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De l'audace, et encore de l'audace,
et toujours de l'audace, et la patrie sera sauvée.
Georges Jacques Danton, September 2, 1792
Election night in 1964 found me at the local Goldwater for President headquarters in Catonsville, Maryland, just outside Baltimore. I had done volunteer campaign work there during the summer after the Republican Convention, and on weekends. Having obtained permission to be absent from high school on Election Day to hand out Goldwater leaflets at a nearby precinct, I was in Catonsville when Maryland's polls closed to await the national returns. Although Lyndon Johnson seemed to have a large lead going into the election, I remained optimistic that Barry Goldwater would run well, and might even pull off an upset.
So much for the early signs of a promising political career. Goldwater was crushed, in what was then the worst presidential election defeat in American history. At the Catonsville office, which had become quite crowded, many of the adult volunteers (I was just about the only teenager there) were weeping, something I had never seen before in public. I was somewhat puzzled by this display of emotion, but I was more puzzled by the election results, which were going from bad to worse. Dean Burch, Goldwater's chairman of the Republican National Committee, said, "As the sun sets in the West, the Republican star will rise." I believed that for a while, until it became ever more obvious that "down" was the only direction in which Goldwater was headed.
It took weeks for the extent of the defeat to penetrate fully into my befuddled brain. When a few brave souls, just weeks afterward, printed bumper stickers that read "AuH2O '68," I was ready to sign up again. After all, the American people could not really vote in overwhelming numbers for a candidate who said things like, "I want y'all to know that the Democratic Party is in favor of a mighty lot of things, and against mighty few." I had read Goldwater's Why Not Victory? and The Conscience of a Conservative, and fiercely admired the Arizonan's philosophy and candor. He was an individualist, not a collectivist, who said without reservation, "My aim is not to pass laws, but to repeal them."1 He was against "the Eastern Establishment," which conservatives saw as a major source of our misguided statist policies at home, and what Barry called "drift, deception, and defeat" in the international struggle against Communism. I cheered when Barry said we should cut off the eastern seaboard and let it drift out to sea, even though my own state of Maryland would have been drifting out there as well. Later, after he returned to the Senate, Goldwater began a letter to the CIA director, "Dear Bill: I am pissed off." (How many times in my own government career did I long to write a letter like that, although I never did.) In my heart, I knew Barry was right.
While I thought the 1964 presidential election was a no-brainer, I was obviously part of a distinct minority, even though others would bravely say of Goldwater's popular vote total that "twenty-six million Americans can't be wrong." It would have been entirely logical after 1964 to give up politics as completely hopeless, and go on to a career, say, in the Foreign Service, as I seriously contemplated. Or I might have drifted off to the left in college, as so many of my contemporaries did. But like many others whose first taste of electoral politics came in the Goldwater campaign, I had exactly the opposite reaction. If the sustained and systematic distortion of a fine man's philosophy could succeed, abetted by every major media outlet in the country, overwhelmingly supported by the elite academic institutions, to the tune of negative advertising like Johnson's famous "daisy commercial," which accused Goldwater of being too casual about nuclear war, and slogans like "Goldwater for Halloween," it was time to fight back. If the United States was in such parlous condition that people who showed off their appendectomy scars in public and held up beagles by their ears could get elected president, something had to be done. Surrender was not an option.
Thirty-six years later, election night 2000 was a very different affair. Beginning in 1968, Republicans had dominated American presidential politics. Only the unfortunate elections of two failed southern governors had intervened, and the objective in 2000 was to prevent the second Democratic interruption from being extended. Unlike 1964, however, the 2000 election was excruciatingly close, and I didn't stay around to await the outcome. I left for Seoul the morning after the election to participate in a conference on Korea-related policy issues at Yonsei University, which was cohosted by the American Enterprise Institute (AEI), where I was senior vice president. When I checked into my hotel in Seoul late on Thursday, Korea time, the Florida outcome remained up in the air. After a long day on Friday, I turned on the television in my hotel room and found that chaos still reigned in Florida, with no final result.
