Topic: Law and Civil Liberties

A First Amendment for Broadcasting

Bill Monroe, who was moderator for NBC’s Meet the Press for about 10 years, is a longtime advocate of extending the First Amendment to broadcasting. Actually, I’m sure he thought that the First Amendment did cover all forms of the news media — but he knew that Congress and the courts didn’t see it that way, so he wanted an explicit amendment to make that clear.

Because his articles on this topic were published in the pre-Internet Dark Ages (yes, children, there are great ideas not online), I can’t link to any of them. But he briefly reprised the argument in the letters column of the Washington Post today, concluding:

Broadcasters are also open to government pressure through the Federal Communications Commission, whose members are appointed by the president. Newspapers are specifically protected against government interference by the granite wall known as the First Amendment.

When the present form of broadcast regulation was set up early in the previous century, nobody understood what powerful instruments of news and information would evolve from the primitive radio stations of that day. Now that we do understand it, we can repair that historic mistake. We can extend the clear, stirring language of the First Amendment to equal protection for freedom of the electronic media. The problem of allocating broadcast licenses does not have to cost the American people the benefit of free broadcasting.

Murdoch vs. The Man

There’s been a lot of hand-wringing lately about Rupert Murdoch’s drive for total world domination. I’d be as disappointed as anyone if he took over the Wall Street Journal and wrung out of it what makes the Journal a great paper.

But a recent New York Times story on “Murdoch, Ruler of a Vast Empire” rather off-handedly made clear what real power is — and it isn’t what Murdoch has. As the Times reported,

Shortly before Christmas in 1987, Senator Edward M. Kennedy taught Mr. Murdoch a tough lesson in the ways of Washington.

Two years earlier, Mr. Murdoch had paid $2 billion to buy seven television stations in major American markets with the intention of starting a national network. To comply with rules limiting foreign ownership, he became an American citizen. And to comply with rules banning the ownership of television stations and newspapers in the same market, he promised to sell some newspapers eventually. But almost immediately he began looking for ways around that rule.

Then Mr. Kennedy, Democrat of Massachusetts, stepped in. Mr. Kennedy’s liberal politics had made him a target of Murdoch-owned news media outlets, particularly The Boston Herald, which often referred to Mr. Kennedy as “Fat Boy.” [This is an unfair claim by the Times; one columnist at the Herald calls Kennedy that. This is like saying “The Times often refers to Cheney as ‘Shooter’ ” because Maureen Dowd does.] He engineered a legislative maneuver that forced an infuriated Mr. Murdoch to sell his beloved New York Post.

Murdoch could spend $2 billion on American media properties and change his citizenship — but one irritated senator could force him to sell his favorite American newspaper. The Times continued,

“Teddy almost did him in,” said Philip R. Verveer, a cable television lobbyist. “I presume that over time, as his media ownership in this country has grown and grown, he’s realized that you can’t throw spit wads at leading figures in society with impunity.”

Well, actually you can in a free society. That’s what makes it a free society — that you can criticize the powerful. And true, nobody tried to put Murdoch in jail. They just forced him to change his citizenship and sell his newspaper.

He ran into similar problems in Britain. His newspapers there, unsurprisingly, usually supported the Conservative Party. But in 1997 two of them endorsed Labour Party leader Tony Blair for prime minister. Blair reacted warmly to the support, but some Labour leaders still wanted to enact media ownership limits, which might have forced Murdoch to sell some of his properties.

“Blair’s attitude was quite clear,” Andrew Neil, the editor of The Sunday Times under Mr. Murdoch in London from 1983 to 1994, said in an interview. “If the Murdoch press gave the Blair government a fair hearing, it would be left intact.”

Is this what the long British struggle for freedom of the press has come to? A prime minister can threaten to dismantle newspapers if they don’t give him “a fair hearing”?

Murdoch has been a realist about politics. He knows that while he may buy ink by the barrel, governments have the actual power. They can shut him down at the behest of a prime minister or a powerful senator. So he plays the game, in Britain and the United States and even China.

