To: The Editorial Board of the Houston Chronicle
From: Bathus
Date: November 15, 2005
Re: Texas Constitutional Amendment Banning Gay Marriage

The Chronicle's editorial board would have us believe that the recently-approved state constitutional amendment banning gay marriage was unnecessary, "mean-spirited," and an "embarrassment":

However satisfying this amendment is to its many supporters, its passage is no victory for Texas. Its presence on the ballot was as unnecessary as it was mean-spirited. Texas law already defines marriage as between a man and a woman, and Texas does not recognize same-sex unions recognized in other states.

* * * *

Not only was there no legal or practical need to elevate current state prohibitions to constitutional writ, but doing so came across as a direct attack on gays and on their struggle for a measure of legal equality. Besides being an embarrassment, the amendment sends the wrong signal to businesses that thrive on intellectual capital and creativity.

Inner city black voters in Harris County, many of whom have long experience with the denial of civil rights, favored the marriage amendment by an even higher majority than the general Harris County voting population. Black discomfort with homosexual marriage is rooted less in conscious discrimination than in religious belief, but support for the amendment brought blacks into incongruous accord with members of the Ku Klux Klan, whose members rallied in Austin in support of Proposition 2.

As to the necessity of the amendment, even though an existing Texas statute already prohibited gay marriage, that state statute could have been superseded by a pronouncement of the state supreme court, exactly as happened last year in Massachusetts. If Massachusetts voters had enacted a similar amendment to that state's constitution, the Massachusetts Supreme Court would not have been able to impose gay marriage by judicial fiat. Therefore, to remove the question of gay marriage permanently from the hands of the Texas judiciary, a state constitutional amendment was indeed necessary.

As to the implication that the three-quarters of Texas voters who approved the amendment are mean-spirited and an embarrassment, does the Chronicle's editorial board believe that gratuitous insults will shame its readers into adopting a more enlightened view?

Does the editorial board believe that black readers will not notice the presumptuous condescension with which the Chronicle's editorial writer (who must have worked hours to find what he thought were just the right words) implies that black voters' disapproval of gay marriage must be (ever-so-gently) excused as a product of "religious belief" rather than "conscious discrimination"? With its insinuation that religious belief is, among blacks, a peculiar cause of unconscious discrimination, the Chronicle's editorial manages to impugn blacks both for possessing inordinately unsophisticated religious beliefs and for lacking ordinary intellectual acuity.

Aghast that such an overwhelming majority of blacks voters has escaped from the white liberal plantation, the editorial finally tries to "Uncle Tom" them back into submission with a rhetorically unimaginative observation that the Ku Klux Klan had also demonstrated in favor of the amendment. The only way the Chronicle's editorial writer could have made that last observation more patently disgusting would be to append to it the equally irrelevant remark that the majority of KKK'ers also enjoys fried chicken and watermelon.

The Chronicle editorial board's insulting and condescending attitude toward Texas voters, particularly black Texas voters, on this and a host of other issues is one of the reasons the paper's daily paid circulation declined last year at a rate twice the national average.

Now there's a real embarrassment.

A sadly predictable course of events continues to unfold unabated in the West's attempts to restrain the nuclear ambitions of Iran and North Korea.

In case of the former, the regime's ongoing use of al Qaeda terrorists as active instruments of an aggressive Islamofascist foreign policy is well-documented. When Iran constructs a nuclear device, whether that occurs in two or three years, or ten years (or easily much sooner if Iran is able to smuggle in the fissile material it as yet appears unable to produce on its own), the threat of a hostile regime placing a nuclear weapon in the hands of a fanatical terrorist will have acquired an immediacy against which U.S. policy on nuclear deterrence should be designed to respond well in advance.

Therefore, it must now become the settled policy of the United States that:

In the event of nuclear attack against this nation, its vital interests, or its vital allies,

if each of the progenitors, executors, accomplices, accessories, and abettors of the attack cannot immediately be reasonably ascertained,

the United States shall retaliate without delay, in kind, and with disproportionate and overwhelming force,

against the territories and regimes of North Korea, Iran, and every other hostile government that has possessed, does possess, or has evidenced a volition to possess, nuclear weapons.

If articulated now, such a policy--in addition to fulfilling the absolute necessity to address in advance the apparent eventuality that a state-sponsor of terrorism will soon enough possess nuclear weapons--might also give that regime reason to pause to reconsider the utility of its present course.

When it comes to restricting free expression of political views on the internet, the United States House of Representatives and the tyrants of communist China now officially see eye to eye.

In the Peoples Republic of China:

authorities have introduced scores of regulations, closed Internet cafes, blocked e-mails, search engines, foreign news and politically-sensitive websites, and have recently introduced a filtering system for web searches on a list of prohibited key words and terms.

Those violating the laws and regulations which aim to restrict free expression of opinion and circulation of information through the Internet may face imprisonment and according to recent regulations some could even be sentenced to death.

For the US version of similarly obscene restrictions on your fundamental right of free political expression, you can thank the so-called reforms of McCain-Feingold, which limited what kind of opinions can be expressed about federal election candidates, and who can express them, within 30 days of a primary and 60 days of a general election.

And as of today you can thank the United States House of Representatives for eliminating any doubt about the power of the Federal Election Commission under McCain-Feingold to shut down your blog, fine you, and seek to have to jailed.

But you think McCain-Feingold restrictions on free speech can't possibly apply to your modest little blog?

Think again.

Before McCain-Feingold was passed, the ACLU (which for once is on the right side of an issue) warned that:

individual citizens who want to join together to engage in [issue] advocacy would be subjected to new and burdensome registration and reporting requirements under McCain-Feingold. And for citizen groups whose message is particularly controversial, such disclosure requirements are tantamount to placing a gag around their mouths and silencing them.