Most significantly for me, Governor George W. Bush had named Jim Baker, my former boss at the State Department during the previous Bush administration, to lead his effort to salvage Florida's electoral vote. No one at that point had the slightest idea of what might be involved, or how long it would take to decide the evolving contest. Before I collapsed into bed early that Friday evening in Seoul, I left a voice message for Baker at his Houston law firm. I explained that I was in South Korea, but offered to fly to Florida to help. At about 2:00 a.m. Seoul time, the phone rang, and I picked it up to hear Baker's unmistakable Texas twang saying, "Get your ass on a plane and get back here."
Just a few days later, I was in West Palm Beach, part of the great "chad" exercise. I stopped first in Tallahassee, but Baker immediately dispatched me to Palm Beach where he thought a "heavyweight lawyer" should be added to the team already diligently at work. Ken Mehlman, later Republican Party chairman, called me "the Atticus Finch of Palm Beach County," but there were many, many people volunteering. Hour after hour we sat, psychoanalyzing ballot cards. This was the process Democrats hoped would produce a change in Florida's popular vote totals and award them the state's electoral vote, and therefore the national election. One of my AEI colleagues, Michael Novak, a former Democrat, feared the worst, as he watched on television a battle between "the street fighters and the preppies." It turned out we won despite our rosy cheeks. I tried to go home for Thanksgiving, but I was called back to Palm Beach just as I arrived in Washington. My family couldn't face weeks of eating turkey without me, so I returned ours to the local grocery store on Thanksgiving morning, which was certainly a first for me, and flew back to Palm Beach. On the evening of December 12, the Supreme Court ended the struggle in Bush's favor, and quite correctly, as a matter of law, I might add. I was in Baker's office when he called Texas to tell the candidate the good news, saying to Bush, for the first time legitimately, "Congratulations, Mr. President."
After more than a month in Florida, one of the great emotional roller-coaster rides of my professional life, I flew back to Washington on a private plane with Margaret Tutwiler, a long-time Baker aide.We agreed it had been a completely different experience from our time in the State Department during the first Bush administration. It was only a matter of time, however, before both of us found ourselves back at the State Department, where Chad was a country in Africa, not a tiny bit of meaningful paper.
Between the 1964 and 2000 elections, a lot had happened to me, demonstrating in my own experience the definition of "history" as "one damned thing after another," with a few preliminary events before 1964 to get me to that unhappy Goldwater election headquarters in Catonsville.
I started out in Baltimore on November 20, 1948, a baby boomer by any definition of the term, the son of a Baltimore firefighter, Edward Jackson Bolton ("Jack" to everyone) and his "housewife," as we used to say, from Wilmington, Delaware, Virginia Clara Godfrey, or "Ginny." Neither had graduated from high school, but I have no doubt that my own academic record was based on the genes I inherited from them, since it certainly did not come from our social contacts or standing in society. All four of my grandparents, who were mostly Scotch-Irish or Irish, emigrated to the United States in the early 1900s, so my parents were first-generation Americans who had grown up during the Depression and been steeled by World War II. They didn't need anyone to tell them that they had been through tough times, and they were determined, like most in their generation, that their children were not going to repeat their experiences.
Jack lied about his age to join the Coast Guard once World War II started, eager to go to sea, not a surprising aspiration for a Baltimore boy, living in the East Coast's second-largest port after New York. Unfortunately, first assigned to land duty, he made it to sea by dropping a pan of fried eggs on the shoes of an officer who had pushed him a little further than he wanted to go.The ships on which he'd served looked like big hunks of ice, escorting cargoes across the North Atlantic, or so I thought years later when my father showed me the tiny photographs he'd kept. Wounded on D-Day off the coast of France, Jack spent the rest of the war recuperating in Florida, tending to the morale of the stateside female population, or at least that's how he described it. Back in Baltimore, after 1945, he knocked around for a while, and then got married, starting out as a plumber. The union rules, which resulted in what seemed to him to be endless hours of sitting around, finally prompted him to seek something more exciting, perhaps never having shaken the peculiar hold of wartime experience. He became a firefighter for the city of Baltimore, a decision that did not thrill his wife, Ginny, and certainly did no wonders for the family finances.
Shortly after taking his new job, Jack also decided to register to vote, which he did, listing himself as a Republican. The City Hall clerk, reviewing the registration form, said there must be some mistake because Jack was a city employee, and yet he had registered Republican rather than Democrat. When my father said there was no mistake, the clerk explained to him again that city employees registered as Democrats, which my father was still not buying. The story of my father's response undoubtedly grew with the telling over the years, but suffice it to say that Jack registered as an Independent, and no fried eggs were dropped on the clerk's shoes, or worse.
