- The Washington Times - Sunday, November 19, 2000

The 2000 presidential election is likely to go down in American history, much like the O.J. Simpson trial and Clinton impeachment, the two previous fin de siecle politico-legal events, more as a media melodrama than as a pursuit of factual truth. After hundreds of hours of testimony and the diametrically conflicting verdicts in O.J.'s criminal and civil trials, the jury of public opinion still remains undecided as to Simpson's guilt or innocence. Whether outgoing President Clinton was indeed guilty of high crimes and misdemeanors remains similarly a question that although put to rest politically has not been resolved on the basis of facts. Now add to the former two factual uncertainties the pending and still uncertain outcome of the Bush-Gore presidential contest, and a disturbing question appears to be emerging: Should the public care about knowing the factual truth in each of these high-visibility public events, or is it sufficient and just as well that the truth remains known only to a selected few?

It is on the answer to these two questions that the future of American democratic leadership in the post-Cold War era hinges. As schoolchildren, we all learned that totalitarian and authoritarian regimes are founded not only upon brute and illegitimate power but also upon deceit and packs of ideological and factual lies.

Democracy, alone among all available forms of governance, sees in truth the very fountain of its life. While other political systems claim to derive their legitimacy from mythical, divine, hereditary, oligarchical, plutocratic or some other elitist sources, democracy is founded on the belief in the social contract between the governed and governing. It was to this contract's existence that the 19th-century French visitor to these shores, Alexis de Tocqueville, attributed America's then existing solidarity, as well as the young democracy's future health.

But all contracts, as we know from other realms of public life, must rely for their legitimacy and binding effect upon the consent of those entering into them. And such consent must be informed consent based upon the common sharing of all available information. No government founded upon the consent of the governed can long endure unless the quest for the truth and adherence to the truth prevail as its fundamental principles. It is this recognition for the central role of truth in democratic governance that Americans must never forget or overlook, especially in this post-Cold War era in which we have set out to be the model as well as the major exporters of the democratic ideals and practices.

Increasingly, however, our original ideals of truth and honesty have been overtaken by a new national streak of practicality and opportunity. This new force, manifested in many arenas of our public life, is nowhere more evident than in the field of criminal justice. Beginning much earlier, but gaining dramatic impetus in the second half of the 20th century, our public prosecutors, courts of justice and defense attorneys have grown to seek and enforce not the truth but some opportune compromise. We call this practice "plea bargaining" and attribute our willingness to engage in this corruption of justice to the undue burdens that would be placed upon our already overburdened judicial system if truth rather than negotiated compromises was to prevail. In consequence, by dismissing the traditional European "principle of legality" (which requires that all offenders and offenses be prosecuted), and substituting for it the "principle of opportunity," which permits selective enforcement of the law when such practice is found to be opportune, we have made "plea bargaining" the law of the land. More than 95 percent of all criminal prosecutions today are resolved through resort to such oriental-bazaar-type bargains between prosecuting and defense attorneys.

There is little likelihood now that the dominating practice of plea bargaining will be controlled or diminished in the criminal arena, but it is imperative, for the survival of democratic legitimacy, that this pernicious practice not be allowed to invade the realms of American politics. Even without any such new compromising of the honesty and truthfulness of the electoral process, unduly large segments of the American electorate have refrained from taking part in the political process. Apathy, boredom, civic irresponsibility and the widespread argument that "our votes don't count" should not be permitted to be enhanced by a policy claiming that handling elections "expeditiously" has a higher priority than a commitment to all available and possible means for guaranteeing a true elective outcome an outcome in which no segment of our society can rightfully claim that it has been disenfranchised.

The future of American democracy and the strength of the claim for democracy's superiority over past and discarded forms of governance require that truth prevails, at any lawful cost, in the current presidential contest. The argument that aggrieved parties should forgo corrective relief in the electoral forums in the interest of "good sportsmanship" or "business as usual" undercuts the greater need for more honest and unbiased elective processes. The viability of America's social contract is at stake. Whatever means affected communities decide to resort to in the honest pursuit of presidential or other electoral truths cannot be allowed to be squelched. Recent years have seen greater resort to the judiciary for the resolution of fundamentally economic, social and political conflicts. But resort to the courts, federal or state, for assistance in blocking the pursuit of greater truth is and will be, a sad testimony to this country's growing willingness to give up basic federal and democratic principles including truth, informed consent and "subsidiary" (local self-government) in the pursuit of such allegedly more pressing values as "loss of time," "efficiency," "costs" or "law and order."

Nicholas N. Kittrie, former counsel to the Senate Judiciary Committee, is distinguished university professor at American University Law School.

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