Government Run Amok Disease

 

The principles of a free constitution are irrevocably lost, when the legislative power is nominated by the executive. – Edward Gibbon

 

Struck by indications that the U.S. system of government is no longer operating effectively – crucial issues ignored, bad ideas entertained, proposals presented deceptively, dissent dismissed – we decided to analyze the situation.  Herewith a consolidation of the resulting blog entries:

.

Page

Title

2

Is this any way to govern a country? (11/16/09)

10

What is causing GRA (11/23/09)

17

RX, part one – Reform Congress (11/30/09)

23

RX, part two – a Constitutional convention? (12/7/09)

 

Additional thoughts on this subject would be much appreciated.  Please direct your comments to ww3@atlanticbb.net.

 

11/16/09 – Is this any way to govern a country?

 

Underlying the disputes in Washington about healthcare “reform” and other proposed initiatives, one senses that something is amiss with the body politic.  However the malady may be perceived (e.g., government run amok), it has fueled the Tea Party movement and the surging popularity of conservative commentators like Rush Limbaugh and Glenn Beck.  Tea Party leaders are wasting chance to replace Congress, Mark Tapscott, Washington Examiner, 9/3/09.

 

Most Americans are fed up with business-as-usual in Washington and they want real change, not more of the Democrats' power-grabbing slogans, or the "Me-Too" timidity of Republicans who talk the reform talk, but love the perks of power too much to actually walk it.

 

http://tiny.cc/UdDc6

 

This week’s entry will illustrate four aspects of the current political landscape with examples drawn from various policy areas.

 

1. Crucial issues ignored – Like an ostrich that sticks its head in the sand, a country that fails to address its most pressing problems is asking for trouble – particularly when these problems reflect the failings of its governing institutions. 

 

• Consider the federal government’s chronic budget deficit, which after decades of poor fiscal management is spiraling out of control.  In past entries, this issue has been much discussed.  See, e.g., Two cheers for the Fiscal Wake-Up Tour, 11/5/07; State of the budget: a 40-year slump, 1/28/08; Plot thickens, as the Peterson Foundation cranks up, 7/14/08; Fiscal Wake-Up Tour message goes nationwide [release of I.O.U.S.A.], 8/25/08; First things first: time to clean up the fiscal mess, 11/24/08; A tale of two summits [on fiscal responsibility and healthcare, respectively], 3/16/09.

 

Yet for all the efforts of fiscal visionaries, there has been no corrective action.  And although the president may be considering a bipartisan commission to review the situation, look for lots of bickering about the shape of the conference table.  Democrats Push for Plan to Cut Deficit, Jackie Calmes and Carl Hulse, New York Times, 10/31/09.

 

But even the idea of a panel to bridge the partisan divide has run into partisan objections. Many Democrats, including in the White House, are loath to cede such far-reaching decisions to a commission and doubt Republicans’ willingness to compromise.  And most Republicans remain adamantly opposed to tax increases, leaving the prospects for any bipartisan approach limited at best.

 

http://www.nytimes.com/2009/11/01/us/politics/01deficit.html?_r=1&partner=rss&emc=rss

   

• Government restrictions on the development of U.S. petroleum reserves have been tolerated for too long, resulting in higher than necessary fuel prices and a dangerous degree of dependency on imported oil.  To drill or not to drill; that is the question, 7/7/08.

 

No one is about to tell American motorists that they should stop driving their vehicles, gasoline will be the predominant motor fuel for the next 20 years or so, and that gasoline will be refined from oil produced somewhere around the globe. ***The real issue is not drilling vs. not drilling; it is who will do the drilling and how much the resulting oil will cost.  Clearly, there is no reason for the United States to pay any more money to import oil than it has to, particularly when much of the money goes to regimes that are disposed to create problems for us.

The bans on drilling in vast offshore areas were rescinded or allowed to lapse in 2008 due to public angst about a $4+ per gallon price for gasoline, but the new Administration has ordered further studies. Bush-era offshore drilling plan is set aside, MSNBC, 2/10/09.

Jack Gerard, president of the American Petroleum Institute, which represents the large oil companies, said [Energy Secretary Ken] Salazar's announcement "means that development of our offshore resources could be stalled indefinitely."

 

http://www.msnbc.msn.com/id/29119940/

Subsequent steps can be expected to delay and burden domestic petroleum production.  Five Things Congress and the President Are Doing to Bring Back Sky-High Gas Prices, Ben Lieberman, Heritage Foundation, 8/13/09.

