February 28th, 2002
Mr. Chairman: Thank you, Mr. Chairman, for holding this hearing on the important topic of the International Criminal Tribunals for the former Yugoslavia and Rwanda. For Americans, the most important aspect of these international criminal tribunals is that they are the model for the UN’s International Criminal Court. Indeed, it is the perceived need to make these ad hoc tribunals permanent that really led to the creation of the ICC in the first place. This permanent UN court will attempt to claim jurisdiction over the rest of the world within the next few weeks, as it has claimed that ratification by 60 countries confers world jurisdiction upon it.
This means that even though the United States has not ratified the treaty- though it was signed by President Clinton’s representative at midnight on the last day- the Court will claim jurisdiction over every American citizen, from President Bush on down. The Bush Administration has admirably stated its opposition to the International Criminal Court, but it unfortunately has taken no proactive measures to “unsign” Clinton’s initial signature or to make it known that the United States has no intention of cooperating with, providing funding to, or recognizing any authority of this international court. The clock is ticking, however, and the day of reckoning is close at hand.
This court is every American’s worst nightmare. Currently, there are no protections for either US military personnel or civilians from the tentacles of this International Court. This means when it claims jurisdiction, you, I, or any of our 240,000 military personnel stationed across the globe can be kidnapped, dragged off a foreign land and be put on trial by foreign judges, without benefit of the basic protections of the American legal system, for crimes that may not even be considered crimes in the United States.
Pro-life groups in America have already expressed concern that the Court’s claimed jurisdiction over “enforced pregnancy” could make it criminal for groups to work to restrict access to abortions- or even reduce government funding of abortions. The pro-ICC Woman’s Caucus for Gender Justice has already stated that countries’ domestic laws may need to be changed to conform to ICC Statutes. Former Assistant to the US Solicitor General, Dr. Richard Wilkins, said recently that the ICC could eventually be used to try “the Pope and other religious leaders,” because issues such as abortion and homosexuality would ultimately fall within the Court’s jurisdiction.
Supporters of the International Criminal Court are quick to say that the Court is modeled on the Nuremberg tribunal set up after World War II, but nothing could be further from the truth. Nuremberg was a trial initiated and prosecuted by sovereign nations. It was a reassertion of national sovereignty over the crimes of a regime that disregarded the concept, that saw other sovereign countries as merely “living space” for their own people. As one analyst recently wrote, “the Nuremberg tribunal, unlike the Hague tribunal, was not really an international tribunal at all. The judges quite specifically stated that the act of promulgating the Nuremberg charter was ‘the exercise of sovereign legislative power of the countries to which the German Reich unconditionally surrendered.’ There was no pretense that the ‘international community’ was prosecuting the Germans.”
The International Criminal Court is to be modeled after the tribunals dealing with Rwanda and Yugoslavia, that is a fact. Knowing how these tribunals operate should therefore terrify any American who loves our Constitution and our system of justice. In the Yugoslav and Rwandan tribunals, anonymous witnesses and secret testimony are permitted; the defendant cannot identify his accusers. There is no independent appeals procedure. As one observer of the Hague in action noted, “the prosecutor’s use of conspiracy as a charge recalls the great Soviet show trials of 1936-1938. In one case, the Orwellian proportions of the Prosecution mindset was revealed as the accused was charged with conspiring, despite the admitted lack of evidence. It is not the destruction of evidence but its very absence which can be used to convict!”
Indeed in the showcase trial of the ICTY, that of former Serb leader Slobodan Milosevic, chief prosecutor Carla del Ponte told the French paper Le Monde last year that no genocide charge had been brought against Milosevic for Kosovo “because there is no evidence for it.” What did the Court do in the face of this lack of evidence? They simply disregarded a basic principle of extradition law and announced that they would try Milosevic for crimes other than those for which he had been extradited. Thus they added two additional sets of charges- for Bosnia and Croatia- to the indictment for Kosovo. The Kosovo extradition itself was nothing more than bribery and kidnapping. Milosevic was snatched up off the streets of Serbia after the United States promised the government it had helped install millions of dollars in aid. That national sovereignty was to be completely disregarded by this international tribunal was evident in its ignoring a ruling by the Yugoslav Constitutional Court that extradition was illegal and unconstitutional. Yugoslav officials preferred to put Milosevic on trial in Yugoslavia, under the Yugoslav system of jurisprudence, for whatever crimes he may have committed in Yugoslavia. The internationalists completely ignored this legitimate right of a sovereign state.
Supporters of the International Criminal Court, like the World Federalist Association, claim that ICC procedures are in full accordance with the Bill of Rights. They aren’t. One pro-ICC website sponsored by the World Federalist Association, attempting to dispel “myths” about the Court, perhaps unintentionally provided some real insight. In response to the “myth” that the ICC is unconstitutional, the website argues that “The Rome Treaty establishing the International Criminal Court provides almost all the same due process protections as the U.S. Constitution. Every due process protection provided for in the Constitution is guaranteed by the Rome Treaty, with the exception of a trial by jury.” Since when is “almost all” equal to “all”? Either the Rome Treaty provides all the protections or it does not provide all the protections, and here we have by its own admission that the ICC is indeed at odds with American due process protections. So what else are they not telling the truth about? Another claim on the World Federalist Association website is that the ICC is that the rights of the accused to a presumption of innocence is guaranteed. Interestingly, on the very same website the accused Slobodan Milosevic is referred to as a “criminal.” Not very reassuring.
It is very convenient for supporters of this International Criminal Court that the high profile test case in the Yugoslav tribunal is the widely reviled Slobodan Milosevic. They couldn’t have hoped for a better case. Any attack on the tribunal is immediately brushed off as a defense of Milosevic. It is illustrative for us to take a look at how the Milosevic trial is being prosecuted thus far. After all, today it is Milosevic but tomorrow it could be any of us. And with the Milosevic trial, the signs are very troubling. We have all seen the arrogance of the judge in the case, who several times has turned off Milosevic’s microphone in mid-sentence. Thus far, the prosecution has attempted to bring as witnesses people who are on the payroll of the tribunal itself, as in the case of Besnik Sokoli. Other witnesses have turned out to have been members of the Kosovo Liberation Army, which is the armed force that initiated the insurgent movement within Yugoslavia. Remember, Milosevic was extradited for Kosovo and for Kosovo only, but the weakness of the case forced the Court to add other charges in other countries. Now, after Milosevic has shown himself adept at cross-examination, the prosecution is seeking to have the judge limit Milosevic’s ability to cross-examine the prosecution’s witnesses. This in itself flies in the face of our system of evidence law, which allows the defendant nearly unlimited ability to cross-examine a witness as long as it is relevant to testimony.
