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Burden of Proof

Election 2000: The Granite State's Big Issues; Forbes and McCain Challenge New York State Ballot Access Rules

Aired January 31, 2000 - 12:30 p.m. ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

(BEGIN VIDEO CLIP)

ARI FLEISCHER, BUSH SPOKESMAN: But Governor Bush has got the ability to look New Hampshire voters in the eye, relate to them on their concerns about taxes, about education, and he loves mixing it up in the crowd.

PETER SPAULDING, MCCAIN NEW HAMPSHIRE CHAIRMAN: The trademark of John McCain has been straight talk. We have a bus called the Straight Talk Express. We've noticed in the last month at our town hall meetings that we've had very much a blue-collar crowd who have come to listen, and I think that they're making up their minds. I think that has helped us move up in the polls recently.

ERIC HAUSER, BRADLEY SPOKESMAN: I think the average voter wants to hear truth, and they want to hear facts. And when the vice president, for political gain, purposely distorts his own record on abortion, our record on health care, on campaign finance reform, that does no one any good.

JOSEPH KEEFE, GORE NEW HAMPSHIRE CHAIRMAN: The question is: What are the differences between the candidates on the issues? Al Gore has chosen to attack a plan that Bill Bradley put out that would eliminate Medicaid, and Bill Bradley's response to that, rather than defend his plan, has been to accuse Al Gore of distortions and being dishonest and being a liar.

(END VIDEO CLIP)

GRETA VAN SUSTEREN, CO-HOST: It's the last day before the New Hampshire presidential primary. Today on BURDEN OF PROOF, we talk to two of the candidates and look at the big issues in the Granite State.

ANNOUNCER: This is BURDEN OF PROOF, with Roger Cossack and Greta Van Susteren.

VAN SUSTEREN: Hello and welcome to BURDEN OF PROOF. I'm in New Hampshire today.

The presidential candidates are busy today, spending the day before the first primary hustling for votes.

ROGER COSSACK, CO-HOST: They are all said to be upbeat, and the polls show tight races on either side of the contest. Abortion has erupted as a big issue here, with Democrats battling over how consistently they have supported a woman's right to choose. Republicans are waging a similar battle over their commitments to oppose abortion.

VAN SUSTEREN: Joining me here, Joseph Keefe of the Democratic National Committee, Senator Bob Smith, a Republican elected from New Hampshire, and constitutional law professor Richard A. Hesse.

Senator Smith, first to you: Roe versus Wade, a very important Supreme Court case. Is that an important decision for the voters in New Hampshire?

SEN. ROBERT SMITH (R), NEW HAMPSHIRE: Well, I believe that it is, Greta. I think it's important on both sides. I mean, you've got Vice President Gore who used to be pro-life who's running around saying he wasn't, and Bradley's made a big issue out of that. And then I think, clearly, in our party, in the Republican Party, that's a very important case that people really have to embrace and decide to tell the voters one way or the other how they feel about it. I don't see how can you say you want to overturn it and then not take a position -- strong position on abortion.

COSSACK: Senator Smith, from a legal standpoint, what could you do, if in fact the Republicans are elected, to try and change Roe versus Wade?

SMITH: Well, it's my hope that we replace the judges on the court who have given us Roe v. Wade and have upheld it. And so I'm hoping that the next president of the United States will be able to replace those judges and get judges on the court who will overturn Roe v. Wade, very simply because I don't believe it's constitutional. There's nothing in the Constitution at all that says that abortion should be not allowed and abortion on demand should take place at any time. There's nothing in the Constitution that says anything about that, therefore it should be reserved to the states. And Roe v. Wade is unconstitutional, in my view.

VAN SUSTEREN: Dick, you teach constitutional law in the state of New Hampshire. Can a president really change what the Supreme Court did in 1973 in Roe versus Wade?

RICHARD A. HESSE, CONSTITUTIONAL LAW PROFESSOR: Well, as Senator Smith has said, it can be done, but it cannot be done directly. The president can influence by appointing people to the court, but we like to point to Justice Souter as a nomination that sometime surprises presidents.

