Bush “head fake” results in major victory for statism

Among other things, the McCain-Feingold law forbids organizations from running ads close to the time of an election that mention a particular candidate. President Bush last year signed this manifestly unconstitutional bill, on the cynical assumption that the Supreme Court would find it unconstitutional, thus sparing Bush himself the trouble of vetoing it. That way, Bush and his advisor Karl Rove’s evident reasoning went, the president would avoid a fight with the Democrats (something he’s genetically, compulsively always eager to do), yet cause no real damage to the Republic. Well, surprise, surprise. In a shocking decision, the judicial-activist majority of the Supreme Court (four liberals plus O’Connor) has found that McCain-Feingold passes constitutional muster. That Bush signed this outrageous law will go down as a shameful mark on his presidency, along with so many others.

Posted by Lawrence Auster at December 11, 2003 07:12 AM | Send

I heard an interview with Mr. Bush, (in 2000 before the election I believe,) where he was asked specifically about this legislation and the anti-speech provisions. He replied that this was obviously unconstitutional and that he would therefore never sign it while it included such provisions.

And then he signed it.

Posted by: Joel LeFevre on December 11, 2003 11:00 AM

Signing this legislation is an example of the Country Club Republican in action. Note O’Connor’s support gave it the majority on the Court. In the same vein, look for GWB to issue an executive order legalizing all illegal aliens in the fall of 2004. Don’t be surprised if he does this. The CCR likely do more direct damage than the neocons. They are the ones who hold the levers of power in their hands.

Posted by: David on December 11, 2003 11:57 AM

David wrote,

“The [Country Club Republicans] likely do more direct damage than the neocons. They are the ones who hold the levers of power in their hands.”

Change the word “likely” to “definitely” and this is the absolute truth. What a group of clueless, amoral, destructive people, who are positively the worst kind of philistines to boot — they have no culture, no respect, no brain, no love, no hate, no nothing. They have only golf, the stock market, and the rest of their utter zeroness which turns me off almost more than the mischief of the left — at least some of the leftists have a few synapses between their ears.

Posted by: Unadorned on December 11, 2003 12:39 PM

As Bismarck once noted, the people should not see their laws or their sausages being made. After Republicans had gotten beaten up for years by Democrats on the campaign finance issue, Bush called their bluff. He got an expansion in hard money, where he outraises them 5 - 1. He cut off soft money, with the result the democrat party apparatus no longer controls its own financing. Funds are raised “independently” by the likes of George Soros and others who may be considerably out of touch with party professionals, and beyond their control. The public appeal of these activities is likely to be very low. Democrats can now be, and surely will be, portrayed as financed by rich crackpots with agendas - hardly the party of the people. If the US Supreme Court fails to protect the First Amendment, then the lesson is Bush and those who support him in Congress should be strengthened so as to get the right sort of judges confirmed. All this is very smart politics, as unappetizing as it is as a matter of “standing for principle.” Similarly with the prescription drug business - Bush has put his foot in the door for the only kind of reform that can ever prevent these programs from becoming a complete financial disaster - privatization. By getting an initial plan enacted, he has made the Republicans into what they never, players on social security - medicare, once viewed as the exclusive preserve of the Democrat party.

Posted by: thucydides on December 11, 2003 1:11 PM

Thucy’s point on medicare is interesting, but his argument on the cleverness of Bush’s strategy on campaign finance is too smart by half for my poor brain. How can Bush make the Supreme Court’s validation of an unconstitutional bill THAT BUSH HIMSELF SIGNED INTO LAW an argument for more conservative judges?

And that’s another “Unadorned” smash shot.

Posted by: Lawrence Auster on December 11, 2003 3:20 PM

That’s a very fine comment by Unadorned! Maybe we should starting thinking of the CCR’s at the “Eloi” of the USA.

