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A few weeks back, Supreme Court Justice Antonin Scalia described the legal philosophy of his adversaries--those who believe that interpretation of the Constitution should not rely on strict adherence to the words and intent of the document and the framers. But you would have to be an idiot to believe that, Scalia said. The Constitution is not a living organism--it is a legal document. But it comes to mind as one watches the Speaker and the Senate Majority Leader stonewall on the issue of making S 1932 legal under the Constitution. To those unfamiliar with the issue and controversy, the House and Senate passed a major budget bill by the narrowest of margins in both chambers, including a tie-breaking vote in the Senate case by Vice President Cheney, but it turned out that the bill passed the House and Senate in different forms. This was not simply a transcription error, a misplaced comma or a misspelled word--something that would be plenty serious--but a $2 billion discrepancy that arose over a last-minute compromise between the two chambers over the time allowed for the rental of medical equipment for Medicare patients. But a seventh-grade civics student who has done his or her homework would immediately know that what the president signed is not a law. Laws, as Article 1, Section 7 of the Constitution makes clear, must pass both chambers of Congress in identical form and then be signed by the president. Of course, when Congress makes an error such as this one, it easily can be resolved by having both chambers re-pass the bill in identical form and having the president sign the proper bill. So they have decided to ignore the plain letter and intent of the Constitution and declare, with the same sensitivity to the rule of law as the queen of hearts, that it is law, period, because we say so. The leaders have come up with a belated rationalization: the 1892 Supreme Court ruling by John Harlan in Field v Clark, which found that the signatures of the Speaker and the president of the Senate are enough to certify the legality of a bill. But any serious reading of the facts surrounding that decision would make clear that this is a different kettle of fish. Hastert and Frist are unlikely to budge, despite Democrats fulminations on the issue. But a suit has been filed by a private citizen contesting the acts legality. If it does, we will see how strict Scalias adherence is to his own professed judicial philosophy--and what term he would apply to leaders who dont understand that the Constitution says something and doesnt say other things. Now on from the sublimely ridiculous to the merely ridiculous. In the movie The Matrix, the bad guys (OK, not exactly guys) send robotic, insect-like evil probes to find and destroy the heroes trying to bring humanity back to society. Those probes sometimes remind me of the opponents of the Bipartisan Campaign Reform Act, or McCain-Feingold as it is commonly known. The opponents are regularly out there probing, offering poison pills to attempt to dismantle the law. The House is scheduled to take up another one Thursday--HR 1606, known as the Online Freedom of Speech Act, sponsored by Rep. When the Federal Election Commission passed a regulation using the exact same words as Hensarlings bill, it was summarily rejected by the federal judge overseeing the implementation of BCRA. In simple terms, it exempts all Internet communications, including paid advertising, from any of the provisions and restrictions present in BCRA. Someday, paid advertising on the Internet will compete with, then outdistance, broadcast advertising. The Hensarling bill would let union dues and money from corporation coffers--that is, soft money--that is now blocked to influence directly the outcome of elections through the back door. Some day, this back door will be a very wide front door. The ostensible purpose of HR 1606 is to make sure Web loggers are not caught in the web (small w) of campaign finance restrictions. But a blunderbuss approach is neither necessary nor constructive. Tom Allen (D-Maine) and Charles Bass (R-NH), two of the most thoughtful Members of the House, have introduced HR 4900, the Internet Free Speech Protection Act. It makes sure that bloggers are not caught inadvertently in the campaign finance regulatory apparatus, while blocking the re-entry of soft money by unions, corporations and state parties to attack or promote federal candidates. Under their bill, bloggers would be eligible for the media exemption from campaign finance laws. Beyond the bloggers, Allen-Bass allows individuals to purchase up to $5,000 in Internet ads to promote or attack candidates without having to file FEC reports or worry about coordination rules. It also allows groups of individuals to operate Web sites designed to influence federal elections without being labeled as political committees under the law, so long as they spend less than $10,000. Their goal, obviously, is to allow freewheeling discourse without bringing back big soft money. That is why it is the preferred vehicle of responsible voices in the blogging and Internet community. Bloggers need protection, and the Internet needs to stay free. Allen-Bass accomplishes the central goal without the pernicious effects.
Charles Murray has done more to provoke serious debate on subjects ranging from welfare to IQ than any of the million or so members of American academe, and more to produce changes in America's welfare state than any of the army of professional politicians.
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