Veto Finance Reform?
Constitutional questions.

February 26, 2002 12:40 p.m.

dismaying aspect of the whole scene on campaign-finance reform is the running question of constitutionality. As we know, the Supreme Court is not permitted to give "advisory judgments," which means that critical legislators, and the president, have to be guided by what they think the Constitution permits. That's what they'd tell you in civics classes. Practically, politicians are guided by what they think the Court can be counted on to do.

In 1972, a day or two after he was nominated for president by the Democratic party, Sen. George McGovern appeared, late at night, at what was an impromptu press conference. A burning issue of the day (July 1972) was school busing for the purpose of effecting integration. "What do you think of compulsory busing?" one reporter asked. McGovern: "The Supreme Court hasn't ruled yet on the question." He was saying that the Supreme Court's opinion on the subject would govern his own.

It has reduced to this — What would the Supreme Court rule? — on many subjects, most conspicuously, anything that touches on church/state. As recently as Monday, the Court dodged the question of the constitutionality of a display of the Ten Commandments on state grounds in Indiana. If you will believe it, one of the arguments made had to do with the secular content of the Ten Commandments. Like, if all ten merely said don't, like, kill, or lie, or screw around, then it would be okay to display them. But watch for those provisions that say things like, Thou shalt keep holy the day of the Sabbath. Some years ago Sen. Daniel Patrick Moynihan expressed his exasperation over successive court rulings that a) permitted state funds for textbooks for parochial schools, but b) forbade the use of funds for student picture books. What about student atlases? he asked.

Attention is being paid to a moral question: If the president believes that a bill is unconstitutional, or even that parts of it are unconstitutional, is he bound in conscience to veto it?

That point is being urged on President Bush, calling to his attention that during the campaign he expressed doubt about campaign-finance reform. But indications are that he just isn't going to do this. The legislators who voted in favor of the bill (by a substantial majority) also took a vow to abide by the Constitution. The White House hasn't said it, but clearly Bush followers are being told: "Maybe the bill is unconstitutional, maybe it isn't. There is no way to establish which is correct until the Court acts on the question."

That, of course, is a replication of the McGovern way of looking at thorny problems. Let the Court decide whether it's okay, and I'll go along.

What tends to recede from view are the questions: Is it a desirable law? Does President Bush think it is best for the country, or does he think it is a bad idea? — in which case, he should veto it.

The bill, as it is written, would leave in force those of its provisions that aren't specifically ruled unlawful by the Court. Attention focuses primarily on that part of the bill that denies to organizations the right to publish advertisements within 60 days of a general election, or 30 days of a primary, which argue, however indirectly, in favor of a candidate running for office. James Bopp Jr., a lawyer for the National Right to Life Committee and the Christian Coalition, has announced, as have representatives of the American Civil Liberties Union, that they can't wait to file suit on this provision of the proposed law. Says Bopp, "If you can make it a crime to mention the name of a politician 90 days of the year, you have made political speech more regulated than pornography, burning the flag, obscenity on T-shirts, and nude dancing."

But even if that provision is overturned, are we better off? The bill, which failed last year, is a child of the Enron scandal; in the views of many, a bastard child. It seeks to say that spending for politics is out of hand. That position greatly appeals to those who believe that government should play a lesser role in human affairs, and like to think that there is a correlation implicit here: less spending, less government.

But enthusiasts for this bill haven't pledged simultaneously to lower government spending. What they want to do is to fine-tune the way people spend money in politics, and make sure that, in doing so, they better the prospects of incumbents.