Posted by: Carl on December 11, 2003 4:03 PM

The Campaign Finance bill that Bush signed had many provisions. The hard money increase was enormously important to Republicans. It was not exactly predictable that the increasingly erratic Sandra Day O’Connor would suddenly decide that speech criticizing government could be banned, after previous Supreme Court cases coming down hard on free speech issues in areas of less importance - See Taranto’s Best of the Web at Opinion Journal for today. In any case, the Democrats didn’t want a bill, they wanted an issue - Bush gave them a very unpalatable bill. Politics is the art of the possible. Bush is now able to raise enormous funds to flood the airwaves and possibly score a big victory with coattails. All it will take is one decent appointment to the court to minimize or reverse this 5 -4 decision. This was similar politics to the lavish farm bill or the steel tariffs, both offensive in principle to Republicans. With only a thin margin of control of Congress, Bush could not afford to be demagogued into losing that body. The farm bill saved seats in the Midwest where they are very conservative - except when in comes to farm subsidies. Tariffs probably saved 5 - 7 Congressional seats in Pennsylvania and Ohio. Now they are gone (even when they were in effect, they reportedly had many loopholes). Bush has systematically deprived the Democrats of all their demagoguable issues for 2004. Politics is the art of the possible, not a forum for intransigent stands on principle, unfortunately. If you lose your position, you can’t accomplish anything. The opposition tries to force you to do things to split your base or inflame theirs against you. Bush has taken up the challenge and at the price of annoying his own purists, has put the Democrats behind the 8 ball. As I said earlier, politics is not a pretty sight.

Posted by: thucydides on December 11, 2003 5:28 PM

I don’t buy Thucy’s argument. The strategy he describes and endorses amounts to becoming a leftist in order to “win” against leftists. I think this kind of hyper-strategizing, which is so common today, and which its proponents think of as the height of political smarts, is a symptom of a society that has lost its way. As an example of what I mean, Thucydides goes so far as to describe opposition to a GROSSLY UNCONSTITUTIONAL bill as a “purist” position that must be abandoned in the name of mature, grown-up realism. In my view, such realism is indistinguishable from nihilism.

Posted by: Lawrence Auster on December 11, 2003 5:42 PM

Query whether it is the function of the president to determine constitutionality of legislation. The problem is primarily with the court, not with Bush. In this case, Bush signed a bill with one provision of dubious constitutionality intended by his opponents to be veto bait. There is quite properly growing dismay over the court’s action, even among people who are not counted among Bush’s supporters. This dismay is heightening concern over the issue of judges playing unelected legislators, already growing as a result of other decisions, e.g. the Massachusetts gay marriage decision and the sodomy case (Lawrence). My view is that in politics you pick only the fights you can win, you concentrate on a few important issues, and if you have to give ground elsewhere tactically, so be it. As I said, the decision on free speech would be quickly reversed with even one sound appointment to the court. This is in no way “abandoning” the position that the decision is bad, just choosing a more strategic approach that doesn’t fight every skirmish offered by the enemy, in the interests of prevailing in the larger sphere. In my view, Bush is skilfully moving to position the Democrats’ judicial obstructionism as a big political loser.

Posted by: thucydides on December 11, 2003 6:23 PM

Well, it’s an interesting argument by Thucydides, but I still don’t buy it. I just see the statism and the Nietzschean federal and state courts getting more outrageous month by month.

Also, it is absolutely a president’s or a legislator’s responsibility to say, I will not sign/vote for this legislation because it is unconstitutional. The notion that only the Court can make a determination as to the constitutionaliity of a bill is another fantasy growing out of the modern liberal worship of the Supreme Court. No. ALL three branches of our government are responsible for what they do. The idea that a president should sign a bill he believes to be unconstitutional in order to pass the responsibility for that judgment to the Supreme Court is completely wrong in my opinion.

Posted by: Lawrence Auster on December 11, 2003 6:40 PM

The full decision can be downloaded in PDF here:

The ‘decision’ is actually a compendium of decisions on various parts of the law, or so it seems, with different justices writing the Court’s opinion for this or that provision. It is, in a word, a _mess_.