VAN SUSTEREN: From this state.

HESSE: From this state. And presidents have forever tried to influence the court by nominating people to the court by some litmus test. It doesn't always work.

COSSACK: Senator Smith, Roe versus Wade is based on a right to privacy. Are you suggesting, therefore, that you would put justices on the Supreme Court that would not recognize this right to privacy?

SMITH: Well, I think the privacy, in my view, with all due respect, extends to the unborn child. We have an unborn child here and I think, under the Constitution, I believe that we have an obligation to protect life, and there is nothing in the Constitution that speaks specifically to the issue of abortion. Therefore, Roe v. Wade was unconstitutional, in my view, and it should be left to the states to determine. And I believe that we should protect life under the Constitution.

VAN SUSTEREN: Joe, there's a little bit of a battle here in this state going on right now between Vice President Gore and former Senator Bradley. You are aligned with Vice President Gore, but what is this battle over this Supreme Court decision of abortion?

KEEFE: Well, I think both candidates support and have long supported Roe versus Wade. Both Senator Bradley and Vice President Al Gore have been endorsed by the National Abortion Rights Action League, NARAL, who I don't think would endorse a candidate if they thought that they were at all squishy on Roe versus Wade or abortion. It is true that, early in his career, Vice President Gore wrestled with the issue on a personal basis, for a time opposed federal funding, Medicaid funding of abortions, but changed and evolved over time, as many have done. A lot of men, I think, in particular, went through the same process before becoming pro-choice.

But both of them are strongly pro-choice now. And as Senator Smith as pointed out, I think all of the Republican candidates have pledged to overturn Roe v. Wade, either through constitutional amendment or by appointing pro-life justices to the Supreme Court. The next president may appoint several, so I think abortion is going to be key battle ground in this election.

VAN SUSTEREN: Dick, do you get a sense, though, that the people in New Hampshire truly are looking at the Supreme Court and Roe versus Wade, that they really understand the importance vis-a-vis this election.

HESSE: I don't think many people do appreciate the significance of the presidency vis-a-vis the Supreme Court. After the fact, they pay attention to what particular justices do and what kind of appointments presidents may make, but I don't think it shows up very well on the radar screen during primaries or during, for that matter, the general presidential election.

VAN SUSTEREN: Should it?

COSSACK: Senator Smith, one of the criticisms, of course, has been campaign financing. Would the Republicans be in favor of changing the campaign financing law, the criticism being that the wealthy have too much influence?

SMITH: Well, here again, I go back to the Constitution. I believe that campaign finance, the right to contribute to a candidate, is protected under the First Amendment. It has been so stated by the courts that it is free speech. And, I believe, to limit, to place unfair limits on that right gives undue power to the media, which has no limits.

No one is advocating that "The New York Times" can only write five editorials for or against Al Gore or George Bush or anybody else, so, therefore, why do we limit how much money a candidate can raise? I mean, I was certainly, as a candidate myself, if you want to say, a victim of it. I raised $2 million and George Bush raised, I don't know, $100 million, but I'm not complaining. I think that's the way it should be. Candidates should be able to raise the money based on the commitments they have. And as long as you're not doing anything wrong and you report it so that the public knows where it comes from, I don't have a problem with it.

COSSACK: All right.

VAN SUSTEREN: Joe, what about the issue of spending? Is it -- the Supreme Court says that they can restrict how much you give, but not candidates how much they spend. Is there something inconsistent with that?

KEEFE: Well, Buckley versus Valeo essentially says that, in this country, a person can spend as much of their own money as they want, and they apply that to candidates or campaigns spending as much as they want on their own behalf. Only recently, however, the court, again, upheld the $1,000 limit on contributions.