Mr. Chairman, these international tribunals and the International Criminal Court that they spawned are bad for America and bad for the rest of the world. The concept of a permanent criminal court, run by unelected bureaucrats, third rate judges, and political hacks, and answerable to no one, undermines everything that free peoples should hold dear. It is about American sovereignty, the sovereignty of our American legal system, but that is not all. It should also be important for Americans that the sovereignty of the rest of the world be maintained as well, as when sovereignty is undermined anywhere by an un-elected international body, it is under threat everywhere.
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February 26th, 2002
The war drums are beating, louder and louder. Iraq, Iran, and North Korea have been forewarned. Plans have been laid and, for all we know, already initiated, for the overthrow and assassination of Saddam Hussein.
There’s been talk of sabotage, psychological warfare, arming domestic rebels, killing Hussein, and even an outright invasion of Iraq with hundreds of thousands of US troops. All we hear about in the biased media is the need to eliminate Saddam Hussein, with little regard for how this, in itself, might totally destabilize the entire Middle East and Central Asia. It could, in fact, make the Iraq “problem” much worse.
The assumption is that, with our success in Afghanistan, we should now pursue this same policy against any country we choose, no matter how flimsy the justification. It hardly can be argued that it is because authoritarian governments deserve our wrath, considering the number of current and past such governments that we have not only tolerated but subsidized.
Protestations from our Arab allies are silenced by our dumping more American taxpayer dollars upon them.
European criticism that the United States is now following a unilateral approach is brushed off, which only causes more apprehension in the European community. Widespread support from the eager media pumps the public to support the warmongers in the administration.
The pro and cons of how dangerous Saddam Hussein actually is are legitimate. However, it is rarely pointed out that the CIA has found no evidence whatsoever that Iraq was involved in the terrorist attacks of 9/11.
Rarely do we hear that Iraq has never committed any aggression against the United States. No one in the media questions our aggression against Iraq for the past 12 years by continuous bombing and imposed sanctions responsible for the deaths of hundreds of thousands of children.
Iraq’s defense of her homeland can hardly be characterized as aggression against those who rain bombs down on them. We had to go over 6,000 miles to pick this fight against a third-world nation with little ability to defend itself.
Our policies have actually served to generate support for Saddam Hussein, in spite of his brutal control of the Iraq people. He is as strong today- if not stronger- as he was prior to the Persian Gulf War 12 years ago.
Even today, our jingoism ironically is driving a closer alliance between Iraq and Iran, two long-time bitter enemies.
While we trade with, and subsidize to the hilt, the questionable government of China, we place sanctions on and refuse to trade with Iran and Iraq, which only causes greater antagonism. But if the warmongers’ goal is to have a war, regardless of international law and the Constitution, current policy serves their interests.
Could it be that only through war and removal of certain governments we can maintain control of the oil in this region? Could it be all about oil, and have nothing to do with US national security?
Too often when we dictate who will lead another country, we only replace one group of thugs with another- as we just did in Afghanistan- with the only difference being that the thugs we support are expected to be puppet-like and remain loyal to the US, or else.
Although bits and pieces of the administration’s plans to wage war against Iraq and possibly Iran and North Korea are discussed, we never hear any mention of the authority to do so. It seems that Tony Blair’s approval is more important than the approval of the American people!
Congress never complains about its lost prerogative to be the sole declarer of war. Astoundingly, Congress is only too eager to give war power to our presidents through the back door, by the use of some fuzzy resolution that the president can use as his justification. And once the hostilities begin, the money always follows, because Congress fears criticism for not “supporting the troops.” But putting soldiers in harm’s way without proper authority, and unnecessarily, can hardly be the way to “support the troops.”
Let it be clearly understood- there is no authority to wage war against Iraq without Congress passing a Declaration of War. HJ RES 65, passed in the aftermath of 9/11, does not even suggest that this authority exists. A UN Resolution authorizing an invasion of Iraq, even if it were to come, cannot replace the legal process for the United States going to war as precisely defined in the Constitution. We must remember that a covert war is no more justifiable, and is even more reprehensible.
Only tyrants can take a nation to war without the consent of the people. The planned war against Iraq without a Declaration of War is illegal. It is unwise because of many unforeseen consequences that are likely to result. It is immoral and unjust, because it has nothing to do with US security and because Iraq has not initiated aggression against us.
We must understand that the American people become less secure when we risk a major conflict driven by commercial interests and not constitutionally authorized by Congress. Victory under these circumstances is always elusive, and unintended consequences are inevitable.
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February 14th, 2002
Mr. Speaker, I rise to introduce the Monetary Freedom and Accountability Act. This simple bill takes a step toward restoring Congress’ constitutional authority over U.S. monetary policy by requiring congressional approval before the President or the Treasury secretary buys or sells gold.
Federal dealings in the gold market have the potential to seriously disrupt the free market by either artificially inflating or deflating the price of gold. Given gold’s importance to America’s (and the world’s) monetary system, any federal interference in the gold market will have ripple effects through the entire economy. For example, if the government were to intervene to artificially lower the price of gold, the result would be to hide the true effects of an inflationary policy until the damage was too severe to remain out of the public eye.
By artificially deflating the price of gold, federal intervention in the gold market can reduce the values of private gold holdings, adversely affecting millions of investors. These investors rely on their gold holdings to protect them from the effects of our misguided fiat currency system. Federal dealings in gold can also adversely affect those countries with large gold mines, many of which are currently ravished by extreme poverty. Mr. Speaker, restoring a vibrant gold market could do more than any foreign aid program to restore economic growth to those areas.
While the Treasury denies it is dealing in gold, the Gold Anti-Trust Action Committee (GATA) has uncovered evidence suggesting that the Federal Reserve and the Treasury, operating through the Exchange-Stabilization Fund and in cooperation with major banks and the International Monetary Fund, have been interfering in the gold market with the goal of lowering the price of gold. The purpose of this policy has been to disguise the true effects of the monetary bubble responsible for the artificial prosperity of the 1990s, and to protect the politically-powerful banks that are heavy invested in gold derivatives. GATA believes federal actions to drive down the price of gold help protect the profits of these banks at the expense of investors, consumers, and taxpayers around the world.
GATA has also produced evidence that American officials are involved in gold transactions. Alan Greenspan himself referred to the federal government’s power to manipulate the price of gold at hearings before the House Banking Committee and the Senate Agricultural Committee in July, 1998: “Nor can private counterparts restrict supplies of gold, another commodity whose derivatives are often traded over-the-counter, where central banks stand ready to lease gold in increasing quantities should the price rise .” [Emphasis added].
Mr. Speaker, in order to allow my colleagues to learn more about this issue, I am enclosing “All that Glitters is Not Gold” by Kelly Patricia O’Meara, an investigative reporter from Insight magazine. This article explains in detail GATA’s allegations of federal involvement in the gold market.
