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Neoconservatives are serial grave-robbers. Back in the early eighties, Norman Podhoretz tried to claim both Ronald Reagan and George Orwell as part of his meshuggeneh mishpocheh. Now, say what you will about the dimwitted defender of right-wing terrorism and the scrupulously honest symbol of the Anglo-American democratic left, they do not belong in the same political movement. Honest admirers of both men pointed out the fallacy in this transparent tactic, but two decades later, no cure has been found. Last seen in the neocons' trunk leaving the literary graveyard were the intellectual remains of the liberals' liberal, the critic Lionel Trilling.

Trilling never uttered so much as a sympathetic syllable about the neocon/Reaganite worldview to which his would-be inheritors became so attached after his death in 1975. Yet there he was, sitting atop a pyramid of Reagan-worshipers--people whose politics he never endorsed and whose style of argument he abhorred--in a chart accompanying a Sam Tanenhaus-authored encomium to the neocons in the New York Times a few Saturdays ago. The trick with Trilling is really no different from that with the refashioned Orwell. (Ironically, as John Rodden notes in his 1989 study, The Politics of Literary Reputation, it was Trilling's introduction to a 1952 reissue of Homage to Catalonia that was almost singularly responsible for securing the writer's reputation in the United States as a kind of secular saint.) Both men wrote witheringly of those intellectuals who gave their hearts and minds over to Stalinism, prescribing tough-minded scrutiny in the face of emotional appeals. In a foreword to a 1974 edition of The Liberal Imagination, Trilling pointed out that his early essays were inspired by "a particular political-cultural situation" he identified as "the commitment that a large segment of the intelligentsia of the West gave to the degraded version of Marxism known as Stalinism." With Trilling safely unable to respond, the neocons twist these words in order to apply them to liberalism itself.

Podhoretz has long been critical of his ex-teacher for what he termed his "failure of nerve" that was part of "an epidemic of cowardice" he detected in anyone who failed to agree with him. Writing in The Atlantic Monthly, Nathan Glick notes that "besides being a disloyal deprecation of a former friend and mentor," these claims "have the scent of ideological self-serving. They come with particular ill grace from a writer who treats his own seven-year flirtation with the New Left as not only easily forgivable but also proof of his editorial flair for riding the tide of political fashion." In fact, as Glick points out, Trilling viewed liberalism as "a political position which affirmed the value of individual existence in all its variousness, complexity, and difficulty." Nothing, however, could be further from the neoconservatives' creed--one that has served, in the view of Leon Wieseltier, editor of a generous new collection of Trilling essays called The Moral Obligation to Be Intelligent, as "the anti-intellectualism of the intellectuals." By inventing a genealogy that goes back to Trilling, Wieseltier notes, "They enhance their intellectual self-esteem. They have this view that everyone to the right of the left is Neoconservative, or a Neoconservative who dares not speak its name."

In fact, the critics of the counterculture whose writings have held up best during the past thirty years are those who never gave themselves over to the neocon temptation--who never became apologists for Reagan and Bush, much less Pat Robertson and Jerry Falwell. Liberal and socialist anticommunists like Daniel Bell, Nathan Glazer, Irving Howe, Michael Harrington, Alfred Kazin and Garry Wills led a relatively lonely intellectual life in the eighties, as Podhoretz, Irving Kristol, Elliott Abrams and Jeane Kirkpatrick were all toasting themselves at the Reagan White House. But contrary to Tanenhaus's apologia, it is their works--together with Updike's Rabbit and Roth's Zuckerman extravaganzas--to which historians will one day turn to comprehend the combination of ignorant arrogance and small-minded self-delusion that captured both American extremes in the final decades of the twentieth century.

Another oddity of Tanenhaus's article was the news that the forever-ricocheting Michael Lind, who mimicked Podhoretz recently with his own McCarthyite tract on the Vietnam era, is writing a manifesto to try to revive the neoconservative creed he once savaged. His co-author is Ted Halstead, president of the New America Foundation. Here history repeats itself as farce. First-generation neocons hijacked liberal institutions like Commentary and Partisan Review (and, sadly, much of The New Republic) and gave them over to conservative purposes. Halstead's organization (with which I was briefly associated) now takes precious funds from progressive donors and redistributes them to the likes of the right-wing Lind and the conservative, isolationist, foreign-policy writer Robert Kaplan. Halstead has even boasted of trying to hire George W. Bush's chief speechwriter. "Fool me once, and shame on you," explained the sage engineer of the Star Ship Enterprise, Mr. Scott. "Fool me twice, and shame on me."

* * *

Babs in Toyland: The famously sensitive liberal icon Barbra Streisand recently played the first in a long series of "farewell performances" in New York and LA, gouging fans to the tune of $2,500 per ticket. The worthy cause? Another twenty million or so for the greater glory of Barbra Streisand Inc. Streisand herself destroyed the political economy of concert-going in the mid-nineties by charging in the hundreds for tickets. Today the Eagles and Billy Joel jack up prices to $1,000 apiece. The Stones routinely charge $350; the Who, $250. Both bands were a hell of a lot better in the pre-Streisandified seventies, when I saw them for about two-weeks' allowance. Yes, I know, markets, supply and demand, blah, blah, blah. But could we please put an end to the deification of multimillionaire rock stars who shake down their own fans? (Rock critics rarely make this point, because they get free tickets.)

What an odd presidential race! So long as George W. Bush keeps his mouth shut and remains in seclusion he floats up in the polls. His best strategy would be to bag the debates, take Laura on an extended vacation and come back a couple of days before the election. Meanwhile, Gore reinvents himself on an almost daily basis. Nothing has been more comical than his "populist" posturings about the Republicans being the ticket of Big Oil and himself and Lieberman being the champions of the little people.

This is the man whose education and Tennessee homestead came to him in part via the patronage of Armand Hammer, one of the great oil bandits of the twentieth century, in whose Occidental oil company the Gore family still has investments valued between $500,000 and $1 million.

At the LA convention the headquarters of the Democratic National Committee was on the 42nd floor of the Arco building, and the symbolism was apt. In 1992 Arco (recently merged with BP Amoco) loaned the Clinton/Gore inaugural committee $100,000. In that same year it gave the DNC $268,000. In the 1993-94 election cycle it gave the DNC $274,000. In the 1995-96 cycle it ponied up $496,000 and has kept up the same tempo ever since.

Was there a quid for the quo? You bet there was. Early in Clinton-time, the President overturned the longstanding ban on the export of Alaskan crude oil. Why that ban? When Congress OK'd the building of the Trans-Alaska Pipeline in the seventies, the legislation triumphed by a single vote only after solemn pledges were made that the North Slope oil would always be reserved for domestic markets, available to hold prices down. Congress had on its mind precisely such emergencies as this year's hike in prices and consequent suffering of poor people, soon to be trembling with cold for lack of cheap home-heating oil.