So it's sort of a strange regime they have set in place. I would like to see serious and significant campaign finance reform in this country, but I think probably the only other alternative that makes sense is probably the one advocated by Senator Smith, having no regulation whatsoever. It seems to me, the hodge-podge of regulations that the court has allowed to be set in place by a rather strange decision, I think, in retrospect, Buckley versus Valeo, is not the best of all possible systems.

SMITH: If I could just amend that slightly to say no regulation but reporting requirements. Instant reporting I think we should have.

COSSACK: All right, let's take a break.

Thanks to Senator Bob Smith and to DNC member Joseph Keefe.

Up next, presidential candidate John McCain talks to BURDEN OF PROOF. Stay with us.

(BEGIN LEGAL BRIEF)

On this day in 1995, the first witnesses against O.J. Simpson testified in the criminal trial.

(END LEGAL BRIEF)

(COMMERCIAL BREAK)

(INTERRUPTED BY COVERAGE OF BREAKING NEWS)

COSSACK: While the candidates are pulling out all the stops for the New Hampshire primary, tomorrow, the New York primary looms ahead with a number of roadblocks.

VAN SUSTEREN: The Republican ballot access rules in New York call for a candidate to collect thousands of signatures from dozens of congressional districts in less than six weeks, an onerous task for some campaigns. Both John McCain and Steve Forbes have taken legal action to seek their places on the ballot. I spoke to Senator John McCain over the weekend, and I asked him if the system in New York is rigged.

(BEGIN VIDEO CLIP)

SEN. JOHN MCCAIN (R), PRESIDENTIAL CANDIDATE: I don't think there's any doubt. Eligible candidates are not allowed on the ballot. They have a long history of that with machine politics, and it's time they changed. The primary problem is the rules are rigged so that really only the selectee of the party machinery is allowed to get on the ballot. That's been a tradition in New York for years. They did it -- they did it to Forbes in 1996. They did it to -- I've forgotten now, but every four years they have excluded any primary opposition, and people have grown more and more fed up with this system. So, the way that the system is rigged is the whole reason why people have been excluded, not only this time but in previous elections as well.

(END VIDEO CLIP)

VAN SUSTEREN: I asked Senator McCain if he had spoken to Governor Bush.

(BEGIN VIDEO CLIP)

MCCAIN: I have spoken directly to him, spoke directly to him, let me on the ballot.

VAN SUSTEREN: And he says?

MCCAIN: The rules -- quote, "the rules are the rules."

(END VIDEO CLIP)

VAN SUSTEREN: I asked him what the problem was, according to Senator McCain, with the New York system, and this is what he said:

(BEGIN VIDEO CLIP)

MCCAIN: What is bothersome is that they are challenging our petitions, using judges that are appointed by these same people that want to challenge us off the ballot. Everybody knows that I'm a viable candidate. Everybody knows I should be on the ballot. Everybody knows that the Republican voters of the state of New York are being deprived of a choice. That's wrong, and Governor Bush could fix that, and he can fix it without us having to spend one minute in court or one minute anywhere else. Just tell Pataki and Powers, who are his minions, to let us on the ballot. It's interesting to me that Rudy Giuliani, mayor of New York; Alfonse D'Amato, former senator; Congressman Peter King have all said, McCain deserves on the ballot. They -- or to be on the ballot. They are all Bush supporters. (END VIDEO CLIP)

VAN SUSTEREN: Roger, is Senator McCain and Steve Forbes, are they going to win this lawsuit?

COSSACK: You know, it's an interesting lawsuit, because I'm not -- I don't really understand how they can go to the people who fix the rules, the state legislatures who set up the rules or whoever the Republican Party set up the rules in New York and say, we just don't like the way you set up the rules. It would seem to me that, fair or not, they have a right to do what they want.

VAN SUSTEREN: You know, Roger has the Governor Bush position on this. Dick, is it unconstitutional the way New York has set up what they claim is a very restrictive way to get on the ballot, unfair to, sort of, quote, "outsiders."