I had to use the link provided by Ron to do word searches to get to the right places:

The apparent absence of outrage over this is not a little disconcerting. The media seems to be mentioning it in passing and then moving right along. But then why should they be concerned? THEY aren’t affected by it. Yet.

Posted by: Joel LeFevre on December 11, 2003 7:03 PM

The capacity for outrage is gone, except maybe the leftwing kind. Once a society has surrendered the capacity to make moral and intellectual judgments, it has surrendered it. That this had happened became manifest during the Lewinsky scandal, when a majority of the people said, “Everyone does it.” Once a majority of the country had said this in their souls, it was as though they had cut out the organ of moral judgment from their own bodies. And from that moment on, ANYTHING became possible.

Posted by: Lawrence Auster on December 11, 2003 7:14 PM

I agree with Mr. Auster, but I had somehow been deluded into thinking that Americans still care about their fundamental liberties. Yet this is apparently not the case. I’m not sure how to say this, but it seems that in trying to throw off moral responsibility Americans are willing to concede rights accordingly. This surprises me. There is a major lesson here.

Posted by: Joel LeFevre on December 11, 2003 7:25 PM

I would say to Mr. LeFevre that the will or capacity to defend something that is morally right is no different from the will or capacity to defend a constitutional or natural right. Lose one, lose the other. And once they’re gone (especially when we’re speaking of the character of a whole society), there’s no simple way to get them back.

I just came upon an essay written in the mid ’60s by Frank Meyer, one of the main intellectual forces at the original National Review, which I think illuminates this problem:

“The very circumstances that call conscious conservatism into being [i.e., the loss of the tradition of a civilization] create an irrevocable break with the past. The many complex aspects of the past had been held together in tension by the unity of the civilization. But that particular tension, that particular suspension in unity, can never be recreated after a revolutionary break.”

[“The Recrudescent American Conservatism,” in American Conservative Thought in the Twentieth Century, ed. W.F. Buckley.]

This describes very well what has happened. There is a particular structure of the soul and society, held together by moral and spiritual forces. Once that tension and the structure it held together have been broken, they cannot be simply recovered by some return to the past. That’s the bad news. But there is good news, too, which has to do with the mission of conservatism as Meyer describes it: “the vindication and renewal of the civilizational tradition as the fundament upon which reason must build to solve the problems of the present.”

Posted by: Lawrence Auster on December 11, 2003 8:17 PM

The statements quoted appear contradictory. What is the civilizational tradition?

Posted by: P Murgos on December 12, 2003 8:26 AM

I think what Meyer means is that the past cannot be restored in literal terms. But the tradition still serves as the basis for what we attempt to build in present circumstances.

And really, this is what has happened over and over in the history of Western culture and its antecedents. The moral ethos and institutions of the Roman republic had broken down, perhaps irretrievably, by the end of the time of the civil wars; yet Augustus not only maintained the political unity of Rome, he successfully strove to restore many traditional attitudes and moral values though under new circumstances, and so kept Roman culture and civilization alive. We could find many other examples of restoring the essence of a tradition under changed circumstances.

Posted by: Lawrence Auster on December 12, 2003 9:03 AM

Excellent points, Mr. Auster, in drawing on the always vigorous and competent Frank Meyer. What real conservatism needs so desperately is creative, energetic minds: men of vision and faith. There is a famous old George Gilder book _Wealth and Poverty_ where he defends the capitalist as the creator, the man of faith whose enterprise is almost an act of charity, because he can never know if his invention, idea, innovation, will be profitable.

The same is true, I think, of great minds. I keep bringing up Saint Augustine, because his circumstances seems so similar to ours: the decay of a once-vibrant civilization, the external threat (9/11 as the sack of Rome). But out of the ruins, Augustne became a profound creative force.

Posted by: Paul Cella on December 12, 2003 9:31 AM

The American Spectator ran an article of mine on the campaign finance Court ruling:


Posted by: Paul Cella on December 12, 2003 9:32 AM

Compliments to Mr. Cella on his superb article over at American Spectator!

