Gonzales and McCain-Feingold

Throughout her tumultuous tenure as attorney general, Janet Reno could always rely on Democrats and liberals to circle the wagons when critics ripped her judgment, competence, and forthrightness. They’d close ranks when the opposition claimed her Justice Department elevated political considerations over legal ones. By contrast, in Alberto Gonzales’s present hour of need, his only enthusiastic supporter appears to be the president. Why?

Because of politics. Not politicization, as in partisan obstruction of particular investigations. Rather, good, old-fashioned politics in the best sense of the word: namely, an administration’s accountability to its supporters and its fealty to the policies that induced their support.

The Reno Justice Department, whatever else you may think about it, cared passionately about signal “progressive” causes and backed them to the hilt, regardless of criticism. To the contrary, the Gonzales Justice Department and, indeed, the president, often turn spaghetti-spined when the priorities of their base are at stake. How surprising, then, that when friends are most sorely needed there are none to be found.

The contrast emerges in high relief on Wednesday. That is when the Supreme Court once again tackles the McCain-Feingold law — the Bipartisan Campaign Reform Act of 2002 which repealed core First Amendment liberties under the guise of “reforming” campaign-finance regulations.

Campaign-finance reform is a hot-button for the Republican base. It is that rare perfect storm of revulsion shared by social conservatives, business, libertarians and originalist legal scholars. Collectively, they see political speech, political association, and the citizen’s right to petition government squelched by an incumbent-coddling, big-government scheme that betrays freedoms basic to a functioning democracy. Yet, in the most craven act of his administration, President Bush signed BCRA into law despite taking pains to express “reservations about the constitutionality of the broad ban on issue advertising, which restrains the speech of a wide variety of groups on issues of public import in the months closest to an election.”

The president rationalized this dereliction with the modern public official’s all-purpose dodge: abdication to the federal judiciary. “I expect,” he explained, “that the courts will resolve these legitimate legal questions as appropriate under the law.” And what of his own responsibility to resolve these questions as the principal officer sworn to defend the Constitution of the United States?  Nope. It was, he said, up to the judges to do what he lacked the gumption to do: reject infringement of the sovereign’s — the people’s — fundamental right to criticize their government.

But it gets worse. While the signing statement was no profile in courage, it did, at least potentially, throw down a gauntlet: Despite signing an unconstitutional bill, the president would be able to justify having his Justice Department oppose its most offensive elements.

Alas, it was not to be. The Justice Department, to the consternation of Bush supporters, has vigorously defended McCain-Feingold. That includes the case before the Supreme Court on Wednesday, in which Justice defends the law’s most noxious component — the very “issue advertising” ban President Bush purported to have “reservations” about. Under Attorney General Gonzales, the department remarkably argues that the First Amendment tolerates a scheme that prevents a charitable corporation from mentioning the name of an incumbent — not, mind you, electioneering against him, just mentioning his name — in the course of an issue ad on a matter of public policy in the weeks before an election.

“[A] representative democracy ceases to exist,” wrote Blackstone, “the moment that the public functionaries are by any means absolved from their responsibility to their constituents; and this happens whenever the constituent can be restrained in any manner from speaking, writing, or publishing his opinions upon any public measure, or upon the conduct of those who may advise or execute it.”  In the pageantry of a nonbinding signing statement, President Bush, tepidly, talked the Blackstone talk. But now, when it’s time to walk the walk, Gonzales’s Justice Department is not merely AWOL, it’s sleeping with the enemy.

The Reno DOJ was a different beast.

In the 1990s, Charles Thomas Dickerson, a sociopath, committed an armed bank robbery in Virginia. The police failed to give him rote Miranda warnings (to remain silent, to free legal counsel, etc.). But the self-incriminating statements he made to them were manifestly voluntary, which is all the Fifth Amendment ever required. Still, the trial judge suppressed his confession due to the Miranda violation.

The local U.S. attorney, however, cried foul. Though it was not well-known, two years after the Supreme Court’s imperious 1966 Miranda decision, Congress had endeavored to reverse the Court, enacting a statute (Title 18 U.S. Code, Section 3501) that restored the status quo — i.e., instructing that, so long as a defendant had not been coerced, his confession could be considered by a jury, even if he had not been advised of all his “Miranda rights.” The Virginia prosecutors insisted that this statute trumped Miranda and that the confession could stand. The federal appeals court agreed, reinstating the confession.

The issue went up to the Supreme Court: Had Congress properly reversed Miranda in 1968?

There was abundant good reason to think so. The Supreme Court’s pronouncements, after all, are binding on Congress only if they are rooted in the Constitution. For 30 years, the high court had acknowledged that its Miranda formula was not so rooted. Miranda was not part of the Fifth Amendment; it was a court-legislated prophylaxis around the Fifth Amendment. It was not in the Constitution; it was, instead, manufactured by judges (with more pseudo-psychology than law) to bolster the actual Constitution’s protection against self-incrimination. Moreover, venerable principle holds that acts of Congress are entitled to every presumption of validity — if there is any plausible basis to uphold a statute, our jurisprudence dictates that it be upheld, and therefore that the Justice Department defend it. Given Miranda’s lack of constitutional pedigree, Congress’s substitution of its own interrogation standards was entirely proper.

But that was the law, not the politics. Voters elect presidents to carry out preferred policies, including law-enforcement policies. As a matter of policy, Miranda’s promotion of individual rights over the public interest in effective investigations was a sacred cow for liberals, just as unrestrained political speech is for conservatives.

The difference is that Democrats honor their sacred cows. In Dickerson, the Reno Justice Department tossed overboard its duty to defend a highly-defensible statute and to protect a worthy prosecution. It ordered Virginia’s United States attorney to stand down. In the Supreme Court, Justice sided with the felon. It maintained that his confession had to be thrown out, even if it was knowing and voluntary, because Miranda, that Warren Court bellwether, had been transgressed.

And, to the joy of the American Left, the Justice Department won, as Justice is wont to do when it tells the Supreme Court that law enforcement’s position is untenable. Miranda was preserved — strengthened, in fact. Unlike the McCain-Feingold law, which Justice continues to steamroll over conservatives, the statute that collided with liberal orthodoxy was discarded. Sure, Dickerson was a scoundrel and Attorney General Reno’s decision to vindicate Miranda meant he’d live to prey another day. But, transcending any single statute or case, the Left’s policy agenda was served. And in her darkest hours, when Reno needed the Left, the Left didn’t forget.

Conversely, Alberto Gonzales thought he could do without the Right. And now, as he flails, the Right seems quite content to do without him.

 — Andrew C. McCarthy directs the Center for Law & Counterterrorism at the Foundation for Defense of Democracies.