With the help of Commerce Secretary Ron Brown and Energy Secretary Hazel O'Leary, Arco was also, at the start of the Clinton era, in the process of building refineries in China. Hence Clinton's overturn of the export ban was an immense boon to the company, whose CEO at the time, Lodwrick Cook, was given a White House birthday party in 1994. The birthday presents to the favorite oil company of the Clinton/Gore era have continued ever since.

While the Democrats and mainstream Greens fulminate about Bush and Cheney's threat to open up the Arctic National Wildlife Refuge, nary a word has been mentioned about one of the biggest giveaways in the nation's history, the opening of the 23-million-acre National Petroleum Reserve-Alaska. Back at the start of the nineties Arco's Prudhoe Bay reserves on Alaska's North Slope were dwindling. Now Arco will be foremost among the oil companies exploiting a potential $36 billion worth of crude oil.

Gore's "populism" is comical, yet one more facet of a larger mendacity. What suppressed psychic tumult drives him to those stretchers that litter his career, the lies large and small about his life and achievements? You'd think that a man exposed to as much public derision as was Gore after claiming he and Tipper were the model for the couple in Love Story, or after saying he'd invented the Internet, would by now be more prudent in his vauntings. But no. Just as a klepto's fingers inevitably stray toward the cash register, so too does Gore persist in his fabrications.

Recently he's claimed to have been at the center of the action when the strategic oil reserve, in Texas and Louisiana, was established. In fact, the reserve's tanks were filling in 1977, when Gore was barely in Congress, a very junior member of the relevant energy committee. The legislation creating the reserve had been passed in 1975. At around the same time as this pretense, the VP claimed to have heard his mother crooning "Look for the union label" over his cradle. It rapidly emerged that this jingle was made up by an ad man in the seventies, when Al was in his late 20s.

As a clue to why Al misremembers and exaggerates, the lullaby story has its relevance as a sad little essay in wish fulfillment. Gore's mother, Pauline, was a tough character, far more interested in advancing Albert Sr.'s career than in warbling over Gore's cot. Both parents were demanding. Gore is brittle, often the mark of the overly well-behaved, perfect child. Who can forget the panicked performance when his image of moral rectitude shattered at the impact of the fundraising scandals associated with the Buddhist temple in Los Angeles?

"He was an easy child; he always wanted to please us," Pauline once said of him. The child's desire to please, to get the attention of often-absent parents, is probably what sparked Gore's penchant for tall tales about himself.

Gore's official CV is sprinkled with "epiphanies" and claims to having achieved a higher level of moral awareness. In interviews, in his book Earth in the Balance and, famously, in his acceptance speech at the 1992 Democratic convention, Gore has shamelessly milked the accident in which his 6-year-old son was badly hurt after being struck by a car. Gore described how, amid his anguish beside the boy's hospital bed, he peered into his own soul and reproached himself for being an absentee dad. He narrated his entry into family therapy. But Tipper and the children didn't see more of him as a consequence. Despite that dark night of the soul beside Al III's bed, Gore plunged even deeper into Senate business and spent his hours of leisure away from the family, writing Earth in the Balance while holed up in his parents' old penthouse in the Fairfax Hotel. Soon after, he accepted Clinton's invitation to run for Vice President.

Gore's a fibber through and through, just like Bill. A sad experience in the closing weeks of the campaign is to encounter liberals desperately trying delude themselves that there is some political decency or promise in the Democratic ticket. There isn't. Why talk about the lesser of two evils, when Gore is easily as bad as Bush and in many ways worse? The "lesser of two evils" is by definition a matter of restricted choice, like a man on a raft facing the decision of whether to drink seawater or his own urine. But in this election there are other choices, starting with Nader and the Greens. It isn't just a matter of facing seawater or piss.

It has become fashionable of late to deny the relative importance of politics, on the one hand, and the fact of any important differences between Democrats and Republicans, on the other. Elections, therefore, are said to be merely another form of entertainment--on a par with, say, professional wrestling, but only marginally more consequential. ("Show business for ugly people" is the common phrase, cited recently by Dee Dee Meyers in the Washington Post.) This is not to say that people do not recognize the reality of conflicts between the two sides. But these are sliced and diced almost exclusively in terms of personality rather than genuine political difference. The result is that the only election events that engage the masses--primarily conventions and debates--are reviewed in the media no differently than if they were opening-night performances on Broadway. (Pay attention to the commentary following the upcoming Bush/Gore debates. Just for fun, count how many times network and print pundits talk about each candidate's "comfort level" and style of presentation compared with the number of times they attempt to delineate a significant substantive disagreement.)

Still, one can hardly deny the truth of many of the assumptions that underlie these twin notions. Much of what pretends to be "politics" today is undertaken exclusively for show. Politicians lie, posture and pretend to care about things in public they happily give away in private. They always have, of course, but the rise of cable TV and the subsequent explosion of the punditocracy leads them to embrace show-business production values that leave less and less public space for genuine discourse and debate. Moreover, owing to the legalized system of bribery that has sprung up, thanks in part to Supreme Court decisions that equate spending with free speech, the Democrats are only slightly less beholden to multinational corporations than are the Republicans. Throw in the triangulating tendencies of the Clinton/Gore Administration--the self-conscious and ultimately successful strategy of eliminating your side's political weakness by adopting portions of the other side's positions--and you have what looks to be a pretty convincing case for despair. Who cares who wins a presidential election between two nearly identical candidates to govern a system that has ceased to matter except to all but a few crazies who watch cable TV 24/7?

For many on the left, the response to this quandary has been to support Ralph Nader's protest candidacy. He has no hope of winning, of course, but a vote for Nader is at least a vote for an honest man of progressive principle. Should these votes throw the election to Bush rather than Gore, well, tough luck. It would serve the Democrats right. And anyway, who cares? "The White House," as Nader says, "is a corporate prison." It hardly makes any difference who the prisoner is.

The problem with this perspective is that it views the political forest at so great a distance that it misses almost every one of its proverbial trees. While both major candidates use much the same rhetoric to offer feel-good appeals to centrist and undecided voters, beneath this veneer lie important political and philosophical distinctions with crucial implications for social, economic, environmental and even foreign policy. Examined carefully, the similarities between the two political parties do not hold a candle to their deep-seated differences. And because of the remarkable power of the office of the presidency, these differences in politics and philosophy have the potential to affect our society--particularly the most vulnerable among us--in matters that just about all of us would consider critical, if we only paused long enough to consider them.

An examination of the Clinton record illustrates the fallacy of the "pox on both their houses" worldview. As President, Bill Clinton has done more to deflate the postimperial status of his office--and blur the differences between himself and his opponents--than any President in the past century. Yet he has still been able to use his constitutional powers to catalyze broad changes in our society and to prevent others from taking place.

