Should Bush evaluate Campaign Finance Reform's Constitutionality?

Great Debates
1

IMHO the President took an oath to support the Constitution, so he must veto legislation that he believes is unconstitutional. Ditto for Congress. He should veto CFR, which blatantly violates freedom of speech. (No ads by various citizens during 2 months before a general election, etc.) And, Congress ought not pass it.

The opposing POV is that the Supremes determine Constitutionality. Congress and the President should pass whatever laws they think are useful, and leave it up to SCOTUS to over-rule them. To me, this smacks of a process crudely known as “shovel s–t against the wall, and see what sticks,”

A third possible POV would that McCain-Feingold is Constitutional. Many, including the NY Times pay lip service to this idea.:confused:

2

I think that it will pass, despite attempts at a fillibuster by republicans, because the majority of americans want to see this happen and the politicians know that.

3

“Lip service”? Give me a break, december. Go to Findlaw and look up Buckley v. Valeo and Nixon v. Shrink Missouri Government PAC, then explain why you apparently think anybody who disagrees with your perspective is lying about their true beliefs.

4

:shrug:

I think the President should leave the evaluation to the Supreme Court.

5

Oops, hit submit too soon.

While I agree that the “see what sticks” argument has soem merit, I find it equally silly to use possible unconstitutionality as an excuse to veto. If he wants to veto it, he should veto it–for his own reasons. If it gets him into hot water, oh well. That’s where the buck stops. Determining constitutionality is not his job, and is a flimsy and IMO wussy excuse for a veto.

6

:rolleyes:

I’m on a roll today. No only did I misspell “some,” it was not even the word I intended to use.

The “see what sticks” approach has little merit.

7

Absolutely, both Congress and the President should make a determination about constitutionality before passing or signing a bill. There are two problems with not making such a determination.

First, it abrogates to the judiciary the role of legislating. In almost any bill, some parts are going to pass constitutional muster and be upheld. But it will be left to the courts to determine their effect and relation to the rest of the bill in the absence of the unconstitutional portions.

Second, it breeds distrust and dislike of the Courts. It’s like a parent saying to a kid “It’s fine with me, but Mom will make the final decision” knowing Mom will say no.
Congress avoids the public disapproval of not passing an unconstitutional but popular bill, sticking the approbium on a court system that didn’t ask for it.

The balance should be whether the unconstitutionality is reasonably clear. In the case of campaign finance reform, as Minty pointed out with his citation to the relevant case law, the question is, at the least, open - so Bush should veto, if he is going to veto, because he doesn’t like the bill.

On a side note - December, since you are so bold in casting us who assert that campaign finance reform is constitutional as hypocrites and liars, kindly provide the case law on which you base your accusation, and explain to us how you interpreted said case law - including the relevant standard of review, the maxims of statutory and constitutional interpretation you applied, how the current reform bill is not distinguishable on the facts or the law from prior campaign funding bills struck down, etc.

Either that, or take a flying leap. Personal, unfounded attacks are not allowed in this forum.

Sua

8

It just wouldn’t be the SDMB without a december post… :rolleyes:

9

No, this is not “abrogat[ing] to the judiciary the role of legislating.” Because that is not what the judiary does. The legislative branch (Congress) creates the law; the judicial branch (the Supremes) interpret the law. More exactly, they test new laws (and cases) against the Constitution. In case of a tie, the Constitution wins. The executive branch (the Prez) is mainly supposed to enforce the law. “Constitutionality” (is that a word) is not in his job description.

To paraphase Jack Nicholson Chinatown, “Mrs. Mulwray, they aren’t in business to be liked…but they are in business.” Public opinion should not enter into the Supreme’s consideration of constitutional matters. Hell, what do they care, it’s a lifetime appointment. As for your “Mom” example, it sounds like Mom might be a higher authority. The Supremes aren’t higher, they just have a different responsibility than the Congress or President.

Now, that said…I wouldn’t trust Bush to evaluate a bottle of aspirin…:smiley:

10

The word might not be in his job description, but the Constitution is fundamental to the President’s job. (as it is to Congress and the Supremes.)
They have to consider constitutionality when they act. Why even write down and publish rules if only the Supremes thought about constitutionality? Rules are published so the other two branches can act in a constitutional manner.

december, do you have any examples where people actually suggest that Congress and the President ignore consitutionality and just leave it up to the Supremes to decide?