Mr. Speaker, while I certainly share GATA’s concerns over the effects of federal dealings in the gold market, my bill in no way interferes with the ability of the federal government to buy or sell gold. It simply requires that before the executive branch engages in such transactions, Congress has the chance to review it, debate it, and approve it.
Given the tremendous effects on the American economy from federal dealings in the gold market, it certainly is reasonable that the people’s representatives have a role in approving these transactions, especially since Congress has a neglected but vital constitutional role in overseeing monetary policy. Therefore, I urge all my colleagues to stand up for sound economics, open government, and Congress’ constitutional role in monetary policy by cosponsoring the Monetary Freedom and Accountability Act.
All That Glitters Is Not Gold
By Kelly Patricia O’Meara
Insight Magazine
March 4, 2002, edition
Even though Enron employees and the company’s accounting firm, Arthur Andersen, have destroyed mountains of documents, enough information remains in the ruins of the nation’s largest corporate bankruptcy to provide a clear picture of what happened to wreck what once was the seventh-largest U.S. corporation.
Obfuscation, secrecy, and accounting tricks appear to have catapulted the Houston-based trader of oil and gas to the top of the Fortune 100, only to be brought down by the same corporate chicanery. Meanwhile, Wall Street analysts and the federal government’s top bean counters struggle to convince the nation that the Enron crash is an isolated case, not in the least reflective of how business is done in corporate America.
But there are many in the world of high finance who aren’t buying the official line and warn that Enron is just the first to fall from a shaky house of cards.
Many analysts believe that this problem is nowhere more evident than at the nation’s bullion banks, and particularly at the House of Morgan (J.P. Morgan Chase). One of the world’s leading banking institutions and a major international bullion bank, Morgan Chase has received heavy media attention in recent weeks both for its financial relationships with bankrupts Enron and Global Crossing Ltd. as well as the financial collapse of Argentina.
It is no secret that Morgan Chase was one of Enron’s biggest lenders, reportedly losing at least $600 million and, perhaps, billions. The banking giant’s stock has gone south, and management has been called before its shareholders to explain substantial investments in highly speculative derivatives hidden speculation of the sort that overheated and blew up on Enron.
In recent years Morgan Chase has invested much of its capital in derivatives, including gold and interest-rate derivatives, about which very little information is provided to shareholders. Among the information that has been made available, however, is that as of June 2000, J.P. Morgan reported nearly $30 billion of gold derivatives and Chase Manhattan Corp., although merged with J.P. Morgan, still reported separately in 2000 that it had $35 billion in gold derivatives. Analysts agree that the derivatives have exploded at this bank and that both positions are enormous relative to the capital of the bank and the size of the gold market.
It gets worse. J.P. Morgan’s total derivatives position reportedly now stands at nearly $29 trillion, or three times the U.S. annual gross domestic product. Wall Street insiders speculate that if the gold market were to rise, Morgan Chase could be in serious financial difficulty because of its “short positions” in gold. In other words, if the price of
gold were to increase substantially, Morgan Chase and other bullion banks that are highly leveraged in gold would have trouble covering their liabilities. One financial analyst, who asked not to be identified, explained the situation this way: “Gold is borrowed by Morgan Chase from the Bank of England at 1 percent interest and then Morgan Chase sells the gold on the open market, then reinvests the proceeds into interest-bearing vehicles at maybe 6 percent.
At some point, though, Morgan Chase must return the borrowed gold to the Bank of England, and if the price of gold were significantly to increase during any point in this process, it would make it prohibitive and potentially ruinous to repay the gold.”
Bill Murphy, chairman of the Gold Anti-Trust Action Committee, a nonprofit organization that researches and studies what he calls the “gold cartel” (J.P. Morgan Chase, Deutsche Bank, Citigroup, Goldman Sachs, Bank for International Settlements (BIS), the U.S. Treasury, and the Federal Reserve), and owner of www.LeMetropoleCafe.com, tells Insight that “Morgan Chase and other bullion banks are another Enron waiting to happen.” Murphy says, “Enron occurred because the nature of their business was obscured, there was no oversight and someone was cooking the books. Enron was deceiving everyone about their business operations and the same thing is happening with the gold and bullion banks.”
According to Murphy, “The price of gold always has been a barometer used by many to determine the financial health of the United States. A steady gold price usually is associated by the public and economic analysts as an indication or a reflection of the stability of the financial system. Steady gold; steady dollar. Enron structured a financial system that put the company at risk and eventually took it down. The same structure now exists at Morgan Chase with their own interest-rate/gold-derivatives position. There is very little information available about its position in the gold market and, as with the case of Enron, it could easily bring them down.”
In December 2000, attorney Reginald H. Howe, a private investor and proprietor of the Website www.goldensextant.com, which reports on gold, filed a lawsuit in the U.S. District Court in Boston. Named as defendants were J.P. Morgan & Co., Chase Manhattan Corp., Citigroup Inc., Goldman Sachs Group Inc., Deutsche Bank, Lawrence Summers (former secretary of the Treasury), William McDonough (president of the Federal Reserve Bank of New York), Alan Greenspan (chairman of the Board of Governors of the Federal Reserve System), and the BIS.
Howe’s claim contends that the price of gold has been manipulated since 1994 “by conspiracy of public officials and major bullion banks, with three objectives: 1) to prevent rising gold prices from sounding a warning on U.S. inflation; 2) to prevent rising gold prices from signaling weakness in the international value of the dollar; and 3) to prevent banks and others who have funded themselves through borrowing gold at low interest rates and are thus short physical gold from suffering huge losses as a consequence of rising gold prices.”
While all the defendants flatly deny participation in such a scheme, Howe’s case is being heard. Howe tells Insight he has provided the court with very compelling evidence to support his claim, including sworn testimony by Greenspan before the House Banking Committee in July 1998. Greenspan assured the committee, “Nor can private counterparties restrict supply of gold, another commodity whose derivatives are often traded over the counter, where central banks stand ready to lease gold in increasing quantities should the price rise.” Howe and other “gold bugs” cite this as a virtual public announcement “that the price of gold had been and would continue to be controlled if necessary.”
According to Howe, “There is a great deal of evidence, but this is a very complicated issue. The key, though, is the short position of the banks and their gold derivatives. The central banks have ‘leased’ gold for low returns to the bullion banks for the purpose of keeping the price of gold low. Greenspan’s remarks in 1998 explain how the price of gold has been suppressed at times when it looked like the price of gold was increasing.”