Consider the President's veto power. Had Clinton lost in 1992 or 1996, today the following would most likely be the law of the land:

§ the abolition of all taxes on estates larger than $675,000.

§ the reform of our bankruptcy laws to the detriment of the poor and middle classes on behalf of their corporate creditors.

§ the outlawing of so-called "partial birth" abortions.

§ a Tom DeLay-sponsored moratorium on all new government regulations, particularly those enforcing clean air, clean water and the rights of both union and nonunion workers.

§ an amendment to the National Labor Relations Act encouraging corporations to bypass collective bargaining in favor of so-called "labor-management cooperative efforts."

§ a bill restricting the Secretary of the Interior's power to protect environmentally sensitive land, including wetlands and other fragile ecosystems, from destruction by private commercial interests.

§ a $270 billion cut in Medicare funding, coupled with a $240 billion tax windfall to be enjoyed almost exclusively by the wealthiest Americans.

Despite the various constitutional restrictions on his power, a US President retains an awesome ability to make things happen just by saying so. The constitutional mechanism for this is the executive order, and historically, these actions have been known to transform millions of people's lives with a stroke of the presidential pen. FDR all but saved the pre-Pearl Harbor British war effort against the Nazis with his "Destroyer Deal," and Harry Truman desegregated the military virtually overnight, both on their own say-so, alone. Following the Freedom Rides in 1961, Attorney General Robert Kennedy, acting for his brother, petitioned the Interstate Commerce Commission to desegregate all facilities, including bus terminals, railroad stations and airports, instituting federal lawsuits when localities resisted. Bill Clinton outlawed discrimination against gays and lesbians seeking security clearances--something all of his predecessors since Dwight Eisenhower refused to do. (As a result, "if you are a lesbian, you are no longer automatically a spy," notes Barney Frank, in a piece of good news for Mary Cheney.) Clinton also acted unilaterally to protect millions of acres of federal land from development. Just this year, he created the Grand Canyon-Parashant, Giant Sequoia, Agua Fria and California Coastal national monuments. He is expected to ban new road construction on approximately 40 million acres, roughly a fifth of all of the Forest Service's 192 million acres.

On the other side of the ledger, a President can also cause immeasurable harm purely on his own authority. Lyndon Johnson took us into Vietnam on the basis of an executive order, though he augmented it with the dishonestly obtained Gulf of Tonkin resolution. Ronald Reagan signed executive orders that sold public lands to private industry, allowed increased CIA spying on citizens, expanded the government's censorship and secrecy powers over its employees, instituted random drug-testing for all federal employees, reprogrammed foreign aid to send it to the murderous government of El Salvador and created a new government office for the express purpose of making an end run around Congressional restrictions on aid to the Nicaraguan contras.

Then there are the courts [see last week's special issue of The Nation, "The Supreme Court and the Election"]. The President nominates not only Supreme Court judges whenever a vacancy arises but also every one of the 852 judges on the federal bench. Few, if any, of the 374 judges Clinton has appointed have been cutting-edge, left-of-center scholars, but just about all of them are well to the left of the reactionary bunch nominated by Presidents Reagan and Bush. I don't like to judge the world this way myself, but since a lot of people do, here are some relevant numbers: 48 percent of Clinton's judicial nominees have been women or minorities, compared with just 28 percent for Bush and a mere 14 percent for Reagan. And Clinton's Supreme Court appointees, Ruth Bader Ginsburg--whom the University of Chicago's Cass Sunstein calls "the Thurgood Marshall of feminism"--and Stephen Breyer, have been on the progressive side of virtually every Court decision since their appointments.

The President also makes as many as 3,000 political appointments to the federal government, not including temporary appointments. More often than not, Bill Clinton's political appointments have been as safe and mainstream as those for the courts. He has ducked innumerable fights, most egregiously after he appointed his friend, voting-rights pioneer Lani Guinier, to the civil rights division of the Justice Department. Even so, the Administration included any number of leading progressives in positions of genuine power and influence, and these people have been able to use these positions to increase the degree of social justice under which millions of Americans live their lives. Such appointments are important in ways that never make the nightly news reports and hence slip under the radar of all but the most politically obsessed. For instance, Robert Reich told me that during his four-year term as Labor Secretary, he issued hundreds if not thousands of rules on how to implement laws and was generally given considerable discretion in how he chose to do so. Reich was able, on his own authority, to force employers to make their pension-fund contributions within forty-five days, he recalls, "as many had been using them as revolving credit funds." Under Reich, the department also cracked down on sweatshops, and through OSHA, on unsafe plants where workers had been getting their arms mangled and their heads crushed. While Reich lost the main battle to Lloyd Bentsen and Robert Rubin to wage an Administration-led crusade against corporate welfare, he succeeded in opening up the discussion and hence in encouraging progressive groups to challenge corporate giveaways, sometimes successfully. Reich's replacement, Alexis Herman, is one of the most progressive members of the current Administration. Like Reich, she has made behind-the-scenes efforts and frequently consulted with John Sweeney in ways that have helped give unions the time and tools they need to start winning strikes again. Suffice it to say that insuring a fair fight for labor unions on strike was not high on the agenda of past Republican administrations.

Even the President's purely symbolic acts can have powerful, though hardly obvious, effects on the life of the nation. While his commission on race may be fairly judged a failure, for instance, Clinton's willingness to confront the issue of affirmative action head-on in his speeches and town meetings almost certainly saved the program--no longer is it the far right's favorite target for whipping up social resentment against liberals, minorities and other alleged deviants. His choice of Jesse Jackson as a special envoy to Africa and as an adviser on many domestic issues has also had meaningful if unmeasurable effects on the cause of racial inclusion. And the Clinton/Gore embrace of the gay community has created massive ripples in what were, until recently, stagnant waters. Ronald Reagan, perhaps the twentieth century's most effective hypocrite, privately invited gay men to sleep together under the White House roof, yet it took him 2,258 days in office to utter the word "AIDS" in public. In welcoming gays and lesbians at the White House with open arms, Clinton advanced their acceptance into mainstream society to a degree that was unthinkable when he was first elected. The openly gay financial writer Andrew Tobias, national treasurer of the Democratic National Committee, calls gays and lesbians "an explicit part of the Democratic vision, a welcome member of the team." And surely it makes a difference in the character and flavor of our public life that the President has picked progressive heroes like John Kenneth Galbraith and George McGovern for the nation's highest official honor, the Presidential Medal of Freedom. Recent Republican choices have included Milton Friedman and Whittaker Chambers.

Finally, the cliché that "the President proposes and Congress disposes" is dead-on, although it underestimates the office's power of persuasion. Some members of Congress may not like the Microsoft antitrust suit, but there isn't a damn thing they can do about it. And they may resist re-raising the federal minimum wage or doubling the earned-income tax credit for low-wage workers, but they must deal with these issues if a President insists on raising them. Under Reagan and Bush, these proposals languished. Under Clinton, the GOP Congress has been forced to act repeatedly--against the wishes of its own constituency--to help increase the purchasing power of the working poor.

