Monday, January 21, 2008

Re: McCain and Wisconsin Right to Life   [Andy McCarthy]

How wonderful to be a law professor, dissecting the parade as it all goes by ... without a care in the world about why it goes by in the first place!

My friends, how 'bout some straight talk about how it works in the real world?  Let's say you are considering some affirmative litigation, by which I mean, your hand is not being forced:  You are deciding whether to sue someone because you feel you have been damaged, or you are deciding, though you are not a party to a particular dispute, whether to weigh in as a "friend of the court" (by filing an "amicus curiae" brief) because your interests may somehow be affected by the court's decision.  Rule 1:  all affirmative litigation is a matter of choice.  Rule 2:  all choice involves weighing the competing interests and deciding which ones are more important to you.

Senator McCain was not a party to the dispute between Wisconsin Right to Life and the Federal Election Commission.  He claims to be a stalwart right to life partisan.  He is, beyond peradventure, a political-speech suppression activist.  In the dispute, these two values were in conflict.  This is unavoidable in life, in politics, and in law.  But if you're not a party to a particular dispute, you needn't involve yourself — you get to sit it out and let the concerned parties make their case to a neutral arbiter.  That is what most of us do when two things we care about are in counterpoise — we may offer a stray opinion here or there, but for the most part we stay out of the fray and depend on the court to sort it out fairly.

The other approach is to decide which value is more important to you and become a partisan.  That is what Senator McCain did. 

Kathryn's law professor correspondent very helpfully pronounces that "Whether one approves of the campaign finance law or not, it affects pro-life and pro-choice groups in precisely the same way."  Yes, professor, thank you so much for that profound observation.  One might just as uselessly say, however, that whether one is pro-life or pro-abortion (oops, sorry, I mean pro-choice), the political-speech suppression law (sorry, there I go again, I mean the campaign finance law) is equally oppressive. 

Senator McCain's choice was not:  do I defend campaign finance laws as faithfully as possible, regardless of whose ox is gored, because that's just the kinda straight-talkin' maverick I am?  Of course he'll try to sell it that way, and perhaps get ten-thousand pro-abortion, pro-political-speech-suppression law professors to back him up.  (I hear there may be a few such law professors available.)  But McCain's actual choice was:  What's more important to me, defending life or defending the suppression of political speech?  He chose to defend the suppression of political speech. 

He could have stayed out of it entirely.  Or, choosing to involve himself, he could have filed an amicus brief in support of Wisconsin Right to Life, arguing for the urgency of permitting its message to be heard.  He chose, instead, to support restrictions on speech for the benefit of incumbents — particularly, his co-crusader against the First Amendment, Sen. Russ Feingold. 

That is a fact.  Add all the context you'd like — it'll still be a fact.

01/21 07:45 PMShare