The Impact of Alito and Roberts

While I disagree with President Bush on a number of issues -- with immigration and government expansion at the top of the list -- I must applaud him for his two Supreme Court appointments: Samuel Alito and John Roberts. (Of course, if Bush had his way, then Harriet Miers would be there, not Alito.) Last week, those two, along with two Reagan nominees and one Bush 41 nominee, voted to uphold a ban of the barbaric partial-birth abortion

As usual, the media misreported the ruling, saying the Court "banned" the procedure. When, in reality, what happened was the five judges said Congress has the right to make laws about abortion -- including, if Nancy Pelosi wishes, a new law to make partial-birth abortion legal.

Phyllis Schlafly and other conservatives have problems with Bush's lower-court nominees -- I simply do not know enough about those decisions to make an informed opinion -- but he certainly looks to have nailed it with Alito and Roberts. Roberts, who caused some concern among conservatives, including myself, when he was first picked, looks to be a solid jurist.

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In addition to partial-birth abortion, the Supreme Court looks poised to strike down a section of the horribly-conceived McCain-Feingold campaign-finance reform.

This case involves a pro-life group that produced ads in July 2004 in which they encourage citizens to ask the Wisconsin Senators -- one of whom was co-sponsor Feingold -- to oppose filibusters. Democracy-in-action, right? Wrong, says the federal government. A judge pulled the ads. The group had no right to lobby Feingold, who was up for re-election in four months, according to the law the Senator helped write.

The government argued that although the ad did not expressly name Feingold -- simply saying Senators -- that could still sway voters to vote for his opponent. Plus, the government added, the ad contained the address of a website that had critical statements about Feingold's policy.

Another government agency, the FEC, argued "this type of communication is one that uses particular 'magic words' like 'elect,' 'defeat,' 'vote for' or 'vote against,' or when taken as a whole and with limited reference to external events, such as the proximity to the election, can only be interpreted by a 'reasonable person' as advancing the election or defeat of one or more clearly identified candidate[s]."

There you have it: private citizens are not allowed to "advanc[e] the election or defeat of one or more clearly identified candidate[s]." Wow -- that's going to throw a wrench in this whole democracy thing, isn't it?

As Antonin Scalia said, "This is the First Amendment. You can't have people guessing whether their free speech is allowed or not by Big Brother."

Newt Gingrich had this to say in Winning the Future: A 21st Century Contract with America: "No law...should limit the right of Americans to complain about, compliment, or otherwise comment on those to whom 'we the people' have loaned power." Continuing, he added, "The idea of incumbents passing incumbent protection legislation limiting the right of their fellow citizens is precisely what the Founding Fathers were trying to block in the First Amendment."

Gingrich is the only "top-tier" Presidential candidate -- Republican or Democrat -- who opposed the bill: John McCain (obviously), Fred Thompson, Rudy Giuliani, Mitt Romney, Hillary Clinton, Barack Obama, and John Edwards all supported the bill or similar bills. (Obama, as a state Senator, did not vote on McCain-Feingold, but has made statements that support the same type of regulation.)

The last time McCain-Feingold was challenged, Sandra Day O'Connor was on the court. With her retired, it would seem the decision will go the other way: 5-4, for striking down the section-in-question. "If we agree with you on this case -- goodbye McCain-Feingold," said Justice Stephen Breyer, a supporter of it. "And you are asking us to do this only three years after we upheld them?"

Yes, Steve, we're asking you to strike down an awful law designed to silence private citizens -- Stare Decisis be damned.

Aside from the frightening restrictions on free speech, the law is fundamentally flawed in another way: It does nothing to remove "big money," its main goal. I don't think there should be any limits on how much any one person wants to give, but if that's the goal -- which it was in this case -- then why would one allow those wealthy contributors to create a 527 group, for which there is no limit on money? Another problem, notes Gingrich, is the law gives the media even larger power, as the rich and powerful companies are not regulated -- not that they should be. It just shows that the average citizen is who the law silences, not the intended group, the wealthy, nor the large corporate media.

I gave President Bush credit earlier, but I must criticize him now. He is, after all, the one who signed the bill, which he called unconstitutional, into law. Why he did this, when his veto could not have been overturned, is beyond confusing. Even if the bill was veto-proof, and it would be law no matter what Bush did, he should have stood on principle and vetoed it.

Hopefully, within weeks we will know that the Supreme Court has delivered a blow to the McCain-Feingold act -- and, as Justice Breyer remorsefully predicted, that that will mean the complete termination of it soon enough.