After the 2006 elections, for instance, News Corporation and its employees started giving more money to Democrats than Republicans.

“We did seek more balance,” said Peggy Binzel, Mr. Murdoch’s former chief in-house lobbyist. “You need to be able to tell your story to both sides to be effective. And that’s what political giving is about.”

Rupert Murdoch’s empire may become yet more vast, but he’ll still be subject to the whims of powerful politicians. This is hardly surprising in China. But one would hope that in the country of John Milton and the country of John Peter Zenger, and especially in the country of the First Amendment, a publisher would be free to say whatever he chooses without fear of government assault on either his person or his property.

Conservatives and the Presidency

But for the intriguing–and unsettling–revelation that President Bush’s nickname for his attorney general is “Fredo,” there’s not much new in the Washington Post’s recent four-part series on vice president Dick Cheney.  But the series does serve to remind us of how consistently Cheney has pushed for three decades to expand the powers of the presidency.  That in turn is a good jumping-off point for examining how inconsistent post-Watergate conservatives’ affinity for powerful executives is with conservatism, properly understood. 

Almost to a man, the postwar conservatives who coalesced around William F. Buckley’s National Review associated presidential power with liberal activism and viewed Congress as the “conservative” branch.  In 1960 NR senior editor Willmoore Kendall, who had been one of Buckley’s professors at Yale, published an influential article called “The Two Majorities,” which made that case.  In 1967, Russell Kirk and coauthor James McClellan praised the late Robert A. Taft, “Mr. Conservative,” for insisting that war had to be a last resort, threatening as it did to “make the American President a virtual dictator, diminish the constitutional powers of Congress, contract civil liberties, injure the habitual self-reliance and self-government of the American people, distort the economy, sink the federal government in debt, [and] break in upon private and public morality.” 

Even so ardent a Cold Warrior as NR’s James Burnham recognized that “by the intent of the Founding Fathers and the letter and tradition of the Constitution, the bulk of the sovereign war power was assigned to Congress.”  Burnham doubted that congressional control of the war power could be maintained, given the demands of modern war.  But he wrote a book defending Congress’s centrality to the American constitutional system and warning that erosion of congressional power and the rise of activist presidents risked bringing about “plebiscitary despotism for the United States in place of constitutional government, and thus the end of political liberty.”

The politician who represented the culmination of postwar conservatives’ hopes for political success, Senator Barry Goldwater, could sound as extremist in opposition to presidential power as he did on other matters involving “the defense of liberty.” In his 1964 campaign manifesto “My Case for the Republican Party,” Goldwater wrote:

We hear praise of a power-wielding, arm-twisting President who “gets his program through Congress” by knowing the use of power. Throughout the course of history, there have been many other such wielders of power. There have even been dictators who regularly held plebiscites, in which their dictatorships were approved by an Ivory-soap-like percentage of the electorate. But their countries were not free, nor can any country remain free under such despotic power. Some of the current worship of powerful executives may come from those who admire strength and accomplishment of any sort. Others hail the display of Presidential strength … simply because they approve of the result reached by the use of power. This is nothing less than the totalitarian philosophy that the end justifies the means…. If ever there was a philosophy of government totally at war with that of the Founding Fathers, it is this one.

Of course, Goldwater’s distrust of presidential power fit uneasily with his embrace of a hyper-aggressive posture in the struggle against the Soviet Union. Rollback of communist gains demanded presidential activism abroad, and those demands began to weaken conservative opposition to powerful presidents.

In an article for Presidential Studies Quarterly examining congressional voting patterns on executive power, political scientist J. Richard Piper found that “what erosion occurred in conservative support for a congressionally-centered federal system [from 1937-68] occurred most frequently on foreign policy matters and among interventionist anti-Communists.” Even so, post-war, pre-Watergate conservatives in Congress “were more likely to favor curbing presidential powers than were moderates or liberals.”

