of the Bill of Rights, is about restricting the power of government. The construct is, “Here, the government has no role in our lives.” The application has been insufficiently cognizant of that, but we’re only whores if we let our sense of justice override the idea of equality of opportunity in favor of equality of outcome.
[JPM Comments:]

If one aspires to equality of outcome, one must talk to a source much more powerful than the U.S. Constitution. Depending upon one's inclination, the Creator and/or Big Banger him/herself would seemingly be the appropriate extension number. And favoring equality of outcome does not raise Constitutional questions, while also being quite attractive as written-- who wouldn't favor the equality of outcome where all are equally happy, healthy, and computer literate!

So this road takes us nowhere. Those who support freedoms (i.e., of speech) can, it seems, logically posit that, to talk about Constitution freedoms that are ostensibly part of the civil liberties extended to all, yet limited to the six Rupert Murdochs of the world, may meet the pin head-dancing of strict constructionists, yet practically prevent a gazillion more people from actually having access to those forms of speech than Rupert does.

So the discussion then goes to, wait a second, I only want to talk about certain kinds of freedom; the kind that can be bandied about by the elite-- not those that actually affect the lives of the millions of citizens. Because if we give an inch that maybe certain liberties might require more than a "clear and present danger" as defined a century ago, who knows what kinds of ethical, as well as legal issues we'll have to face.

That is why the construct must be separated from the application-- and the construct of freedom can sometimes be defined as extending liberties as well as preventing governmental interference.

Thanks for the opportunity to voice an opinion-- and for being able to ask whether a form of "free speech"-- such as, that a candidate in South Carolina who is trailing in the polls days before the election should have constitutional protection enabling push polling and assertions that his opponent fathered an illegitimate, minority child?

JPM
Hershblogger Response:

Aspiring to equality of outcome is indeed an attempt to usurp the power of a higher authority. That aspiration is inevitably autocratic in application.

Principled equality of outcome has broad Constitutional implications. Most generally, it requires that we accept that freedom is granted by the government rather than that “we the people” have granted limited power to our government. Most obviously perhaps, it requires abrogation of the 10th amendment.

Statist attempts to endow all humanity with equal happiness and health, even when sincere, require ever more command and control. Asking equal happiness and health of a higher power would seemingly be asking for negation of free will.

Unless we all speak, think, and act identically in all social situations we cannot all have equal happiness outcomes. Without identical DNA and identical life experience to the molecular level, it is impossible to have equality in health. Even if it were possible, I can’t see how it would be desirable; neither could Kurt Vonnegut in his short story Harrison Bergeron

Hyperbole? Not if the phrase “who wouldn't favor the equality of outcome where all are equally happy, healthy, and computer literate!”, is to be taken as written. I do wonder.

There are two different roads here; one is uncertain and often threatening. It requires active awareness to prosper or even survive. The other, the road to equality of outcome, is illusory. I’d agree it takes us nowhere.

On “elite” speech: I noticed no restriction on multi-billionaire speech in the last election, an ostensible major purpose of CFR. Was George Soros even inconvenienced? How is this abject failure of CFR an argument in its favor?

The speech that was prohibited was that of the gazillions of people who used to be able to contribute to political speech via the NRA or The Sierra Club. That is what has already been lost. How does this extend liberty?

If equality of outcome is the construct, then the application can only be totalitarian. This has been amply demonstrated by the construct of the constitution of the former Soviet Union as compared to its application.

On strict construction: If the Constitution doesn’t mean what it says in the context of the time it was written, then it is on its way to meaning nothing. Strict construction, in fact, is the best way to protect minorities from the tyranny of the majority. When the “living constitution” depends on what the meaning of “is” is; the defense of freedom rests on syntax and juridical solipsism.

The Constitution should only be changed by the mechanisms established to change it.

That we have demands for “moderate” judges is a plea for the appointment of those with whom we agree, not a plea for the appointment of those who would protect us from those with whom we disagree.

Think about it, would you ever ask your lawyer to draft a “moderate” contract?