Jack loved being a firefighter, was a good union man, became a shop steward, and held other union offices over the years, attending conventions in what for us were exotic places like Puerto Rico.Make no mistake, he was not a "fireman"; they were the people who shoveled coal into locomotive engines, which was not his job. Although he was probably unaware of Calvin Coolidge's suppression of the Boston police strike of 1919, Jack would have absolutely agreed with Coolidge's admonition that "there is no right to strike against the public safety by anybody, anywhere, anytime." Although we all felt that firefighter and police salaries were too low, it was inconceivable to my father that he would ever go out on strike and leave Baltimore's citizens at risk.When it became fashionable in the 1960s for teachers to strike, he deeply resented it, considering them spoiled for having gone to college and having cushy jobs, which they certainly were compared to his.
We lived for most of my young life, joined by my sister Joni Rae in 1957, in a southwest Baltimore row-house development called "Yale Heights," just off Yale Avenue, complete with a small baseball field: "Yale Bowl. "Psychologists, I guess, can use this to explain my later disinclination to attend Princeton or Harvard.We lived next to a policeman and his family on one side, and a machinist at Westinghouse on the other. Nearby were roofers, bartenders and waitresses, stevedores, and even a few people who worked in offices.To me, Baltimore was a city of industry and manufacturing. I faithfully watched a weekend television program called The Port That Built a City, hosted by Helen Delich Bentley, a newspaper reporter and later a Republican congresswoman, soaking up its explanation of Baltimore's trading and seafaring connections with the wider world. The city had benefited greatly from institutions like the Enoch Pratt Free Libraries (which I frequented), the Walters Art Gallery, and the Peabody Conservatory, all created by far-seeing individuals, not by the government.
Whereas Jack was naturally a quiet man, who generally kept his opinions to himself, except when agitated by government officials, Ginny was not a quiet woman. She explained to me that she had been a socialist in her Delaware youth. That notwithstanding, attractive blonde that she was, she'd also dated du Ponts. Ginny decided that I was not going to be educated forever in Baltimore public schools, which she regarded as inadequate, and she focused on getting me into McDonogh, one of Maryland's most prestigious private schools, in Reisterstown, just outside Baltimore.
As a sixth grader, I sat for the McDonogh scholarship examination, an event so prominent in Maryland at the time that it was advertised on Baltimore television stations. McDonogh then had an eight-hundred-acre campus, luxurious by my standards, and quite a change from city life. I found the day-long exam somewhat lonely and intimidating, but I passed that round and was called in for interviews. My parents were interviewed as well, which wasn't pleasant for Jack, but Ginny was more than happy for an opportunity to sing my praises. My father worked two jobs at the time in order to earn enough income for an adequate living. After fighting fires on the night shift, and working at his machinist's job during the day, he was not usually in a talkative mood.Our interviews apparently went well, and I was accepted into the seventh grade on scholarship. I spent the next six years at McDonogh as a boarding student, which all scholarship students were at the time, coming home on weekends and for vacations. That's why being allowed out of school on Election Day 1964 was so special. Not only was I skipping class, I was off campus on a weekday!
McDonogh had been founded with the legacy of John McDonogh, a Baltimore native who had made a fortune in pre-Civil War New Orleans, and who had divided his wealth between the two cities for the education of the poor.New Orleans used its share to create its public school system, but Baltimore, which already had public schools, and was starting to benefit from the contributions of Pratt, Walters, and Peabody, founded McDonogh in 1873 for orphan boys. So successful was the school that the wealthy wanted their own sons to attend, and paying students were later admitted. By the time I attended, the graduating classes were just under a hundred boys. Typically, between fifteen and twenty boys were on scholarship. McDonogh was a "semimilitary" school, which meant we all wore uniforms and did our share of drilling, but it was not a "military academy" of the southern sort. Two successive headmasters named Lamborn, father and son, were Quakers, and the uniforms originated at McDonogh's founding when the students didn't arrive with many clothes. Over the years, the uniforms had mitigated the disparity between the sons of the wealthy and those of us on scholarship because there was no opportunity for competition in clothes or other ostentatiousness, as at many other schools. Competition was in the schoolroom, on the athletic fields, and in extracurricular activities, and it was intense.