Furthermore, Howe’s complaint also cites remarks made privately by Edward George, governor of the Bank of England and a director of the BIS, to Nicholas J. Morrell, chief executive of Lonmin Plc: “We looked into the abyss if the gold price rose further. A further rise would have taken down one or several trading houses, which might have
taken down all the rest in their wake. Therefore, at any price, at any cost, the central banks had to quell the gold price, manage it. It was very difficult to get the gold price under control, but we have now succeeded. The U.S. Fed was very active in getting the gold price down. So was the U.K. [United Kingdom].”
Whether the Fed and others in the alleged “gold cartel” have conspired to suppress the price of gold may, in the end, be secondary to the growing need for financial transparency. Wall Street insiders agree that as long as regulators, analysts, accountants, and politicians can be lobbied and “corrupted” to permit special privileges, there will be more Enron-size failures.
Securities and Exchange Commission Chairman Harvey L. Pitt, well aware of the seriousness of these problems, recently testified before the House Financial Services Committee that “it is my hope there are not other Enrons out there, but I’m not willing to rely on hope.”
Robert Maltbie, chief executive officer of www.stockjock.com and an independent analyst, long has followed Morgan Chase. He tells Insight that “there are a lot of things going on in these companies, but we don’t know for sure because much of what they’re doing is off the balance sheet. The market is scared and crying out to see what’s under the hood. Like Enron, much of what the banks are doing is off the balance sheet, and it’s a time bomb ticking as we speak.”
Just what would happen if a bank the size of Morgan Chase were unable to meet its financial obligations? “It’s tough to go there,” Maltbie says, “because it could shake the financial markets to the core.”
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February 13th, 2002
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Why “Campaign Finance Reform” is Unconstitutional<br />
Mr. PAUL. Mr. Speaker, the Enron bankruptcy and the subsequent revelations regarding Enron’s political influence have once again brought campaign finance to the forefront of the congressional agenda. Ironically, many of the strongest proponents of campaign finance reform are among those who receive the largest donations from special interests seeking state favors. In fact, some legislators who where involved in the government-created savings and loan scandal of the late eighties and early nineties today pose as born again advocates of “good government” via campaign finance reform!
Mr. Speaker, this so-called “reform” legislation is clearly unconstitutional. Many have pointed out that the First amendment unquestionably grants individuals and businesses the free and unfettered right to advertise, lobby, and contribute to politicians as they choose. Campaign reform legislation blows a huge hole in these First amendment protections by criminalizing criticism of elected officials. Thus, passage of this bill will import into American law the totalitarian concept that government officials should be able to use their power to silence their critics.
The case against this provision was best stated by Herb Titus, one of America’s leading constitutional scholars, in his paper Campaign-Finance Reform: A Constitutional Analysis : “At the heart of the guarantee of the freedom of speech is the prohibition against any law designed to protect the reputation of the government to the end that the people have confidence in their current governors. As seditious libel laws protecting the reputation of the government unconstitutionally abridge the freedom of speech, so also do campaign-finance reform laws.”
The damage this bill does to the First amendment is certainly a sufficient reason to oppose it. However, as Professor Titus demonstrates in his analysis of the bill, the most important reason to oppose this bill is that the Constitution does not grant Congress the power to regulate campaigns. In fact, article II expressly authorizes the regulation of elections, so the omission of campaigns is glaring.
This legislation thus represents an attempt by Congress to fix a problem created by excessive government intervention in the economy with another infringement on the people’s constitutional liberties. The real problem is not that government lacks power to control campaign financing, but that the federal government has excessive power over our economy and lives.
It is the power of the welfare-regulatory state which creates a tremendous incentive to protect one’s own interests by “investing” in politicians. Since the problem is not a lack of federal laws, or rules regulating campaign spending, more laws won’t help. We hardly suffer from too much freedom. Any effort to solve the campaign finance problem with more laws will only make things worse by further undermining the principles of liberty and private property ownership.
Attempts to address the problems of special interest influence through new unconstitutional rules and regulations address only the symptoms while ignoring the root cause of the problem. Tough enforcement of spending rules will merely drive the influence underground, since the stakes are too high and much is to be gained by exerting influence over government- legally or not. The more open and legal campaign expenditures are, the easier it is for voters to know who’s buying influence from whom.
There is a tremendous incentive for every special interest group to influence government. Every individual, bank, or corporation that does business with government invests plenty in influencing government. Lobbyists spend over a hundred million dollars per month trying to influence Congress. Taxpayer dollars are endlessly spent by bureaucrats in their effort to convince Congress to protect their own empires. Government has tremendous influence over the economy and financial markets through interest rate controls, contracts, regulations, loans, and grants. Corporations and others are “forced” to participate in the process out of greed as well as self-defense- since that’s the way the system works. Equalizing competition and balancing power- such as between labor and business- is a common practice. As long as this system remains in place, the incentive to buy influence will continue.
Many reformers recognize this, and either like the system or believe that it’s futile to bring about changes. They argue that curtailing influence is the only option left, even if it involves compromising freedom of political speech by regulating political money.
It’s naive to believe stricter rules will make a difference. If members of Congress resisted the temptation to support unconstitutional legislation to benefit special interests, this whole discussion would be unnecessary. Because members do yield to the pressure, the reformers believe that more rules regulating political speech will solve the problem.
The reformers argue that it’s only the fault of those trying to influence government and not the fault of the members of Congress who yield to the pressure, or the system that generates the abuse. This allows members to avoid assuming responsibility for their own acts, and instead places the blame on those who exert pressure on Congress through the political process- which is a basic right bestowed on all Americans. The reformer’s argument is “Stop us before we succumb to the special interest groups.”
Politicians unable to accept this responsibility clamor for a system that diminishes the need for them to persuade individuals and groups to donate money to their campaigns. Instead of persuasion, they endorse coercing taxpayers to finance campaigns.
This only changes the special interest groups that control government policy. Instead of voluntary groups making their own decisions with their own money, politicians and bureaucrats dictate how political campaigns will be financed. Not only will politicians and bureaucrats gain influence over elections, other nondeserving people will benefit. Clearly, incumbents will greatly benefit by more controls over campaign spending- a benefit to which the reformers will never admit.
Mr. Speaker, the freedoms of the American people should not be restricted because some politicians cannot control themselves. We need to get money out of government. Only then will money not be important in politics. Campaign finance laws, such as those before us today, will not make politicians more ethical, but they will make it harder for average Americans to influence Washington.
The case against this bill was eloquently made by Herb Titus in the paper referenced above: Campaign-finance reform is truly a wolf in sheep’s clothing. Promising reform, it hides incumbent perquisites. Promising competition, it favors monopoly. Promising integrity, it fosters corruption. Real campaign-finance reform calls for a return to America’s original constitutional principles of limited and decentralized governmental power, thereby preserving the power of the people.”