Though he appears to have modified his views in recent weeks, Ralph Nader has spent much of the year traversing the country, insisting that the choice between Al Gore and George W. Bush is nothing more than a pick between "Tweedledee and Tweedledum." Unfortunately, on a number of key issues, Nader has a strong argument. Gore, like Clinton, is first and foremost a pragmatic politician who will betray progressive hopes whenever it suits his larger purposes. The corporate-friendly Vice President has been nowhere near as strong as he claims on environmental issues. ("On the issue of the environment, I've never given up. I've never backed down, and I never will," he lies.) Like Clinton, Gore will continue to back wasteful increases in military spending and the expansion of the failed bipartisan drug war in Colombia. On civil liberties, he will most likely prove just as insensitive, sacrificing important privacy rights to fight exaggerated threats from terrorism and drug trafficking. On trade and globalization issues, a Democratic President can turn out to be even worse than a Republican one. A Democrat carries sufficient clout to pass most agreements against both public opinion and the public interest but lacks the power to force Republicans to accept the kinds of restrictions that genuinely protect the environment and workers' rights. The result in the Clinton presidency has been a series of business-dictated agreements that make it easier for corporations to pursue beggar-thy-neighbor policies. A Democratic defeat might--emphasis on the word "might"--result in a more unified opposition party that would successfully demand powerful protections for workers and communities as the price of expanding free trade and investment agreements.

If the trade/globalization issue were the Vietnam War or World War II, it would be easier to argue that dumping the Democrats is a risk worth taking. As important as trade policy is, however, it remains an uncomfortable stretch to insist that it somehow trumps everything else put together. For while Al Gore, like Bill Clinton, is certain to disappoint anyone naïve enough to believe that he will always "fight for the people against the powerful," as he continually promises, the policies of his presidency would be preferable to Bush's in almost every conceivable way. The Texas governor has sought to minimize the two candidates' political differences by giving his conservatism what he terms "a compassionate face." But the unhappy fact is that, despite his rhetoric, Bush, together with Tom DeLay, Dick Armey and Trent Lott, is the de facto leader of a party and a movement that seeks to reverse decades of social progress as it simultaneously emasculates the federal government's ability to defend the interests of its poor and middle-class citizens. He could not oppose these policies and maintain his power base even if he wanted to--and there is no evidence that he does.

Even on issues where Gore's record is at its weakest, the potential costs of a Bush presidency are enormous. Take campaign finance. We all know of Gore's many transgressions in the mad chase for corporate dollars in the 1996 campaign. His foolishly legalistic "no controlling legal authority" explanations for his unseemly actions have made him something of a national joke on the subject. But owing to this very embarrassment, Gore now professes to have been reborn on this issue. He wants to ban soft money, force outside groups to disclose what issue advertisements they have bought before an election and require broadcasters to give candidates free airtime to answer those outside ads. Gore promises that the McCain/Feingold reform bill, consistently filibustered by Senate Republicans, will be the first law he sends to Congress as President.

Now, even if Gore succeeds in forcing the next Congress to pass McCain/Feingold--an enormous "if"--he is still clearly not willing to go far enough. Until this country institutes a system of public finance like the one currently in operation in Maine, corporations will continue to use their financial power to strangle any number of badly needed reforms. But any way one views the problem, Bush is almost certain to be worse. He opposed John McCain's plan during the Republican primaries because, he explained, the current system works to Republican advantage. Why give it up? Even Bush is not that stupid. As of last spring, business was outspending labor 15 to 1 in this election cycle. Should the Republicans win, that will be the end of campaign finance reform for another four years.

Another area where Gore and company look like Republicans from afar is on foreign policy. A New Democrat through and through, Gore (together with Joe Lieberman) has been on the hawkish side of virtually every intra-Democratic Party argument. Like his gutless boss, but without the excuse of being a "draft dodger," he supports the showering of the military with mountains of unneeded funds as well as a truly idiotic missile defense program that can only do untold harm to the nation's security along with its budget. Gore favors the immoral starvation policies directed at the Cuban and Iraqi people, and the further militarization of our ruinous drug policies, here and in Colombia. Too bad, therefore, that on every one of these issues, Bush is considerably worse.

An almost total novice (and frequent nitwit) when it comes to foreign affairs, Bush is dependent on his father's national security advisers, including Dick Cheney, Richard Perle, Richard Armitage, Paul Wolfowitz, Brent Scowcroft, George Shultz and Condoleeza Rice. All remain intellectually imprisoned inside a manichean cold war paradigm that was already out of date when they first came into power in the early eighties. Bush's team believes in an aggressive US foreign policy backed by a strong military, but it couldn't care less about promoting human rights, labor rights or environmental protection. (Dick Cheney's vote against freedom for Nelson Mandela is entirely consistent with this worldview.) Bush's advisers do not understand, much less embrace, the emerging view of foreign policy professionals that issues like the depletion of the ozone layer, Third World debt reduction, the global AIDS epidemic, increasing depopulation of ocean fisheries and biochemical threats to the world's agriculture qualify as foreign policy issues. "Global social work" is what Armitage calls these causes. Though not as isolationist-minded as the GOP Congress, this crew has little more use for the United Nations than does Jesse Helms. What's more, in Cheney, Bush has signed off on a politician who publicly endorsed the thuggish extraconstitutional adventurism undertaken by Oliver North during the Iran/contra scandal.

On missile defense, perhaps Gore's most appalling cave-in to right-wing hysteria, the Vice President cravenly favors "developing the technology for a national missile defense system to protect against ballistic-missile attacks from rogue states." But Bush says he would deploy a much more extensive defense right away, whether it works or not. ("Now is the time not to defend outdated treaties but to defend the American people," he told the GOP convention.) As former Reagan Pentagon official Larry Korb has observed, "With President Gore, it would be very limited, and it would go a long way toward accommodating the Russian desires. Bush is willing to do the whole nine yards," and damn the consequences for the budget, the ABM treaty, the arms race and US relations with allies and potential adversaries.

