"Issues That Really Matter"... Like Privacy

[ Posted Wednesday, January 17th, 2007 – 14:36 UTC ]

Last week, a prominent Republican leader gave voice to a monumentally stupid idea. Surprisingly, this does not (just) describe President Bush's speech. I refer instead to a little-noticed quote from House Minority Whip Roy Blunt. He seems somewhat annoyed that the Democratic House majority is actually delivering on their "100 hours" promises.

Still, his choice of words is embarrassingly revealing: "The Democrats will soon move from these issues that poll at 80, 90 percent to issues that really matter."

Wow. Think about that for a minute. The cluelessness in coming up with such a statement is truly mind-boggling: "issues that poll at 80, 90 percent" are not "issues that really matter," according to the current Republican congressional leadership. This is earthshaking, because for years Republicans have been hammering Democrats for being "elitist." Now it seems the Republicans are showing their own true "elitist" colors, for all to see.

Blunt was quoted at the end of a Washington Post article about how the GOP is already falling apart as a minority party; and how "droves" of Republicans have been voting for all of Speaker Nancy Pelosi's "100 hours" bills.

The article also points out how well the Democrats have done with their short-term tactic of the "100 hours" legislation. But the danger for them now is that they've quickly raised people's expectations for what a Democratic Congress can accomplish. This (it should be pointed out) was not that hard to do, following the "do-nothing" 109th Congress. But now Democrats need to concentrate on a longer-term legislative agenda. In other words: "What next?"

Democrats need to take the initiative here, and roll out a big, positive, and (most importantly) proactive issue. This, of course, doesn't mean they shouldn't also hold lots of hearings, pass other targeted legislation, and also take on Bush's new "McCain Doctrine" Iraq war escalation with full force. But at the same time, they should also attempt a substantial and fundamental reform: passing a Privacy Amendment to the United States Constitution. Nancy Pelosi and Harry Reid should hold a joint press conference to announce this initiative next Monday, which would be perfect timing for two reasons (more on that later).

The wording of the amendment should be simple and straightforward. I'm no lawyer, so others will doubtlessly have better suggestions, but it should be something along the lines of:

"The people have an unalienable right to privacy in their persons, homes, property and data; including (but not restricted to): medical records, financial records, business records, private communications via any medium, and computer records."

That's probably too wordy (as I said, I am no lawyer... nor do I play one on TV... and as any loyal reader knows, I'm a big fan of wordiness in general...). But such an amendment should be basic, fundamental, and sweeping. In a bedrock way it needs to protect medical privacy, financial privacy, and communications privacy; as well as the basics of personal privacy.

This would build a solid constitutional foundation for restricting the government's ability to invade Americans' privacy in a number of important ways. This has become necessary and pressing, since the Bush administration seems to think it's OK to read our mail, tap our phone calls, intercept our emails, and track our financial information in various ways (with even the Pentagon now getting in on the act); all without any judicial review or congressional oversight.

Upon such a foundation could be built a framework of laws that protect against identity theft, data selling and mining, warrantless government spying by the executive branch, and any other potential abuses. This would be a wildly popular idea among a vast majority of Americans. Who, after all, can be "against" privacy?

To be honest, there is one large constituency that would be militantly against it: the anti-abortion folks. This is because the strongest legal argument for repealing Roe v. Wade has always been: "There is no explicit right to privacy in the Constitution." Passing a Privacy Amendment would yank the rug out from that red herring once and for all, and (in doing so) make it virtually impossible for the Supreme Court to ever "overturn" Roe v. Wade at any future time. This is the only politically risky part of the plan, but it needs to be met head-on. Which is why Pelosi and Reid need to announce it this Monday -- the 33rd anniversary of the Roe v. Wade decision.

Democrats have been terrified for many of those 33 years about the prospects of Roe being overturned by an unfriendly Supreme Court. But in all that time, they could have solved the problem by passing such an amendment -- and yet, they haven't. It is time for this political timidity to end. It is time to enshrine the right of privacy as a basic and enumerated constitutional right -- which the courts cannot touch -- thereby putting the problem behind us once and for all (this will incidentally make Supreme Court justice confirmation hearings a lot easier for both parties, too).

The second reason for announcing it on Monday is also political: payback. Since Bush upstaged the "100 hours" campaign last week with his Iraq speech, Democrats should return the favor. Tuesday is "State of the Union" day, and Democrats can steal some of Bush's thunder by announcing a major policy initiative -- the day before he is due to speak to Congress -- when he has no time to respond intelligently to it in his speech.

