Gone Quiet
The nuclear submarine Portland is possibly missing in the waters off North Korea, leaving Bartlet to decide whether to trust it has merely "gone quiet" or to order a politically disastrous rescue operation. Sam debates the use of soft money for issue ads meeting the "magic words" test established by the Supreme Court case of Buckley v. Valeo (1). Toby defends funding for the National Endowment for the Arts (2). Oliver Babbish and the First Lady deal with her violations of medical codes (3) and how she can contest the Republicans' efforts against her. CJ and Josh try to determine how to answer the question why Bartlet wants to be president.
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Express advocacy, the "magic words" of Buckley v. Valeo (last updated January 28, 2002) (back to top)
Crafting political campaign advertising around "issues," rather than directly soliciting a vote for a specific candidate, can enable one to avoid federal campaign-finance spending limits. Most federal courts define express advocacy by a strict test limited to whether campaign advertising contains the so-called "magic words" listed in a Supreme Court case.
In that case, Buckley v. Valeo, 424 U.S. 1 (1975), the Supreme Court ruled that campaign ads in federal elections are subject to restrictions only if they "in express terms advocate the election or defeat of a clearly identified candidate for federal office." Limits thus apply, as referenced in a footnote to the Buckley case, to "communications containing express words of advocacy of election or defeat, such as 'vote for,' 'elect,' 'support,' 'cast your ballot for,' 'Smith for Congress,' 'vote against,' 'defeat,' 'reject.'" The Supreme Court was concerned here about not cutting too much into First Amendment rights of free speech.
The Supreme Court opened up the definition of express advocacy slightly when it applied the Buckley test for the first time in 1986, when it considered a newsletter that urged people to vote for pro-life candidates. Holding that the newsletter was express advocacy and thus subject to federal limits, the Supreme Court wrote, "The Edition cannot be regarded as a mere discussion of public issues that by their nature raise the names of certain politicians. Rather, it provides in effect an explicit directive: vote for these (named) candidates. The fact that this message is marginally less direct than 'Vote for Smith' does not change its essential nature. The edition goes beyond issue discussion to express electoral advocacy."
Since these Supreme Court cases, federal courts have tried to determine whether advertisements are express advocacy subject to federal limits as applied by the Federal Election Commission. Most courts have adopted a strict approach that defines express advocacy as only those advertisements including the "magic words" identified in Buckley. As the First Circuit Court of Appeals wrote in the case of Faucher v. Federal Election Commission, 928 F.2d 468 (1991), "trying to discern when issue advocacy in a voter guide crosses the threshold and becomes express advocacy invites just the sort of constitutional questions the [Supreme] Court sought to avoid in adopting the bright-line express advocacy test in Buckley."
The Ninth Circuit Court of Appeals, however, rejected such a narrow approach as "eviscerating the Federal Election Campaign Act." Instead, that court defined express advocacy more broadly in Federal Election Commission v. Furgatch, 807 F.2d 857 (1987), to include speech which "when read as whole, and with limited reference to external events, be susceptible of no other reasonable interpretation but as an exhortation to vote for or against a specific candidate."
In 1995, the Federal Election Commission promulgated new regulations that tried to incorporate the broader Furgatch definition of express advocacy. However, several courts have held that these regulations are unconstitutional and continue to apply the strict "magic words" approach. On January 4, 2000, the district court for the Eastern District of Virginia held that the regulation was "blatantly unconstitutional" and issued an injunction preventing the FEC from enforcing the Furgatch definition against anyone in the United States, saying that it was "unwilling to perpetuate the state of uncertainty faced across the land by potential participants in the public arena."
Given the narrow definition of express advocacy now even more firmly in place, state political parties can use soft money and money raised from corporations or unions that would otherwise be banned for such issue advertising. Individuals or groups - other than candidates or political parties - can also sponsor advertising and avoid limits on contributions by meeting the "magic words" test.
For more on campaign finance, go here.
Sources: The Federal Election Commission's website, on-line here contains a collection of selected court case abstracts. Key cases include Buckley v. Valeo, 424 U.S. 1 (1975), Faucher v. Federal Election Commission, 928 F.2d 468 (1st. Cir 1991), Federal Election Commission v. Furgatch, 807 F.2d 857 (9th Cir. 1987), and Virginia Society for Human Life v. FEC (E.D. Va. January 4, 2000). Campaign Finance Reform, edited by Anthony Corrado et al. (The Brookings Institution Press, 1997).
NEA (last updated November 2, 2001) (back to top)
The National Endowment for the Arts, created in 1965 to fund artists through public grants, has become one of the most visible symbols of American civilization, liberal elitism, or government waste, depending on one's viewpoint. Since the late 1980s, the NEA has survived efforts to dismantle the organization and new restrictions on its actions, but it has also seen its funding in real dollars by half in just five years.
The NEA has given out more than $3 billion via more than 100,000 awards in its history, and has been attacked for only a small handful of awards. One early attack, for example, came in the 1970s for a grant it made to Erica Jong when she was writing the book Fear of Flying, a novel about women's sexuality. Nevertheless, the NEA's most visible and most lasting crisis came in 1989, when NEA-funded works such as Andres Serrano's Piss Christ (a photograph of a crucifix immersed in urine) and an exhibit of homoerotic photographs by Robert Mapplethorpe, The Perfect Moment, sparked widespread controversy. In 1990, performance artists such as Karen Finley also came under attack.
