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FootnoteTV (TM) : The West Wing Examining the issues behind your favorite TV shows, episode by episode. More info here.   (Frames) | <--- Episode ---> Holy Night (episode 76). It's two days before Christmas, and President Bartlett tries funding a bill addressing infant mortality (1) at the last minute to assuage his guilt over ordering the assassination (2) of Kumari Defense Minister Abdul Shareef. Toby is deposed in a lawsuit (3) brought by constituents because his ex-wife, Rep. Andrea Wyatt (D-Maryland), ran for office without disclosing her pregnancy. Will Bailey is brought officially into the West Wing staff and discusses whether Bartlett should mention campaign finance reform (4) in his upcoming inaugural address. Friends and family return: Danny Kincannon bears a gift and has a lead on Shareef's assassination, Zoe returns with her new boyfriend, and Toby is reunited with his father, who was convicted on murder charges decades earlier. The White House Infant Mortality (last updated December 11, 2002) (back to top) The overall infant mortality rate in the United States dropped from almost 30 infant deaths per 1,000 live births in 1950 to 7.2 deaths per 1,000 live births in 1997, but is still much higher than in other countries. According to federal health data comparing infant mortality rates in 1997, Sweden had an infant mortality rate half that of the United States and the lowest in the survey. Infant mortality rates in the United States vary depending on geographic variation, racial background of the child's mother, and poverty. The infant mortality rate for children born to black mothers is 13.8 deaths per 1,000 live births, more than twice the rate that for children born to white mothers (6.0 deaths per 1,000 live births). Sources: Data taken from the National Center for Health Statistics' Health, United States, 2001, available on-line here. The Centers for Disease Control has information on infant mortality on-line here. Assassinations (last updated May 15, 2002) (back to top) Officially, the United States does not conduct or permit assassinations. However, this policy is not codified in law, but in an executive order (EO 123333) that the President can change at will and without public notice of the change. In addition, this policy does not define what an assassination is, and the United States has long distinguished assassinations as separate from military operations directed against enemy leaders in the course of self-defense. Generally, assassinations are considered by international law experts as the murder of a targeted individual for political purposes, usually involving circumstances of a covert or "treacherous" nature. Whether the intended killing of an individual counts as an assassination or as a generally acceptable military operation depends on whether the relevant countries are at peace or war, the forces carrying out the killing, and the means by which the killing is carried out. During peacetime, the targeted killing of any individual, whether a combatant or not, is generally considered an assassination and is not permitted. However, countries at peace are still allowed to use military force under the inherent right of self-defense of nations, which is recognized in Article 51 of the Charter of the United Nations. Taking an arguably broad view of its rights under Article 51, the United States has used military force in peacetime situations where a country's actions were considered a direct threat to U.S. citizens or national security. The United States has invoked this right in launching airstrikes against Libya in 1983, invading Panama in 1989, and launching airstrikes against Iraq in 1993, though the United States did not officially target specific individuals in these operations in order to avoid having these actions labeled assassinations that might not be permitted by EO 12333. Some critics say that the United States' view of Article 51 is overbroad, and that it was meant only to allow countries to repel either direct invasions or immediate, overwhelming threats under the Caroline standard established in the 1830s. During wartime, countries have more freedom to target and attack individuals who are involved in military operations. A combatant is considered a legitimate target at all times, and is denoted as such by his or her uniform, and so a military operation to kill such an individual is considered permissible, unless done through treacherous means. Thus, the successful attack by U.S. military planes on Japanese Admiral Isoroku Yamamoto during World War II is generally considered an intended attack on an individual, but not an assassination. U.S. policy towards assassinations has been shaped since the 1970s by an executive order first promulgated in 1977 by President Gerald Ford and re-implemented by presidents since then. Ford's Executive Order 11905 provided, in part, that "no employee of the United States Government shall engage in, or conspire to engage in, political assassination." That order was expanded by President Jimmy Carter beyond "political" assassination to all assassinations, and is now embodied in EO 12333, which was issued by President Ronald Reagan and maintained by subsequent presidents. Ford's original order came in the wake of a Senate committee investigation into allegations about United States-authorized assassinations. That committee, which was chaired by Senator Frank Church, concluded that the United States was directly linked to the assassination of Rafael Trugillo of the Dominican Republic and to assassination attempts of Fidel Castro of Cuba., and recommended laws that would prohibit assassinations in peacetime. No such laws were ever enacted, probably pre-empted by Ford's executive action. EO 12333 is open to much interpretation, perhaps intentionally so. It does not define assassination, which gives the United States some flexibility in its actions and allows it to pursue overt military operations even against specific individuals. It also does not define "engaging" or "conspiring," which