Indeed, the competition was sufficiently intense that it enabled me to get into Yale College, where I started in the fall of 1966, still on scholarship. I traveled to New Haven on a Trailways bus because the ever-benevolent Baltimore government would not let my father have the time off to drive me there himself. Yale was also intense, especially in the late 1960s when anti-Vietnam War sentiment was growing around the country. I was just as much of a libertarian conservative at Yale as I had been in 1964, and given the prevailing campus political attitudes, I might as well have been a space alien. By senior year, students at Yale and elsewhere had decided that "striking" by not attending classes was an effective way to protest whatever was the flavor-of-the-day political issue. I didn't understand or approve of students' striking any more than my father had liked teachers' striking, and I especially resented the sons and daughters of the wealthy, of whom there were many, telling me that I was supposed to, in effect, forfeit my scholarship. I had an education to get, and the protesters could damn well get out of my way as I walked to class.
Yale was filled with extracurricular activities, and I spent a lot of time in the Yale Political Union and the Connecticut Inter-Collegiate Student Legislature (CISL). The Political Union, founded in the 1930s, was modeled after the Oxford and Cambridge Unions and brought in prominent speakers and held debates during the school year. I joined the Conservative Party and found the opportunity to listen to Republicans from "outside" a welcome relief from Yale's relentless, smug, self-satisfied liberalism. The highlight for me was a debate between William F. Buckley, Jr., and Yale's chaplain,William Sloan Coffin, on the proposition "Resolved: that government has an obligation to promote equality as well as preserve liberty." Buckley argued the negative, and cleaned the floor with Coffin, although I have to admit that Coffin had the best line of the evening. As he started, Coffin noted that he had been in Yale's Class of 1949, and Buckley in the Class of 1950. "Back then," said Coffin, "Bill was only a year behind me." After graduation, at the start of the Cold War, both Buckley and Coffin had joined the CIA. Those were the days.
The Political Union did have its more frivolous moments. One issue that consumed Yale in the late sixties was whether the college, all male since its founding in 1701, should become coeducational. This debate may have been more intense than the debate over the Vietnam War, although I doubt the antiwar students would ever admit it, because the outcome could have a profound and immediate impact on our lives. I was against coeducation, thinking instead that Vassar should move to New Haven from Poughkeepsie and join with Yale. Many questioned whether Vassar was up to Yale's academic standards and I suppose at Vassar they had similar concerns. In time, the Political Union addressed this momentous question in a debate on the proposition "Resolved: that in any Vassar-Yale merger,Yale men will always come out on top." In an unusual display of open-mindedness (or perhaps with other motives), the Yalies invited Vassar girls to participate in the debate, which drew an especially large crowd at the Political Union's house on fraternity row. One Vassar girl, who said her name was Ophelia Bust, surprisingly argued the affirmative of the proposition, basically on the grounds that Yalies had no imagination. I forget who won the debate, but Vassar kept its daisy chains in Poughkeepsie, and Yale went coed in 1969, making my Class of 1970 the last all-male class to graduate from Yale College.
CISL was a training ground in political maneuvers. Delegates from about twenty Connecticut colleges and universities met every spring in Hartford, the state capital, to pretend they were the two houses of the legislature. The Yale delegation drew largely from the Political Union, across the ideological spectrum. Unlike Union debates, which were about philosophy and policy, our CISL activities were strictly about getting our candidates and those of our allies elected to key offices. I was ultimately the head of the Yale delegation, and was elected Speaker of the House in 1970, a peculiarity, to say the least, when many college campuses, Yale's included, were beset with protest movements.