On most issues, the differences are even more pronounced. Take the question of the courts. Critics of the Democrats often point out that some of the more liberal Justices on the Supreme Court have historically been appointed by Republicans. That would be comforting if Gore were running against Dwight Eisenhower or Gerald Ford. George W. Bush's judicial heroes, however, are not Earl Warren or John Paul Stevens. They are Antonin Scalia and Clarence Thomas, and there is no reason to think his appointments would be any less reactionary. The conservatives currently enjoy a 5-to-4 majority on most decisions and have been winning their arguments by a single vote in recent years to an unprecedented degree. Because the next President is likely to pick at least two and possibly three new Justices, this slim conservative majority will become a decades-long right-wing hegemony should Bush win the election. The "strict constructionists" favored by Bush would most likely overturn Roe v. Wade and destroy women's right to a safe and legal abortion. (The Constitution does not mention abortion, after all.) They would strike down federal protections against discrimination for disabled people, for people of varying sexual orientation and for people benefiting from almost any form of affirmative action. Privacy rights would also be considerably truncated, while the rights of corporate and commercial speech would be expanded--thereby dooming any future campaign finance reform. Laws on gun control and tobacco regulation would be weakened, as would laws that allow such agencies as the EPA and OSHA to protect workers, consumers and local communities from corporate rapacity. The entire body of US law, according to Cass Sunstein, would be pushed closer to its pre-New Deal status, implying "significant and possibly historic changes in the meaning of the Constitution." And given the Supreme Court's power of judicial review, there wouldn't be a thing Congress or the President could do about it.

In a Bush presidency, minority rights would suffer from far more than just Court decisions. Like his father, "W" appears motivated less by animus than by cowardice. But even the most compassionate conservative Republican has no incentive to upset his core Christian constituency by extending--or even accepting--many of the gains of the past decade for gays and lesbians. (Barney Frank quips that the gay "Log Cabin" Republican group, with whom Bush declined even to meet, is so named "because they're all Uncle Toms.")

Meanwhile, to argue that there is no significant difference between the two candidates on racial matters is to argue that blacks, Latinos and others are the victims of a grand hoax to which white leftists are somehow immune, since minority support for both Clinton and Gore has been rock solid. Speaking at The Nation's forum on the eve of the Democratic convention in LA, Representative Jesse Jackson Jr. explained that while "some of us are making decisions from the perspective of philosophy and the luxury of our comfortableness, and how we are personally situated in the economy...there are other members of our coalition, who are not here, who have everything at stake." To take one small example of the issues in question, California State Senator Tom Hayden observes that a Gore presidency could lead to effective Justice Department measures to curb crimes committed on a systematic basis by law enforcement officers, while George W. Bush has complained of the Justice Department's "overaggressive" police brutality investigations. This is, notes Hayden, "the kind of difference you just can't responsibly forget."

Consider also the twin scourges of gun violence and tobacco peddling to minors. Gore supports a plan that would force gun owners to take a course and get a photo license, just as they must now to drive a car. Using language and imagery borrowed from the NRA, Bush likens such a plan to a Big Brother-like first step to taking all guns away from law-abiding citizens. Gore wants to close a loophole that exempts buyers at gun shows from required background checks. Bush does not. Gore says he would like to ban so-called Saturday night special handguns, limit purchasers to one gun a month and re-impose the Brady Law's waiting period for gun purchases. Bush would do none of this. In the event of a Bush victory, NRA leaders have said they may seek a national law permitting concealed weapons similar to the one the governor signed in Texas. Charlton Heston and company would also go after a Texas-style "lawsuit protection" bill for gun makers. Both are inconceivable under a Gore presidency.

Regarding tobacco, Gore vowed in his convention speech to "crack down on the marketing of tobacco to our children." And indeed, since the $250 billion settlement pursued by the states with the industry, the Justice Department has been pursuing a racketeering lawsuit, seeking to recoup hundreds of billions of tax dollars spent on treating sick smokers. Bush, heavily funded by tobacco companies, failed to support his state's participation in its antitobacco lawsuit, which eventually added $17 billion to the Texas treasury. As Ralph Reed proudly bragged in National Review, Bush "filed a brief to deny a group of trial lawyers a multibillion-dollar payoff as part of the state's tobacco settlement," even after the companies conceded.

On environmental issues, for all of Gore's well-documented failings, the two candidates speak and act as if they come from different planets. Again, Gore is both an environmentalist and a political pragmatist. Judged by the demanding standards that Gore himself laid out in his book Earth in the Balance, he is a sham and a sellout. To take just one example, the Clinton/Gore Administration opened up Alaska's precious National Petroleum Reserve, selling the first oil-drilling leases in May 1999. Compared with George Bush, however, Gore is Mother Nature herself. If elected, he will arguably be the most environmentally sensitive and sophisticated politician ever to occupy the Oval Office.

Gore strongly supported EPA Administrator Carol Browner's improved clean-air regulations. The Clinton/Gore Administration reduced logging on federal lands by 80 percent from 1990 levels, and the Forest Service is now taking public comment on plans to keep 60 million acres of roadless national forests undeveloped. It has created nine new national monuments, including what is now the largest national monument outside of Alaska. A Gore administration would likely take favorable action on any number of environmental initiatives that will face the next President. These include: a proposed ban on development of a fifth of the Forest Service's 192 million acres; the implementation of a new set of extensive regulations on diesel pollution; the regulation of mercury emissions from coal-burning power plants, which are understood to pose a significant threat to pregnant women and children who consume them; a ban on dangerous pesticides; and long-overdue compensation for US workers whose health has been harmed by dangerous government-certified work on nuclear weapons.

George Bush, it is safe to predict, would ignore those aspects of environmental protection that he did not reverse. The former oilman has one of the worst environmental records of any governor in the entire fifty states. Every year since Bush took office, Texas has been the most polluted state in the nation. Houston recently accomplished what many believed to be impossible: It passed Los Angeles to achieve the honorific of being the city with the worst air quality in the nation. This is no accident. In 1997 Bush replaced state regulations with a self-policing plan, drawn up by the polluters themselves, that called for strictly voluntary compliance with the standards of the 1971 Clean Air Act for companies that had been grandfathered into the old system. The results were predictable. Of the 160 biggest, a grand total of three have actually cut their emissions. Bush's policies with regard to auto emissions evince a similar pro-pollution bias. Not until the EPA threatened to withhold millions in highway funding did Bush even begin to try to control emissions. In 1999 federal regulators demanded that emissions be cut in Houston by 90 percent or the state would lose billions in highway funds. Things had been allowed to deteriorate so seriously that if every car were taken off the road in Houston, the city would still fail to meet federal safe-ozone levels. The two oilmen at the top of the Republican ticket also have no use whatsoever for the Kyoto Protocol, designed to reduce the threat of global warming, which Al Gore championed inside the Clinton Administration. Bush has said he does not support the treaty, and in 1996 Dick Cheney led a group of fifty-four oil executives in attacking the proposed Kyoto agreement because it advocated "the forced reduction of fossil fuel use." (Well, yes, that's the point.)