11

Claiming, flat out, that the campaign finance reform bill (that, as far as I know, is still languishing on the table in the Senate) is unconstitutional is silly. Yes, it contains provisions that raise concern. But First Amendment law is an area that is especially resistant to brightline rules. Even if you have a good argument that it’s unconstitutional under current law doesn’t mean it’s unconstitutional: the Supreme Court can always change the law. Many people think they should in this area. To me, at least, the idea that giving someone money equates to a speech act is absurd. And I have a lot of sympathy toward the notion that, at least in the area of political speech, the government can take affirmative action to protect impoverished speakers from being drowned out by the sheer weight of speech from wealthy speakers is not inherently incompatible with free speech.

The restriction on not running certain types of ads during a set period before an election can reasonably seen as a time, place, and manner restriction just as the longstanding law against political speech within 50 feet of a polling place is a time, place, and manner restriction that withstands constitutional muster. I’m not saying the Court will view it that way, but it’s a reasonable argument.

There is one valid reason for a President to veto a bill: because he believes that the bill is not in the best interests of the country. If he believes the bill is likely to be found unconstitutional, but is nonetheless in the best interests of the nation, he should sign it and order the Solicitor General to vigorously defend the law in court. If the bill truly is unconstitutional, though, either it really isn’t in the best interests of the nation, or the Constitution needs amending. And in the latter case, the proper response is to recommend to Congress that they initiate the process of amending the Constitution, perhaps even in his veto message.

12

CaptMurdock, it seems you missed my points.

As for my concern that the passage of unconstitutional laws may force the courts into a legislative role, your statement of the roles of the legislature and the judiciary is not a response. The point that I made is based on two judicial requirements: (1) if possible, courts should interpret laws so that they will be constitutional; and (2) courts should interpret laws so that they make sense. Thus, faced with an law in which sections are plainly unconstitutional, courts will be required to interpret the remaining sections in a way that makes them constitutional and determine their new relationship to any other constitutional provisions of the same bill. In effect, the courts would be required to substitute their intent for Congress’. Thus “legislating”.

BTW, your statement that “constitutionality is not in [the President’s] job description” is patently false. The President’s job is to “preserve, protect and defend the Constitution of the United States.” That includes protecting it from unconstitutional laws.

In a way, this whole argument is pretty silly. If there was a bill in Congress to prohibit anyone over 30 from voting in a federal election, I really doubt any of you would be saying "well, if the concern is constitutionality, Congress should pass the bill and the President sign it, and we’ll let the courts overturn it.

As for my second point, you got it backwards. I said nothing about the courts making decisions based upon popularity; in fact I said the opposite - Congress and the President should not force the courts to make un[/]popular decisions just to avoid having to make them themselves.

The point is that the authority of the courts in the American system ultimately relies upon the respect of the people for the courts. The courts have no authority to enforce their own rulings. In the Nixon tapes case, for example, had Nixon refused to turn over the tapes, who was going to force him? The FBI? The US Marshal Service? They all reported to him. He complied because the US people would not contenance such a defiance of the Supreme Court.

But this respect is a fragile thing. If the courts, through the irresponsibility of Congress and the President, were continually forced to overturn popular but unconstitutional laws, the “resivoir of trust” for the courts (as it is often called) may be put in danger.

Sua

13

Do you disagree with the notion that they can have the same effect?

The Constitution is law. It is therefore in his job description to enforce it by vetoing unconstitutional laws.

He was not arguing that it should into the Supreme’s considerations; he was saying that it should enter into the consideration of Congress and the president.

How so?

KellyM

So because there’s disagreement as to whether this is unconstitutional, the position that it is unconstitutional is invalid? This sounds a lot like “People disagree with you, therefore you’re wrong”.

They can? Cite?

And attacking straw men is, to me at least, absurd. It is not that giving money is speech; it is the other way around. According to this bill, paying for speech equates to campaign contributions. Equating speech to money and then banning money strikes me as blatantly unconstitutional.

If you infringe on people’s speech, then that’s not free speech. By definition.

I’d like to see a citation of the decision you are alluding to. Whatever the specifics, these are hardly in the same league. Restricting speech in a specific place during a specific event is quite different from restricting speech everywhere during no specific event.

As a footnote, I’d like to ask that people refrain from putting words in december’s mouth. All he said was that NY TImes and unspecified others pay lip service to the idea that it is constituional. He never said that everyone who disagrees with him pays lip service to it.

14

Just when it was starting to look as if December had outgrown trolling, he comes up with something else cut-and-pasted from a Wall Street Journal editorial, run through Paraphraser.com or such, and presents it as original, unbiased thought.

As minty pointed out, there are precedent cases that show the lack of effective funding restrictions to be a First Amendment violation. Perhaps the claim that the anti-Republican-favoritism bill he’s so upset about is unconstitutional is itself “lip service”, from the usual down-the-line partisan sources he so credulously takes as unfiltered fact and objective reason.