Posted by: thucydides on December 12, 2003 4:39 PM

Thanks, Thucydides!

Posted by: Paul Cella on December 12, 2003 5:56 PM

Double plus compliments to Mr. Cella. Moreover, Tocqueville is often so insightfull that it forces one to suspect he was divinely inspired.

Posted by: P Murgos on December 12, 2003 11:10 PM

And thanks to you, Mr. Murgos.

I have another essay up at TCS:


Posted by: Paul Cella on December 13, 2003 7:39 AM

Riveting words on this today from Richard Poe: these aberrant judgements force one to conclude that one or more members of the Supreme Court is/are either bought or is/are bending to some behind-the-scenes pressure or threat:

“Like so many well-meaning conservatives, Mr. Neumayr ascribes to the [Supreme] Court such innocent motivations as soft-headedness, poor taste, wobbly convictions and ignorance of Constitutional law. I fear, however, that the truth is worse than that. I am forced to conclude that the Court is corrupt. Someone appears to be leaning on these justices — or at least on certain ones — wielding the sorts of threats and bribes that characterize political persuasion in banana republics, such as America is fast becoming. I can conceive of no other explanation for what happened on Wednesday.”


There’s also this very sobering companion entry by Poe, entitled “The End of Free Speech”:

“What happened on Wednesday is a media coup d’etat. The Supreme Court granted to a handful of media conglomerates what amounts to a government-enforced monopoly on political speech during election season. […] This is it, ladies and gentlemen. if you don’t know where you stand on this issue, you’d better decide fast. It’s five minutes to midnight, and the clock is ticking.”


Posted by: Unadorned on December 13, 2003 2:46 PM

Two points on Mr. Cella’s article on TCS:

“One thinks of Acton, hardly a relativist, and considered by many to be the most learned man of his age — who failed to ever write a magnum opus in the pattern of Gibbon and Macaulay because his own scrupulosity and humility encumbered him.”

I understoon that Lord Acton had certainly intended to write a history of liberty, for which he spent 40 years researching and preparing. Isn’t it possible that he just died too soon?

“… Yet I find that I cannot bring myself to dislike Richelieu.”

I don’t seem to have much problem disliking him. But then how much evil must one be responsible for to be disliked? Justifications seem to abound for nearly every tyrant, depending on one’s philosophical, political, or religious sympathies.

Posted by: Joel LeFevre on December 14, 2003 4:06 PM

Acton did write two profound and immensely learned essays toward the end of his career, which constitute the skeleton, so to speak, of his projected great work. These two are “The History of Freedom in Antiquity” and “The History of Freedom in Christianity.” Happily, both are available online, and I have linked to them below.

My understanding is that the limitation on Acton was not death, but his own scruples and reticence.

Certainly there are very good reasons to dislike Richelieu, and I begrudge no man his dislike; I merely reported my own, somewhat strange, reaction to reading about him.


Posted by: Paul Cella on December 14, 2003 5:04 PM

Thanks much to Mr. Cella for those links. I had only heard of the compilation “Essays on Freedom and Power.” But I only recently was pointed to his work. Glad to see that more of his material has been made available.

As to your reply on Cardinal Richelieu — fair enough. :-)

Posted by: Joel LeFevre on December 14, 2003 5:27 PM

Now would be an excellent opportunity for Bush to assert the right of the President to interpret the Constitution and perhaps greatly reduce the runaway oligarchy the U.S. Supreme Court thinks its part of. There were the two lower court decisions this week gracing two bloodthirsty terrorists with trial in civilian courts. The President could sign an executive order forbidding trial in the civilian courts and whisper to the Supreme Court through tactful channels that he would ignore rulings to the contrary. The Court is begging to be ignored, and the Court could easily save face by overturning these decisions using its political question doctrine or using its national security doctrine. National security is the Courtís biggest risk for a waterloo.