During the Nixon administration, all that began to change.  The 1970s brought increasing tension over foreign policy and, perhaps more importantly, the emergence of what political analyst Kevin Phillips called “The Emerging Republican Majority” in the electoral college. Right-wing ressentiment over Nixon’s downfall helped drive the shift; as conservative M. Stanton Evans quipped, “I didn’t like Nixon until Watergate.”

By the ‘70s, prominent conservatives had begun to see the executive as the conservative branch, and set to work developing a conservative case for the Imperial Presidency. In November 1974, National Review featured a cover story by Jeffrey Hart, “The Presidency: Shifting Conservative Perspectives?” Hart began by noting the “settled and received view” among American conservatives, who “have been all but unanimously opposed to a strong and activist presidency.” Foreshadowing the conservative embrace of Unitary Executive Theory in the 1980s, Hart noted the growth of the administrative state and the corresponding need for a powerful president who could hold the bureaucracy in check. Even more important, according to Hart, was the emergence of a “fourth branch of government” in the form of an activist, left-leaning press. Only a centrist or conservative president willing to use the bully pulpit could check the liberal media in the fight for American public opinion.

In Congress as well, conservatives demonstrated a growing affinity for a strong presidency. As Piper noted, of “37 major roll call [votes] concerning presidential powers of greatest long-term significance [from 1968-86] conservatives took the most pro-presidential power position… often (as on the item veto, impoundment, and war powers) contradicting conservative positions of the past.”

By the Reagan era, prominent right-wingers were calling for a repeal of the 22nd Amendment, and conservative conventional wisdom held that the real threat to separation of powers lay not in an Imperial Presidency, but in an Imperial Congress.   And during the Clinton administration, then-Speaker Newt Gingrich and Rep. Henry Hyde (R.-Ill.) led an unsuccessful effort to repeal the War Powers Act, with Gingrich urging House Republicans to “increase the power of President Clinton…. I want to strengthen the current Democratic president because he’s the president of the United States.”  The bulk of the Republican delegation supported the bill, which failed to pass the House because of Democratic opposition and 44 Republican defections.   

That conservatives were willing to strengthen the powers of the presidency even when the office was occupied by their political enemy shows principle of a sort, but it’s unclear why it’s a conservative principle.  Far more than liberals, conservatives recognize the imperfectability of human nature, and, taking man for what he is, have generally supported restraints on the concentration of power.   Russell Kirk was no libertarian, but on this point, he and most of the postwar conservative movement stood with Jefferson: “In questions of power, then, let no more be heard of confidence in man, but bind him down from mischief by the chains of the constitution.”  As Kirk put it:

The conservative endeavors to so limit and balance political power that anarchy or tyranny may not arise. In every age, nevertheless, men and women are tempted to overthrow the limitations upon power, for the sake of some fancied temporary advantage. It is characteristic of the radical that he thinks of power as a force for good—so long as the power falls into his hands….

Knowing human nature for a mixture of good and evil, the conservative does not put his trust in mere benevolence. Constitutional restrictions, political checks and balances, adequate enforcement of the laws, the old intricate web of restraints upon will and appetite—these the conservative approves as instruments of freedom and order.   

Do conservatives still hold to that wisdom?  Evidence that they do is difficult to discern.  They spent much of the ’90s trying to convince the country that the nation’s highest office had been seized by a terribly unscrupulous, venal man, a man who would stop at nothing to retain power.  And they’ve spent much of the current decade trying to tear down checks on that office’s power, all the while with another Clinton warming up in the on-deck circle. 

True, one of the leading conservative think tanks in D.C. still offers a Russell Kirk lecture.  In 2006, the speaker was the legal academy’s most prominent advocate of presidential war and unbridled executive power, John C. Yoo

You’ve come a long way, baby. 

Unequal Justice?

There it was, emblazoned across the front page of the Washington Post, a headline made especially disturbing by its publication on July 4:

Justice Is Unequal for Parents Who Host Teen Drinking Parties

What did it mean, I wondered. Poor parents go to jail, rich parents walk? The law is enforced in black neighborhoods, winked at in white suburbs?