Finally, the push polling should have been constitutionally protected. If there was libel or slander we have remedies. That is, we have legislation - not invented constitutional meaning.

Parti Quebecois - Party On

Holy pommes frites, Batman! Whoda thunk it?

The Montreal Gazette reports that Quebec wants immigrants to be committed to cultural assimilation. Hmm, where have I heard that before?

For those who don't know the history, part of the deal to bring a Canadian Constitution "home" from Britain in 1982 was that Quebec could have its own immigration controls, among other concessions. Most notable phrase: the "notwithstanding clause", hammered out at Meech Lake, Quebec in 1982.

While Ontario considers making sharia (the Islamic legal code) applicable to family matters, Quebec says "Hell no!".

Somebody remind Ontario: Where is it again that women need the most protection? At home? From "significant others"? Unbelievable.

States rights makes a comeback north of 49? Vive la Quebec Libre!

Never thought I'd say that.

Incumbent

The recent escalation of the assault on the 1st Amendment by John McCain and his fellow incumbents reminds me that the word comes from the Latin root cumb meaning to lie. Now before you jump to the conclusion that I am about to shoot fish in a barrel, I hasten to point out that what is meant here is to lie down.

And that is exactly what the good Senator and his minions want to do. They want to lie down in their nice comfortable positions of power without facing serious threats to re-election.

Due to previously enacting campaign laws that favor incumbents, they already enjoy the status of heavy favorites. Incumbent candidates in the House of Representatives were re-elected 98% of the time in 1998 and 2000. The senators are envious; only 80% of those seeking re-election won. But even with these odds of success, campaigning is often hard work. And it is so degrading to trek back to one’s former home in fly-over-country to grovel for votes.

Enter “Bi-partisan Campaign Finance Reform”. While protecting incumbents of both parties, it likewise seeks to protect their accomplices, the incumbent press, from the competition that arises from interest groups, non-press publishers (whatever that means), and blogs.

No one, it seems, likes lying down more than an old Gray Lady.

Tuesday, March 15, 2005

MSM and WMD

Almost all organizations have at least short-term institutional memory, and many apprehend a consistent reality based on a set of principles. The New York Times appears unable to achieve either. Christopher Hitchens points this out today in Slate.

I’ve been fond of
Chistopher Hitchens since I first became aware of his disillusion with statism upon reading No One Left to Lie To. Part of the attraction is that he is a long time left-wing writer who finally recognized his comrades' tendency toward lunar orbit, and had the intellectual honesty to say so.

He used to perceive a lot more totalitarian fascism and a lot less totalitarian communism than the real world presents.

I’ll grant that “ totalitarian”, in either case, is redundant. But I consider including the term necessary to remind those for whom it isn’t an automatic assumption beside the word “communism”.

Hitchens is occasionally recidivist regarding statism and he is a hyper-curmudgeon
.

He is worth reading. There is the occasional whiff of Orwell.


Today
Hitchens writes about mainstream media bias and the nagging question of Iraqi WMD. An excerpt:
As printed, the implication of the story was not dissimilar from the Al-Qaqaa disclosures, which featured so much in the closing days of the presidential election last fall. In that case, a huge stock of conventional high-explosives had been allowed to go missing and was presumably in the hands of those who were massacring Iraqi civilians and killing coalition troops.
...
It was eye-rubbing to read of the scale of this potential new nightmare. There in cold print was the Al Hatteen "munitions production plant that international inspectors called a complete potential nuclear weapons laboratory."

My first question is this: How can it be that, on every page of every other edition for months now, the New York Times has been stating categorically that Iraq harbored no weapons of mass destruction? And there can hardly be a comedy-club third-rater or MoveOn.org activist in the entire country who hasn't stated with sarcastic certainty that the whole WMD fuss was a way of lying the American people into war. So now what? Maybe we should have taken Saddam's propaganda seriously, when his newspaper proudly described Iraq's physicists as "our nuclear mujahideen."
His second question is worth reading, also.

