Yet More Constitutional Meddling

By Doug Hornig

We here at WWNK subscribe to the increasingly quaint notion that the first Americans knew what they were doing when they wrote the Constitution, and that they meant what they said. That's why we call attention to assaults on our founding document, and publish articles like The Passing of Habeas Corpus, which deals with the Military Commissions Act of 2006. The MCA, clearly not a Constitutional amendment, nevertheless limits habeas, the principle that is often considered the cornerstone of our entire legal system and that we thought was well protected by Article I, Section 9.

Well, silly us. Now we come to discover that we were lamenting the erosion of a right we never really had! Such, at least, is the gist of sentiments expressed during a hearing of the Senate Judiciary Committee on January 18 of this year. The exchange that follows took place between Sen. Arlen Specter (R-PA) and Alberto Gonzales. The latter, lest we forget, is the Attorney General of the United States and a prime candidate for nomination to the Supreme Court, should another vacancy occur in the next two years.

Gonzales: "There is no expressed grant of habeas in the Constitution; there's a prohibition against taking it away."

Specter (flabbergasted): "Wait a minute. The Constitution says you can't take it away except in case of rebellion or invasion. Doesn't that mean you have the right of habeas corpus unless there's a rebellion or invasion?"

Gonzales: "The Constitution doesn't say every individual in the United States or citizen is hereby granted or assured the right of habeas corpus. It doesn't say that. It simply says the right shall not be suspended."

In a presidential administration virtually defined by tortured logic, it will be difficult for historians to select the apogee. But this might well be it.

Unless, of course, the head of the Justice Department decides to extend his reasoning just a little ways. For example, the First Amendment is about the same as the habeas clause. It merely prohibits the abridgement of five freedoms--speech, press, religion, assembly, and the right to petition--by the Congress (but not by presidential fiat, Gonzales might someday argue). It doesn't guarantee those rights. Who knew?

Sadly, disdain for our most important document is by no means limited to the executive branch. Lest our readers think that we only pick on the Bush Administration, let it be noted that there is an alarming Constitutional attack brewing on the (now Democratically controlled) Congressional side, too.

Apparently unsatisfied with the free-speech limitations enshrined in the McCain/Feingold "campaign reform" legislation, the Hill is moving to place restrictions on a crucial First Amendment protection, the right to petition the government for a redress of grievances.

This one exploded into the blogosphere recently because of an apparent attempt to force Internet bloggers (and many small citizens' groups) critical of Congress to register with Congress itself, or face stiff legal penalties.

Sound crazy? It does to us, too. But that would have been the net effect of Section 220 of this year's first order of Senate business, S.1 (the Legislative Transparency and Accountability Act of 2007), a seemingly well-intentioned bill that aims to increase regulation of D.C.'s booming lobbying business in the wake of the dreadful Abramoff scandal.

Professional, hired lobbyists are already required--under the Disclosure of Lobbying Activities Act (DLA)--to register themselves and provide Congress with quarterly reports of their mischief. Failure to do so, or false reporting, are punishable by fines of up to $200,000. There are potential criminal penalties, too.

The key question is: Who is a lobbyist?

Section 220--"Disclosure of Paid Efforts to Stimulate Grassroots Lobbying"--sought to redefine the term, specifically to prevent one of the things Jack Abramoff did. He created phony "grassroots" campaigns that appeared to be spontaneous citizen initiatives but were actually lobbying efforts lavishly funded by his clients.

Few would shed a tear if this kind of activity were legislated out of existence, but one of the associated consequences would be that some individuals and small organizations, not now considered lobbyists, would be folded into the new definition and forced to register with Congress and provide quarterly reports of their activities.

That's what has raised the ire of not only bloggers, but some high-powered organizations as well. The charge against 220 was mainly led by the right--notably conservative direct mail kingpin Richard Viguerie--but it extended across the political spectrum.

The ACLU, for example, wrote to the Senate that if the bill became law, "Advocacy organizations large and small would now find their communications to the general public about policy matters redefined as lobbying . . . Section 220 would apply to even small, state grassroots organizations with no lobbying presence in Washington.

When faced with burdensome registration and reporting requirements, some of these organizations may well decide that silence is the best option."

Even a lone blogger could be come a "paid" lobbyist, one who employs himself to petition the government for or against something, encourages others to do the same, spends 20% of his or her time on such petitioning, and reaches 500 or more people.

Oh nonsense, said supporters of the legislation, as well as critics who believe the whole thing is a tempest in the blogland teapot. That was not its intent, and besides, there were safeguards against that happening.

Well, yes, there are some attempts at safeguarding innocent citizens in both the original DLA and S.1. But the specific language of the new proposal was so broad that it cast its net very, very wide. As Stephen Hoersting, writing in the National Review, asked: Would the 1963 March on Washington have happened if Martin Luther King, and all those who helped him, had had to register as lobbyists and account for every penny spent?

And as for legislative intent--when was the last time that mattered? Give regulators a hammer, and nails begin appearing all over the place.

(Mark Fitzgibbons--full disclosure: a Viguerie employee--provides a detailed deconstruction of 220 at www.grassrootsfreedom.com, which also features links to Hoersting's article, the ACLU letter, and other pertinent writings.)

But, hey, isn't anxiety over Section 220 misplaced? After all the hue and cry over it, it was voted out of the bill.

True. David Vitter (R-LA), who originally wrote the offensive section, later saw the error of his ways and helped lead the fight for Amendment 20, which removed it from S.1. That fight ended in victory, but only because seven Democrats crossed the aisle to vote with the Republican bloc.

Unfortunately, though, that is not the end of the story. Over in the House, whose complexion drastically changed after the last election, new Speaker Nancy Pelosi is committed to proposing her own version of the bill. All indications are that it will contain the same kind of onerous requirements found in the defeated Section 220.

The legislation in its final form will then be cobbled together by a joint Congressional committee, and what it will look like is anyone's guess.

Naturally, we expect the worst. So, bloggers beware.