Not exactly. In fact, the Post reported,

In Virginia and the District, parents who host such parties can be charged with contributing to the delinquency of a minor, a misdemeanor that can carry jail time. In Maryland, hosting an underage drinking party is punished with a civil penalty, payable with a fine, even for multiple offenses.

So it’s not a story about unequal justice, just about different jurisdictions with different laws. But the Post sees it differently:

The stark contrast in punishments is just one inconsistency in a patchwork of conflicting legal practices and public attitudes about underage drinking parties.

“Inconsistency.” “Patchwork.” “Conflicting legal practices.” This is ridiculous. Move along, folks, nothing to see here. On the Fourth of July, let’s pause to remember: The United States is a federal republic, not a unitary centralized state. Different states and even different cities and counties have different laws.

One of the benefits of a decentralized republic is that laws can reflect people’s different values and attitudes. Decentralism also allows states and counties to be “laboratories of democracy.” If voters in Maryland and the District of Columbia read about how Virginia sentences parents to 27 months in jail for serving alcohol to teenagers after taking away their car keys — and they think that sounds like a good idea — then they can change their own laws. Or if Virginia voters notice that Maryland has a slightly lower highway fatality rate, then they might decide to change their laws.

States in our federal republic have different laws about lots of things, certainly including alcohol since the repeal of national Prohibition. I grew up in a dry county in Kentucky — no legal sales of alcohol of any kind — but neighboring counties were wet. The old joke was that Bourbon County was dry while Christian County was wet, but that seems not to be true any more. First cousins can marry in some states but not in others. The rules used to vary on interracial marriage until the Supreme Court stepped in and banned laws against it. In the past couple of years we have begun to experience different state laws on same-sex marriage.

Some people seem to want all laws to be uniform across this vast nation, from California to the New York Island, from the redwood forest to the Gulf stream waters, from sea to shining sea. They use their power in Congress to impose national speed limits, national environmental rules, national school testing laws, national marijuana bans, and so on. But the beauty of America is that we have resisted many of those pressures, and there are still real differences in the laws of San Francisco and San Antonio; Manhattan, New York, and Manhattan, Kansas; Wyoming and Wyomissing, Pennsylvania.

The laws are even different in Virginia and nearby Maryland. That does not mean that justice is unequal.

Hillary’s Chutzpah

Sen. Hillary Rodham Clinton denounces the Libby commutation as “disregard for the rule of law” and a “clear signal that in this administration, cronyism and ideology trump competence and justice.”

She has a point. But hello?! Wasn’t she part of the Clinton administration? Speaking of disregarding the rule of law.

And abusing the pardon power? The Clinton administration was notoriously stingy in pardoning real victims of unjust sentences. When it did use the pardon power, it seemed to have an unerring instinct for scandalous and undeserving beneficiaries. In 1999, as Hillary Clinton began her Senate campaign, President Clinton pardoned 16 members of the Puerto Rican terrorist organization FALN, raising questions about whether the pardons were intended to curry favor with New York’s Puerto Rican electorate. And then there was the infamous last day in office, when Clinton managed to pardon or commute the sentences of

  • Marc Rich, a fugitive tax evader whose ex-wife was a major contributor to the Clintons;
  • Susan McDougal, who loyally refused to testify in the Whitewater scandal;
  • Child-molesting Democratic congressman Mel Reynolds;
  • Post Office-molesting Democratic congressman Dan Rostenkowski;
  • Cocaine kingpin Carlos Vignali, whose father was a major Democratic contributor;
  • Four Hasidic shysters alleged to have promised and delivered Hasidic votes to Hillary Clinton’s first campaign;
  • Clinton’s half-brother Roger;
  • and various crooks who paid fees to Hillary Clinton’s brothers Hugh and Tony Rodham to lobby the First Family.

With so many people in jail who deserve a pardon, as Gene Healy and I have discussed in earlier Cato@Liberty posts, it’s appalling that both President Clinton and President Bush have used their pardon powers in such ways. And if anyone lacks credibility to criticize the Libby pardon, it would be President Clinton and Senator Clinton.