15

I just reviewed Buckley v. Valleo. As I thought, it deals with whether campaign donations are “speech”. At a quick glance, “Nixon v. Shrink Missouri Government PAC” also deals with that question. I agree with Sua and minty that this question is open.

However, as I said in the OP, the patently unconstituional aspect of M-F is the barring of certain advertisements directly by various groups 60 days before a general election and 30 days before a primary. Amendment I says

Certainly advertisements are a form of speech. And, M-F specifically abridges the things that various organizations can say during the period before an election. E.g., during this period, Planned Parenthood couldn’t run an ad saying, “Vote against Jones; he’s pro life.”

Furthermore, there are court decisions holding that political speech has the highest degree of protection – higher than, say, commercial speech. So M-F is a particularly flagrant violation of free speech. YMMV

I did not use the words,“hypcrites” or “liars”. The words “lip service” are not a personal attack, especially since no persons were even named. How about an apology?

rjung

rjung, this debate is a dramatic change from same old, same old. Here I am now supporting the ACLU position, while SuaSponte and minty green oppose it. We have switched sides! :eek:

16

Good question. During the campaign, Bush said that he considered M-F to be unconstitutional. Now, he reportedly intends to sign it. So, Bush seems willing to ignore Constitutionality and just leave it up to the Supremes.

17

december, I think a good question for another debate is whether there would be any political pundits left if politicians ever developed a reasoned consistency.

I do hope Congress and the President consider whether their actions are consitutional before they take them. The Supremes are more of a failsafe - they aren’t supposed to the the first people to ever think about whether something is constitutional.

18

To quote your idol, “There you go again.”

I said not one word in favor of McCain-Feingold. In fact, it contains a mixture of good and bad provisions that leave me feeling quite ambivalent overall. What I got on your case about was your unsubstantiated assertion, easily contradicted by the relevant case law, that your favorite whipping boys are merely paying “lip service” to the notion that the bill is constitutional.

If you want to debate the merits of McCain-Feingold in a reasonable, rational manner, it would probably be best not to start by calling anyone who disagrees with you a dishonest sonofabitch. Yet that is precisely the effect–and, I believe, a calculated effect–of your OP.

19

I disagree. I think perceived unconstitutionality is perfect grounds for a veto, even if that view is unsupported by case law. I think that each of the three branches of government has a duty to make independent evaluations as to the constitutionality of Acts of Congress.

This would, in fact, have the beneficial effect of bringing a measure of common sense to constitutional interpretation. Consider the commerce clause. Lots of federal action has been enabled by an ever-elastic and definition of what is “interstate commerce” (recent cases such as Lopez notwithstanding). The basic problem is that the judiciary cannot formulate a rule that works cleanly; things that, according to most people’s gut instinct is in no way “interstate commerce” are found to be such because there is no rigorously-logical way to exclude them from the things that people intuitively understand to be “interstate commerce.”

Thus we get Wickard v. Filburn-type cases; since the interpretive rule is that the thing regulated must “affect commerce,” and since a farmer growing wheat for personal use impacts, in a miniscule way, the price of wheat (or would if, hypothetically, every farmer grew wheat for personal use), such personal-use growth can be regulated by Congress.

The logic underlying Wickard is sound enough, but most people understandably cry “bullshit” when they hear it.

Independent constitutional review without regard to judicial precedent of a bill by Congress before passage and by the President when considering a veto would have the benefit of allowing the government to cry “bullshit!”

Just because the judiciary is the last line of defense for the Constitution does not mean that the other two branches have nothing to contribute to the evaluation of the constitutional merits of a piece of legislation. To tie the non-judicial branches to the requirements of precedent strips them of the ability to make such a contribution.

N.B.: I am only talking about legislation not yet enacted. Obviously, once Congress has passed a bill and the President has signed it, only the judiciary can pass on that law’s constitutionality (though repeal legislation could certainly make the evaluations described above).

20

You never give it up, do you? Here’s what Merriam-Webster has to say about “lip service”

IOW, “hypocrites” and “liars”. Now, of course, investigation of the term “lip service” demonstrates that you used the term incorrectly - what deeds are people like me failing to perform that would demonstrate our belief that the reform is constitutional?

Where does this leave us? I see two possibilities. First, you have little to no command of the English language, and you thought you were paying us a compliment. Your incorrect use of the phrase lends credence to that view. If you intended to compliment me, you have my thanks and apologies.

However, the other possibility is that you were calling me a hypocrite and a liar. Worse, you did so based upon no evidence - you looked at the relevant case law after you made the accusation, and you admitted that the question was open.

If the second is the correct interpretation, my invitation stands.

Dewey, point taken, and I’m in agreement. My concern is that the other two branches of Congress should not use a dubious assertion of unconstitutionality as cover for an unpopular act.

Sua

Sua