Monday, March 14, 2005

Motives redux

Powerline's Scott Johnson writing for The Daily Standard, asks an excellent question of CFR supporters. What do the campaign-finance reformers really want? His answer is much the same as the one I've given, but he helps inform the debate with this:
EVERY REFORM implies an ideal state or condition to which the reformer aspires. The ideal embedded in the First Amendment is that of unrestrained speech keyed to the constitutional system of self-government. What is the ideal state suggested by the logic of campaign-finance reform? Perhaps the most revealing passage in the hundreds of pages generated by the Supreme Court justices in their opinions on McCain-Feingold comes in Justice Scalia's dissent. Scalia notes the usual good-government rhetoric regarding "the prevention of corruption or the appearance of corruption" in which campaign-finance reform always comes wrapped. He also takes a look under the wrapping:
[L]et us not be deceived. While the Government's briefs and arguments before this Court focused on the horrible "appearance of corruption," the most passionate floor statements during the debates on this legislation pertained to so-called attack ads, which the Constitution surely protects, but which Members of Congress analogized to "crack cocaine," 144 Cong. Rec. S868 (Feb. 24, 1998) (remarks of Sen. Daschle), "drive-by shooting[s]," id., at S879 (remarks of Sen. Durbin), and "air pollution," 143 Cong. Rec. 20505 (1997) (remarks of Sen. Dorgan). There is good reason to believe that the ending of negative campaign ads was the principal attraction of the legislation. A Senate sponsor said, "I hope that we will not allow our attention to be distracted from the real issues at hand-how to raise the tenor of the debate in our elections and give people real choices. No one benefits from negative ads. They don't aid our Nation's political dialog." Id., at 20521--20522 (remarks of Sen. McCain). He assured the body that "[y]ou cut off the soft money, you are going to see a lot less of that [attack ads]. Prohibit unions and corporations, and you will see a lot less of that. If you demand full disclosure for those who pay for those ads, you are going to see a lot less of that . . . ." 147 Cong. Rec. S3116 (Mar. 29, 2001) (remarks of Sen. McCain). See also, e.g., 148 Cong. Rec. S2117 (Mar. 20, 2002) (remarks of Sen. Cantwell) ("This bill is about slowing the ad war. . . . It is about slowing political advertising and making sure the flow of negative ads by outside interest groups does not continue to permeate the airwaves"); 143 Cong. Rec. 20746 (1997) (remarks of Sen. Boxer) ("These so-called issues ads are not regulated at all and mention candidates by name. They directly attack candidates without any accountability. It is brutal . . . . We have an opportunity in the McCain-Feingold bill to stop that . . ."); 145 Cong. Rec. S12606--S12607 (Oct. 14, 1999) (remarks of Sen. Wellstone) ("I think these issue advocacy ads are a nightmare. I think all of us should hate them . . . . [By passing the legislation], [w]e could get some of this poison politics off television")
Here Scalia hits the mother lode: He discovers that, in one sense, incumbent officeholders tend to have a profound disdain for politics. The ideal of incumbent officeholders promoting campaign-finance reform is freedom from criticism, especially at election time. Indeed, these incumbent officeholders seem to view elections as an inconvenience to their exercise of power.
Um... yes. It captures the self-interest denying, Pollyanna-pretense, mock-outrage of Huey Long err... John McCain, perfectly.

Sunday, March 13, 2005

Filibuster

He must have been quite a character, William Walker. According to the 1898 Dictionary of Phrase and Fable, Walker was the most notorious “filibuster”. After his 1853 invasion of Lower California failed, another filibustering expedition was more successful. He captured Granada and for a brief time was the self-proclaimed president of Nicaragua.

This use of the word filibuster derives directly from its roots: from Spanish filibustero, a person who plunders, especially a pirate, from French flibustier, from Dutch vrijbuiter, pirate (American Heritage Dictionary).

The more common modern usage of filibuster, as a noun, is lengthy speech given for dilatory purposes to disrupt the functioning of a legislative body. A filibusterer is a person who uses such tactics. The late Senator Wayne Morse comes to mind as an example.

