Men in Black

by Levin, Mark R.

  EMILY’s List

  $6,274,978

  $6,362,021

  Voices for Working Families

  $5,946,461

  $5,115,582

  AFL-CIO

  $5,058,057

  $4,971,382

  League of Conservation Voters

  $4,253,000

  $1,170,183

  Democratic Victory 2004

  $3,953,070

  $2,594,645

  National Association of Realtors

  $3,215,263

  $2,093,134

  Laborers Union

  $3,175,349

  $2,790,785

  Citizens for a Strong Senate

  $3,145,030

  $2,502,485

  Partnership for America’s Families

  $3,071,211

  $2,874,538

  November Fund

  $3,053,995

  $2,620,314

  Communications Workers of America

  $2,515,692

  $2,095,733

  Grassroots Democrats

  $2,404,728

  $1,792,594

  America Votes

  $2,383,686

  $1,997,660

  Democrats 2000

  $2,161,395

  $747,414

  Coalition to Defend the American Dream

  $1,825,754

  $1,561,838

  Sheet Metal Workers Union

  $1,767,405

  $1,706,040

  International Brotherhood of Electrical Workers

  $1,724,823

  $4,566,925

  GOPAC

  $1,705,862

  $2,147,424

  Stronger America Now

  $1,607,000

  $1,167,310

  California Republican Convention Delegation

  $1,600,750

  $1,468,748

  Music for America

  $1,567,820

  $1,460,861

  Americans for Progress and Opportunity

  $1,306,092

  $1,305,667

  Republican Leadership Coalition

  $1,267,700

  $1,270,903

  Gay & Lesbian Victory Fund

  $1,063,419

  $1,010,332

  Environment 2004

  $1,060,187

  $1,008,352

  Natural Resources Defense Council

  $1,048,907

  $761,497

  National Federation of Republican Women

  $1,031,553

  $3,196,806

  Young Democrats of America

  $1,009,286

  $$560,279

  America’s PAC

  $1,001,700

  $960,443

  Americans for Jobs, Healthcare & Values

  $1,000,000

  $994,137

  Ironworkers Union

  $899,919

  $896,227

  Americans for Better Government

  $882,965

  $669,586

  Public Campaign Action Fund

  $830,236

  $670,754

  Revolutionary Women

  $799,640

  $935,267

  Republican Leadership Council

  $743,303

  $767,625

  American Dental Association

  $730,499

  $335,372

  Americans United to Preserve Marriage

  $679,720

  $618,889

  American Federation of Teachers

  $643,975

  $630,68731

  Many prominent Democrats either run, are affiliated with, or fund these 527 organizations. They’ve argued for McCain-Feingold and provided most of the votes in Congress for its passage. And these are the same people who for years have proselytized against the undue influence of wealthy, fat-cat Republicans in the political process (though Republicans raise more money from small donors than do the Democrats). Without the millions contributed by Soros, Lewis, and other liberal billionaires and millionaires, the Democratic Party would be at a serious fund-raising disadvantage.

  Don’t get me wrong. These organizations should be free to collect money and influence the political process. But so, too, should any other group or person. There’s no reason the political parties should be prohibited from accepting large contributions. There’s no reason individual donors should be limited in the amount they can contribute to candidates. These are all artificial limitations that are intended to control the influence of the electorate over the elected. And I have no doubt that the day is near when these 527 groups will either be regulated out of business or have their voices severely weakened.

  Beyond limiting political speech, McCain-Feingold criminalizes unauthorized political participation to an extent that should frighten every citizen. As explained by election law experts Jan Witold Baran and Barbara Van Gelder:

  Prior to…[McCain-Feingold], the Justice Department rarely initiated criminal prosecutions under the Federal Election Campaign Act of 1971. Accordingly, most enforcement actions occurred under the Federal Election Commission’s civil authority to seek fines.

  The [McCain-Feingold law] increases the number of campaign finance violations that may be charged as felonies and boosts maximum penalties to two years of incarceration for even the least serious offenses and five years for more serious offenses. [Its] broad sweep offers criminal penalties to prosecutors for violations involving the making, receiving or reporting of any prohibited contribution, donation or expenditure. The [law] sets the maximum penalty for aggregate violations exceeding $25,000 during a calendar year at five years of imprisonment. Campaign finance violations aggregating between $2,000 and $25,000 during a calendar year carry a maximum penalty of one year in jail….[Under certain circumstances, these penalties can be increased.]32

  In essence, people may wind up in federal prison for speaking too much about a particular candidate or campaign.

