Monday, December 22, 2003

The Supreme Court’s Dec. 10 decision upholding the May 2002 campaign finance reform law was, in its own way, as great an attack on American liberty as the terror attacks of September 11, 2001.

The wording of the First Amendment, that “Congress shall make no law,” etc., is clear. The Founders and Framers understood that opposition to tyranny required the free expression of ideas, consistent with the general welfare.

There has long been discussion whether the Supreme Court should interpret the Constitution as written or expand it according to whims of the day. With the latest decision, the majority actually impugned the work of the Framers. The majority arrogantly chose to recast the First Amendment to supposedly protect the political process from corruption, going so far as to impute to citizens corrupt motives when they contribute to a political party.

The decision won’t take big money out of politics; it will just change the venues to which it flows, venues that are less responsible and less accountable than the parties. The political process will become overheated, and the parties will have less ability to control extremes. Fragmentation will rule, and the process of building consensus will be greatly damaged.

The parties will have more difficulty convincing the general public they can operate in the public’s interest and in the national interest, because the law insulates incumbents from opposition by restricting political dialog 30 to 60 days before primaries and elections, respectively.

In its fatuous zeal to update the Constitution, the court violated the fundamentals of logic. The majority bought the argument that money itself, not the people who misuse it, is the source of corruption. The same point is made by people who would shred the Second Amendment: that guns themselves, not the people who misuse them, are responsible for violence.

Is there corruption in our political system? Yes, but it exists because some people who operate in it are unduly influenced by the opportunities corruption presents, and they are often not adequately punished for their errors or crimes. Indeed, by focusing on the money, the court will inadvertently allow corruption to grow and spread in other ways, because it leaves the agents, the corruptible people, to their own devices.

The Founders and Framers saw the judiciary, particularly the high court, as the guardian of principles that would balance the legitimate prerogatives of government against the absolute need of government to be of, by, and for the people. The United States has been raised to greatness because the Founders and Framers were intent on building a society that a just and loving God would want for his creatures: maximum freedom consistent with moral responsibility. That idea is the beacon for all who look to America.

The high court’s decision undercuts that principle. However, no branch of the government associated with this law has shown itself worthy of the vision of the Founders and Framers.

Some members of Congress concocted this scheme to protect their incumbency and to mask and excuse their lack of character. Others knew the bill was wrong but voted for it anyway, because they believed the Supreme Court would strike it down.

The majority of the court, in this case and in the sodomy case, appears to believe, erroneously, that American jurisprudence would benefit from becoming more in line with the ethos and practices of other legal systems. As for campaign finance reform, the court’s decision may open the way to public financing of elections, which is practiced in some countries.

President Bush, by not vetoing the bill, violated the oath of office he took in January 2001 to uphold the Constitution. In addition, he appears to have acquiesced in the court’s error by accepting the decision, thus being at variance with this campaign pledge, and presumed current policy, of nominating and seating strict constructionists to the bench.

In Iraq, Mr. Bush’s big mistake will make it harder for him, as the rebuilding process accelerates in light of Saddam Hussein’s capture, to help the Iraqis build a viable, free state now that political speech has been dealt a catastrophic blow in his own country. Mr. Bush’s position on the world stage is increasingly magnificent, but he can’t maintain it if he is less bold in protecting freedom at home than abroad.

Mr. Bush needs to assert he strongly disagrees with the court’s decision and that he will oppose it in his upcoming campaign. He should also advocate an amendment to the Constitution to redress the court’s error and the damage done to the system as a whole.

If he doesn’t do this, he jeopardizes not only his ability to stay connected with the public, since the decision vastly increases the power and lack of accountability of the establishment media, but also any coattails he might be able to generate for Republican challengers to elective office. The Supreme Court’s decision, if not reversed, will undermine the American promise.

William Goldcamp is a diplomatic historian and a former intelligence analyst.

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