HESSE: Well, the matter has been tested in 1996 and the federal courts found them unconstitutional, at least as applied in 1996 to Steve Forbes' campaign, and this looks very, very much like what the New York Republican Party did in 1996. So, I suspect that the federal standards will lead to invalidation of this.

VAN SUSTEREN: What's so interesting about it is that Steve Forbes won in '96, so New York amended its rules last summer and then apparently didn't amend it enough for Senator McCain and for Steve Forbes, so they're back in court and they've got the same judge. Does that help?

HESSE: Well, I think it does. The judge has indicated in the hearing the other day, at least as I understand it, that he's inclined to reduce further the number of signatures that are required because he believes an onerous burden is still being imposed on people like Senator McCain, who are trying to get access to the ballot. It's essentially a First Amendment issue, not so much Senator McCain's right but the voters of New York and their right to have a choice from among a variety of candidates.

VAN SUSTEREN: All right, we're going to take a break.

COSSACK: Dick, why can't they just -- why can't they just write in the name of the candidate they want?

HESSE: Well, they don't have that option fully in New York state, as I understand it. I'm not an expert in New York state election law, but there are clearly limits, and there are great advantages to being on the ballot in the primary election.

VAN SUSTEREN: So you can just pick a name; it makes it much easier.

HESSE: Exactly.

VAN SUSTEREN: But we need to take a break.

Up next, BURDEN OF PROOF talks to candidate Steve Forbes. Stay with us.

(BEGIN Q&A)

Q: Illinois Gov. George Ryan has suspended the death penalty until a commission can review its use. Since the reinstatement of the death penalty in 1977, 13 death-row inmates have been exonerated.

How many prisoners in Illinois have been put to death in that time?

A: Twelve.

(END Q&A)

(COMMERCIAL BREAK)

VAN SUSTEREN: John McCain is not the only Republican struggling for access to the New York state primary ballot. I spoke to Steve Forbes, who has joined the McCain lawsuit in New York.

(BEGIN VIDEOTAPE)

STEVE FORBES (R), PRESIDENTIAL CANDIDATE: Well, sadly, the Republican Party in New York still hasn't recognized that the Berlin Wall fell over a decade ago, that the Soviet-style gangster mentality of keeping opponents off the ballot, they make it almost impossible unless you are willing to devote real resources to get on the ballot. They make you carry petitions during the holiday season. They have these nitpicking rules to make it easy to throw the petitions out. It is designed to anoint somebody, put that individual on the ballot and make sure that the voters don't have a chance to vote for someone else.

It is utterly undemocratic, it goes against the grain of true choice, and the legislature and the people in New York and the courts ought to throw it out.

VAN SUSTEREN: So is the fix in, is it rigged, or is that too harsh?

FORBES: Sure, that's what it is designed for, it was designed years ago, they knew they had to go to primary system, so they made sure that nobody could get on the ballot without their permission. And you see it every four years it gets national attention, because when they anoint a presidential candidate, they make sure that the other candidates don't get on the ballot. So John McCain is fighting frantically trying to get to get on the ballot. We had to devote immense resources to get on the ballot. And so it is a game they play every four years they do it. And that's not right, the voters of New York should have a choice.

VAN SUSTEREN: I have read that your campaign has spent over $750,000 to get on a number of ballots in New York state. Do you know how much Governor Bush has spent to get on the ballot in New York state? FORBES: They haven't had to spend hardly anything because they use government workers, people who are working for the state, to collect the petitions, they do that for him. That's part of the system. They make it easy for the one they tap on the shoulder, make sure he gets -- that individual gets on the ballot, and then they use everything they can, lawyers and everything else, to try to keep you off the ballot. It is a thuggish system, they have used strong-arm tactics, they stop at nothing to keep you off. And that ought to be thrown out. It is absolutely unfair.

VAN SUSTEREN: Do you think Governor Bush, himself, could change that procedure in New York state, so that you would be on all the ballots?

FORBES: If George Bush said: Stop it, guys, let McCain and Forbes, and other legitimate candidates on the ballot, they would be shamed into it. But he is not willing to do it. He doesn't want competition, clearly.