Reacting to this overall controversy, Congress eliminated $45,000 from the NEA's budget, the precise amount contributed via the NEA to the Serrano and Mapplethorpe exhibits. Via Public Law 101-121, Congress also enacted an amendment mandating that no NEA funds "be used to promote, disseminate, or produce materials which in the judgment of [the NEA] may be considered obscene, including but not limited to, depictions of sadomasochism, homoeroticism, the sexual exploitation of children, or individuals engaged in sex acts and which, when taken as a whole, do not have serious literary, artistic, political, or scientific value." The NEA implemented this mandate by requiring all grantee to certify that they would follow such a guideline. Several artists and arts organizations refused NEA grants that year as a protest, and a federal court subsequently invalidated the certification requirement as unconstitutionally vague.
That specific provision lapsed with the end of FY 1990, but similar language still governs the NEA. Under current federal law, 20 USC 954(d), grants are to be made according to artistic excellence and artistic merit, "taking into consideration general standards of decency and respect for the diverse beliefs and values of the American public" (the NEA has interpreted this to mean, in concrete terms, that the composition of its advisory panels should reflect the nation's geographic and social diversity). Also, NEA regulations must indicate that "obscenity is without artistic merit, is not protected speech, and shall not be funded."
Even without controversy over specific exhibits, a Republican-controlled House of Representatives has continued to attack the NEA as a symbol of government waste and elitism. On July 10, 1997, the House voted 217-216 to dismantle the NEA and replace it with block grants to state art commissions and local school boards. The effort was dropped in a conference committee with the Senate later that fall, and the NEA continued to survive in 2001.
Less visibly, NEA funding has fallen considerably in the 1990s. Funding had already been declining in inflation-adjusted dollars from a peak in 1979 when the crisis of 1989 and 1990 broke out, and the fall only accelerated afterwards. Funding in fiscal year 1999 was $97.966 million, whereas just four years earlier, the agency had received $162.311 million. During this time, funding for the arts has moved increasingly to the private sector, such as businesses and foundations.
Some of the NEA's accomplishments include helping to fund the PBS series Great Performances, the design of the Vietnam Veterans Memorial, the careers of 35 national book and poetry award winners since 1990, and the original production of the musical A Chorus Line, which was developed in regional theater. The NEA's most well-known chairwoman was actress Jane Alexander, who served from 1993 to 1997.
Sources: The National Endowment for the Arts is available on-line here. Funding data is taken from the NEA's 1999 Annual Report and then adjusted for inflation using the consumer price index. Joseph Zeigler, Arts in Crisis: the NEA vs. America (1994). Edward de Grazia, Girls Lean Back Everywhere: the law of obscenity and the assault on genius (1992). National Endowment for the Arts v. Karen Finley, No. 97-371, United States Supreme Court 1998. Jerry Gray, House, 217 to 216, votes to replace arts agency with grants to states, New York Times, July 11, 1997. Judith Miller, Alexander plans to resign as leader of arts agency, New York Times, October 8, 1997. Robert Mapplethorpe's work can be seen at the Robert Mapplethorpe Foundation Inc.'s website, available here.
Medical ethics and sanctions (last updated February 24, 2002) (back to top)
Doctors are regulated by the state medical boards that grant - and can take away - a physician's license to practice medicine. The American Medical Association's Council on Ethical and Judicial Affairs (CEJA) helps establish ethical guidelines for the practice of medicine but has no disciplinary power beyond restrictions or expulsions from AMA membership.
In the course of treating her husband for multiple sclerosis, Dr. Abby Bartlet (who said in this episode that she was licensed in New Hampshire, Mississippi, and Arizona) allegedly violated medical ethical guidelines. CEJA opinions do recommend against the treatment of family members (Ethical Opinion 8.19) and find that doctors have an obligation to "retain patient records which may reasonably be of value to a patient" (Ethical Opinion 7.05).
In recommending against the treatment of family members, the CEJA states that physicians generally should not treat immediate family members because their professional judgment may be compromised and because patients may feel uncomfortable disclosing information or in wanting a different doctor. The CEJA is also explicit that "except in emergencies, it is not appropriate for physicians to write prescriptions for controlled substances for themselves or immediate family members."
As far as ethical violations go, treatment of immediate family members is not one of the most common ones, based on a review of cases brought before several state medical boards. Nevertheless, doctors have faced disciplinary proceedings and been sanctioned for prescribing medications to immediate family members. In Arizona, for example, two doctors were disciplined between February 2000 and March 2002 for doing so and for not keeping appropriate records. Both received letters of reprimand and were neither suspended nor placed on probation. One had prescribed pain medication to her brother, who had a family history of headaches, and had not documented most of these prescriptions. The other issued Lorazepam, a controlled medication, to his mother and did not have records justifying the prescription.
There were no other instances of such complaints according to a review of records available via the websites of medical boards in New Hampshire, Mississippi and Arizona, though such could be covered under general complaints of "unprofessional conduct" or "improper prescribing." Reported complaints typically involve improper or illegal prescribing, practicing medicine while impaired by alcohol or drugs, and the umbrella category of unprofessional conduct, which can include sexual relations with a patient.
Information on doctors who have been sanctioned is generally available via state medical boards. Information about sanctions and medical malpractice payments is collected nationally at the federally-operated National Practitioner Data Bank, which provides information to hospitals and other medical authorities but not to the general public. The private organization Public Citizen collects records on sanctioned physicians as part of its "questionable doctors" reports for the public.
Sources: The American Medical Association has a section on medical ethics on-line here, which provides access to the Principles of Medical Ethics (revised as of June 2001) and to the Council on Ethical and Judicial Affairs' ethical opinions. Public Citizen maintains its resource on "Questionable Doctors" on-line here. State medical boards for New Hampshire (see "disciplinary actions"), Mississippi (see annual newsletters), and Arizona (see "recent board actions"). The National Practitioner Data Bank is on-line here.
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