I urge my colleagues to listen to Professor Titus and reject this unconstitutional proposal. Instead, I hope my colleagues will work to reduce special interest influence in Washington and restore integrity to politics by reducing the federal government to its constitutional limits. I would like to take this opportunity to introduce the excellent article by Mr. Titus into the record:
- Introduction
- Congress Has No Constitutional Authority to Pass Any Campaign-Finance
-
Reform Legislation
- Campaign-Finance Reform Violates Separation of Powers and Federalism
- Campaign-Finance Reform Abridges the Freedom of Speech and the Press
- Campaign-Finance Reform Abridges the Right of the People to Assemble
- Conclusion
I. Introduction
To date, the legislative debate over campaign-finance reform has focused upon the First Amendment guarantee of freedom of speech, as interpreted and applied by the courts. The constitutional issues, however, are not limited to the First Amendment, neither are they resolved by citation to Buckley v. Valeo, 424 U.S. 1 (1976) nor by the latest Supreme Court opinion, including the one handed down on June 25, 2001 in FEC v . Colorado Republican Federal Campaign Committee . To the contrary, pursuant to their oaths of office, members of Congress have an independent duty to determine the constitutionality of legislation before them and to decide, before ever reaching the First Amendment, whether they have been vested by the Constitution with any authority, at all, to regulate federal election campaigns.
The original Constitution did not contain the Bill of Rights, including the First Amendment. Writing in Federalist No. 84, Alexander Hamilton defended this omission, claiming that a bill of rights was not needed in a republic with a written constitution expressly enumerating the powers of government. Indeed, Hamilton observed a bill of rights attached to such a constitution might well prove dangerous because placing express limits upon the exercise of a power might give rise to the assumption that such a power had been previously granted.
Hamilton’s warning has proved prophetic in the case of campaign-finance reform. As the debate swirls around the impact of such reform measures on the freedom of speech and association, the question whether Congress has the constitutional authority to regulate federal election campaigns is being ignored. Yet, that question would have been hotly debated and quickly answered in America’s founding era in light of the constitutional text carefully circumscribing Congress’s authority in relation to federal elections. (See Article I, Section 4, Clause 1 and Article II, Section 1, Clause 4; Federalist No. 60 and Federalist No. 68, I Story’s Commentaries on the Constitution , Sections 814-826 and II Story’s Commentaries , Sections 1453-75, 5th ed. 1891.)
Additionally, the issue of constitutional authority would have been examined, in the first instance, by Congress and the president without their being bound by previous court opinions. It had already been well established that each representative, each senator, and the president and his cabinet had a constitutional duty, independent of the judiciary, to determine the constitutionality of legislation before them. As President Andrew Jackson observed, in his 1832 veto message rejecting a bill extending the charter of the Bank of the United States:
It is maintained by the advocates of the bank that its constitutionality in all its features ought to be considered as settled by precedent and by the decision of the Supreme Court. To this conclusion I cannot assent. Mere precedent is a dangerous source of authority…[and] the opinion of the Supreme Court…ought not to control the coordinate authorities of this Government. The Congress, the Executive, and the Court must each for itself be guided by its own opinion of the Constitution. Each public officer who takes an oath to support the Constitution swears that he will support it as he understands it, and not as it is understood by others. It is as much the duty of the House of Representatives, of the Senate, and of the President to decide upon the constitutionality of any bill…presented to them for passage…as it is of the supreme judges when it may be brought before them for judicial decision.
It is in light of these principles, then, that the issue of constitutional authority to enact any campaign-finance reform bill is addressed in sections II and III below, before reaching the First Amendment issues raised by particular campaign-finance measures in sections IV and V. Furthermore, those issues are examined in light of the constitutional duty of Congress to decide for itself whether it has the constitutional authority to enact campaign-finance reform legislation and whether any such legislation violates the First Amendment, regardless of the opinion of the United States Supreme Court in Buckley v. Valeo, 424 U.S. 1 (1976) and its progeny, including the high court’s most recent pronouncement on June 25, 2001.
II.Congress Has No Constitutional Authority to Pass Any Campaign-Finance Reform Legislation
According to Article I, Section 1 of the United States Constitution, Congress is a legislature of enumerated powers, having only those “powers herein granted.” As a legislature of enumerated powers, Congress may enact laws only for constitutionally authorized purposes. ( McCulloch v. Maryland, 17 U.S., 4 Wheat. 316, 1819) (“Let the end be legitimate, and all means which are appropriate, which are plainly adapted to that end which are not prohibited, are constitutional.”) The stated purpose of all campaign-finance reform legislation, like the Federal Election Campaign Act that it amends, is to “reform the financing of campaigns for election to Federal office,” thereby preventing the “corruption and the appearance of corruption” in government and “equaliz[ing] the relative ability of all citizens to affect the outcomes of elections.” ( Buckley v. Valeo, 424 U.S. 1, 25-26, 1976) Congress has been granted no such power.
The threshold question concerning any campaign-finance reform bill is whether the Constitution has conferred upon Congress any authority to regulate federal election campaigns . Such authority is not found among any enumerated power conferred upon Congress. Therefore, Congress may not justify any campaign-finance reform measure on the grounds that its purpose is to reform the financing of campaigns for federal office. Thus, campaign-finance reform laws may be constitutionally justified only if enacted as a means to achieve some other purpose that is constitutionally authorized. ( McCulloch v. Maryland, 17 U.S., 4 Wheat. 316, 1819)
The Federal Election Campaign Act of 1971, as amended in 1974, presumed that the Constitution authorized Congress to regulate federal election campaigns for the purposes of “the prevention of corruption and the appearance of corruption” in government and of the equalization of “the relative ability of all citizens to affect the outcome of elections.” ( Buckley v. Valeo, 424 U.S. 1, 25-26, 1976) According to the proponents of campaign-finance reform, both then and now, Congress has power to regulate federal election campaigns because it has the general power “to regulate federal elections….” ( Id., 424 U.S. at 13-14) A careful examination of the Constitution, as it is written, uncovers no such broad power, but only a carefully circumscribed one.
As for congressional elections, Article I, Section 4 limits Congress to the making of regulations prescribing the “times, places and manner of holding elections for senators and representatives.” As for the election of the president and vice president Article II, Section 1 limits Congress only to “determin[ing] the time of choosing the [presidential] electors, and the day on which they shall give their votes; which day shall be the same throughout the United States.” (Emphasis added.) As for the place and manner of the selection of the presidential electors, and hence the president and vice president of the United States, the Twelfth Amendment to the Constitution determines the place and, according to Article II, Section 1, the state legislatures choose the manner by which the electors are chosen. ( Bush v. Gore , 531 U.S. –, 148 L.Ed.2d 388, 2000)
Given these express restrictions upon congressional power over federal elections, it was not until the 1930s that Congress, with court approval, began to assume broad powers over federal elections, including the regulation of campaigns for the office of the president. ( Burroughs v. United States, 290 U.S. 534, 1934) At the time of America’s founding, and extending for a period of nearly 135 years, such was not the case.