arguably leaves room for the United States to encourage coup attempts as long as there are no specific plans for the killing of individuals. The order also has limited constraint on the President, since he can modify or overrule the executive order at any time and, because it involves security matters, he does not need to notify the public of the change. The president would not have such flexibility to lift the constraint on his power if the ban on assassinations was embodied in a law rather than an executive order. Effectively, the President has several options if he does wish to order the killing of a foreign leader. He can ask Congress to declare war, he can construe Article 51 to authorize the use of military forces in self-defense, he can narrowly interpret EO 12333 to allow actions as long as specific plans to kill individuals are not involved, and he can modify or overrule EO 12333 unilaterally. His ability to order the killing of a foreign leader visiting the United States, however, might be limited by other factors such as the general policy of not using military forces in the United States, which is given some effect by the Posse Comitatus Act of 1878. Sources: W. Hays Parks, Executive Order 12333 and Assassination, Army Lawyer (1989). Stephen T. Hosmer, Operations against Enemy Leaders (Rand, 2001). Lt. Commander Patricia Zengel, Assassination and the Law of Armed Conflict, Military Law Review, Volume 134, Page 123 (Fall 1991). Bert Brandenburg, The Legality of Assassination as an Aspect of Foreign Policy, Virginia Journal of International Law, Volume 27, Page 655 (1987). Boyd M. Johnson, III, Executive Order 12,333: The Permissibility of an American Assassination of a Foreign Leader, Cornell International Law Journal, Volume 25, Page 401 (1992). No Duty for Candidates to Disclose Medical Condition (last updated December 11, 2002) (back to top) There is no legal duty for candidates to disclose their medical conditions, not even for presidential candidates, which would make it unlikely that any lawsuit against Rep. Andrea Yates (D-Maryland) could survive long enough for Toby to be deposed. In general, the only information that candidates are legally obligated to disclose pertains to their meeting the qualifications for office and their campaign contributions and expenditures. Although many candidates are pressured by the public and by the media into revealing some health-related information, many candidates have not disclosed all such information. Some have recommended that presidents and presidential candidates, at the least, should disclose their medical records for public review and be subjected to some kind of official, independent medical review of their ability to serve in office. Even without such mechanisms, politics and modern media have led to the disclosure of many candidates' health problems. For example, presidential candidate Bob Dole vowed in 1996 that he would submit to an independent medical review of his health and ability to serve, a move that the much younger Bill Clinton did not match. While there is no legal duty in general for a candidate to disclose one's medical condition, the failure to do so could constitute some sort of fraud if a president or presidential candidate was ever specifically obligated to reveal it, such as if he was ever asked under oath if he knew of any medical condition that could affect his ability to serve. Sources: "Committee offers rules for the transfer of presidential power," Associated Press, December 3, 1996. "Dole backs idea of independent health check," by Lawrence K. Altman, New York Times, July 22, 1996. Campaign Finance Overview (last updated May 17, 2002) (back to top) Under the campaign finance system that arose over the 1970s and will change in early November 2002, candidates for federal elections would raise and spend money according to "hard" federal guidelines but could effectively sidestep these rules by having their political parties spend non-federal funds, aka "soft money," on behalf of them. The Bipartisan Campaign Reform Act of 2002, which was signed into law on March 27, 2002 and will take effect after the November 2002 general election, ends the unregulated use of non-federal funds by prohibiting national party committees from soliciting soft money and also by prohibiting state and local party committees from spending soft money in connection with federal elections. Banning soft money’s influence was the centerpiece of the campaign-finance reform legislation sponsored by Senators John McCain (R-Arizona) and Russell Feingold (D-Wisconsin). Republicans have generally raised more hard money than Democrats, especially in the 1996 and 2000 presidential campaigns. In 2001, the Republican and Democratic National Committees raised $82 million and $46.5 million, respectively. Over the 1990s, both parties took advantage of the hard/soft money distinction and raised comparable amounts of unregulated non-federal funds. Parties used this soft money to free up hard money that would otherwise be spent on expenses, such as overhead and voter drives, which benefit individual candidates as well as the overall party. The Congressional elections taking place on November 5, 2002 will thus be the last ones in which parties can raise a good share without being regulated. Accordingly, both parties are using these final months for a last push. Modern campaign finance regulation began with the Federal Election Campaign Act (FECA), which was passed in 1971 and amended in 1974 and 1979. The first major piece of federal legislation on the subject since the 1925 Foreign Corrupt Practices Act, the FECA enacted the following changes by: allowing for the public funding of presidential elections, setting per-voter spending limits on the nominating process, requiring periodic disclosure of campaign spending, prohibiting unions from directly contributing money to candidates while still allowing them to form political action committees, contribute to parties’ nonfederal “soft money” accounts, and engage in “issue advocacy” (corporations were already