Like many Yale institutions, CISL had its own difficulties with coeducation. Our delegation meetings were usually pretty boisterous, with no-holds arguing, unlike the more decorous Political Union. One of our traditions was that a delegation member who had made a political mistake had to raise his arms to the heavens in front of the delegation and plead in a loud voice "give me shit," which the rest of us were happy to do. Our politics were no holds barred as well, as we conspired to build coalitions with other schools to achieve our objectives.We had "seduction squads" to deal with recalcitrant girls' schools, we bargained relentlessly over political deals, and we were expert at sharp parliamentary practices. In a House committee meeting in Hartford, I once had the contents of an entire bill deleted and replaced without a vote as a "typographical error." In preparation for our first delegation meeting with new Yalies in 1969, I called a preliminary meeting of the returning delegates, where we vowed to be a little more refined than usual, so that we wouldn't deter potential female delegation members. When the first regular delegation meeting ended, I knew we had succeeded because one of the girls came up to me afterward and said she knew we were trying to be on our best behavior, which she and the other girls appreciated.Nonetheless, she continued, we were all Yalies now, and we should simply be ourselves. The CISL veterans internalized that advice, and followed it at the next delegation meeting. None of the girls returned after that.
The Vietnam War eventually consumed Yale, as it did the entire country. In New Haven in spring 1970, we also faced the trial of Bobby Seale, a Black Panther accused of murdering Alex Rackley, another Panther. Rackley's body was found in a swamp near New Haven, his body covered with scars from stubbed-out cigarettes and scalding water poured over him before he died. Thousands of radical protesters and their hangers-on, including the Chicago Seven's Abbie Hoffman, converged on New Haven to shut Yale down. I felt that all of this activity, which grew more and more intellectually and, at times, physically coercive, was completely contrary to the community of free expression that a university should be. At "town hall" meetings in Calhoun College, my residential college, I argued to the liberal Yale faculty that this intolerant radicalism posed an even greater challenge to intellectual freedom than the hated Joe McCarthy in the 1950s.Then, at least, the threat came from outside the university; this time, the barbarians were inside the gates. Some of the deeply unsettled faculty liberals, who seemed overwhelmed by the scorn and hostility from the generation they had spawned intellectually, responded favorably to my arguments, but most students simply swept them aside.
Apart from the particular issue of Vietnam, the incessant politicization of every aspect of Yale life was the most dangerous consequence of the late sixties. This really was the American version of China's "Cultural Revolution." Not as damaging as China's, it was still pernicious intellectually, with consequences that continue to damage the fabric of American society as the baby boom generation has aged, but too often not matured. One example was at our Class Day exercise, a traditional part of Yale's graduation ritual. In 1970, our Class "leaders" decided that Class Day would be all about Vietnam, rather than about graduation, which I didn't like at all. I liked it even less when I saw the list of speakers, all of whom were from the far left. I protested this imbalance to the organizers, who replied snippily that their program was balanced, because a student who supported Hubert Humphrey for president in 1968 would represent the conservative side.
That was the last straw. These rich kids might enjoy perverting Class Day, but my mother and firefighter father were not coming to their son's graduation for a political seminar. I shoehorned my way into the Class Day program, determined to have my say, at least to the Class of 1970's parents, if not to the students. Class Day, like graduation, is held on Yale's Old Campus where we had all lived as freshmen, before departing to our residential colleges for the last three years of college life.There were thousands of people present, the largest audience I had addressed, and as I started my few minutes of remarks, I was greeted by hecklers, the only speaker so graced. I had faced this sort of thing many times from the liberals at Yale, who saw themselves as brave and oppressed dissenters from U.S. national policy, but who couldn't stand encountering dissent in their own little sandbox. "What you have over there," I said, pointing to the hecklers, "is a typical example of liberal 'tolerance.' " This very Class Day program, I went on, was "a typical example of liberal self-congratulation," and I called for "an end to the politics of this weekend and a return to the joy and happiness that commencement is supposed to be." I assured everyone that "the conservative underground is alive and well here; if we do not make our influence felt, rest assured we will in the real world." I received a nice reception from the parents, and mostly silence from my classmates. Par for the course. Both my mother and my father lived until the mid-1990s, but I never had any doubt they thought my graduating from Yale justified all of the hardships they had been through.
Before graduation, I joined the Maryland National Guard, finding a position by driving from armory to armory in the Baltimore area and signing up on waiting lists until a slot opened up. I had concluded that the Vietnam War was lost, and I made the cold calculation that I wasn't going to waste time on a futile struggle. Dying for your country was one thing, but dying to gain territory that antiwar forces in Congress would simply return to the enemy seemed ludicrous to me. Looking back, I am not terribly proud of this calculation, but my World War II veteran father, who still risked his life daily for his fellow citizens as a firefighter, approved of it, and that was good enough for me.
