Gov. Bush's cynical end-around in the Florida Legislature

By Thomas Oliphant, Globe Columnist, 12/3/2000

WASHINGTON -- ALAS, POOR Katherine Harris; seems her Tallahassee and Austin masters in the Bush campaign only needed her for a meaningless photo opportunity.

Proving that he wants to be president in the worst way, George W. Bush is presiding over an operation in which last week's cause, last week's climactic moment, is this week's inconvenient minor memory.

Surely you recall the carefully staged TV moments when Florida's Bush campaign co-chair, solemnly cloaked in the powers of the public office she corrupted for that political purpose, used her authority as secretary of state to ''certify'' the Texas governor's then-extant vote totals for president, supposedly cementing the state's 25 electors. The candidate himself even emerged from seclusion to declare on national television (''Titanic'' viewers excepted) that he had won and would begin his transition.

As if these photo opportunities needed a sequel, it was then arranged for his brother, the governor of Florida, to sign something called a certificate of ''ascertainment'' (who thinks up these terms?) that absolutely, positively had to get up here overnight so the ''fact'' of this nailing of the state's electoral votes could be federally recorded. It was.

The show was good for a short spike in the quickie polls, decent television, and allegedly sufficient for the ''finality'' the Bushies say they crave. Now it turns out it was all a hoax.

If the Bush campaign is to be believed this week, last week's show resolved nothing. Now, ''finality'' is said to require that the state Legislature step in and elect Bush's electors, regardless of what the state's courts decide in their judging of the contests to Harris's certification that are being pursued under state law. Indeed, the effort now underway may even proceed regardless of any decision reached by the US Supreme Court.

This is no rogue operation by crazed right-wingers. This comes straight from the top. It was the ultimate Bushie, James Baker, who gave it the official wink and nod the night the Florida Supreme Court found Harris's original moves to stop recounts to fly in the face of law.

That signal galvanized the troops. What began as a seemingly off-the-wall suggestion by the new Republican speaker of the very Republican lower house, Tom Feeney, quickly became a deadly earnest gambit involving the GOP-dominated Senate and its presiding boss, John McKay. And more important, the key strategist after flimsy camouflage was stripped away turned out to be Governor Jeb Bush himself, who coordinated details with the Bush managers in Texas and the lawyers in Florida.

The cover story for this farce of a special legislative session that looms later this week is that naming the Bush electors is simply a form of insurance that Florida will in fact be represented in the Electoral College on Dec. 18 should disputes over certification threaten to leave the electors out of the process.

The cover story is false, as witness the statements last week by Harris as she certified, and by Jeb Bush as he signed the fancy certificate. As things stand this instant, George W. Bush already has 25 pledged electors, ready for the trek to Tallahassee to cast their votes.

The truth is that Harris's photo opportunity was designed to obscure the fact that certification can be challenged under state law and that trial judges and, ultimately, the state Supreme Court decide these contests. They can reject them or they can support them and order remedies (like their own recounts of disputed ballots) that could change the previously certified result, the official tally showing who got more votes.

And that's the real reason for his special session. As John Yoo, a Cal-Berkeley law professor, former clerk for Clarence Thomas, and one of the conservative legal types summoned by the Republicans to give them scholarly cover for their power grab, told the legislators last week: ''In a sense, it doesn't matter what the state constitution or state law says.''

What counts, he and others maintained, is that the Legislature has the power to ram Bush's electors through and should use it, regardless of what the final, official vote count is and regardless of a state legal process that might produce 25 Al Gore electors.

I'm happy to leave the legal arguments to lawyers. But what counts right now is that Bush is prepared to do what Gore is not. Cynicism may teach that all ethics in politics is situational, but Gore will fold his tent if that is the import of Florida and US Supreme Court decisions.

Bush is the one prepared by formal strategy to go around them. He is also the only one prepared to grab the presidency after finishing second in the popular vote, second in the electoral vote outside Florida, and even after finishing an official second in Florida. What a uniter!

Thomas Oliphant's e-mail address is oliphant@globe.com.