But to the delight of the etymologist in all of us, there now comes the serendipitous conjunction of both usages: former Klansman and current Senator Robert Byrd. The senator is the leading proponent of using the filibuster, or threat thereof, to prevent the United States Senate from performing its constitutional duty of confirming or rejecting nominees to federal judgeships. This comes after a long career as a Walkerian filibuster, seizing the fruits of the labors of others and using it as he sees fit.

Move over William Walker. Despite your prodigious efforts, you are most notorious no longer.

Campaign Finance Fiction

"Little Trunk" at Powerline has found two columns by the indomitable Thomas Sowell: "The facts vs. 'campaign finance reform' fictions" and "'Campaign finance reform' regulates free speech."

Recommended.

Avoid

Haloscan commenting and trackback have been added to this blog.

AND IMMEDIATELY REMOVED.

This service does not inform you until after the installation that:

a) existing comments are kidnapped and only become available again if you upgrade to premium membership.

I might even have done that except for:

b) comments are limited to 1,000 characters without premium membership.
I discovered this only in trying to restore comments Haloscan had grabbed and held for ransom per point a).


Even if you buy the premium service, comments are limited to 3,000 characters.


I would have liked to use this trackback service. However, non-disclosure of these major limitations prior to signing up has destroyed Haloscan's credibility for me.

Now I'm trying to delete my membership entirely. I've already blanked any info I can reach, but exiting entirely is non-obvious. I will of course, be changing all associated passwords.

Very disappointing.

Right Reasons


Supporters of Campaign Finance Reform frequently cite "good intent" in its defense. While this is a handy way to avoid the messiness of real world results, it does put their motives on table as an issue.

Norman J. Ornstein, a Congressional expert at the American Enterprise Institute and a member of McCain’s Reform Institute advisory board, said [NYT] that it was overstating the case to portray the institute as an extension of Mr. McCain's personal political goals and that he could succeed without it.

"The man is a rock star," Mr. Ornstein said. "He is doing it for the right reasons."

I take this to mean: "John may be skating on the edge of propriety, but he means well, and his charisma will carry him through."

Here are some other opinions on McCain's motives.

Techcentral Station
Free Speech For Me But Not For Thee
Ryan Sager

Reason
How John McCain Reformed
The Arizona senator hasn't changed since his Keating days
Jacob Sullum

Bloggers Beware
Threats to the status quo are always ripe for reform
John Samples


Saturday, March 12, 2005

Politics in Money Research


9:30 AM, 13-March - updated for clarity.

In line with my suggestion to have as much information as possible available about the sources and sinks for political funding, the following are useful, non-governmental, politics in money sites:

FEC Watch (explore this site for much more – see next entry)
Open Secrets
Political Money Line
Discover the Network

I’d be interested in any reader suggestions to add to this list. You’ll also find the above links in the side-bar.

Update: 12:47 PM, 13-March.
Thanks to Paladin for the link to: Follow the Money.

Friday, March 11, 2005

Construct vs. Application

A comment on my post of 8-March, McCain and McAble, prompted a reply that turned into this post. I’m grateful for the comment, since it challenged me to articulate more fully what I think is wrong with McCain-Feingold Campaign Finance Reform.

I repeat the comment here for ease of use. JPM writes:

If no distinction is made between the construct and the application, one can easily and logically conclude that CFR is minimally a farce, and moreover, a seeming infringement upon civil liberties. However, if the distinction is not made vis a vis CFR, an equal intellectual co-mingling would also suggest that government's inability to implement "remedies" without gross politicizing and rampant incompetence means that government has no role in our lives. If one is uncomfortable with that intellectual absolute (as literally framed by the Constitution), then we're all whores and just negotiating the terms and service.

The demonstrable "fact" is that with or without government intervention, there is no such thing as truly "free speech" when it involves communications among groups of people. It's either limited by inconsistent, politically hackneyed limits a la CFR or limited by the inability to gain access vis a vis the economically disenfranchised. Regardless of CFR's pathetic implementation by government, that doesn't make the construct or issue go away. And once that's acknowledged, the blaming [of] CFR on some conceptual level is intellectually akin to saying the civilized world should give up the fight of terrorists because our current "solutions" have not yet "solved" the problem. JPM
The cure for syphilis, in the age of Louis XIV, was a nice draught of mercury. This did considerable damage to the syphilis bacilli, in some cases curing the disease. It also did considerable damage to the patients, many of whom experienced severe brain damage.