I graduated summa cum laude, and was elected to Phi Beta Kappa in December of my senior year. I especially liked the Phi Beta Kappa certificate, which read "for excellence in liberal scholarship," where the word "liberal" clearly meant the free and open search for knowledge so threatened by the intolerance of the late sixties student radicals. I also assigned it a secret meaning, showing that I had beaten Yale's liberals at their own game. I was an "intensive" major in political science, and the main requirement was writing a senior essay, mine being on international relations. My opus (376 pages), on decision-making in the British, French, and American governments during the 1956 Suez Crisis, was sufficiently interesting to others that it won Yale's James Gordon Bennett Prize for the year's best essay in international relations.
I went on active duty for training to Fort Polk, Louisiana, where I spent eighteen weeks from July to November 1970.The highlight was on election night 1970, after taps, when I listened illegally to the returns on a staticfilled transistor radio. In between detailed reports of various liquor-by-the-drink referenda in East Texas were national results, including the startling news that Jim Buckley had been elected senator from New York on the Conservative Party line. His more famous brother Bill had run for mayor of New York in 1965 as a Conservative, winning all of about 14 percent of the vote, but after the Goldwater defeat of 1964, Buckley's mayoral campaign, quixotic though it was, had been a welcome relief. Now, however, in 1970, we had his older brother in the Senate, and that promised real conservative intellectual force at the national level.
All of my academic glories were enough to get me into Yale Law School, where I started in 1971. Ironically, this small professional school had more conservative faculty members three to be precise than all of Yale College. I studied antitrust under Robert Bork, whose then-scorned law-and-economics theories are now the predominant source of antitrust law, an intellectual triumph of stunning proportions in an amazingly short time. I took courses from Ward Bowman, another Chicago School member, and the first tenured professor at any major American law school who was not a lawyer. I was also a research assistant for, and student of, Ralph Winter, later chief judge of the Second Circuit Court of Appeals, yet another member of the law-and-economics school. Only one other student and I considered ourselves real conservatives, although our classmate and good friend, Clarence Thomas, now an outstanding Supreme Court justice, later more than qualified. So few were our numbers that when Bork was named solicitor general,Ralph Winter said the Yale Daily News lead should be, "Yesterday, President Nixon nominated 20 percent of all of the conservatives at Yale Law School to be solicitor general." I also took constitutional law from Alexander Bickel, which affected me deeply, but Bickel was still a New Deal liberal, not a libertarian as Winter, Bowman, and Bork were at the time. I was never a "big government" conservative, not then, and not now. Both Bill and Hillary Clinton were also then at Yale Law School, but I didn't run in their circles.
While slogging through law school, I spent the summer of 1972 as a White House intern for Vice President Spiro Agnew, Maryland's former Republican governor, a political anomaly right there. I had been attracted to Agnew because of his criticism of the Legal Services Program, about which Steve Holzer (the other conservative Yale Law student) and I were writing a Note for the Yale Law Journal. In many respects, my job options for that summer represented a career high point, since I had three ideal offers: to go with Agnew, to be Alexander Bickel's research assistant, or to be an intern at Buckley's National Review. Showing that my political judgment remained as unerring as when I predicted that Goldwater might win the 1964 election, I chose Agnew, but I never regretted it. He was a kind and humorous man, a real middle American, for all that he was bound up in the Maryland political culture that eventually led to his downfall.
My major activity that summer was working to defeat a proposal by what was left of the liberal wing of the Republican Party to change the formula that allocated delegates among the states at the national nominating conventions. Historically, delegation size was based on Electoral College voting strength, with bonuses for states carried by the preceding GOP presidential candidate. The Ripon Society wanted to award convention delegates based only on each state's percentage of the national popular vote. Ripon's formula would enhance the influence of populous states such as New York and Pennsylvania in selecting presidential candidates, even though their electoral votes were most likely to be cast for Democratic nominees.
