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 ere's
another snapshot of Washington working to reassure the American
people that politics is a clean, above-board business: Attorney
General John Ashcroft will soon be defending a law that he clearly
thinks is unconstitutional.
The calculation
of the White House is that it is easier to sign Shays-Meehan/McCain-Feingold
than to veto it, or even — amazingly enough — to ask the
Senate to change the constitutionally dubious parts.
The idea is
that the courts can be counted on to throw out the worst parts of
the bill, while the Bush machine merrily vacuums up even more hard
money for 2004 than it did for 2000 (feel reassured about the idealism
of Washington politics yet?).
The wrinkle
in this admittedly clever tack is that President Bush doesn't simply
sign the bill and passively watch the courts excise the unconstitutional
bits for him. By signing the bill, he puts the weight of his administration
behind the law.
So, the courts
may eventually throw parts of it out, but it will be the Bush
administration urging it not to.
In other words,
Bush will sign a bill that he thinks is unconstitutional on
the theory that the courts will throw it out, even though his
administration will have to argue that they shouldn't throw it out,
even though the administration really wants the courts to
throw it out.
Hey, no one
said "cleaning up Washington" would be pretty.
If it were
just White House operatives tainting themselves by this calculation,
that would be one thing. But Attorney General Ashcroft, among others,
will have to twist himself into knots to serve the White House calculation.
Even supporters
of campaign-finance reform admit portions of the legislation are
probably unconstitutional. So, it shouldn't come as a surprise that
Ashcroft thinks it's unconstitutional as well, at least judging
by his statements when he served in the Senate.
The St.
Louis Post-Dispatch, in an issues survey during Ashcroft's 2000
reelection campaign, characterized the senator's position as being
that McCain-Feingold is "unconstitutional."
A quick Nexis
search pulls up a bunch of Ashcroft statements during the 1997 debate
criticizing the bill for limiting political expression. Ashcroft
says:
— that
"the answer is not broad, new campaign-finance legislation
that threatens core political speech."
— that
"there is nothing closer to the heart of liberty itself. There's
nothing closer to the core of what it means to be free people than
to have free, uninhibited, unbridled capacity in the culture and
among its citizens to speak politically."
— that
the bill is a "shocking outrage to the conscience of freedom-loving
Americans."
The administration
will soon be defending a version of this bill in court.
What most administrations
do, when confronted with a bill of dubious constitutionality, is
ask the Justice Department's Office of Legal Counsel to give an
opinion of it. That way, an administration can avoid getting itself
in the position of defending unconstitutional laws.
One would think,
then, that at the very least the Bush administration would ask
the Justice Department about the constitutionality of Shays-Meehan/McCain-Feingold.
Unless it just
doesn't care to know.
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