Still from an advertisement by John McCain's re-election campaign (YouTube)

In the wake of Sen. Scott Brown’s (R-Ma.) upset victory in Massachusetts, the Democratic Senatorial Campaign Committee issued a memo to campaign managers suggesting a few ways to prevent their candidates from becoming the next Martha Coakley.

“Create sufficient pressure for your moderate opponents to be forced to weigh in on the positions of your far right opponents,” argued the memo writers. The memo set up a hypothetical scenario in which a front-running candidate would have to respond to someone who questioned whether President Barack Obama was a natural-born citizen of the United States. The so-called “birther” question, they argued, could trip up Republicans just as well as questions about the gold standard or nullification of federal laws.

[GOP1]Republicans and conservatives rolled their eyes at the scheme. “That has got to be the most brilliant campaign strategy since Michael Dukakis and [former Georgia Senator] Max Cleland raised questions about their own patriotism,” joked conservative columnist James Taranto in The Wall Street Journal.

But it wasn’t Democrats who fired off the first attack ad on the “birther” conspiracy theory. On Feb. 24, Sen. John McCain’s (R-Ariz.) re-election campaign released a 78-second video accusing his primary challenger, J.D. Hayworth, of indulging the conspiracy theorists. Footage of wild-eyed “birther” attorneys segued into footage of Hayworth mulling over the “questions” surrounding the birth of the 44th president.

The attack from McCain followed several days of under-the-radar, intra-Republican rumor-mongering about Hayworth’s apparent indulgence of the “birthers.” While they haven’t launched such full-on assaults, some Republican strategist have also nudged reporters to pose the “birther” question to California U.S. Senate candidate Chuck DeVore and Kentucky U.S. Senate candidate Rand Paul, as well as Rep. Nathan Deal (R-Ga.), a candidate for governor of Georgia. Even Sarah Palin, who gave a wishy-washy answer to a conservative radio host when asked about Obama’s citizenship, has taken some quiet friendly fire from Republicans bracing for her to hit the 2010 campaign trail. More than 18 months after the conspiracy theory debuted, it continues to dog the GOP — with some prodding by strategists and activists in both parties.

Most Republicans argue that the prominence of “birther” conspiracy theories is the fault of the left, and of liberal think tanks and bloggers like Mark Stark who have captured Republicans on video fumbling the question. Outwardly, they say it’s a distraction that won’t matter.

“The fact that national Democrats are focusing on birthers,” said Brian Walsh, a spokesman for the National Republican Senatorial Committee, “instead of the national unemployment rate… is absolutely bearing fruit [for the GOP.] Republican candidates are now ahead in the polls in eight Democrat-held Senate seats along with all five contested open seats. It’s clear Democrats have not learned a thing from their losses in New Jersey, Virginia and Massachusetts.”

Still, the issue succeeded in shaking up the GOP primary in Arizona. The “Identity” video sparked a war of words between Hayworth’s and McCain’s press shops, with the former accusing the latter of desperation. But there’s a reason for the “birther” resurgence: a bill in the Arizona state legislature, co-sponsored by most Republicans, that would demand “documents that prove” that any future presidential candidate “is a natural born citizen.” The existence of that measure lengthened the news cycle for McCain’s attack, with Hayworth saying he’d support a version of that kind of legislation and McCain taking a pass, his spokesman Brian Rogers telling TWI that the senator “generally doesn’t tell the state what to do.” Hayworth’s campaign called that a dodge.

“This law specifically requires documentation for the presidential primary,” said Hayworth’s spokesman Jason Rose in an interview with TWI. “It should apply to anyone seeking any office. When J.D. goes to the polls he has to provide an ID, so why have a different, lesser, standard for this office?”

Despite the local legislative issue, Rose clarified that Hayworth’s position on Obama was that “the questions about the president have been asked and answered.” But the hubbub there could be repeated in five other states where legislation about the eligibility of presidential candidates has been introduced — in every case, by Republicans. Indiana’s Senate bill 82 grapples with the legal standing issue that has vexed “birthers,” granting the right to challenge qualifications to “a registered voter of the jurisdiction conducting the election.”

New Hampshire’s House bill 1245 mandates that “the names of the candidates shall not appear on the ballot unless the secretary of state has received certified copies of the birth certificates of the candidates.” And in South Carolina, freshman state Rep. Tommy Stringer has introduced legislation that would amend the state’s election code to make sure that “a candidate for President or Vice President of the United States may not have his name printed on a ballot in this State unless there is conclusive evidence that he is a natural born citizen of the United States.” In an interview with TWI, Stringer said the Certificate of Live Birth made available by Barack Obama’s campaign in 2008 “satisfies” him, unless “someone comes up and proves he was born in Kenya or someplace.” The rationale, he said, was not shaming Obama, but demanding transparency.

“As far general opinion goes, Americans don’t trust the government at either the federal or state level,” Stringer said. “Whatever we do to enforce trust and accountability — something like proving citizenship for office — that’s a minimal thing that could establish some trust.”