Discouraging domestic oil supplies with access restrictions, regulations, fees, and taxes will add to the future price at the pump, while streamlining these impediments to increased production will do the opposite. Congress and the President should be enacting measures that allow oil and gasoline to be as plentiful and affordable as possible to meet the nation's energy needs. Instead, they are doing the opposite.

http://www.heritage.org/Research/EnergyandEnvironment/wm2587.cfm

• Other long neglected problems include illegal immigration, a gold-plated school system that achieves mediocre results, a failed “war on drugs,” overlapping programs (e.g., 160 job training programs costing a total of some $20 billion per year), inefficient government operations (attributable among other things to the great difficulty in discharging poor employees), and pork barrel spending (aka earmarks).  For discussion, see National Suicide: How Washington Is Destroying the American Dream from A to Z, Martin Gross, Berkley Books (2009).

 National Suicide

2. Bad ideas entertained – There is no such thing as a perfect defense.  If enough bad ideas are proposed, some will survive the screening process and get implemented.  And although many of the bad ideas are not new, we cannot remember ever seeing so many in play at the same time.  They fall into two basic categories.

 

• One type of bad idea is a poor solution to a real problem, such as the theory popularized by economist John Maynard Keynes in the 1930s that deficit spending can be helpful in combating an economic recession.

 

Deficit spending did not get America out of the Great Depression, and this technique for stimulating the economy has failed in other countries as well.  Nevertheless, it was a key element of the economic stimulus bill pushed through in February.  Steve Forbes, 2/2/09, Forbes Magazine.

 

The blunt truth is that government spending is a poor substitute for private business and consumer investing and spending. Were it otherwise, the Soviet Union would have won the Cold War, and Japan, which had numerous Obamaesque stimulus packages in the 1990s, would have boomed instead of remaining dead in the water in what was a 12-year recession.

 

http://www.forbes.com/forbes/2009/0202/013.html

 

Given the rise in unemployment since February and a sluggish uptick in private sector demand, it would be a stretch to consider the stimulus bill a success.  The only thing this legislation clearly accomplished was to run up the deficit.  Washington and the Job Market, Wall Street Journal, 11/7/09.

 

It's hard to imagine a more complete repudiation of Keynesian stimulus than the evidence of the last year's job market. We've now had two examples of such stimulus—President Bush's $160 billion effort in February 2008 and President Obama's mega-version [$787 billion] a year later—and neither has made even the smallest dent in employment. As the nearby chart shows, Mr. Obama's economic advisers sold the stimulus by saying it would keep the jobless rate below 8%. Actual results may differ [jobless rate hit 10.2% in October], as they say.

 

http://online.wsj.com/article/SB10001424052748704795604574519602476681352.html

 

• Equally bad is a proposed solution for a problem that does not exist or has been greatly exaggerated.  Take the manmade global warming scare.  It is uncertain that a warming trend will continue (it has been in remission for the last 10 years), the contribution of human activities to global temperatures has not been clearly established, and an abrupt switch to renewable energy sources would be immensely expensive and disruptive.  See the Energy page of this Website and the blog entries listed thereon.

 

http://www.s-a-f-e.org/energy.htm

 

Global warming alarmists have traditionally advocated reducing the volume of carbon emissions (CO2, etc.) so that CO2 would stop building up in the Earth’s atmosphere (it is currently some 390 parts per million, versus 280 parts per million in 1800).

 

Now some environmentalists have upped the ante, saying the level of atmospheric CO2 must be reduced to no more than 350 parts per million.  Cost and/or technical feasibility are beside the point in their view.

 

Two years ago, after leading climatologists observed rapid ice melt in the Arctic and other frightening signs of climate change, they issued a series of studies showing that the planet faced both human and natural disaster if atmospheric concentrations of CO2 remained above 350 parts per million.

 

Everyone from Al Gore to the U.N.’s top climate scientist has now embraced this goal as necessary for stabilizing the planet and preventing complete disaster. Now the trick is getting our leaders to pay attention and craft policies that will put the world on track to get to 350.

 

http://www.350.org/

 

3. Proposals presented deceptively – In selling a product or service, there is a natural tendency to emphasize the expected benefits while saying as little as possible about uncertainties, cost, etc.  Not for nothing does the law require “truth in advertising” from business firms. 

 

There are no comparable safeguards, however, when it comes to government policies or programs.  Consider the deceptive sales pitches for the economic stimulus bill, the president’s healthcare plan, and proposed energy legislation (cap and trade plus).  “Happytalk” blossoms in the nation’s capital, 7/6/09.

 

There has been a willingness to shade the truth at the highest levels, as for example when the president suggests that his healthcare proposal could be implemented without adding to the government’s fiscal woes or raising costs/degrading coverage for people who currently have healthcare insurance.  Providing HCI coverage for, say, 30 million more people would be costly, and it is unclear how offsetting savings could be achieved without government-imposed rationing (which has not been talked about).  Trick or treating with healthcare reform, Kristine Iverson, Washington Examiner, 11/8/09.