  The Supreme Court’s approach to free speech in general is bizarre. For example, the Court was recently more deferential to commercial speech (advertisements) than political speech (the manner in which we select our representatives). Ostensibly, a law that regulates political speech would be upheld only in very narrow situations, while lawmakers would have more latitude to regulate commercial speech. However, in 2001, in Lorillard Tobacco v. Reilly, the Supreme Court overturned a Massachusetts law that attempted to regulate commercial speech.33 The Court struck down several provisions of the Massachusetts law that would have banned tobacco advertising close to playgrounds and schools. The Supreme Court stated, “The First Amendment also constrains state efforts to limit advertising of tobacco products, because as long as the sale and use of tobacco is lawful for adults, the tobacco industry has a protected interest in communicating information about its products and adult customers have an interest in receiving that information.”34

  The Court also stated that “[p]rotecting children does not justify an unnecessarily broad suppression of speech addressed to adults.”35 It concluded that, “A careful calculation of the costs of a speech regulation does not mean that a State must demonstrate that there is no incursion on legitimate speech interests, but a speech regulation cannot unduly impinge on the speaker’s ability to propose a commercial transaction and the adult listener’s opportunity to obtain information about products.”36

  But if a state cannot restrict commercial speech in the name of protecting children, how can Congress, with the approval of the Supreme Court, put such restrictive limits on free political speech?37 Make sense? It wouldn’t have to the framers.

  The Supreme Court has gone so far as to grant constitutional protection for the distribution of virtual child pornography. In 2002, in Ashcroft v. Free Speech Coalition, the Court held sections of the Child Pornography Prevention Act of 1996 (CPPA) unconstitutional, specifically the prohibition on material that involved “any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture” tha
t “is, or appears to be, of a minor engaging in sexually explicit conduct.”38 Writing for the Court, Justice Kennedy stated, “Virtual child pornography is not ‘intrinsically related’ to the sexual abuse of children…. While the Government asserts that the images can lead to actual instances of child abuse, the causal link is contingent and indirect. The harm does not necessarily follow from the speech, but depends upon some unquantified potential for subsequent criminal acts.”39

  The Court added, “The possible harm to society in permitting some unprotected speech to go unpunished is outweighed by the possibility that protected speech of others may be muted. The overbreadth doctrine prohibits the Government from banning unprotected speech if a substantial amount of protected speech is prohibited or chilled in the process.”40

  The Supreme Court found the link between virtual child pornography and instances of child abuse too weak to justify a ban. Yet the mere assertion of “corruption” is enough to reject the First Amendment’s protection of political speech in McCain-Feingold.

  In 1989, in Texas v. Johnson, the Court also determined that flag burning was a constitutionally protected act of expression.41 Justice William Brennan, writing for the majority, stated, “We are tempted to say, in fact, that the flag’s deservedly cherished place in our community will be strengthened, not weakened, by our holding today. Our decision is a reaffirmation of the principles of freedom and inclusiveness that the flag best reflects, and of the conviction that our toleration of criticism such as Johnson’s [flag burning] is a sign and source of our strength.”42

  So conduct like flag burning is protected speech, but running an ad on television criticizing a candidate within sixty days of a general election is not.

  President Bush had an opportunity to veto the McCain-Feingold bill. Instead, he signed it into law, thereby passing the buck to the Supreme Court. In a statement released at the time, the president said:

  [T]he bill does have flaws. Certain provisions present serious constitutional concerns. In particular, [McCain-Feingold] goes farther than I originally proposed by preventing all individuals, not just unions and corporations, from making donations to political parties in connection with federal elections.

  I also have reservations about the constitutionality of the broad ban on issue advertising, which restrains the speech of a wide variety of groups on issues of public import in the months closest to an election. I expect that the courts will resolve these legitimate legal questions as appropriate under the law.43

  By signing this law, the president committed his Justice Department to defending it against all legal challenges, which it did, including in McConnellv. FEC.

  The executive branch’s responsibility to uphold the Constitution is no less vital than that of the Supreme Court. The president should not cede such authority to the Court. President Bush gambled that he could avoid the slings and arrows of the campaign finance reformers and their media cheerleaders by signing the McCain-Feingold bill and leaving it to the Court to strike down its most constitutionally offensive aspects. He was wrong. The Court, these days, is no reliable guardian of the Constitution. And as a result of the Supreme Court’s decision, Americans enjoy less liberty today than they did yesterday. The framers would be appalled. These laws are passed by the very incumbent politicians who benefit from silencing their opponents. A representative republic cannot remain a republic for long when its representatives become increasingly immune from public scrutiny and criticism.

  CHAPTER ELEVEN

  THE COURT COUNTS THE BALLOTS

  “We will take to the streets right now, we will delegitimize Bush, discredit him, do whatever it takes, but never accept him.”