To most conservatives, the Ripon plan was political suicide, but the liberals hoped to prevail at the Miami convention, by persuading Governor Ronald Reagan to side with them.A big state like California would benefit proportionately from their approach, but Reagan was shrewd enough to see that the broader effect would be to dilute conservative strength in the national party. He kept California aligned with the western and southern states, and the Ripon plan was defeated. After the final vote, I went out to celebrate with Dave Keene, the former chairman of Young Americans for Freedom who had hired me as an Agnew intern. As we were leaving our hotel, we got on the same elevator as Frank Sinatra and his guards. Sinatra asked about us, and when we said we worked for Agnew, one of his great buddies, that was all he needed to hear to invite us to have a beer with him at the hotel bar.As part of the Sinatra entourage, we were whisked right up to the bar, where the three of us each ordered a Budweiser.We did not have an extended conversation with Sinatra, however, because every female in the place rapidly elbowed us aside.
After surviving law school, I became an associate at Covington & Burling, then the largest and one of the most prestigious law firms in Washington. I yearned to join the Nixon administration full-time, but Ralph Winter had wisely advised me to go into private practice first, become a partner in a law firm, and then go into politics. His advice proved exactly right, as first Agnew and then Nixon were forced to resign in disgrace, Nixon just days after I started at C&B in August 1974. Then Ford lost the 1976 election to Carter. Had I been a political appointee in the government, I would have been looking for a job. Having followed Winter's advice, I was happily ensconced making money as a lawyer and was well situated to endure the long night of the Carter administration.
In fact, I had the best of both worlds, since I spent a large part of 1974-76 working on Buckley v. Valeo, challenging the constitutionality of every major provision of the post-Watergate campaign-finance "reform" legislation. Overreacting to Watergate, as in other laws such as the War Powers Act and the Independent Counsel statute, Congress had set strict contribution and expenditure limits on federal campaigns; tried to limit drastically "independent expenditures" separate from campaigns; imposed sweeping reporting and disclosure requirements; created a system of public financing for presidential elections; and established a new regulatory body, the Federal Election Commission, to oversee the law.Ralph Winter had already written extensively about why this entire construct violated the First Amendment's protection of freedom of speech, and we initially hoped President Ford would veto the legislation. Given the weakened state of the Ford presidency and the overwhelming pressure to "reform," that proved impossible.
Instead, Jim Buckley, on whose Senate staff Dave Keene, my friend from the Agnew internship, worked, decided to challenge the statute's constitutionality, and enlisted Ralph Winter as the lead counsel. I persuaded Covington & Burling to take the case pro bono, and we set off assembling a broad coalition of plaintiffs to help demonstrate the law's unfairness as well as its unconstitutionality. Keene had already lined up the New York Civil Liberties Union, which had challenged other statutes purporting to limit independent expenditures, and which probably didn't agree with Buckley on much of anything else. Eugene McCarthy, who had campaigned for the 1968 Democratic presidential nomination as a Vietnam War opponent, and who was running again for president in 1976 as an independent, also joined. McCarthy challenged both the contribution and expenditure limits, which he knew from his own experience could cripple a dissident political campaign before it could even get started, and he opposed the public funding for presidential campaigns because of the overwhelming advantage such subsidies provided to the two major parties, to the detriment of independent and third-party candidates. Although I had obviously not agreed with McCarthy in 1968, I grew to admire him immensely for his candor and integrity. He liked to say that the word "reform" should be banished from the English language because it meant everything and therefore nothing, which sounded right to me.
Everyone knew the decision in Buckley v. Valeo could determine the election in 1976, not to mention the future shape of American politics. Buckley had inserted into the legislation a special provision for expedited judicial review of constitutional challenges, precisely to help facilitate an early answer, one way or another, to avoid the potentially catastrophic consequences of a decision in the middle of the campaign.Ralph and I personally went to federal district court in Washington to file the case on January 2, 1975, the first business day after the new law's effective date, where it received docket number 75-0001.We were off. Predictably, we were wiped out in the D.C. circuit, where the judges' liberal instincts prevailed, and we appealed almost the entire decision to the Supreme Court.
