Almost constitutional? (The Last Word).

A panel of three circuit judges recently struck down as unconstitutional parts of the McCain-Feingold "Bipartisan Campaign Reform Act." That's bad news for McCain-Feingold supporters, right?

Not according to Rep. Christopher Shays (R-Conn.), who sponsored the legislation in the House. Shays could not contain his glee that (as he put it) "80 to 90 percent of the law was upheld." He added: "I get down on my knees in gratitude to the court."

What kind of congressman, having sworn an oath to support the Constitution, would be thankful that only 10 to 20 percent of an act he sponsored was unconstitutional? Does Shays care about his oath of office? Isn't he acknowledging, against interest, that the court failed to strike down other unconstitutional particulars in the act? Otherwise why express delight that the court did not strike down more than it did?

Of course, Shays would be happier still if the Supreme Court were to uphold all of McCain-Feingold. And so would the act's other principal sponsors: Senators John McCain (R-Ariz.) and Russ Feingold (D-Wis.), and Rep. Marty Meehan (D-Mass.). The four proclaimed in a joint statement: "[W]hile we are pleased with the District Court's split decision upholding important provisions of the campaign finance reform law, unfortunately, it also could create serious loopholes that undermine its effectiveness. We are confident that the Supreme Court will uphold the provisions of this law as it was originally enacted.... The public is not doomed to a corrupt campaign finance system."

Corruption, in their view, is synonymous with allowing citizens to criticize government officials. "If I could think of a way constitutionally, I would ban negative ads," John McCain candidly told supporters at a campaign stop during his 2000 presidential bid.

The McCain-Feingold authors still want citizens to sit down and shut up. The working goal for U.S. congressmen these days is not preserving the Constitution but seeing how much criticism they can quash.

That's why the legislation's authors put a "severability clause" in their bill. They knew their bill was unconstitutional and would be struck down at least in part by the courts. A severability clause instructs courts to strike down only the part of an act they find unconstitutional, rather than the whole act.