Posted by: P Murgos on December 19, 2003 10:51 AM

Apart from any question relating to the rulings Mr. Murgos mentions (in his post today of 10:51 AM) regarding trials of terrorists, which I haven’t read up on yet, I see NO reason to hope this president will ever oppose the sorts of Supreme Court outrages that have turned friends of VFR so livid. I stopped expecting decency and sense from Bush and Rove a long time ago. To a born-and-bred Country Club Republican like Bush and a CCR wannabe like Rove, what VFR stands for might as well have fallen off the flying saucer outbound from the planet Neptune. They wouldn’t even know what Mr. Murgos was talking about, and CERTAINLY they couldn’t care less.

Posted by: Unadorned on December 19, 2003 12:59 PM

Mr. Murgos’s makes a well-intentioned point, but one clause in his opening sentence points to its flaw:

“… the runaway oligarchy the U.S. Supreme Court thinks its part of.”

The Court IS a part of the oligarchy which is reenforced by mutual winks and nods among the 3 branches. The 3 no longer constitute ‘checks and balances’; functionally they are co-conspirators, engaged in a sort of quid-pro-quo arrangement whereby each contributes in its own way to an increasing and encroaching centralization and consolidation of usurped power.

The Court’s misdeeds are legendary in its own right of course, but Congress is no less out of control. It were enough that it has stretched the Commerce Clause, among others, beyond any rational limit; today it hardly even bothers to search for a mockery of pretense to legislate in areas far beyond the powers granted in the Constitution.

And which President hasn’t exceeded his legitimate authority in the past century? Whether it’s President Eisenhower sending troops to Little Rock and federalizing the AR militia with no Constitutional basis, or President Clinton bombing the Serbs or torching the Branch Davidians, this 1/3 too has stepped far beyond its constitutional bounds.

A compliant judiciary is rewarded by an accomodating legislature and executive, as the subject of this thread illustrates. There are (unprincipled?) exceptions here or there of course, as in the recent Jose Padilla case. But no branch of the Federal government truly repsects the original intent of the Constitution anymore, so there’s no real baseline by which to judge among them — especially when the combined results of their actions pursue invariably the same object.

Not since President Jackson threw down his famous gauntlet, “John Marshall has made his decision; now let him enforce it!” have we seen the kind of indepent leadership Mr. Murgos looks for, and all of us in vain wish for.

Posted by: Joel LeFevre on December 19, 2003 7:21 PM

Unadorned and Mr. LeFevre make excellent points and are probably right in the end. Their points make it seem likely that even if a WMD were detonated in NYC and its path could be traced back to the Mexican border, Bush and his allies would still not propose immigration reform. The excuse would be that we can’t patrol the thousands of miles of borders. No decisive change. This I have not a shred of doubt about.

But our brilliant founding fathers have gifted us with a chance (not a certainty) for salvation. They gave us a legislative branch, which could stifle every single action by the President (except martial law) and the Supreme Court. This is where our hope remains until Bush is out.

Petition your congressmen. Fight like a junkyard dog for them. Believe me they listen. Just do it. There is no other way.

Think of the consequences of our failure to contribute and to exercise our legs. Shocking that the situation seems so bad that an even tempered blogger such as Richard Poe has hinted that the Feingold decision is a call to arms. He is as wrong as wrong can be. We have a grand canyon of effort to exert before we need to consider violence.

Until we are impoverished and a hair’s length away from imprisonment, we must not even begin to consider violence. Nelson Mandela was in prison 18 years only to emerge and lead his country to avoid widespread violence (though I still think the whites merited a country of their own and Mandela has lost control). Alive we are capable of tremendous feats we never thought possible. Gandhi is another example. George Washington’s troops at Valley Forge endured horrific conditions and emerged victorious; a dissimilar example one might say because of the deaths, but it is a sterling example of how we also are able to endure near death conditions and pain only to emerge alive to fight nonviolently again and again. We might lose, but alive we are able to endure bad conditions over and over again until the war is won. Dead we surrender our enormous sacrifice, endurance, training, education, and gifts. Death perhaps is sweet surrender under harsh conditions. Let’s not surrender.