And what of the future of organized labor? Without a vibrant, powerful labor movement, there is simply no hope for the revival of the US left. Again, absent an upsurge in the numbers of pro-labor representatives, Gore is likely to disappoint on issues of labor rights, trade and globalization, just as Clinton did. Making progress will take more muscle than labor has so far been able to amass. But on a panoply of other questions, from the Court's rulings on labor law and the composition of the National Labor Relations Board to the Labor Department's role in strike support (and/or opposition), a Gore presidency would be far better for unions. Gore has called organizing a "fundamental American right that should never be blocked, stopped, and never, ever taken away." Bush, in contrast, governs a "right to work" state and even opposed raising the federal minimum wage, to which the Republican Congress recently acquiesced. Backed by business billions, he (quite logically) supports so-called paycheck-protection laws, designed to silence labor's voice in the political process. Does anyone believe that it truly makes no difference for working people who wins the next election?

And here we finally reach the differences between the two parties that strike this writer, anyway, as by far the most compelling. I refer to what Senator Paul Wellstone calls "bread and butter, workday family economic issues." The problem is not just how much money Bush wants to give to the extremely wealthy at the expense of the rest of us. Rather, it is that the Republican Party, at this moment in history, is politically and ideologically dedicated to the destruction of the very foundations of social solidarity in this country. Bush and company threaten to work toward the ultimate privatization not only of Social Security, Medicare and public education but nearly all of the sustained, generous and democratically grounded social programs the US political system has enacted since the dawn of the New Deal. These are the signal socioeconomic achievements of the left, going back more than seven decades. And they need to be defended if the word "left" is to have any meaning in America at all.

The numbers alone would be worrisome enough. The Bush tax plan offers 100 times more tax relief to the richest 1 percent of Americans than to most middle-income families, and 1,000 times more relief than to low-income families. Added together, Bush's tax cuts could cost at least $1.3 trillion over nine years. Gore's far more frugal plan of targeted tax cuts is aimed at these middle- and lower-income people, allowing them to pay for health, education and job-training needs.

Bush also wants to begin draining funds from the public education system through a system of vouchers. Gore has vowed to fight this. "I will not go along with any plan that would drain taxpayer money away from our public schools and give it to private schools in the form of vouchers," he promises. Given the power of the NEA inside the Democratic Party (for better or worse), he will have no choice but to keep that promise. The Bush budget calls for an increase of $48 billion in public education funding over the next decade; the Gore plan, $170 billion.

For Social Security, our most important instrument of collective, intergenerational solidarity and the single most effective antipoverty program in US history, a Bush presidency could mean the beginning of the end. He proposes to allow workers to place a portion of their payroll tax into a private retirement account for the purposes of private investment, thereby creating an enormous windfall for the securities industry. This diversion would cost the system an estimated trillion dollars in its first decade, but it makes no provisions for the losses to workers that might be incurred during a sustained downturn in the market. As Bush has ruled out raising payroll taxes and would not dare cut benefits without the (politically unimaginable) fig leaf of Democratic cooperation, the system itself will be at risk. Gore, like Clinton, proposes to use today's surpluses to pay off government debt, and then to deploy the savings in the government's interest payments down the road for Social Security.

Regarding healthcare for those who need it most--seniors, children and families tied to HMOs--the case for political equivalence is nonexistent. Medicare is second only to Social Security as an instrument of camaraderie in our public lives. Bush does not explicitly say he wants to repeal it, but as Washington Post columnist E.J. Dionne points out, he "wants to create strong incentives to push the elderly into HMOs and away from" Medicare. "And he takes a small but significant step toward shipping Medicare off to the states by making his short-term prescription-drug plan a federally supported but state-run program." Gore plans to buttress the system with about one of every six dollars in budget surpluses over the next fifteen years, along with $250 billion for prescription drugs. Unlike Bush, he backs a patients' bill of rights that would allow patients to sue insurance plans when they make costly--or deadly--mistakes. For the uninsured, Gore hopes to expand the Clinton Administration's Children's Health Insurance Program (CHIP) to cover more poor children and, for the first time, their working parents.

It is on the subject of children's healthcare that the Man from Compassion is at his most hypocritical. In Texas Bush fought tooth and nail to limit his state's participation in CHIP, which combines a generous federal payment with a much less costly state obligation, because "in times of plenty, the government must not overcommit." But such prudence was nowhere evident when it came time to offer up $1.8 billion in state money for tax cuts and another $45 million in new tax breaks for the oil and gas industry. As a result, Texas is one of the few states that showed a net increase in the number of uninsured children, placing it number forty-five in the nation in this "compassionate" category.

Finally, it is a mistake to view the presidency as merely an executive office somewhere on the southern tip of the Metroliner corridor. It's the most potent political symbol in America, and it empowers others to act with greater force and authority than they would otherwise enjoy. The fortunes of left movements in the United States, as historians Michael Kazin and Maurice Isserman pointed out in these pages six years ago, have always been closely linked with those of liberals in general, and liberal Presidents in particular--from the Progressive Era to the Popular Front radicalism of the thirties through the civil rights and antiwar and feminist activism of the sixties and early seventies. "In each of these periods," they wrote, "the left found legitimacy as part of a continuum of reform-to-radical sentiment, contributing to the widespread belief of the day that social change was both possible and positive."

Nearly twenty years ago, I was in the audience of a speech the British socialist Tony Benn was giving at the London School of Economics, where I was a visiting student. Ronald Reagan had been elected President a few days earlier, and this confused first-semester junior asked Benn his opinion on why voters found politicians of the genuine left, like himself and Ted Kennedy, so frightening but loved right-wing radicals like Thatcher and Reagan. The former Lord Wedgwood refused even to entertain the question, so deeply offended was he by my implicit comparison of himself, an authentic homme de gauche, to Kennedy, whom he believed to be nothing more than a mealy-mouthed front man for capital. "You Americans," he grumbled, "are always going around the world complaining about 'one-party states.' America itself is a one-party state. But with typical American extravagance, you have two of them."

Benn's retort remains the cleverest real-time response any politician has ever uttered in my presence. Too bad it was also almost entirely wrong. Would a President Ted Kennedy have hired drug runners to conduct an illegal war against the Nicaraguan government? Would he have brushed off massacres in El Salvador, defended genocide in Guatemala and invaded Grenada? Would he have busted the air-traffic controllers' union and declared war on organized labor? Would he have attempted to destroy the progressive income tax? Would he have supported tax exemptions for Bob Jones University? Would he have appointed a string of reactionaries to the Supreme Court? Would he have unleashed an insane nuclear and conventional arms race with the Soviet Union? Are these somehow trivial issues? Even the more conservative Jimmy Carter would have governed with an infinitely higher quotient of wisdom and mercy than his successor, had America's center-left majority demonstrated the patience to stick with him. The Democratic Party is certainly more conservative than it was a generation ago, but Republicans have been speeding rightward with the velocity of a Bob Feller fastball.