  Jesse Jackson, speaking outside the Supreme Court, December 11, 20001

  The 2000 presidential election spawned a historic and egregious example of judicial recklessness. The Florida Supreme Court’s rogue rewriting of state election law—in a bold attempt to micromanage an election in real time—and the U.S. Supreme Court’s unprecedented intervention to restrain that court will reverberate ominously for years to come. Now defeated “win-at-all-costs” candidates and professional party operatives have an open invitation to try to influence the outcome in close elections—or even attempt to overturn the results—with the help of unelected judges.

  The controversy demonstrated how the courts can plunge themselves directly into politics and how politicians can use the courts. And sadly, none of this was necessary. Well established, time-tested statutory and constitutional mechanisms were already in place to resolve challenges to the presidential election results and determine the outcome in a clear and unassailable manner. And George W. Bush would have been elected president despite everything the Florida Supreme Court did to deliver the state’s electoral votes to Al Gore. By acting as they did in the weeks after the election, both supreme courts inserted judges into one of the last bastions of democratic—and nonjudicial—authority: how we, the people, elect our president and vice president. Because the U.S. Supreme Court selected a constitutional sword to strike down the Florida Supreme Court’s blatantly lawless intervention, our presidential elections may never be the same. Consider what the courts have wrought.

  Elections in America are conducted by local authorities—county, city, and state governments—within certain broadly defined federal requirements. In 2000, Florida’s election laws required that any electoral contest in which the margin of victory was half of 1 percent or less be subject to an automatic recount of the machine tallies of votes cast.2 Florida statutes also allowed any candidate for elective office, or any political party on the ballot, to request a manual recount of votes cast in an election.3 These provisions detailed procedures and standards under which recounts should be conducted, including specific requirements that the recount be held in public view4 and that specific county election board representatives actually conduct the recount.5

  Florida law imposed certain deadlines for when candidates could request recounts6 and for when final election returns had to be submitted to the Florida Department of State.7 Federal law required that the procedures for resolving recounts and other disputes surrounding a presidential election be in place and a final determination made six days before members of the electoral college were to meet and vote.8 The same federal statutes placed a deadline on when states had to submit their electoral college ballots to the archivist of the United States, who is the official recipient of the electoral college ballots, and to Congress.9 The statutory deadlines ensured that all electoral college ballots would be physically present and that all reasonable disputes concerning the selection of electors would be resolved by the time Congress assembled to open and count them under the provisions of the Constitution.10

  The Florida Supreme Court, however, disregarded these laws in favor of a desired outcome: the election of Al Gore. The U.S. Supreme Court intervened to bring an end to the Florida Supreme Court’s obvious manipulation of the ballot-counting process.

  Florida’s initial vote tabulation showed that Bush had won the state by more than 1,700 votes.11 Florida law mandated an automatic machine recount,12 which was immediately conducted. Following that recount, Bush was still the winner.13 The recount gave Bush a margin of 327 votes out of almost six million cast.14

  Florida law provided that either candidate could request a manual recount in any county.15 When such a request is made, the county’s canvassing board could then, in its discretion, conduct a manual recount of 1 percent of the county’s total votes in at least three precincts. If that 1 percent sampling dictated “an error in vote tabulation which could affect the outcome of the election,” the board was required to correct the error and recount the other precincts with the vote tabulation system, request the Department of State to verify the tabulation software, or conduct a full manual recount.16 In other words, only if the initial selective recount indicated a vote tabulation error could the county canvassing board begin a full manual recount of all the ballots. No one—even on the Gore t
eam—argued that there were any machine errors. Consequently, there was no statutory authority for the four counties to conduct full manual recounts of all the votes.

  Nevertheless, within two days after the election, Gore called for a manual recount in four Florida counties—Palm Beach, Miami-Dade, Broward, and Volusia.17 Gore apparently believed a recount in these overwhelmingly Democratic counties would reverse the state’s election results. On November 12, the Palm Beach and Volusia county boards of election started hand recounts, while Bush’s attorneys went to federal court to prevent manual recounts as not being authorized under the statutes—which they weren’t.18 Other lawsuits were filed on behalf of both political parties, boards of elections, the Bush and Gore campaigns, and individual voters to both stop or require manual recounts, and to include or exclude certain absentee ballots.19

  A deadline was looming. According to Florida law, if a county’s returns are not received by the secretary of state by 5 p.m. on the seventh day following the election, the secretary of state shall ignore that county’s votes.20 Florida law also directed that the secretary of state can, but is not required to, ignore late-filed ballots.21 The “shall ignore” statute spelled out the secretary of state’s specific duties. The “may ignore” statute merely provided notice to the county canvassing board members of what the secretary of state could do if deadlines for the vote tallies weren’t met.

  Florida Secretary of State Katherine Harris, an elected Republican, showed unusual courage throughout the process, for which she would be personally vilified and disparaged. On November 13, she announced that Florida law would be enforced, and that the sixty-seven counties that composed her state would have until 5 p.m. November 14, 2000, to deliver their certified vote totals to her office.22