There, the Court held a nearly unprecedented four hours of oral argument, rather than the one hour most cases received. Ralph argued against limits on contributions and expenditures, including limits on independent expenditures, fittingly, since he conceived the First Amendment theories underlying our arguments. Opposite him on these issues was Harvard law professor Archibald Cox, former special prosecutor and the very embodiment of the "reform" cause. Under President Nixon's orders, and after Attorney General Elliott Richardson and Deputy Attorney General Bill Ruckelshaus had resigned, Solicitor General Bork had fired Cox in the "Saturday Night Massacre." Little known then or now, Richardson and Ruckelshaus felt they had to resign, having committed to do so in their confirmation hearings if they saw any White House interference in Cox's investigations. Bork had been confirmed before Watergate was an issue, and had made no such commitment. All three knew that if Bork resigned, the rest of the Justice Department might go, too, provoking an even more serious constitutional crisis. In a pivotal meeting, Richardson said, "You've got the gun now, Bob. It's your duty to pull the trigger." Bork did so to his detriment, as the controversy made Ford afraid to nominate him to the Supreme Court. Instead, Ford selected John Paul Stevens, another Republican mistake that perpetuated our inability to get a sound Supreme Court majority.
For Ralph and me, therefore, Cox had special meaning. Moreover, since this was Ralph's first Supreme Court argument, I wanted him to be relaxed and his usual jovial self. Just before he rose to begin his argument, I slipped him a note that said,"Go Yale! Beat Harvard!" It must have worked because Ralph was superb. The Supreme Court's decision, in January 1976, was mixed, striking down as unconstitutional the expenditure limits and limits on independent expenditures but upholding contribution limits and public financing. Significantly, the Court also struck down the Federal Election Commission, accepting our argument that vesting the appointment of four of its six voting members in Congress violated the separation of powers doctrine (and laying the basis for a later decision that invalidated the legislative veto). We hoped that by hacking away large portions of the statute, we had made the rest unworkable, but Congress quickly responded by recreating the FEC in a constitutional way, and the still-weakened president Ford signed it into law. Legal scholars will continue to debate for decades who won and who lost in Buckley, but the Supreme Court itself gave its interpretation by ruling that the parties defending the statute had to split fifty-fifty the cost of preparing the record for appeal, which we had initially borne as appellants. That satisfied us, although having the entire sloppy statute declared unconstitutional would have satisfied us more. Ralph later asked me, "How does it feel that your first case was the biggest case you'll ever have?" It was a good question, and one that I never resolved satisfactorily. Truly, after Buckley, it was hard to get as excited about anything else in litigation.
Sadly, Jim Buckley lost in 1976 to Daniel Patrick Moynihan, largely because of the attention and publicity Moynihan justifiably attracted as ambassador to the United Nations. In particular, Moynihan had led our unsuccessful effort against the General Assembly's 1975 resolution equating Zionism with racism. He had famously torn up the resolution at the General Assembly podium, declaring, "The United States...does not acknowledge, it will not abide by, it will never acquiesce in this infamous act." Running in heavily Democratic New York, that was all Moynihan needed to overwhelm Buckley. National Review had named Moynihan as its first "man of the year" in 1975, but ended the award in 1976, fearing it had already caused enough trouble. I was despondent on Buckley's behalf, but had no inkling that my path would later cross Moynihan's.
Although I attended the 1976 Republican Convention in Kansas City, hoping that Reagan could seize the nomination from President Ford, it was not to be. Watergate gave the November election to Carter, but proved the wisdom of Ralph's advice: As long as we were in the political wasteland, I might as well pursue my legal career. For the next several years, I immersed myself in private practice and had some interesting times, such as a Supreme Court case involving New York City's decision to declare Grand Central Station a landmark. The Penn Central bankruptcy trustees wanted to construct an office tower above it, which was not as outrageous a plan as many thought. The architects had contemplated an office tower in the terminal's original design, and the building's architectural structure could accommodate the large tower the Penn Central wanted without significant change.
Nonetheless, as in Buckley, this was another case where the High Minded were on the other side, although this time it was not Archibald Cox but Jackie Kennedy Onassis who was the center of attention.We had not handled the case in the lower courts, but the Penn Central asked Dan Gribbon, Covington's preeminent litigator, to take the appeal to the Supremes, and he in turn asked me to work with him. I thought we had an excellent argument under the Fifth Amendment's Takings Clause, but we lost 6-3 in the Supreme Court. During my later residence as UN ambassador in the Waldorf-Astoria Hotel, just down the street from Grand Central, I walked or drove near the terminal almost every day. Constitutional questions aside, I still think it would look better with an office tower above it.
Copyright © 2007 by John R. Bolton