This is a good analogy for CFR, failing only at the point where we contemplate the Sun King deciding each of us needs the cure whether we’re symptomatic or not.
Louis was an absolute monarch, but he did not issue such an edict.

I agree that distinguishing construct from application is a key issue, and I think my point about government by the opinion of “excellent men” vs. government by law speaks to it.
In the present case, the McCainites are caught in a prejudice immune to such moral distinction.

To them, there is no difference between construct and application.
Therefore, it is to them, and their law, that we must present our grievance; not to some other construct or application. If some legislator comes along who can make this distinction, it would be another debate.

With this particular government intervention there is less freedom.
Other interventions may require other responses.

CFR is an infringement on civil liberties.
So are other things. Some of those things we’ve agreed to accept; crying “Fire” in a crowded theater being the hackneyed example.

CFR is not doing that, it is crying “shut up” in the public square.

CFR is an infringement on civil liberties.
We need to ask whether it is reasonable, given both government ineptitude and the natural desire to prevent worse consequences, to accept a given infringement.

SCOTUS says CFR is an acceptable infringement.
I disagree.

For the moment, I’m allowed to publish that (this) opinion.
If a candidate in the next federal election makes this same opinion a key aspect of his campaign, however, the chances are good that I will be committing a crime if I link to his speeches.

Recognizing government as incompetent does not carry us all the way to chaos.
One needn’t postulate anarchy in order to object to a specific infringement on civil liberty as beyond the federal government’s constitutional power.

The First Amendment, in common with the rest of the Bill of Rights, is about restricting the power of government.
The construct is, “Here, the government has no role in our lives.” The application has been insufficiently cognizant of that, but we’re only whores if we let our sense of justice override the idea of equality of opportunity in favor of equality of outcome.

I agree that the ability to speak to large numbers of people correlates positively with economic means.
A less strong, but still significant, positive correlation exists with respect to intelligence, articulateness, charisma, audience ability to listen, luck, and the number of movies in which you have starred.

Where does regulation designed to mitigate the unfairness of life reach a limit?

The idea that economic means can in some way restrict the ability to speak is true and irrelevant.
It is not at all the same thing as restricting freedom of speech as codified in the First Amendment.

Before CFR, if I was willing to mortgage my house to the hilt, max my credit from all sources and solicit money from my friends, I could mount an ad campaign critical of any candidate in the 60 days prior to an election.
After CFR, I cannot. I am still able, but no longer free.

I’m also prohibited from calling a press conference of any consequence because I didn’t even have a bit part in Fahrenheit 9-11.

Those with more economic resources than my own would find significant personal advocacy easier.
Those with less would find it more difficult. Before CFR neither class had their speech restricted by law. Law and circumstance are not equivalent.

George Soros is economically better situated to “speak” than am I.
One of the equalizing factors here used to be my ability to speak politically by contributing to, say, the NRA. My voice could be amplified by joining together with like minded individuals. Thanks to CFR, that opportunity is also gone.

I can find no constitutional provision for enforcing equality of outcome.
CFR pretends to do that. In fact, all it does is decrease equality of opportunity.

Contemplate this solution:
instead of drafting ever more complex rules about what can constitute speech protected by the First Amendment, let’s just require total disclosure of all sources of all money for every Institute, Foundation, and Politician. Let’s have that information readily available.

And then let’s stop.
We have no obligation to equal outcome in reading or thinking either, however much John McCain may want to bend us to his own definition thereof.

Tuesday, March 08, 2005

McCain and McAble


1) Is it your perception that the 2002 McCain-Feingold campaign finance legislation has produced a better informed electorate or a more poorly informed electorate?

2) Do we have more civil or less civil elections compared to the period before?

3) Does that matter?

Whatever your answers to 1), 2) and 3), has it been worth (
and this is not arguable, SCOTUS said as much when it declared most of M-F to be constitutional) the chipping away of First Amendment rights?