 

The President asserts that we spend so much money on healthcare "that doesn't make us any healthier" that he can finance most of the reform plan with the savings, but he never says what he believes is wasteful. People going to the doctor too much? Doctors doing too many tests? The only way his health reform proposal can achieve these savings is by telling people when they can go to the doctor and telling doctors how to treat patients.

 

http://tiny.cc/Guiqn

 

Surrogates and advocacy groups also contribute to the confusion.  Consider the claim of the International Energy Administration that global energy prices will double unless a deal to limit carbon emissions is reached at the December meeting in Copenhagen.  IEA says no emissions deal will double bills, Rowena Mason, UK Telegraph, 11/10/09.

 

The independent body said the huge price of tackling climate change will eventually be overtaken by the cost of remaining dependent on fossil fuels, which are becoming more difficult and expensive to extract. It estimates that Europe's annual energy bill will more than double to $500bn (£300bn) by 2030, as the oil price is likely to reach $100 per barrel by 2015 and $190 by 2030.

 

http://www.telegraph.co.uk/finance/6539831/IEA-says-no-emissions-deal-will-double-bills.html

 

Actually, as this article seems to acknowledge, government-dictated constraints on the use of fossil fuels would drive up energy prices versus the status quo. 

 

As for the world being fated to run out of petroleum reserves fairly soon, this view is belied by, among other things, new techniques for extracting natural gas from shale deposits.  Interestingly, the shale gas breakthroughs occurred in this country, and they represent a triumph for the private sector.  America’s Natural Gas Revolution, Daniel Yergin and Robert Ineson, Wall Street Journal, 11/2/09.

 

Preliminary estimates suggest that shale gas resources around the world could be equivalent to or even greater than current proven natural gas reserves. Perhaps much greater. But here in the U.S., our independent oil and gas sector, open markets and private ownership of mineral rights facilitated development.

 

http://online.wsj.com/article/SB10001424052748703399204574507440795971268.html

 

4. Dissent dismissed – The purposeful avoidance of meaningful discussion is not conducive to developing the best government policies. It is also infuriating to the people who feel they are being ignored.  Here are some recent examples.

 

The opposition party has had a very limited opportunity to influence important legislation this year, starting with the economic stimulus bill.  Although the president invited Congressional leaders of both parties to the White House in January, he was reportedly unreceptive to suggestions about the size or makeup of the stimulus package. Obama to GOP: “I won,” Jonathan Martin and Carol Lee, politico.com, 1/24/09.

 

President Obama listened to Republican gripes about his stimulus package during a meeting with congressional leaders Friday morning - but he also left no doubt about who's in charge of these negotiations. "I won," Obama noted matter-of-factly, according to sources familiar with the conversation.

 

http://www.politico.com/news/stories/0109/17862.html

 

We do not recall reading of participation by opposition party leaders in subsequent White House meetings of this nature, i.e., the president typically confers with the Congressional leadership of his own party only.

 

In Congress, opposition party members have been excluded from bill drafting sessions and asked to vote on major bills without adequate time to read them.  To be complete, their party is said to have used similar tactics when the shoe was on the other foot. The Death of Deliberative Democracy, Michelle Malkin, Townhall.com, 11/6/09.

 

In June, Pelosi's Imperial Congress severely curtailed debate on the House cap-and-tax bill and rammed a 309-page manager's amendment through the legislative grinder at 3 a.m., which no one read before the vote just hours later. As GOP Rep. Mike Pence pointed out on the House floor, the "debate" was a "travesty." So much for procedural fairness: 224 GOP amendments were denied by the majority.

 

http://townhall.com/columnists/MichelleMalkin/2009/11/06/the_death_of_deliberative_democracy?page=full&comments=true

 

At the same time and somewhat inconsistently, the opposition party has been accused of lacking ideas and failing to offer alternatives.  See, e.g.,  GOP takes “targeted” healthcare approach, Jennifer Haberkorn, Washington Times, 9/29/09.

 

"All the amendments today are not [a] health reform plan, but rather they're attacking this, attacking that, something here, something there," said Finance Chairman Max Baucus, Montana Democrat, during the committee's markup session last week. "I don't know what the Republican alternative is. ... I don't see a massive or a big, large proposal on the other side for an alternative. I don't see one."

