Careless with the Constitution

George Will, in his continuing efforts to protect the Washington establishment from the prospects of a McCain/Palin assault on Beltway politics, used his editorial space five days prior to a national election to launch another assault on the Republican ticket. In the column, which can be found here, Mr. Will asks,

“Did McCain, who seems to think that Palin’s never having attended a ‘Georgetown cocktail party’ is sufficient qualification for the vice presidency, lift an eyebrow when she said that vice presidents ‘are in charge of the United States Senate’?

She may have been tailoring her narrative to her audience of third-graders, who do not know that vice presidents have no constitutional function in the Senate other than to cast tie-breaking votes.”

On one count, as Will likely is aware, McCain did not point out Gov. Palin’s lack of familiarity with the Washington social scene as a qualification for the presidency; he did say that it was the reason that unnamed establishment “conservative” media types have rejected her, as they once rejected another citizen politician and governor from another western state.

But, more tellingly for an intellectual elite like Will, his criticism of Gov. Palin’s third-grade knowledge of the Constitution seems to ignore the actual language of the document itself. There we find, in Section 3 of Article 1, third paragraph, that “The Vice-President of the United States shall be President of the Senate . . . .”

Will, who often writes of political history, should also be aware that the early vice presidents, those who perhaps bothered to read the document that created their positions, indeed were “in charge of the United States Senate.” John Adams, the first to hold the office, famously complained that running the Senate was the only thing the Vice President was allowed to do. Thomas Jefferson, our second Vice President, stunned by the lack of formal rules in Senate procedure, drafted the Manual of Parliamentary Practice, which is still used today, as part of his Senatorial leadership.

Facts indeed can be stubborn things.

Will characteristically uses the remainder of his space to continue his criticisms, which go back to the inception of McCain-Feingold, of the public finance system. In so doing, he speaks of a “First Amendment right to political expression.”

Again, checking the document itself, there’s no reference to any right of “political expression” (or privacy, or health care…). He likely refers to the right of free speech, which has been interpreted correctly to protect the right to political speech, “Fairness Doctrine” notwithstanding. But it takes a more expansive reading to equate political contributions, which are more commerce than speech, with political expression. Perhaps if we put our political contributions on those over-sized checks that lottery winners receive and trot them through town for all to see on our way to the local campaign office, then we’re coupling political expression with political contribution. Otherwise, it’s exactly the sort of constitutional creativity for which we criticize activist liberal judges.

Are political offices like widgets, to be bought and sold in open commerce? Whatever one’s answer, that is the question at the heart of the campaign finance debate, not, as Will continues to suggest, the First Amendment.