In other words, you and your pals on your little team blog that focuses on saving the wetlands or preserving Second Amendment rights are now exposed to FEC regulation, hefty FEC fines, and jail time if you and your fellow bloggers have the balls to join together online to express opinions about a particular federal candidate's position on your pet issue within 30 days of a primary or 60 days of general election. Even if you are so cowardly as to submit to McCain-Feingold's pre-election blackout on free speech, Hercules scissors won't be powerful enough to cut through the red of tape of reporting forms you'll be legally required to file if you are so bold as to use a paypal button to raise a little cash to support your blogging. And heaven help you if take it one more step and use your blog the way God intended to join with like-minded bloggers to support or oppose a particular issue or candidate: You will have then engaged in "coordinated activity," which is conduct subject to severe restrictions under McCain-Feingold, according to U.S. District Judge Colleen Kollar-Kotelly who apparently is thoroughly unimpressed by your First Amendment rights to free association and free speech.

That's right. Just as the ACLU warned, McCain-Feingold gave the FEC the power to regulate what you say about politicians and political issues on your blog, what you link to (especially around election time), and ultimately the power to shut down your blog altogether and have you tossed in jail if you resist.

Today the United States House of Representatives, by failing to exempt internet communications from the reach of McCain-Feingold, effectively confirmed that the FEC does indeed possess all that power and now has a green light to wield it against bloggers, big and small:

House Defeats Bill on Political Blogs
Thursday November 3, 2005 1:31 AM
By JIM ABRAMS
Associated Press Writer

WASHINGTON (AP) - Online political expression should not be exempt from campaign finance law, the House decided Wednesday as lawmakers warned that the Internet has opened up a new loophole for uncontrolled spending on elections.

The House voted 225-182 for a bill that would have excluded blogs, e-mails and other Internet communications from regulation by the Federal Election Commission. That was 47 votes short of the two-thirds majority needed under a procedure that limited debate time and allowed no amendments.

The vote in effect clears the way for the FEC to move ahead with court-mandated rule-making to govern political speech and campaign spending on the Internet.

Opposition [to the bill to exempt the internet from campaign finance restrictions] was led by Rep. Marty Meehan, D-Mass., who with Rep. Christopher Shays, R-Conn., championed the 2002 campaign finance law that banned unlimited "soft money" contributions that corporations, unions and individuals were making to political parties.

"This is a major unraveling of the law," Meehan said. At a time when Washington is again being tainted by scandal, including the CIA leak case, "[exempting the internet from campaign finance restrictions] opens up new avenues for corruption to enter the political process."

The bill's sponsor, Rep. Jeb Hensarling, R-Texas, said the federal government should encourage, rather than fetter, a phenomenon that was bringing more Americans into the political process.

"The newest battlefield in the fight to protect the First Amendment is the Internet,'' he said. "The Internet is the new town square, and campaign finance regulations are not appropriate there."

Without his legislation, Hensarling said, "I fear that bloggers one day could be fined for improperly linking to a campaign Web site, or merely forwarding a candidate's press release to an e-mail list."

Bloggers from liberal and conservative perspectives made similar predictions at a hearing on the subject in September. "Rather than deal with the red tape of regulation and the risk of legal problems, they will fall silent on all issues of politics," said Michael J. Krempasky, director of the Web site RedState.org.

House Speaker Dennis Hastert, R-Ill., writing Wednesday on a blog he recently started, said the bill "is about all the folks out in the blogosphere. It's going to protect what you say. It keeps the hand of the federal government out of Internet speech."

But Meehan said no one wants to regulate bloggers. He said he and Shays have an alternative that would protect the free speech rights of bloggers while closing the cyberspace loophole where a lawmaker could vote for a prescription drug bill and then ask pharmaceutical interests to write six-figure checks for campaign ads for them to run on the Internet.

FEC commissioner Scott E. Thomas said at the September hearing that some $14 million was spent on Internet ads in the 2004 campaign.

A federal court last year, amid the escalation of political activity on the Internet, instructed the FEC to draw up regulations that would extend federal campaign finance and spending limits to the Web.

Senate Democratic leader Harry Reid of Nevada has introduced a companion bill to the Hensarling measure, but the Senate has yet to take it up.

In accord with a long American tradition, and in accord with a somewhat more recent but no less impressive blogging tradition, I have just one thing to say to the United States House of Representatives, to the FEC, and most especially to George W. Bush for signing McCain-Feingold into law, after he admitted it was unconstitutional and promised to veto it:
SCREW
THE
LOT
OF
YOU!

Some other lawyers can worry themselves with sophistical niceties of the constitutional limits on FEC's regulatory powers over political speech. For me, the rule I follow in expressing my views about political matters on this blog is simple, just like the First Amendment:

Congress shall make no law . . . . abridging the freedom of speech . . . or the right of the people peaceably to assemble.

And that applies to speech on the internet and to "peaceably assembling" with my fellow bloggers on the internet.

So here's my rule and my pledge: On this blog, when it comes to political matters, I say whatever I want, whenever I want, however I want, about whoever I want, to whoever I want. I will do all my free speaking and free assembling peaceably, so long as the government leaves me alone. But I will never, ever, so long as I draw breath, register this blog with the FEC or any other government entity. I will never, ever, so long as I draw breath, submit this blog to any legislation or government regulation that purports to place any limit whatsoever on my right peaceably to express my political views. It's that simple.

And if you folks at the FEC don't like it, you can come and get me.

Just try. I dare ya.