As for congressional elections, Alexander Hamilton observed, in Federalist No. 60, that congressional authority was “expressly restricted to the regulation of the times, the places , the manner of elections,” and did not, for example, extend to the qualifications of voters. Likewise, Joseph Story noted that congressional authority over federal elections was explicitly confined to regulations concerning the mechanics and integrity of the election process itself, and did not extend to the integrity of government generally or the relative power of voters. ( I Story’s Commentaries on the Constitution , Section 826, 5th ed., 1891)
As for presidential elections, Hamilton noted that the detailed plan set forth in the original constitution was deliberately designed to ensure that the president would not be elected according to rules promulgated by Congress, lest the president be too dependent upon that body. ( Federalist No. 68 ) Likewise, Justice Story asserted that both the original Constitution and the Twelfth Amendment immunized the “mode of election of the President and Vice-President” from congressional regulation, limiting congressional authority only to setting the “time” of the election. ( II Story’s Commentaries , Sections 1453-75, 5th ed., 1891)
In 1892, a unanimous Supreme Court rehearsed the history and text governing the election of the president and vice president, concluding that the manner of selection of presidential electors was “placed absolutely and wholly with the legislatures of the several states” and that this “power and jurisdiction of the State” was “so framed that congressional and Federal influence might be excluded.” ( McPherson v. Blacker, 146 U.S. 1, 34-36, 1892) (See also Bush v. Gore , supra.) Because the Constitution grants to Congress no authority to regulate the “manner” of the election of the president and vice president, it follows that Congress has no authority over presidential and vice presidential election campaigns.
As for congressional regulation of the campaigns of candidates for the United States House of Representatives and United States Senate, four justices of the United States Supreme Court, in 1921, struck down a federal law limiting contributions and expenditures in congressional elections, observing:
We find no support in reason or authority for the argument that because the offices were created by the Constitution, Congress has some indefinite, undefined power over elections for Senators and Representatives not derived from [Article I] Section 4. ( Newberry v. United States , 256 U.S. 232, 249, 1921)
From this constitutional premise, these justices ruled that the “authority to regulate the manner of holding… [elections] gives no right to control” things that are “prerequisites to elections or [that] may affect their outcomes – voters, education, means of transportation, health, public discussion , immigration, private animosities, even the face and figure of the candidate….” ( Id., 256 U.S. at 257 [emphasis added]) Therefore, they concluded that Congress had authority only to regulate congressional elections to protect voters from fraud { Ex parte Siebold, 100 U.S. 371, 382-88 (1880)}, from intimidation { Ex Parte Yarbrough, 110 U.S. 660-62 (1884)} and from other acts designed to protect the integrity of the election process, as such. ( Newberry v. United States, supra, 256 U.S. at 255)
This was the original understanding, as set forth in the constitutional text and as stated by Hamilton and Story. Congressional regulation of political campaigns, beginning in the 1930′s, disregards the founding principle of limited federal authority. Instead, such regulation is based upon the assumption that Congress is a legislature of plenary power, rather than enumerated powers as stated in Article I, Section 1.
(See Burroughs v. United States, supra, 290 U.S. at 545.) Such precedents as these should be rejected, lest Congress overstep the limited authority granted to it by the sovereign people of the United States.
III. Campaign-Finance Reform Violates Separation of Powers and Federalism
Under the Constitution, Congress has no role in the manner by which the president and vice president are selected. In order to ensure the independence of the president from Congress, the electors of the president and vice president are state officers, governed exclusively by the Constitution and by state law. (See Bush v. Gore , supra.) All current campaign-finance measures, such as the Federal Campaign Act of 1971, as amended in 1974, subvert these separation of powers and federalism principles by imposing a national uniform rule governing the conduct of election campaigns for president and vice-president. They also undermine the federalism principle underpinning the limited role of Congress in the governance of elections of representatives and senators.
According to Article II, Section 1, the state legislatures, not Congress, determine the “manner” of the election of presidential electors who, in turn, are governed by the Twelfth Amendment as to the “manner” of the election of the president and vice president of the United States. The only constitutionally prescribed role for the Senate in that election process is to serve as an objective observer of the final count of votes cast by the presidential electors. The House also is limited to the role of an objective observer, unless on final count of the electors’ votes, no person achieves a majority of votes for president. Then, and only then, may the House intervene in the manner of electing a president, casting one vote per state until a candidate achieves a majority. As for the vice president, both houses of Congress are limited to serving as objective observers of the final tally of votes, except that the Senate plays the same role as the House if no candidate for vice president receives a majority.
This detailed scheme limiting the role of Congress in the manner of electing the president and the vice president of the United States was deliberately chosen by America’s founders to insulate the federal executive branch from the legislative branch in order to ensure independence of the former from the latter. As Alexander Hamilton put it in Federalist No. 68, the Constitution entrusts the selection of the president and vice president not to “any preestablished body, but to men chosen by the people for the special purpose….” The electoral college was designed, therefore, as a buffer between the people and Congress to guard against the risk of corruption of the presidency by congressional participation in the election process.
Thus, the electoral college system was designed to prevent corruption and the appearance of corruption of the offices of the president and the vice president. That system was set up in such a way as to deny to Congress any authority over the manner of selecting those two officers, leaving the selection process to be exclusively and absolutely determined by the legislatures of the several states. This delegation to the several state legislatures necessarily precludes Congress from imposing any uniform rule governing the election of the president and the vice president. (See McPherson v. Blacker, 146 U.S. 1, 1892.) By continuing the regulation of presidential election campaigns as provided for in the Federal Election Campaign Act of 1971, as amended in 1974, and by adding new regulations that extend to candidates for the presidency and vice presidency, all current campaign-finance reform measures subvert the constitutionally prescribed decentralized manner by which the president and vice president of the United States are selected.
By design and effect, such measures perpetuate the current regulations governing the selection of presidential and vice presidential electors who are, according to the Constitution, state officers, and not federal ones. ( In re Green, 134 U.S. 377, 1890) (“Although the electors are appointed and act under and pursuant to the Constitution of the United States, they are no more officers or agents of the United States than are… the people of the States when acting as electors of representatives in Congress.”); Ray v. Blair, 343 U.S. 214, 224-25 (1952) (“The presidential electors exercise a federal function in balloting for President and Vice-President but they are not federal officers or agents any more than the state elector who votes for congressmen.”) Thus, all current campaign-finance reform bills violate the principles of separation of powers and federalism protecting the independence of the federal executive branch.
