A Supreme Corruption Buster

The Morrison decision will pave the way to cleaner government

By Dave Kopel, Independence Institute, and Glenn Reynolds, professor of law, U. of Tennessee  

6/22/00 2:40 p.m., National Review Online

Washington, D.C., has finally done something serious that will pave the way to cleaner government and less of the special-interest abuse that has plagued it for so long.

No, we're not talking about legislation moving through Congress that would eliminate privacy for people who contribute money to issue-advocacy groups that advertise during political campaigns. Restricting free speech and private association aren't going to solve the Washington mess. Instead, we're talking about the most significant Supreme Court decision of this Term — and probably of the last 25 years: Morrisonv. Brzonkala, which struck down part of the federal Violence Against Women Act.

While press attention is focused on emotional cases involving school prayer and abortion, Morrisonis the case that law students will probably be reading half a century from now. Though the Morrisondecision has been decried by many of the same people who have been championing campaign finance “reform,” the case may do more to clean up government than could five hundred new employees at the Federal Election Commission.

The message of Morrisonis a simple one: “Every law enacted by Congress must be based on one or more of its powers enumerated in the Constitution.” If a law does not fall within the scope of an enumerated power, the law is unconstitutional and void.

In Morrison, Congress had created a law allowing people who claimed to be victims of sexual assault to sue in federal court. Since the Constitution does not give Congress general authority over crimes, Congress claimed that the law was based on the constitutional power "to regulate commerce among the several states."

This was obvious nonsense, the Supreme Court said. Just because rape has economic impacts does not mean that Congress was really "regulating commerce" when Congress passed VAWA.

As Chief Justice Rehnquist pointed out, to allow Congress to pass laws on anything that affects interstate commerce, no matter how remote, would give Congress unlimited power. Yet the Constitution does not say "Congress shall have the power to pass laws on any subject"; the Constitution only gives Congress power over 18 particular subjects — including armies, bankruptcy, and interstate commerce.

With the Morrisondecision, the Court is affirming that earlier decisions on this topic — such as the 1995 Lopezcase, finding that the federal "Gun Free School Zones" law was not a proper use of the interstate commerce power — meant what they said. Congress has no free-ranging authority to enact laws on every topic that political consultants or lobbyists like.

Morrisonis likely to prove instrumental in removing a major cause of political corruption today: the drastic expansion of federal power, which offers so many in Congress the irresistible temptation to abuse that power to help themselves. Today’s flood of special-interest money into the pockets of politicians is a natural reaction to a federal government that exercises almost limitless power over the lives and liberties of Americans.

Until the Supreme Court, during the New Deal, gave up trying to restrain Congress within constitutional boundaries, interest-group politics was much less important. That, of course, was because the federal government was much less important, and had much less money to dole out to special interests.

Once the Supreme Court, stopped enforcing constitutional limits on Congressional power, the political process responded with a vengeance. The result was an explosion of lobbyists and pressure groups — from a few hundred in the 1920s to over a hundred thousand in 2000.

Attempts to reduce special interest lobbying by placing limits on political contributions are doomed to fail. It is as if someone placed a giant pot of honey outside and tried to keep it pure by passing out flyswatters: No matter how many flies you swat, the attraction is so strong that more will always come. The real problem is the honey. In this case, government power plays the role of honey (or any other fly-attractor you choose) and campaign regulations are the swatters. Politicians and special interests will always find a way around the regulations because with so much government power at stake there is just too much incentive to do so.

The Framers realized all this, of course. That is why the powers of Congress are, in the famous words of The Federalist, “few and defined.” Indeed, the enumerated powers of Congress are largely focused on items that are important and visible: providing for an army and navy, coining money, setting up post offices, and so on. When the federal government operated in those areas, its performance was exemplary precisely because it was doing a few, highly visible, things well.

Ironically, it was that excellent performance that led many reformers of the early part of this century to believe that the federal government could do everything well. It caused them to so overload the government with responsibilities and lobbyist-bait that the government became the bloated, interest-group-ridden institution that we see today.

With Morrison, the Supreme Court has taken a very big step to restoring constitutional — and competent — government.  

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