McCain-Feingold was an utter failure on all those points. The fact that Senator John McCain is proposing further legislation on the matter is sufficient unto the argument.

The New York Times reported in February that Senator McCain was pushing new labyrinthislation (“the bill contains numerous regulations, some quite complex”) to fix massive failures in McCain-Feingold. McCain was not happy about 527 committees like Swift Boat Veterans for Truth and MoveOn.org. He intends to effectively shut them down, by producing regulations on political speech that rival the income tax code.

This initiative has drawn support from such diverse political theorists as President Bush and Senator Charles E. Schumer. It’s drawn the ire of such diverse organizations as the NRA and The Brady Campaign to Prevent Gun Violence.

Whether McCain’s commitment to controlling speech is just hubris, the ability of a “true believer” to persevere despite the evidence, or even simple perfidy intended to make McCain “Senator-for-Life”, or even President, we will probably never know.

We do know there have been only negative results to this point. My personal expectation, based on my reading of history and my observation of government, is that further tinkering will not help. The ability of such tinkering not to help will be directly proportional to its complexity.

It is useful to note that John McCain seems to exempt nonprofit organizations operating under Section 501(c) of the tax code from his new proposal. He would exempt groups like The Reform Institute, a 501(c) campaign finance reform advocacy group.

The Times noted that McCain has ties to this lobbying organization, and that contributors to their cause included cable companies who had lobbied the Senate Commerce Committee during Senator McCain’s chairmanship.

This bothered the Senator… well, not at all. It’s what Democracy is about:
“Mr. McCain said the institute did not run afoul of campaign laws because it did not try to sway elections. "The overwhelming majority of 501(c)(3)'s are advocacy organizations for different causes, and that's fine," he said. "That's what our system should be all about."”
The idea that the regulation of how political campaigns are financed “does not sway elections” is a curious one indeed.

By this logic, The Reform Institute could advocate the elimination of elections. Further, I would agree that they have that right.

John McCain and I differ on the idea that they should have a privileged position for their advocacy based on the judgment of politicians, like John McCain, who benefit from their advocacy.

Get real. The intent of McCain-Feingold is to sway elections. It is otherwise unnecessary. The fact that it sways elections mostly in the direction of incumbents does not damage its attraction for them.

What we are debating is to what extent elections should be swayed and by whom. I prefer pitting George Soros against the National Rifle Association. John McCain prefers to decide it himself.

McCain provides evidence of this megalomania in the weasel words; “overwhelming majority of 501(c)(3)’s are … fine.” Remember, the last time he got involved with regulating political speech he thought 527s were "fine."

This time he’s hedging that bet. Those 501(c)(3)’s that are not “fine” had better keep a low profile vis-à-vis Senator McCain or the Byzantine exceptions to the First Amendment he champions will reach new levels of absurdity in subsequent rounds of “fixes.”

It gets even more interesting. Today the Times has this update. In McCain Allies Want Reform (and Money) we learn more about The Reform Institute:
The institute has drawn little notice, but it offers a telling glimpse into how Mr. McCain operates. In the four years since its creation, it has accelerated its fund-raising, collecting about $1.3 million last year, double what it raised in 2003, a sizable sum for a group that exists to curb the influence of money in politics.

Mr. McCain, the institute's most prominent spokesman, defended the large donations as a necessary part of advocacy work, and drew a distinction between the progressive agenda of the Reform Institute and political efforts to which campaign finance laws apply. The institute is different, he said, "because it is nonpartisan and issue-oriented."
The Times goes on to note that some admirers of Senator McCain believe in Campaign Finance Reform because they believe in the opinion of good men, rather than the rule of law:
Norman J. Ornstein, a Congressional expert at the American Enterprise Institute and a member of the advisory board, said that it was overstating the case to portray the institute as an extension of Mr. McCain's personal political goals and that he could succeed without it.

"The man is a rock star," Mr. Ornstein said. "He is doing it for the right reasons."
McCain is not alone in his 501(c)(3) activities:
Other lawmakers have started similar foundations, said Rick Cohen, executive director of the National Committee for Responsive Philanthropy.