Additionally, campaign-finance regulations applied to the election of members of Congress also intrude upon the power of their electors who, like presidential electors, are state officers. According to Article I, Section 2 and the Seventeenth Amendment, the qualifications of the electors of United States representatives and senators are set by state law, not by federal law. ( In re Green, supra, 134 U.S. 379; Ray v. Blair, supra, 343 U.S. at 224-25) The Constitution did not grant to Congress any power to determine the eligibility of their electors, and thus insulated those electors from having their power reduced, or otherwise affected, by their representatives in Congress.
Although no current campaign-finance reform bill sets the qualifications of electors for Congress, each one does, like its predecessors, impose a uniform system of campaign rules designed to govern the power to be exercised by citizens at the voting booth. Some of the measures, like the McCain-Feingold bill passed in the Senate and Shays-Meehan bill pending before the House, extend that uniform system, exercising power over the state, district and local committees of political parties as well as the national committees of those parties. While such laws do not change state laws governing voter eligibility, as such, they do change the power exercised by those eligible voters. Indeed, one of the stated purposes of campaign reform legislation is to “equalize” the power of citizens “to affect the outcome of elections.” ( Buckley v. Valeo, supra, 424 U.S. at 25-26) Such a purpose, however, is illegitimate. It imposes a national uniform standard limiting the power of voters to the detriment of a constitutionally prescribed system of state diversity.
In his Commentaries on the Constitution , Justice Story observed that the framers deliberately chose not to impose a standard of “equality” among the voters of the several states, but rather to accommodate a “mixed system, embracing and representing and combining distinct interests, classes and opinions.” ( I Story , Commentaries on the Constitution Sections 583-84, 5th ed., 1891) More recently, in a column published in the September 5, 1999, issue of The Washington Post, columnist George Will reminded his fellow Americans that the Constitution does not authorize one federal election, but many. All current campaign-finance reform measures disregard this decentralized federal structure governing elections to Congress and to the presidency and, for that reason, are unconstitutional.
IV. Campaign-Finance Reform Abridges the Freedom of Speech and the Press
At the heart of campaign-finance reform legislation, is the desire of Congress to eliminate even the “appearance of corruption” to the end that the people have confidence in the current system of representative government. ( Buckley v. Valeo, 424 U.S. 1, 27, 1976) At the heart of the guarantee of the freedom of speech is the prohibition against any law designed to protect the reputation of the government to the end that the people have confidence in their current governors. As seditious libel laws protecting the reputation of the government unconstitutionally abridge the freedom of speech so also do campaign-finance reform laws.
In Buckley v. Valeo, 424 U.S. 1, 27-28 (1976), the Supreme Court recognized that the contribution and other limitations imposed by the Federal Election Campaign Act of 1971 could not be justified on the grounds that they prevented only “the most blatant and specific attempts of those with money to influence governmental action.” Rather, the court found, that such limitations served a much broader purpose, namely, the prevention of “the appearance of corruption” to the end that “confidence in the system of representative government is not to be eroded….” ( Id., 424 U.S. at 27)
Since Buckley, the proponents of ever more stringent limits upon campaign contributions have emphasized that such laws are needed not to prevent actual government corruption, but to eliminate all appearances of such corruption. Indeed, these proponents have contended that the elimination of the appearance of corruption is compelling because, if the appearance is allowed to remain, people will lose faith in our current system of government and their confidence in their elected leaders, such faith and confidence lying at the heart of a healthy democracy.
This same theme has been struck by leading proponents of reform in the House of Representatives. Four years ago, House Minority Leader Richard Gephardt urged the adoption of more restrictive measures “for healthy campaigns in a healthy democracy” even at the expense of the freedom of speech. (Gibbs, “The Wake-Up Call,” Time, p. 25, Feb. 3, 1997) Representative Gephardt has not changed his mind, continuing his adamant support of the speech-restrictive Shays-Meehan bill to this day. (Mitchell, “2 Election Bills Go to the House Floor,” The New York Times , June 29, 2001) Indeed, Senator John McCain has not changed his mind either. Having urged in 1997 the enactment of a law placing limits on public policy organizations’ political advertising in the waning days of an election campaign, and thus calling off the political “attack dogs” (NBC News, Meet the Press, Feb. 3, 1997), Senator McCain is waging an all-out war to make sure that his version of campaign-finance reform passes the House. (Shenon, “House Critics Call McCain a Bully on Campaign Bill,” The New York Times, July 9, 2001) As McCain’s Democrat colleague, Russell Feingold, put it upon the introduction of Shays-Meehan in the Senate in 1999: “The prevalence – no – the dominance of money in our system of elections and our legislature will…cause them to crumble.” (Cong. Rec. S422, 423, daily ed., Jan. 19, 1999)
What these advocates of campaign-finance reform really want is to protect incumbent office holders from the people. Under the guise of preserving the present governmental structure, they support campaign-finance reform measures that are nothing more than “incumbent-protection” legislation that would make entrenched politicians even less responsive to the people. (See e.g., James C. Miller, Monopoly Politics 88-101, Hoover Inst. 1999.)
Such contentions and consequences as these undermine the foundation of America’s constitutional republic. Our nation’s continued existence – its sovereignty – is not embodied in its current system of government or in its current elected and appointed leaders. Instead, the civil sovereignty of the nation resides in the people. To preserve popular sovereignty, the First Amendment secures to the people the freedom of speech, which, in turn, protects the people from any legislation the purpose of which is to preserve the current government and its leaders.
Twice in America’s history, the sovereignty of the people came under direct attack from Congress. Both times the attack came in the form of laws prohibiting “seditious libel” (writing or speaking in such a way as to bring the government into ridicule or disrepute), and thereby threatening the current system of government and its leaders. Finally, in 1964, the United States Supreme Court put an end to seditious libel, ruling that the freedom of speech guarantees a nation in which “debate on the public issues should be uninhibited, robust and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” ( New York Times v. Sullivan, 376 U.S. 254, 270, 1964)
Had the court applied the same standard to the Campaign Reform Act of 1971, that law, too, would have been cast into the dustbin of history. For, campaign-finance reform laws – like seditious libel laws – exist solely to protect the present government and her leaders from the people. While this goal may be permissible in England where the Parliament embodies the sovereignty of the nation, it has no place in America where, as James Madison put it in the 1800 Virginia Resolutions in opposition to the Alien and Sedition Act of 1798, the “people, not the government, possess absolute sovereignty.”
