THE LIBERTARIAN ENTERPRISE
Number 361, April 2, 2006
Where There's Smoke
Special to TLE
Just the other day, I was shaking my head over a piece of the latest news concerning potentially unconstitutional action taken virtually unilaterally by our president. A California Congressman claims that President Bush knowingly signed a law that wasn't passed through the House of Representatives In a letter addressed to the White House, Congressman Henry Waxman (D-CA) claims that the White House was warned in advance of the signing that there was a discrepancy between the bill received by the White House and the one actually passed by the House. He says advice as to how to proceed in light of the error was sought, but that the President instead merely signed the bill he had.
If the case is as presented, there is a clear constitutional issue here. In the Presentment Clause of the Constitution, the president can only sign legislation as approved by both houses of Congress. Since the bill he received wasn't so approved, Waxman says that legal scholars have told him that the "substantive differences between the versions" of the bills means constitutional muster wasn't met. The question obviously then becomes one of whether or not the President and his staff knew about the differences before or after the bill was signed on February 8. Waxman claims they knew beforehand.
My coworkers and I often discuss politics. Mostly, those discussions consist of some current focus of disgust. When I mentioned this particular issue, a point was raised that I think is entirely valid. One coworker wondered aloud whether or not the story was true (it's true that Waxman wrote the letterbeyond that, I don't pretend certainty). He said that much of what we hear is merely partisan politics at its best (or its worst, as the case may be). In fact, he submitted that he believed a significant percentage of such accusations were political potshots (more commonly known by those of us who are non-politicians as lies), maybe as much as 50 or 60 per cent.
After some brief thought, he added that there was probably another 10 or 20 per cent of such accusations that were simply mistaken assumptions, to which I myself contributed that perhaps another 20 per cent or so were nothing more or less than vehicles for the "whistleblower" to get his or her own name into the media spotlight. And then, of course, there's the 35 per cent or so that are neither direct lies or honest exposure but instead shady misdirections toward or away from something else entirely.
It all that doesn't add up to 100 per cent, well, there's a reason. That's because politics is all too often overflowing with everything but an honest representation of the people who elected those who are, well, contributing most mightily to the overflow. But that's not to deny the miniscule percentage of something else that also falls somewhere into that 115 to 135 per cent of other stuff and junk, and that is this: the truth.
President George W. Bush has been accused of manipulating (or even ignoring) the Constitution before. In fact, he hadn't even taken his oath of office before some questioned how it was he attained that office (for the record, I'm not personally one of those who blames George W. Bush for a Supreme Court decision that effectively confirmed his election win). Some also consider the War in Iraq to be unconstitutional (the President did go to Congress as he should have done to request authorization and money to do so, both of which were granted, yet there's been some question as to whether or not he knew that some of the evidence he was presenting was illegitimate). But there are other things that are less nebulous.
For example, consider the much-maligned (or highly praised, largely depending on which side of the political aisle you're on) Bipartisan Campaign Finance Reform bill passed by Congress (even I don't question the stated motives behind the measure, though the real motives and the real fall-out of the law is another story). McCain-Feingold is, according to many, a clear violation of the First Amendment. This is something Candidate Bush himself said more than once on the campaign trail. Yet after taking office, President Bush quietly signed McCain-Feingold into law! At the time, there were whispers that he signed it still believing it was unconstitutional, but with the hope the Supreme Court would nullify it (it didn't). So now we can't help but ask whether Candidate Bush was so ignorant of the Constitution that he was wrong in his assessment law, or if President Bush signed an unconstitutional bill into law? The former is lamentable at best, but the latter would be a betrayal of the President's oath of office.
Campaign Finance Reform continues to haunt us, especially those of us who care to express our opinion of political matters. In a recent Action Alert (the vote referenced has since been postponedwhich doesn't lessen the urgency of the issue, but which does give us more time to act), The Liberty Committee discusses the case for the Online Freedom of Speech Act. Campaign Finance Reform has now reached the Internet, with the Federal Election Commission being ordered to enforce CFR on the web. Now while that has obvious repercussions for free speech in general, wait 'til you hear the rest: "major" media would be exempt! The implications are even clearer when you begin to wonder how "major" is defined, and just who is allowed to define it. Though no one says so, the defining process alone means that media would effectively be licensed, and if the definers are government agents of one stripe or another, the licensing of media via the government defeats in total the notion of a genuinely free press.