The trouble is not the mission of such nonprofit groups or the motivations of their founders, Mr. Cohen said. The problem, he said, lies in the close and unregulated relationship between the nonprofit groups and politicians.
This unregulated relationship is the one Senator McCain described as “fine”, when challenged about his own pet cause. One wonders how he would feel about a 501(c) that advocated, say, changes in cable television regulation:
Some donors, though, are communications industry giants who had business before the Commerce Committee when Mr. McCain was its chairman. Echosphere, a communications company started by Charles Ergen, a founder of EchoStar Communications and the DISH Network, gave $50,000 or more to the institute. So did CSC Holdings, a subsidiary of the Cablevisions Systems Corporation, headed by Charles F. Dolan, and the Chartwell Foundation, the charitable group funded by A. Jerrold Perenchio, the Univision billionaire.

Mr. [Rick] Davis [head of The Reform Institute] and Mr. McCain, who is not currently raising money for his own political purposes, said they saw no problem in accepting donations of that magnitude from foundations associated with people and companies with interests on Capitol Hill.
This quote bears repeating; “The institute is different, [McCain] said, "because it is nonpartisan and issue-oriented.”

So does this quote; “Mr. McCain, who is not currently raising money for his own political purposes”. Why is Campaign Finance Reform not a political purpose? Because John McCain says so?!

If we take the Senator at his word, then he seems unable to recognize the tremendous advertising value of this organization to him, or that its members form the nucleus of his next campaign while being paid by extremely partisan and/or lobbyist currying donors and, most damagingly, he believes that it is somehow non-political because it seems non-partisan. Here’s a clue John; when the partisan hacks reach this kind of consensus it’s because the political benefits are overwhelming. Generally - regard this as a bad thing.

McCain believes he is beyond politics. Consider this timeline from The Kansas City Star regarding McCain’s activities as chairman of the Commerce Committee here. APnews is on it here.

How about this advertising for McCain from The Reform Foundation, or McCain’s efforts to throw out the current Federal Election Commission as ballyhooed here, again by TRF. Check out this whole page! They love John McCain.

OK, it is possible some may view the above as ad-hominem. Yes, they may say, John McCain isn’t perfect, but what he wants is the right thing to do. Well, I cannot disagree with the former and that is what makes the latter irrelevant.

John McCain may be an excellent man. Fortunately, we don’t have a government of the opinions of excellent men.

The more you are inclined to think McCain excellent, the more you should appreciate why we do not want that sort of government. - John, John, he’s our man, if he can’t do it…

Right. Nobody can.

Why do politicians from both parties and of radically differing political philosophies agree on Campaign Finance Reform? Because it attracts donations, keeps the oligarchy intact and lets them pay lip service to “the little guy.”

I’ll believe the little guy is the concern when Senator McCain introduces a Campaign Finance Reform bill specifically targeting Hungarian billionaires who made their money in currency speculation that harmed millions of “little guys” in the United Kingdom and Asia in order to line their own pockets.

Finally, speaking of money, it is useful to know where (aside from cable operators seeking legislation changes) major money for The Reform Institute originates. Here are 2 examples of organizations contributing over $50,000.

Neither would seem able to pass the Senator’s smell test in terms of disclosure.

One wonders why they so favor restriction on money-as-speech when they go to such trouble to obfuscate the sources and destinations of their own funds?

Activistcash reports here on The Tides Foundation:
Set up in 1976 by California activist Drummond Pike, Tides does two things better than any other foundation or charity in the U.S. today: it routinely obscures the sources of its tax-exempt millions, and makes it difficult (if not impossible) to discern how the funds are actually being used.