Politically, this is a win-win issue for Democrats all around. Amending the Constitution is not easy, so it will likely take years to achieve -- and it may well ultimately fail. Remember, an amendment needs to get a two-thirds majority in both houses of Congress, and then be ratified by three-fourths of the state legislatures, in order to succeed.

While I remain a strong proponent for such an amendment, I have no real idea what its chances for passage would be. But even if it did fail in the end, it would still be a great political "hot button" issue to use against Republicans come next election-time. Instead of always playing defense to GOP wedge issues (flag burning, gay marriage, etc.), why not put them on the ropes for once? If the amendment is worded simply and concisely (and, importantly, if it does not even mention abortion), then independent voters and swing voters can make their own minds up about it -- weighing for themselves the simple language of the amendment itself, against the inevitable Republican scare-tactics and fear-mongering.

Voters whose biggest litmus test is abortion probably won't ever support it, but they're never going to vote Democratic anyway, so convincing them shouldn't be a priority. This may indeed cost Democrats some support in the South, but it may also gain them some support in the Rocky Mountain West -- where Republican voters have a more "libertarian" outlook on government intrusion into their lives.

Starting the debate about a Privacy Amendment would also be a nice framework for weeks and weeks and weeks of congressional committee hearings on the present administration's current civil rights abuses, which are legion: Warrantless wiretaps. Presidential signing statements that nullify laws (at least in the eyes of the Bush White House), and how those statements have been used. The PATRIOT Act, and how it is being used (and abused). Data mining of airline passenger information, data mining by the NSA and the Pentagon, and whatever they're calling the "Total Information Awareness" program now. The TIPS program. Federal snooping on library and bookstore records. A "no-fly" guilty-until-proven-innocent blacklist (that you may be on) which is so secret that you can't even ask if you're on it -- and which has no provision for you to prove your innocence, and be removed. "Sneak and peek" home searches. Passports with RFID chips. Searching people trying to enter the New York City subway. Blatantly ignoring the Fourth Amendment whenever it proves inconvenient. The list is horrifying, and goes on and on (I'm sure I've forgotten a few here, as there have been so many).

Since 9/11, Americans' privacy has been under virtual siege by an administration that can't even be bothered to go before a secret star-chamber court and a secret star-chamber judge and get a secret rubber-stamped search warrant -- because they don't think even that's necessary. Democrats could make their case for the amendment by fully investigating all of these programs, in the bright lights of open congressional hearings. Eventually, hard and irrefutable evidence of the Bush White House's abuse of civil liberties will be exposed as a direct result of aggressive Democratic hearings, and this will only serve to build public support for the Privacy Amendment.

[Breaking news: The White House is obviously already nervous about congressional oversight of such abuse.]

If the amendment doesn't pass Congress by the 2008 election season, then it becomes a handy campaign issue for the next crop of Democratic congressional challengers. Many congressional Republicans are already terrified about their chances for re-election (especially after the 2006 election), as evidenced by so many of them crossing the aisle to vote for Democratic bills (the 110th Congress is only a few weeks old, and Republicans are already breaking ranks). Forcing them to vote -- on the record -- against privacy is probably not going to help them much in close races in 2008. Some of them will realize this, and vote with the Democrats.

This is because negative campaign ads would be pathetically easy to generate against them: ["Roy Blunt challenged Democrats to 'move from... issues that poll at 80, 90 percent to issues that really matter.' Democrats responded with the Privacy Amendment. Republican Senator John Incumbent actually voted against it. Who do you want protecting your privacy? Vote for Jane Challenger, Democrat for Senate."]

If the amendment actually passed both houses of Congress (admittedly, getting a two-thirds majority in the Senate would be a lot tougher than in the House), then it becomes a potent issue to use at the state level. Since every state's legislature would then be on the spot to ratify it, it would become a major campaign issue for all the various state government races. And in states which already have privacy clauses in their state constitutions (California, for instance), it would be politically difficult to come out against a federal amendment that reinforced existing state law.

Democrats should seize this opportunity to be for something -- something that most Americans could support. I call upon Speaker Pelosi and Majority Leader Reid to show some political courage, and throw their support behind such a unifying and visionary idea: a constitutional guarantee of privacy for all Americans. This is a big deal, and would show Americans that Democrats have enough backbone to stand up for what is right for all. And that Democratic control of Congress means that Democrats will defend the people's interests on important issues. Issues that not only garner incredibly high poll numbers in support, but also issues that (yes, Minority Whip Blunt) really matter.


[While I am strongly for such an amendment, I cannot claim credit for coming up with the idea in the first place. Others have proposed this in the past, most recently at DailyKos last spring. The article and the comments are both worth reading.]


[See the original Huffington Post article, complete with comments.]

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