Now we come back full circle as we take note: All of this is a direct result of the President signing McCain-Feingold into law in the first place, an act that may well have been either ignorant or deliberately unconstitutional (you'll forgive me if I'm one of those who thinks there's potential for it to be both). I've not seen anybody questioning Campaign Finance Reform in some time, but the new mandate for the FEC to regulate political speech on the Internet has brought the law back to the forefront where, frankly, it belongs. There's a very real possibility we can keep at least the Internet a sort of electronic "town square" where we can still speak freely. That doesn't however, negate the original question as to why McCain-Feingold was signed.
Many Americans were horrified to learn that the President had unilaterally okayed the National Security Agency to engage in covert surveillance of communications since the 9/11 terror attacks. The problem? There are no warrants, no oversight, and allegations abound that there was no approval from Congress, either. The President's spokespeople suggest the President believed he had the authority based on Congressional approval to engage in the so-called "War on Terror." But many legal scholars disagree both as to the authorization and, in fact, the constitutionality of the program at all.
There was also disagreement in Congress. Most agreed that surveillance was important and necessary in the War on Terror, but many went with public sentiment (at least when they were in public and speaking to the public) when they agreed some oversight and authorization was also important and necessary. Some even went so far as to join those questioning the program's legality. Yet after a brief brouhaha in the media and in the halls of power, it now looks like there won't be an inquiry into the issue after all. Some activists have sued those communications agencies cooperating with the surveillance, and a judge has ordered the Department of Justice to turn over its documentation in the matter in response to a Freedom of Information Act. But calls for action involving the President have quieted.
Not surprisingly all things considered, there have been murmurs about the possibility of impeachment . Of course, some of those "murmurs" have been louder than others, and all too many of them are part and parcel of that percentage we talked of earlier involving pure, unadulterated partisanship. One Senator has talked of censure with a relatively solid rationale to back it, but Russ Feingold (D-WI) hasn't seen much support for his efforts even within his own party.
What all this has been leading to is really summed up quite nicely in one of those old but wise sayings we so often hear: Where there's smoke, there's fire. Of course, sometimes the smoke doesn't really mean fire. Maybe the bacon is merely overcooked. Perhaps there's a cigarette still burning in an ashtray. Or maybe it's not smoke at all. It could just be a little foggy. But in some cases, there are flames already growing higher and hotter, and the longer it takes us to look for the fire, the bigger and more destructive it becomes before we find it.
I don't suggest that the President has broken any laws (although I personally think he may well have). I don't claim to have any inside information that proves anything one way or another. I'm just saying that there's quite a bit of smoke swirling around him. Congress has talked in the past about taking a look at the cause of all that smoke, and many in the public are hearing their own mental smoke detectors beeping loud and clear as well. And yet somehow we're distracted or we're jollied into thinking we're hearing false alarms.
If there are no flames there, wouldn't we all feel a little safer at least knowing with some certainty that there are none? More importantly, if there are, shouldn't we smother them before they spread entirely out of control? It doesn't matter that some 40 per cent of Congress would enjoy finding problems, or that 85 per cent of its members would preen for the press during hearings. What does matter is that 100 per cent of us ought to agree that, if there are problems, they need to be found and addressed sooner rather than later.
Here's my considered suggestion: If Congress continues to decline to investigate, maybe some of its members (pardon the inevitable pun here, but you knew it was coming) should themselves be fired. (Bonus: If they're occupied with hearings and investigations, they're not raising debt ceilings, establishing new programs and agencies to spend more money on, or writing new and even more onerous laws the vast majority of which should be thrown into a bonfire of their own.) In the final analysis, I'm only about 65 per cent convinced there's a fire at all. But boy, oh, boy, I'm 100 per cent sure that's a lot of smoke!