The Conservative Newsletter

Dr. David Marlett, Editor

May 17, 2003

Vol. IV - No. 3

"The history of free men is never really written by chance but by choice -- their choice." --Dwight D. Eisenhower

** How Three Judges Managed to 'Reform' the First Amendment
** Monday's Attacks Didn't Happen "Everywhere"
** Bipartisan Coalition Working to Hike the Gas Tax
** No In-State Tuition for Illegal Aliens
** They are STILL Whining!
** Need Another Reason to Homeschool?

How Three Judges Managed to 'Reform' the First Amendment

One was tempted, upon hearing that the special three judge federal panel's decision had come down, to figuratively stick one's tongue out at John McCain and gloat.

After all, the judges did seem to agree with the good senator's critics who have been saying since he first got into the campaign "reform" business that he doesn't have a clue as to either the meaning or importance of the First Amendment to our Constitution.

The initial news reports all indicated that the panel's findings amounted to a big loss for "reform" advocates. And at one level it did. In fact, however, a reading of the actual decision makes it clear that the Supreme Court will have to straighten out a mess made worse by these judges who got the main points right, but much else wrong.

This was, in part, a result of the fact that they didn't seem to know what they were doing. Back in 1973, the Senate attached what was known as an expedited review provision to that era's campaign reform legislation. This granted critics standing and allowed an appeal to go directly to the U.S. Court of Appeals and then to the Supreme Court.

The result, of course, was the decision in Buckley v. Valeo that made it so difficult for many to imagine the federal courts upholding what McCain and his buddies came up with this time. The court in Buckley said many things. But most important among them was the recognition that regulations on campaign expenditures must be considered suspect on First Amendment grounds and that any regulations on such speech have to pass what has come to be known as a bright line test.

This test made it very difficult to regulate what are known as issue-advocacy ads. It is based on the view that regulations affecting speech have to be narrowly drawn and quite specific -- making it clear what is and is not permissible by establishing a bright line between the two. In the context of that decision, the court held in Buckley that while it might be all right to regulate what became known as express advocacy -- in which an advertisement specifically advocated the election or defeat of a named candidate -- such regulations could not go further.

McCain and those who drafted the current reforms wanted to go much further. The congressional debate prior to passage of the bill made clear that few incumbent members of Congress, regardless of party, liked the idea that people are able to buy ads that criticize them in any way. These are, of course, what they see as "negative" ads and most of them would like them banned. In other words they want to shut up people who disagree with them.

To accomplish this, the new law prohibited advocacy ads 30 days before any primary and 60 days prior to any general election if such ads named any candidate running in such elections, regardless of whether they expressly sought the candidate's election or defeat. They also sought to further weaken the political parties by banning what has come to be known as "soft money" and included a myriad of additional regulations that any rational person could see violated the free speech guarantees so vital to the functioning of a free society.

Unfortunately, however, the expedited review provisions in McCain-Feingold differed from those described above. This time the appeal went to a three-judge panel comprised of one appeals court judge and two federal district judges. They couldn't agree even on the facts of the case. Two of them then proceeded to base their decision on a sham study -- designed, fixed, paid for and trotted out by the reformers -- to argue that the old bright line test should be abandoned in favor of a subjective standard allowing government bureaucrats to determine on a case by case basis what speech should be regulated.

Thus, even as they struck down the 30- and 60-day absolute bans on advocacy ads, they put into place an even more pernicious scheme that would subject political advocates to regulation and even criminal prosecution should they say anything at any time that offends government regulators.

The only appeals court judge on the panel said this was unconstitutional nonsense, argued that the court had it right in Buckley and would have thrown out all the newly proposed regulations on issues advocacy advertising and much else. Let's hope the Supreme Court agrees with her.

-- David Keene, chairman of the American Conservative Union, is a managing associate with the Carmen Group, a D.C.-based governmental affairs firm

Monday's Attacks Didn't Happen "Everywhere"

Often with major news, the papers' editorials feel the need to weigh in, only to discover--too late--that they don't really have much to say. One exception to that kind editorial blather is today's Wall Street Journal. It notices Secretary of State Powell's comments that "terrorism strikes everywhere and everyone," and Saudi's crown prince nod of agreement, "These things happen everywhere." As the Journal points out:

Monday's attacks didn't happen "everywhere." They occurred in the heart of Wahhabist Islam, the land that gave the world 15 of the 19 September 11 hijackers; the land from which, according to the U.N. Security Council, some $500 million has been transferred to al Qaeda over the past decade. And the land that is the erstwhile home of Osama bin Laden. ... Saudi fundamentalism continues to pose a grave threat both to the West and to Saudi Arabia itself. We can hope that the terrible excavation of Monday's victims makes that truth impossible to ignore, but the early words from Mr. Powell and the Saudi Prince are not encouraging.

TCN Comment: It should also be noted that shortly after the government did its Saudi's Most Wanted broadcast urging citizens to help captures the fugitives, three well-known Muslim clerics issued a fatwa ordering supporters to hide them.

The death toll in Saudi is the clear result of political correctness. Until honesty prevails in the war on terrorism, the number of dead and injured will continue to climb. Islam, in all forms is pro-terrorist. Any war on terrorism must be a war on Islam. Ignoring this is going to cost lives and end in failure of the war to meet its objectives.

Bipartisan Coalition Working to Hike the Gas Tax

The House Transportation and Infrastructure Committee leadership is pushing a $375 billion dollar highway/transit measure - dubbed the Young-Oberstar Bill after its sponsors - to be funded through an increase in the federal gasoline tax.

Already, barely "out of the chute," 22 mostly junior GOP lawmakers have signed on to a letter to House Speaker Dennis Hastert strongly objecting to socking America's motorists right in the wallet.