Campaign-finance reform also constitutes a direct attack on the First Amendment freedom of the press. By giving politicians and their appointed bureaucrats the right to decide what the people can say about them in the heat of an election campaign, as McCain-Feingold and Shays-Meehan do with respect to issue advertising in the closing weeks of a campaign, these so-called reformers reject the very idea of a republican form of government, granting to the government “censorial power over the people,” instead of preserving the censorial power of the people over their government. (See New York Times v. Sullivan, supra, 376 U.S. at 275.)
Such intrusions into the campaign process put the government into the role of editor of campaign literature, a role that is absolutely forbidden to the government by the freedom of the press. ( Miami Herald Tribune v. Tornillo, 418 U.S. 241, 258, 1974) Indeed, if the Supreme Court would apply the same principle to election-campaign literature that it has applied to election editorials and stories carried by newspapers, all campaign-finance reform legislation would be clearly unconstitutional. Not only do all campaign-finance reform measures transfer editorial control over an election campaign from the people to the government, but they also continue the unconstitutional licensing system of the Federal Election Commission established by the Federal Election Campaign Act of 1971. In order to engage in a campaign for federal office, a candidate must register and report to the commission. Anyone who does not meet the commission’s registration and reporting rules is denied the right to participate and is subject not only to civil and criminal penalties, but to an injunction. Such a regulatory scheme strikes at the very heart of the freedom of the press which, as Sir William Blackstone wrote in 1769:
The liberty of the press…consists of laying…no previous restraints on publications…. Every freeman has the undoubted right to lay what sentiments he pleases before the public: to forbid this is to destroy the freedom of the press.
(IV W. Blackstone, Commentaries on the Laws of England 151-52,1769 [emphasis added])
Campaign-finance reform, then, is not progressive, but reactive, turning the clock back to the days of the English Star Chamber that enforced the King’s rules governing the conduct of elections for the ostensible purpose of keeping his realm free of moral and political corruption. ( Sources of Our Liberties 130, 242, Perry, ed., American Bar Found., 1978) A free nation may only be preserved when the people have the liberty of the press to censor their own speech about the government and about candidates for governmental office, not when the government has censorship power of the people, as campaign-finance reform inevitably dictates.
V. Campaign-Finance Reform Abridges the Right of the People to Assemble
The right of the people to assemble is the right of the people to associate freely together to consult for the common good, subject only to the requirement that their association be “peaceable.” Any law that is not designed to keep the physical peace of the community is, therefore, unconstitutional. No campaign-finance reform measure has ever been designed to keep the “physical peace”; rather, each is designed to keep the “political peace;” a constitutionally impermissible goal abridging the right of the people to assemble.
Since Watergate, Congress has been scrambling to “purify” the political process in order to restore public confidence in the federal government. Campaign-finance reform has been one of the centerpieces of this purification effort. Two central goals have dominated this reform effort: (1) to limit the amounts that any one person or entity may contribute to an election campaign; (2) to force disclosure of the identity of those contributors. Both of these aims violate the First Amendment right of the people to assemble.
At the heart of the right of the people to assemble is the right of the people to choose how they are going to associate with one another “for the ‘common advancement of political beliefs.’” ( Democratic Party v. Wisconsin, 450 U.S. 107, 121-22, 1981) This right extends to associations of people for the purpose of electing persons to federal office who share those political beliefs. ( Buckley v. Valeo, 424 U.S. 1, 57, 1976) Indeed, as Justice Clarence Thomas recently observed: “Political associations allow citizens to pool their resources and make their advocacy more effective and such efforts are fully protected by the First Amendment.” ( Colo. Rep. Fed. Camp. Comm. v. FEC, 518 U.S. 604, 135 Led2d 795, 818, 1996, Thomas, J., concurring in the judgment and dissenting)
Had the Supreme Court applied this principle consistently in its review of the Federal Election Campaign Act of 1971, it would have held that the individual contribution limits of that act violated the constitutionally guaranteed freedom of association. As Justice Thomas has pointed out: “If an individual is limited in the amount of resources he can contribute to…a pool, he is certainly limited in his ability to associate for the purposes of effective advocacy.” ( Id., 135 L.Ed.2d at 819) Instead, the court has attempted to distinguish between “issue advocacy” – where the right of the people to associate must remain unfettered – and “express advocacy” for or against individual candidates – where the right of the people to associate may be limited.
Both McCain-Feingold and Shays-Meehan exploit this distinction in their attempt to muzzle political advertisements in the final weeks of an election campaign, claiming that issue advocacy becomes express candidate advocacy when conducted during the crucial weeks before election day. In so doing, both bills seriously undermine the people’s right to choose for themselves how they will associate to advance or defeat certain measures or to promote specific principles of public policy. Constraining the people who speak out on the issues in conjunction with an election campaign may make for a more “orderly” political process, but people are not horses or mules to be hooked up to the political bandwagons of government-subsidized incumbent politicians. Additionally, limits on so-called “soft money” to political parties are really designed to place incumbent office holders in control of the political parties whose name they sport. By placing controls on how political parties may raise and spend money, “independent” politicians like John McCain seek to transmute America’s political parties into political eunuchs, impotent to affect the outcome of any election.
Compounding these intrusions upon the people’s right to choose how and with whom they will associate to advance their political agenda, all campaign-finance reform measures depend upon forced disclosure of the names and addresses of even the smallest contributor to an election campaign. Such required public disclosure hearkens back to the days when the English monarchy required the publication of the names and addresses of all printers of all publications circulated throughout the realm. Requiring disclosure of the names of contributors to federal election campaigns departs from an American tradition and practice that dates back to the founding of the nation and from a long line of cases affording constitutional protection of anonymity in associative relationships. ( McIntyre v. Ohio, 514 U.S. 334, 1995; NAACP v. Alabama, 357 U.S. 449, 1958) Forced divulgence of the names of contributors to federal election campaigns exposes people not only to retaliation by employers and union leaders, whose political choices are not the same as their employees and their members, but it also exposes people who support challengers to the inevitable cold shoulder of a re-elected incumbent. ( Buckley v. Valeo, supra, 424 U.S. at 237, Burger, C.J., dissenting)
Keeping the political peace, as campaign-finance reform is designed to do, exacts a high price, costing the people their precious liberty of choosing how much energy and resources they wish to devote to politics. While full freedom of association, including anonymity, risks corruption of the political process, nothing is more corrosive of that process than placing election campaigns in the discretionary hands of unelected bureaucrats. (Miller, Monopoly Politics 95-100, 1999)
VI. Conclusion
Campaign-finance reform is truly a wolf in sheep’s clothing. Promising reform, it hides incumbent perquisites. Promising competition, it favors monopoly. Promising integrity, it fosters corruption. Real campaign-finance reform calls for a return to America’s original constitutional principles of limited and decentralized governmental power, thereby preserving the power of the people.
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