(END VIDEOTAPE)

VAN SUSTEREN: Dick, it seems like Steve Forbes has a $750,000 filing fee in the state of New York that Governor Bush doesn't have to pay. Is that fair, and should that matter when the court makes a decision on this case?

HESSE: Well, I think it should matter. And I hope it does matter, not only is it an unfair imposition, it is an absolute barrier. A number of candidates who are in the primary, and one who is no longer in the primary, opted to stay out of New York precisely because it cost a fortune just to play the game.

VAN SUSTEREN: Who is wronged? is it the candidates who have these enormous barriers to get on the ballot or is it the people of New York who aren't going to have much choice, if there aren't a number of names on the ballots? who is wronged?

HESSE: Well, I think primarily the court looks at it from the point of view of the voter, and the ability of the voter to participate in the election in a meaningful way, and that's been essentially the constitutional law approach, that has guided the federal courts, at least since 1968.

And on the other hand I think, however, that while the court hasn't yet recognized it, I think there is something in the nature of a right for the candidate to participate in the political process in a meaningful way, and on a level playing field. And I think part of this lawsuit is about equal protection, as equal treatment of all of the players, Governor Bush treated in one way and others treated in a different way is not a level playing field.

COSSACK: Dick, why is it that we are just hearing about this lawsuit now, if there was the same problem that Forbes had four years ago, why hasn't it changed once and for all, and why are they just getting into court now? HESSE: Well, there's a period of time during which, in New York state, during which one gathers the signatures and then there's a period for review. And that just unfolded in early January. This lawsuit was actually filed, I believe, in early December, if I'm not mistaken, and some injunctive relief was sought in the lawsuit. But the court is just getting around to acting on the motion for a preliminary injunction, which would bar the enforcement of the New York law in a way that keeps John McCain out of, I think, 11 or 12 of the congressional districts in New York, and keeps Mr. Forbes out of three or four.

So I think it's just ripening to the point, where they are approaching printing ballots for the March 7th or March 14th, I have forgotten the exact date of the New York primary.

VAN SUSTEREN: And the other issue, too, is that John McCain couldn't file this lawsuit, and Steve Forbes couldn't join in it until it became, what we call, ripe, until they've been wronged, where they can't get on the ballots. So that was another problem that they had to wait until they were wronged, until they were almost prevented from getting on the ballots. So they couldn't file last summer, for instance.

HESSE: No, they had to wait until the process started. The process started, I believe in Hew York, the 37-day window for gathering the signatures, which was part of the 1996 lawsuit that the court found objectionable, but New York state didn't change that. So there is still this period over the holidays when the signatures have to be gathered. And once that process started, then there was a claim of injury and the lawsuit could be filed.

VAN SUSTEREN: Roger, how happy do you think the lawyers are for John McCain to know that the lawyers for Steve Forbes are equally mad and they are joining in in the lawsuit?

COSSACK: Well, I bet this is one of those situations where both of these parties are happy to have each other as allies. It is interesting to me, though, that this is one of those things where the law, as you point out, that you can't actually go to it until something that is, apparently, obviously mettlesome, and no one can seem to get to it until the problem starts.

VAN SUSTEREN: What I think is sort of interesting too is that the 1996 law that Steve Forbes fought about was then changed last summer because Steve Forbes did win, but apparently didn't change enough. So now you've got them mad again, you have got McCain mad again, and Forbes again. So now they are going after the new law.

COSSACK: This is the full employment act for the lawyers, Greta.

But that's all the time we have for today. Thanks to our guests, and thank you for watching.

Stay tuned to CNN. At 3:00 P.M. Eastern, noon Pacific, "TALKBACK LIVE" takes a look at the nontraditional media, and how they are sizing up the presidential contest. VAN SUSTEREN: And tomorrow, we'll be here in New Hampshire, and we are going to be covering the issues for you. Join us tomorrow.

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