"Current proposals to raise the gas tax are ill-timed and are not helpful to the efforts by you and others to pass the president's Economic Growth Proposal and institute much needed tax relief for the American people," reads a letter now being circulated by Rep. Marilyn Musgrave, R-Colo., "While the war in Iraq came to a quick and decisive end, there still remains much uncertainty in the Middle East. Due to this uncertainty, the market for gasoline remains volatile and prices could increase with any fluctuations in the price of crude oil."

On Tuesday, House Transportaiton Committee Chairman Don Young, R-Alaska, and Ranking Member James Oberstar, D-Minn.,called a news conference to trumpet a report that claims the bill "would provide a significant enhance to the economy...and increase disposable income..."

Some of rank-and-file Republican lawmakers are not buying the idea that raising taxes in the teeth of an economic downturn is a smart idea. Musgrave makes the following points:

There are those who will call the above figures "chump change." That perspective comes from spending too many years in the rarified atmosphere of Washington. Mom and Dad trying to make ends meet while raising kids would have a different view.

No In-State Tuition for Illegal Aliens

You, the American taxpayer, should NOT have to foot the bill for illegal immigrants to attend our nation's colleges and universities. Yet some members of the U.S. House are pushing to repeal a law and reward illegal aliens with tax-subsidized in-state tuition fees denied to legal American citizens. Here's where to support Congressman Tom Tancredo in urging your U.S. Representative not to repeal the law.

They are STILL Whining!

Not Many Changes in Dem Camp Since 2000 Election

"Whether it's obstruction by filibuster of the president's judicial nominees, or obstruction by flight of redistricting in Texas, these Democrats seem to have regressed to infancy. Temper tantrums, however, are annoying whether deployed as a toddler tactic or as a political scheme, and both mothers and voters have a tendency to take a dim view." - Kay Daly, Coalition for a Fair Judiciary

"The Texas Democratic Party is labeling as 'heroes,' the 53 members of the state House of Representatives who fled the state capitol to protest a Republican-sponsored political redistricting plan. The party is also trying to immortalize the fugitive lawmakers - for whom arrest warrants are still outstanding - with t-shirts that are being sold to raise money for the party." - CNSNews.com, 5/14/03

Out in the Great State of Nevada, a major tax hike war is heating up in the closing days of the state's legislature. And it would appear, at least to the teachers union there, that the education elites might not get all the fungolas they want.

So what does a group of malcontent leftists do when they can't get their way these days? They run and hide, of course. Just like those Texas Democrats who skee'daddled to Oklahoma when they didn't get their way on a redistricting plan.

In a May 7th letter/survey to its members, the Clark County Education Association (read: Democrat Fund Raising Association and Support Group) advises that it's against state law for teachers to engage in "any work stoppages such as sick outs, walk outs, or strikes," but nonetheless asks members if they are willing to engage in just such actions. So the union - all "on behalf of children," of course - is planning to have its members break the law and hide out at home if it doesn't get its way.

What a bunch of weenies. No wonder teachers don't command the level of respect they once did. Thanks, unions.

Need Another Reason to Homeschool?

Activist groups acting as "language police" are exerting increasing control over American schools, resulting in bored, cynical and "dumbed down" children, according to a three-year study of education policy.

Diane Ravitch, author of "The Language Police: How Pressure Groups Restrict What Students Learn," notes the classic children's story "The Little Engine That Could" has been banned in some U.S. jurisdictions because the train is male, the National Post reported.

* The book "The Friendly Dolphin" was rejected, she says, because it discriminates against students not living near the sea.

"Educational materials are now governed by an intricate set of rules to screen out language and topics that might be considered controversial or offensive," writes Ravitch, a professor at New York University. "Some of this censorship is trivial, some is ludicrous, and some is breathtaking in its power to dumb down what children learn in school."

References to bacon and eggs and ice cream also are growing in disfavor because of concerns over healthy eating habits. Mention of birthday parties has been barred for fear of upsetting children who do not get invited to them.

In her study, Ravtich uncovered through court action many policies of state and local authorities and educators that were deemed secret. She documents "an elaborate, well-established protocol of beneficent censorship, quietly endorsed and broadly implemented by textbook publishers, testing agencies, states, and the federal government."

Fearful of their titles being blacklisted, publishers are censoring themselves by removing anything that could conceivably cause offense, making classrooms an "empire of boredom" for young readers forced to read nothing but "pap," said Ravitch, who also is senior fellow at the Brookings Institution and a former education adviser for both Republican and Democrat presidents.

"It bores the tears out of them and makes them cynical," she said. "The things around them are far more interesting than what they are finding in the classroom. The books can't portray what the children see before them with their own eyes so they dislike reading."

A Fox News report on the study noted how the changes have subjected educators to charges history is being distorted. New guidelines, for example, dictate American Indians should not be depicted with long braids, in rural settings or on reservations, but offer no suggestions as to what would be deemed correct.

The pressure on officials, which comes from both the political left and right, began as a way of rooting out truly offensive material, Ravitch says. But increasing politicization has resulted in "stripping away everything that is potentially thought-provoking and colorful from the texts that children encounter."

Ravitch believes the solution is to remove state and school board control of approved reading lists and trust teachers to select material appropriate for their specific classes.

"I think our textbooks should, to our greatest capacity, be free of any type of stereotyping," said Sue Stickel, deputy superintendent for curriculum and instruction for the California Department of Education.

"We need to make sure that all ethnicities are represented," she said, according to Fox News. "We need to make sure that both males and females are represented. We need to make sure that our materials cover the full gamut."

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