Posted by: P Murgos on December 19, 2003 11:39 PM

I wholeheartedly endorse Mr. Murgos’s exhortation that we must never surrender, whether we are ultimately to lose the fight or not. If we go down, we go down fighting.

The only point I make is that we can’t depend on the President to curb the excesses of the Supreme Court, nor can we depend on the Court to curb the President. In short, we can’t depend on the system to fix itself, while it is under the control of liberals. We can depend only on what we ourselves are willing to do, what sacrifices we are willing to make.

On this, Mr. Murgos’s thoughts converge with my own. It’s up to every American who recognizes the danger to act. (Mr. Murgos mentions Gen. Washington and the men of Valley Forge. But that army emerged victorious only after a foreign power entered the fray on our side. There is no foreign earthly power to help us now. There remains only our faith in God.)

Let’s remember where this thread started — an erosion of our freedom of political speech has occurred. This is VERY serious. Carter Pittman once wrote: “The masses are prone to exchange an age of freedom for an hour of welfare. Anglo-Saxon institutions were designed to slow down the erosion of rights to give time for a sober second thought.”

The time is short for that sober second thought.

Posted by: Joel LeFevre on December 20, 2003 12:39 AM

Mr. LeFevre wrote (today, 12:39 AM),

” … [W]e must never surrender, whether we are ultimately to lose the fight or not. If we go down, we go down fighting.”

It seems appropriate, at this time of the Hanukkah Festival, for us to remember — and perhaps to draw strength from — a similar exhortation made some two thousand one hundred years ago by Judas Maccabeus, who was addressing the men fighting under him when they faced imminent battle against a stronger army (verses 8 to 11 herewith):

1 And Gorgias took five thousand of men and a thousand chosen horsemen; and they moved tents by night,
2 for to apply to the tents of Jews, and for to smite them suddenly; and sons who were of the high tower were leaders to them.
3 And Judas [Maccabeus] heard, and he rose, and mighty men, for to smite the power of hosts of the King that were in Emmaus;
4 for yet the host was scattered from tents.
5 And Gorgias came into the tents of Judas by night, and found no man; and they sought them in the hills, for he said, “These flee from us.”
6 And when day was made, Judas appeared in the field with three thousands of men only, who had not armor and swords.
7 And they saw the tents of heathen men strong [and fortified], and the multitude of horsemen in compass of them, and these were taught to battle.
8 And Judas said to his men who were with him, “Dread ye not the multitude of them, and dread ye not inwardly the fierceness of them.
9 “Bethink ye how our fathers were made safe in the Red Sea when Pharaoh pursued them with mickle host.
10 “And now cry we to heaven, and the Lord shall have mercy on us, and shall be mindful of the testament of our fathers, and shall defeat this host before our face today.
11 “And all folk shall know that it is God who shall redeem and deliver Israel.”
12 And the aliens raised their eyes and saw them coming from the contrary part,
13 and went out of tents into battle. And they who were with Judas sounded their trumpets.
14 And they went together, and heathen men were defeated, and fled into the fields;
15 forsooth the last fell down by sword. And they pursued them as far as Gazara, and as far as fields of Idumea, and Azotus, and Jamnia; and there fell down of them fully three thousands of men.
16 And Judas turned again, and his host following him.
17 And he said to the people, “Covet ye not prizes, for battle faces us,
18 and Gorgias and his host are in the hills nigh us; but stand ye now against our enemies and overcome them, and after these things ye shall take prizes surely.”

1 Maccabees 4.1-18 ( http://www.sbible.boom.ru/wyc/1ma4.htm )

Posted by: Unadorned on December 20, 2003 8:52 AM
Post a comment

Email Address:



Remember info?

Email entry

Email this entry to:

Your email address:

Message (optional):