Unfortunately, progressives have an unhappy history in recent times of failing to make important distinctions between candidates to their right. In 1968 many sat on their hands and allowed the criminal Richard Nixon to defeat Hubert Humphrey. Eight years earlier Arthur Schlesinger Jr. felt he had to write a book called Kennedy or Nixon: Does It Make Any Difference? No such book should be necessary this year. Despite Al Gore and the Democrats' countless flaws as progressive political vessels, the differences between the two primary presidential candidates remain as substantial as those in any close election in modern American history. And while this election may not offer an ideal choice, it recalls the famous response attributed to George Burns. Asked how he felt about celebrating yet another birthday, the ancient comic responded, "Well, it sure beats the alternative.

A new poll has found that strong majorities of Americans have high
levels of interest and concern about a range of issues that are rarely
being discussed in the current political campaign. And on several key
issues where candidates George W. Bush and Al Gore basically agree--the
benefits of international trade and increased military spending relative to
other priorities, for instance--the public does not.

The poll, commissioned by The Nation magazine and the Institute for Policy
Studies, a Washington-based think tank, found that:

§ Despite the booming economy many Americans worry about the
disenfranchised: they show concern for the many Americans without health
insurance (91%) and the gaps between rich and poor (74%). An overwhelming
majority (81%) supports an increase in the minimum wage.

§ While both candidates express enthusiasm for the growth of international
trade, a huge majority of voters (83%) wants to see this growth moderated
by other goals--protecting workers, the environment and human rights--even if
this means slowing the growth of the economy.

§ While both candidates are speaking in favor of increases in defense
spending, a strong majority (63%) is interested in the possibility of
redirecting defense funds to education and other priorities.

§ A clear majority considers it "very important"
or "somewhat important" for the candidates to debate some of the foreign
policy issues that are rarely being discussed, such as the comprehensive
test ban treaty (80%) and contributing to international peacekeeping
operations (86%). An equally strong majority (81%) wants the United States
to work with other countries through the United Nations.

"These results suggest a disconnect between the rhetoric of the political
campaign and the reality of public concerns," says Katrina vanden Heuvel,
editor of The Nation.

The poll was conducted in late September by the Center on Public Attitudes
(COPA), an independent social science research center closely associated
with the University of Maryland. It asked questions that had been asked in
previous polls over the last several years by the Pew Research Center; ABC
News; the Center's own Program on International Policy Attitudes (PIPA, a
joint program with the Center on Strategicl and Internationa Studies at
the University of Maryland); Newsweek; and CBS News/New York Times.

These questions were asked again to see if the current political campaign
has made much difference in public attitudes. Surprisingly, The Nation/IPS
poll found that voter views and levels of interest on these issues are
generally about as strong as they were in mid-1999--even though many of the
issues tested received scant attention during the last 12 months of
intensive campaigning.

"Despite the assurances of politicians that times have never been better at
home and that globally we're in a new era of Pax Americana, we see that a
majority of voters are, in poll after poll, worried by unfettered free
trade, growing inequality at home and abroad, and U.S. unilateralism. They
are out ahead of one or both of candidates Bush and Gore in believing fair
trade is more important than free trade, supporting cuts in military
spending and reinvesting in other programs, and wanting the U.S. to play by
the rules through the United Nations," says John Cavanagh, Director of the
Institute for Policy Studies.

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On the eve of the first presidential debate, a new poll has found that strong majorities of Americans have high levels of interest and concern about a range of issues that are rarely being discussed in the current campaign. And on several key issues where candidates George W. Bush and Al Gore basically agree--the benefits of international trade and increased military spending relative to other priorities, for instance--the public does not. The poll, commissioned by The Nation and the Institute for Policy Studies, found that:

§ Americans are concerned about the disfranchised, including the many without health insurance (91 percent) and gaps between rich and poor (74 percent). A large majority (81 percent) supports an increase in the minimum wage.

§ Both candidates express enthusiasm for the growth of international trade, but 83 percent of the public wants trade combined with other goals--protecting workers, the environment and human rights--even if it means a slowing economy.

§ Both candidates favor increases in military spending, but a strong majority of the public (63 percent) is interested in redirecting some military funds to education and other needs.

§ A clear majority (80 percent) wants debate on foreign policy issues like the Comprehensive Test Ban Treaty; 81 percent say they want the United States to work with other countries through the United Nations.

Majority views and levels of interest on these issues are generally about as strong as they were in mid-1999, even though many of the issues tested have been out of the spotlight over the past twelve months of campaigning.

The poll was conducted by the Center on Policy Attitudes, an independent social science research center. For full results: www.thenation.com, www.foreignpolicy-infocus.org or www.ips-dc.org. Or call IPS: (202) 234-9382, ext. 258.

To Nader or not to Nader, that is the question. A debate over whether Green Party presidential candidate Ralph Nader is a savior or a spoiler has raged for months among progressives. Neither argument satisfies, however, because both are partly right. Votes for Nader instead of Al Gore in a close election really could elect George Bush, with negative consequences for women, minorities, workers and the environment. Yet without Nader, centrist Democrats could bury progressivism even deeper.

Given Nader's remarkable career and the potential of his campaign to build on new movements for fair trade, fair elections and fair wages, the very debate over his campaign reveals a serious flaw in our antiquated electoral rules: Voting for your favorite candidate can lead to the election of your least favorite candidate. Providing the means to express one's real views and insuring majority rule are basic requirements of democracy. But our current system badly fails these tests.

Fortunately, the British, Australians and Irish have a simple solution: instant runoff voting (IRV). They share our tradition of electing candidates by plurality--a system whereby voters have one vote, and the top vote-getter wins--but they now also use IRV for most important elections. Mary Robinson was elected President of Ireland by IRV. Labor Party maverick Ken Livingstone was elected mayor of London. The Australian legislature has been elected by IRV for decades. States could implement IRV right now for all federal elections, including the presidential race, without changing federal law or the Constitution.

IRV simulates a series of runoff elections, but in a single round of voting that corrects the flaws of runoffs and plurality voting. At the polls, people vote for their favorite candidate, but they also indicate their second, "runoff," choice and subsequent choices. If a candidate receives a majority of first choices, the election is over. If not, the candidate with the fewest votes is eliminated, and a runoff round of counting occurs. In this round your ballot counts for your top-ranked candidate still in the race. The eliminated candidate is no longer a "spoiler" because the votes of that candidate's supporters go to their runoff choice. Rounds of counting continue until there is a majority winner.

Imagine this year's presidential race with IRV. Nader supporters worried about George Bush could rank Nader first and Gore second. Suppose Bush won 45 percent of first choices in a key state, Gore 44 percent, Nader 9 percent and the rest 2 percent. Under current rules, Bush wins. But with IRV, after Nader loses in the instant runoff, his supporters would propel Gore above 50 percent and defeat Bush. Rather than contribute to Gore's defeat, Nader could help stop Bush, while delivering a message to Gore: Watch your step on trade, political reform and the environment.

