Unwavering defenders of the First Amendment have never been shy to point out to members of Congress — Sens. John McCain and Russ Feingold chief among them — that legislating away the free speech and association rights of Americans is, or at least should be viewed as, a violation of their oaths to “protect and defend the Constitution of the United States.” Frequent missives usually start out by asking the question, “What part of ‘Congress shall make no law…’ don’t you understand”? But I digress.
Last week, the Senate fell one vote shy of passing a constitutional amendment that could have led to a ban on desecrating the American flag. Whether such a constitutional amendment is a good or bad approach is not the subject here. The more fascinating, and perhaps disturbing, dynamic that surfaced during this week’s debate was some senators’ ongoing willingness to cynically invoke the Constitution when it conveniently advances their own agendas, while trampling on the founding document when, well… it advances their own agendas.
Enter Sen. Russ Feingold. Yes, the same Mr. Feingold of the McCain-Feingold Bipartisan Campaign Reform Act of 2002 (BCRA), which, among other things, silenced the voices of most Americans to criticize or praise their elected leaders at the very time when it is most important to do so — 30 or 60 days before an election. At the time Congress was debating BCRA, Mr. Feingold couldn’t have cared less about the First Amendment and the chilling effect his legislation would have on the free speech and association rights of Americans. He didn’t care that the Founding Fathers viewed political speech as that which should be afforded the most protection. At the time, Mr. Feingold thought incumbent protection, wrapped in the dubious mantras of “good government” and “eliminating the appearance of corruption,” trumped the Bill of Rights.
Last week, however, as a chief opponent of the proposed flag-desecration amendment, Mr. Feingold took to the Senate floor with all the conviction of the Founding Fathers themselves. “America is not simply a nation of symbols; it is a nation of principles,” Mr. Feingold proclaimed in front of the live C-SPAN cameras. “And the most important principle of all, the principle that has made this country a beacon of hope and inspiration for oppressed people throughout the world, is the right of free expression,” he continued in arguing against the flag-desecration amendment.
In a press release posted on his Web site following the Senate vote, Mr. Feingold went further: “I’m pleased the Senate defeated the proposed flag amendment that would have amended the Bill of Rights for the first time in our nation’s history. We should not sacrifice the principles of freedom and liberty contained in our nation’s founding document in order to punish a few misguided malcontents.”
Those are bold statements for someone who, through his sponsorship of and advocacy for BCRA, expressed reckless disregard for free speech and free expression. Indeed, BCRA is widely considered by conservatives and liberals alike to be one of the most egregious assaults on the First Amendment in our nation’s history. Mr. Feingold’s justification for BCRA was not even necessarily to eliminate corruption, but to eliminate the mere appearance of corruption. Ironically, that justification was enough for Mr. Feingold to “sacrifice the principles of freedom and liberty contained in our nation’s founding document” by silencing the voices of his critics or, as he may view them, “a few misguided malcontents” during an election.
Mr. Feingold: The Constitution is not just an old document to be referenced for fodder to advance one’s own agenda. Apparently, you just don’t get it.
Jeffrey Mazzella is president of the Center for Individual Freedom.