Stringer was bearish on the chances of his legislation — he doubted it would pass in 2010, though he plans to introduce it again in 2011. The “birther” movement itself has been just as persistent. At last month’s Conservative Political Action Conference, two leading “birther” attorneys drew a mixed response from attendees and a negative response from politicians. Phil Berg, the Pennsylvania attorney who filed the first suit against Obama in 2008, handed out advertisements, occasionally finding sympathy. But Virginia Attorney General Ken Cuccinelli pulled out of a panel because Gary Kreep, a California attorney who has represented Alan Keyes in a “birther” lawsuit, would be on the podium.

After chatting with Berg, Ken Timmerman, a Newsmax.com reporter and former editor of Reader’s Digest, told TWI that the media’s blackout on the conspiracy theory had affected him, too. He’d had articles about the subject spiked. Conservatives, he said, were worried about tackling it.

“What they do is use the Saul Alinsky response,” said Timmerman, “just to ridicule us. ‘Well, it’s the birthers again, the crackpots.’ I think that’s what a lot of the hesitation is about. They don’t want to allow the left to dismiss a legitimate movement because of something like this.” Timmerman understood the thinking of conservative leaders, and understood why liberals thought it was a target for mockery. He just thought they were both going to proven wrong.

Arizona Democrats, meanwhile, are enjoying the circus.

“John McCain hasn’t been a leading voice in the anti-birther movement,” said Jennifer Johnson, a spokesperson for the Arizona Democratic Party. “He saw this as a way to draw a distinction and paint J.D. as an extremist, and less of a legitimate candidate.” And McCain, she said, had no reason to worry about offending hard-right primary voters. “He lost them years ago.”

I stumbled upon Berg as a Belgian TV station gave him a pretty polite and short interview — anyone’s guess whether they were genuinely curious or whether they were humoring him so they could move on. But as he spoke, Berg drew some more onlookers, including another reporter who taped the interview and gushed about what a fan he was of Berg’s work.

“These are people who really support this particular issue,” said Berg of the CPAC crowd. “This issue transcends party lines.”

[C]onsider a case filed by one of the most prolific birther litigants, Philip J. Berg, that went all the way up to the 3rd Circuit Court of Appeals. In November the court dismissed the appeal and ordered Berg to pay the legal costs for the defendants, which included the Federal Election Commission. Here was the government’s big chance to recoup its millions. But when the FEC submitted its bill, the grand total came to $20.40.

Basically, birther lawyers and exploiters like to cite the entire legal bills paid to law firms that defend against these lawsuits and say “that’s how much Obama has spent to thwart us.” They’ve willfully decided not to investigate further.

The plaintiff  in Berg was seeking Declaratory and Injunctive Relief  under Article 2 Section 1 Natural Born Citizen and under 42 USC §1983, seeking determination of  eligibility for presidency of Barack Husein Obama. In his opinion judge Sloviter finds that though the election is over, the court has jurisdiction to hear it as it “fits squarely” as an issue “capable of repetition yet evading review”.Merle v US, 351, 3d 92,94 (3d Cir 2003)  Based on this argument there is Article 3 jurisdiction to hear the case as long as the plaintiff can show standing with specialized injury.

While Berg’s holding finds that a regular voter does not have standing, Presidential and vice presidential candidates such as plaintiffs Ambassador Alan Keyes and Gail Lightfoot have standing.

Judge Sloviter proceeds by arguing that both parties with actual and imminent injuries would have standing in this case. Nearly 40 plaintiffs in this case are members of the military. A number of them are either active military or in active reserves. For example plaintiff  Lita Lott is in active drilling reserves. Within only a few days of notice she will be required to leave her family behind and deploy, this can happen any day. This satisfies the imminent injury prong for the purpose of standing.

In other words, she’s sticking to the discredited and ridiculous arguments that have been laughed out of courtrooms on both coasts. The more interesting question right now is how her confrontation with the U.S. Attorney is going to go.

More on Berg, who has squabbled with the far-more-famous Taitz, here.

Orly Taitz a/k/a Dr. Orly Taitz a/k/a Law Offices of Orly Taitz a/k/a Orly Taitz, Inc; Defend our Freedoms Foundation; Yosef Taitz; Neil Sankey; The Sankey Firm, Sankey, Sankey Investigations, Inc., James Sundquist; Rock Salt Publishing; Linda Sue Belcher a/k/a Linda S. Belcher a/k/a Linda Starr a/k/a Newwomensparty a/k/a Stitchenwitch a/k/a Eva Braun a/k/a Web Sergeant a/k/a Katy a./k/a www.obamacitizenshipdebate.org;  Edgar (Ed) Hale a/k/a JD Smith; Caren Hale; Bar H Farms; Plains Radio Network, Inc. a/k/a Plains Radio; and KPRN AM 1610

Larry Sinclair, a convicted felon who has made the leap from a credibility-challenged Obama accuser to an all-purpose Obama obsessive, is “glad that people have started standing up and fighting back when they are slandered and libel (sic) by anyone.”

As idiotic as all of this is, it’s noteworthy that President Obama’s conspiracy-minded foes are much, much weaker, and have much less punching power in the media, than President Clinton’s did at this point in his presidency.