Freed from the spoiler stigma, Nader could more easily gain access to the presidential debates, inform and mobilize a progressive constituency and win more votes. Higher turnout and increased attention to progressive issues could move the political center and help Democrats retake Capitol Hill. The Green Party could gain a real foothold. In other words, his campaign would be a win-win, rewarding the energy of young activists, whose belief in electoral politics would be put at risk by a weak Nader performance.

Surveying past elections, it's intriguing to consider what might have been. What would have happened with IRV in 1968, when the anti-Vietnam War movement was left without a champion in the general election and Richard Nixon narrowly edged out Hubert Humphrey? Might Jesse Jackson in 1996 have pursued his proposed independent candidacy, forcing Bill Clinton to justify his moves to the right? What might socialists Norman Thomas and Henry Wallace have achieved in the thirties and forties?

Of course, IRV isn't only for liberals. This year it could have encouraged John McCain to ride his Straight Talk Express over to the Reform Party, and in past years it could have boosted Ross Perot. IRV has no ideological bias, as has been proven by its shifting partisan impact in eight decades of parliamentary elections in Australia. Its virtue for all sides is that it doesn't punish those ready to challenge the status quo.

At the same time, IRV is proving a winning argument for both Democrats and Republicans when they are confronted with potential spoilers. Worried by the fact that strong Green candidacies have split the Democratic vote in two of the state's three House seats, prominent New Mexico Democrats are backing IRV, and the State Senate decided in 1999 to give voters a chance to enact IRV for all state and federal offices. In Alaska the Republican Party, also beset by split votes, has made a sweeping IRV bill for all state and federal offices its number-one legislative priority, and advocates have already collected enough signatures to place IRV on the statewide ballot in 2002. Vermont may hold the most immediate promise. Boosted by public financing, a progressive third-party candidate is mounting a strong challenge in the governor's race, and an impressive coalition from across the spectrum supports IRV for statewide elections. Public financing and IRV are indeed well matched: With IRV, clean-money candidates could run from across the spectrum without inviting spoiler charges.

Cities are also good targets for IRV campaigns. A charter commission in Austin, Texas, has recommended replacing two-round runoffs with IRV. Voters in Santa Clara, California, and Vancouver, Washington, recently approved ballot measures to make IRV an explicit option in their charters.

For all IRV's benefits, ours remains a majoritarian system, and minor-party candidates aren't likely to win office much more than under plurality rules. To achieve truly fair representation would require other reforms, such as campaign finance reform and proportional representation for electing legislators. But IRV is the best way to eliminate the spoiler dynamic that suppresses candidacies--and the debate and participation they could generate. If progressives learn one lesson from campaign 2000, let it be that the next presidential campaign should be conducted under fairer rules. Real democracy needs a rainbow of choices, not the dull gray that results in one of the lowest voter turnouts in the democratic world.

In campaign speeches George W. Bush repeats Al Gore's defense of his 1996 campaign fundraising phone calls from his government office--"there is no controlling legal authority"--so often that it's become a stock line in Bush's stump remarks. Attorney General Janet Reno's recent refusal of Republican requests to refer Gore's alleged violation of federal law to an independent counsel gave the GOP an opening to heap even more verbal abuse on Gore. Gore's words, spoken at a press conference three years ago, although including a phrase common enough among lawyers, were widely perceived at the time as defensive or evasive. His use of the phrase was judged by many commentators to have been a political mistake of the first order.

Ironically, it was also a legal mistake. There was and is "controlling legal authority" that actually favors Gore: It is the Constitution of the United States. The law he allegedly violated--Section 607 of the US Criminal Code--would very likely be found unconstitutional if it was ever tested in court.

Section 607 makes it a felony "for any person to solicit or receive any contribution...in any room or building occupied in the discharge of official duties." Attorney General Reno determined that Section 607 covers only "hard money" campaign contributions. Gore testified that he believed that the sums he was soliciting were "soft money." Thus, Reno concluded there was nothing to prosecute and no reason to appoint a special prosecutor.

But Reno's narrow technical explanation for exonerating Gore did not dispel, and may have compounded, the fallout from the "no controlling authority" rationale. A compelling constitutional authority is a much firmer vindication.

The constitutional failing of Section 607 is that it does not require proof of criminal intent. Section 607 says "any person who violates this section shall be fined under this title or imprisoned not more than three years, or both." The three-year maximum sentence makes every violation of Section 607 a felony--even when those involved had unintentionally failed to comply with the law's technical requirements. The Federal Criminal Code (like that of most states) defines a felony to include any offense punishable by imprisonment of more than a year. Every felony is also an "infamous crime" as that term is used in the Constitution. (The Fifth Amendment guarantees that no person may be prosecuted for an "infamous crime" unless a grand jury votes to charge him in an indictment.)

The concept of a felony that does not require criminal intent is jarring to every law school graduate who studied Justice Robert Jackson's classic opinion in the Supreme Court case Morissette v. United States (1952). In his ruling, Jackson traces back to Blackstone's famous eighteenth-century book of Commentaries the Anglo-American concept that a crime requires a "vicious will" in addition to a prohibited act. Jackson states the governing principle this way: "The contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion. It is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil."

Applying this principle, the Supreme Court threw out the conviction of Morissette, who had been found guilty of the crime of "converting" (i.e., stealing) government property because he had taken and sold some rusty and apparently abandoned bomb casings that were lying around the grounds of a military bombing range. The Court roundly rejected the trial judge's instruction to jurors that Morissette's belief that the casings had been abandoned by the government was no defense against the criminal charge of stealing government property. The Supreme Court ruled that proof of a criminal intent on Morissette's part was required to convict him of being a thief.

The due process clause of the Fifth Amendment was designed to preserve the fundamental principles of fairness that the Anglo-American legal tradition recognized in Thomas Jefferson's time. The lawyers who framed, adopted and ratified the due process guarantee of the Bill of Rights were steeped in the study of Blackstone and would surely have considered a requirement to prove criminal intent for an infamous crime a fundamental principle of Anglo-American jurisprudence, a part of the "due process of law" that their Bill of Rights guaranteed.

The due process clause, along with Blackstone's Commentaries and cases such as Morissette, thus provides "controlling legal authority" that should protect the Vice President, or any other officeholder or citizen, from being prosecuted under the felony-without-fault provisions of Section 607. The Vice President and the nation would have been better served had the Attorney General recognized this as a controlling basis for denying the requests for an independent counsel--and had she done so three years ago, before Gore invoked the infelicitous phrase that there is "no controlling legal authority."

The project of racial reconciliation and historical correction is "constitutional" in the deepest, multiple senses of that word.

Right now, there are three votes on the Court to get rid of Roe altogether and often four or five to impose costly, chilling and burdensome regulations on the exercise of that right by the patient and her doctor.

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