David Horowitz’ Discoverthenetwork reports here on Tides:
Founded in 1976 by Drummond Pike, a
California activist, the Tides Foundation was set up not as a traditional foundation, but as a public charity. This allows it to funnel money from donors to activist or radical recipients, without the donors having to be publicly associated with the groups being funded. Through this legal loophole, nonprofit entities can set up for-profit organizations and funnel money to them through Tides, since, by law, non-profits are not legally allowed to directly fund their own for-profit enterprises. An example of this is the Pew Charitable Trusts (the Tides Foundation's largest funding source), which set up three for-profit media companies and then proceeded to fund them by donating money to Tides, which in turn sent the money to the Pew media companies (for the standard 8% management fee).

The Proteus Fund is covered here and here.
Founded in 1995, the Proteus Fund was set up in much the same way as the Tides Center – not as a traditional foundation, but as a public charity.

To close, I pass on my resentment that McCain's tendency speak his mind, however fractured, has caused him to be compared to another Senator from Arizona - Barry Goldwater.

Barry Goldwater
could probably now supply the electricity needs of the entire Southwest, if his McCain caused spinning could be converted into power generation. Goldwater died in 1998. Here’s a nice look at his character.

John McCain couldn't carry Barry's boots.

Monday, March 07, 2005

The Eason Jordan Effect

There isn't much to say about Italian reporter Giuliana Sgrena, who writes for the Communist daily Il Manifesto - or the tragedy of her rescuer's death by friendly fire - that isn't being covered extremely well already.

See Glen Reynolds, Powerline and Cox and Forkum, here, here, and here.

For your convenience.

Sunday, March 06, 2005

Culpable?

While we’re on the topic of the destruction of 1st Amendment rights as championed by statist do-gooders like John McCain, let’s not forget George Bush is the President who invited this evolving draconianism in the first place.

Did he think, as I suspect he did about the steel tariffs he also didn’t veto, that after awhile someone else would fix it?


He did get help from the WTO on steel, and he did hint he thought McCain/Feingold would likely be declared unconstitutional.

If he believed that, he badly miscalculated.
If it was expected that the Supreme Court would actually do its duty in the case of free speech, Karl Rove’s head needs an examination.

SCOTUS was too preoccupied with “International Guidance” on how the US Constitution should be modified by judicial fiat; witness the majority's exculpatory invocation of European law in their opinion on the “death penalty for minors” decision.


Justices Scalia and Breyer recently debated the question of whether SCOTUS should interpret the Constitution via laws in other countries.
It is instructive, but it’s another story.

What Bush does about McCain/Feingold will say as much about his attitude toward freedom as anything else he’s done.
If he’s wavering, he needs another read of Sharansky's The Case for Democracy re: tapping on walls and talking through toilets while imprisoned in the Gulag.

I’m not saying he doesn’t get the “defense” piece.
I’m asking if he’s really, really clear why that matters.

An interesting part is that this represents the clearest civil rights violation he has been involved with, but on the left - outside of the leftwing blogosphere - you don’t hear much about it.


I guess, unless it is seen by the MSM to significantly damage Bush, we will not much hear about it.
They’ll stick to calling Attorney General Alberto Gonzales a torturer.

This is up to Republicans.
Whether Republicans are up to it, remains to be seen.

The Democrats will be useless. They are going to have a hard time; a) bucking their fellow partisans on the FEC, b) criticizing their pet-Republican, John McCain, or c) recognizing the fact that calling for the blogosphere to be regulated threatens both MoveOn and the NYT.


Barbara Boxer and Carl Levin won’t realize this until after it appears in the Washington Post.

Let’s grant that McCain had his collectivist sympathies turned on by the idea that he could “make a difference” regarding the “evil” money from corporations, Unions, non-profits and PACs.


Let's say we have to ignore McCain's enabling of individuals like George Soros, acknowledging it merely as a failure in McCain’s imagination.
His intent was still good. ;{

The point is, we could have expected this from McCain. So, what’s Bush’s excuse?
You should ask him. Send him a letter or an email.

It’s also time to write your editor, your Senator, your Congressman and proselytize your friends and neighbors.

PS
The following were included as an update to my 3-March post, but they’re good enough to justify a few additional electrons.
Tip of the hat to Powerline for this great defense of Bradley Smith by Winfield Myers at: Democracy Project and this update.

See also, Chris Muir’s - marvelous cartoon.