under similar restrictions due to earlier federal campaign finance laws), and establishing an enforcement agency that would eventually become the Federal Election Commission. NOTE: The FECA also limited the amount of money that a campaign could spend on media advertising, but this provision was declared unconstitutional under the First Amendment by the U.S. Supreme Court in the 1976 case Buckley v Valeo. Under the FECA, all money given to influence federal elections was subject to the “hard” limits of the federal law and was thus called “hard money.” Under federal law, citizens could contribute only $1,000 to a national candidate per election (primary and general elections are counted as separate), $20,000 to the federal accounts of a national party committee, and $5,000 to a political committee. Beyond these specific limits, citizens are limited to a total of $25,000 a year to federal contributions. Political parties were allowed to spend money as “coordinated expenses” directly on behalf of individual candidate, subject to limits based on the size of a state and the kind of race. But there were many, many ways around these limits, stemming from how political parties generally act in both federal and state capacities whereas the FECA, as a federal law, is limited simply to the federal sphere. By soliciting and using money for nonfederal accounts in ways that blur federal and state lines, political parties could raise “soft money” that is not subject to the “hard” limits of federal law and then spend the money during federal election years on behalf of the overall party, which happens to include the federal candidate. Such intermingling was deemed by the FEC to be impermissible in 1976 but became permissible with a policy reversal in 1978. Federal elections to the White House, Senate, and House of Representatives were thus shaped indirectly by soft money. Presidential candidates could draw upon public funding without any private contributions for the general election (about $60 million in 1996), but also got the benefit of soft money provided by their parties. Candidates for the House or Senate were limited to private contributions raised under “hard” money limits and “soft money” provided by their parties. The controversy over soft money came to widespread public attention in 1996 with revelations about the involvement of President Bill Clinton and Vice-President Al Gore in party fund-raising efforts and the use of the White House for party fund-raising activities. The Democratic National Committee ultimately admitted receiving more than $3 million from possibly illegal or improper sources, and questions were raised about whether some money solicited was used improperly for Clinton’s re-election campaign in violation of federal spending limits. The scandal implicated two aspects of the soft money distinction. The first and most important is the overt intermingling of funds in possible violation of campaign spending. A second issue is whether someone could be prosecuted under U.S. Criminal Code 607 for soliciting funds for a federal election from “any room or building occupied in the discharge of official duties.” This somewhat murky provision has its roots in the Pendleton Act that created the federal civil service in 1883 and arguably bars anyone - including Bill Clinton and Al Gore - from making fundraising calls for hard money from a federal office such as in the White House. The Bipartisan Campaign Reform Act culminated the long struggle to ban or limit the use of soft money. In recent years, reform bills failed because senators would use the filibuster to prevent measures from coming to a vote, or the House would fail to bring the issue to a vote. Finally, the House voted in favor of the measure on February 14, 2002, and the Senate also passed it on March 20, 2002. President George W. Bush signed the bill into law on March 27, 2002. Beyond the ban on soft money, the BCRA raised the limits on hard-money contributions, prohibited contributions by foreign nationals, and prohibited political fundraising on federal property more clearly. For more on campaign finance, go here. Sources: Campaign Finance Reform, edited by Anthony Corrado et al. (The Brookings Institution Press, 1997). Selecting the President: From 1789 to 1996 (Congressional Quarterly Inc., 1997). Common Cause, a public-advocacy group, has campaign-finance resources, including a chronology of campaign-finance reform available here. The Brookings Institution also has a good resource available here. The Federal Election Commission is on-line here. Federal and non-federal fundraising statistics were taken from a May 15, 2001 FEC press release on-line here. Statistics on off-election year fundraising are also available through a February 21, 2002 press release on-line here. The Republican and Democratic National Committees' 2001 fundraising statistics were taken from press releases here and here.

DISCLAIMER. The materials contained in this website have been prepared by Stephen Lee ("Author") for informational purposes only and do not contain or constitute legal advice. These materials may not reflect the most current legal developments, verdicts or settlements. Furthermore, this information should in no way be taken as an indication of future results. Reading this website is not intended to create, and your receipt and/or use of the information contained herein, does not constitute an attorney/client relationship. You should not act upon this information without seeking professional counsel. Reproduction, distribution or republication of material contained within this website is prohibited unless the prior permission of Author has been obtained. (C) Copyright 2002, 2003 Stephen Lee. All rights reserved. Newsaic and FootnoteTV are registered service marks of Stephen Lee. Mirror Law and Footnote Comics are service marks of Stephen Lee. More information available here. Comments or suggestions to the Site Editor.

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FootnoteTV ® | Footnote Comics™ | Mirror Law™ | Bulletin Board

By Stephen Lee