 

http://www.washingtontimes.com/news/2009/sep/29/gops-health-care-approach-called-targeted/?feat=home_headlines

 

Actually, the opposition party has offered its own healthcare reform bill.  They even got it scored by the Congressional Budget Office.  But no matter, as the party in power was not of a mind to discuss it.  CBO: Republican health[care] plan would reduce premiums, cut deficit, Susan Ferrechio, Washington Examiner, 11/5/09.

 

"Here's the Bottom line - Americans lose and Insurance companies win under the Republican plan," Pelosi spokesman Nadeam Elshami said.


 

http://www.washingtonexaminer.com/opinion/blogs/beltway-confidential/CBO-Prepublican-health-plan-would-reduce-premiums--69270747.html

 

Criticism or questions have not been welcomed from sources outside the political establishment either.  For example:

 

• Tea party participants have been dismissed as an angry mob, organized by the opposition party.  Check out this video, which was sponsored by the Democratic National Committee in August.

 

http://www.youtube.com/watch?v=PtTBkxvBq88&feature=player_embedded

 

The charge was well wide of the mark.  Apparently, roughly 60% of the country is part of an “extremist mob,” Mary Katharine Ham, Washington Examiner, 8/5/09.

 

It's utterly probable that some—even many— of the concerned folks showing up at health-care town halls are the kind of older, white, Middle America Democrats Obama went to great pains to woo. The rows of VFW ballcaps and suspiciously well-dressed protesters bespeak a contingent of Hillary Democrats and even the ballyhooed Obamacans, convinced by Obama's moderate shtick and now left wondering what they got themselves into. And, if such folks are not in those crowds, they are in the 60 percent of voters who identify with them, as are the all-important Independents.

 

http://www.washingtonexaminer.com/opinion/blogs/beltway-confidential/Apparently-60-of-the-country-is-part-of-an-extremist-mob-52543917.html

 

• Unfavorable media coverage has been dismissed as obstructionist rant and/or attributed to the opposition party.  White House Escalates War of Words With Fox News, FoxNews.com, 10/12/09.

 

"What I think is fair to say about Fox -- and certainly it's the way we view it -- is that it really is more a wing of the Republican Party," said Anita Dunn, White House communications director [since departed], on CNN. "They take their talking points, put them on the air; take their opposition research, put them on the air. And that's fine. But let's not pretend they're a news network the way CNN is." 

 

http://www.foxnews.com/politics/2009/10/12/white-house-escalates-war-words-fox-news/

 

• Industry groups expressing contrary opinions have been dismissed as motivated by self-interest.  W.H. makes “enemies” of Bush allies, Jon Ward, 10/22/09.

 

"When you're on their side, it's all OK, but if you're not, they rain hell down on you," said R. Bruce Josten, executive vice president of the U.S. Chamber of Commerce, bemoaning the administration's bellicose response to differing opinions on health care and financial regulatory reform proposals.

 

http://www.washingtontimes.com/news/2009/oct/22/obama-whs-moves-raise-specter-of-enemies-list/

 

• Meanwhile, there has been little apparent willingness to engage in substantive discussion.  Consider the Speaker of the House’s response to a question that seems entirely legitimate to us (in fact, we asked it rhetorically in last week’s entry): What provision of the Constitution empowers Congress to require people to buy healthcare insurance?  A Minority View: Constitutional Contempt, Walter E. Williams, Townhall.com, 11/11/09.

 

At Speaker Nancy Pelosi's Oct. 29th press conference, a CNS News reporter asked, "Madam Speaker, where specifically does the Constitution grant Congress the authority to enact an individual health[care] insurance mandate?" Speaker Pelosi responded, "Are you serious? Are you serious?" The reporter said, "Yes, yes, I am." Not responding further, Pelosi shook her head and took a question from another reporter. Later on, Pelosi's press spokesman Nadeam Elshami told CNSNews.com . . . "You can put this on the record. That is not a serious question. That is not a serious question."

 

http://townhall.com/columnists/WalterEWilliams/2009/11/11/a_minority_view_constitutional_contempt

 

Really?  Don’t try telling that to veteran newspaperman Seth Lipsky, who has studied the Constitution over the years and is fond of asking “Where does the Congress get the power to do that?” or the equivalent.  Our “Constitutional” Moment, James Taranto, Wall Street Journal, 11/14/09.

 

http://online.wsj.com/article/SB10001424052748704402404574528440210923978.html

 

*   *   *   *

Crucial issues ignored, bad ideas entertained, proposals presented deceptively, dissent dismissed.  Somehow, this does not sound like the way to arrive at good answers.

 

As we said at the beginning, “is this any way to run a country?”

 

If not, what needs to be done about it?  Tune in next week for further discussion.

top
 

11/23/09 – What is causing GRA?

 

This entry will review some possible causes of the disease that the U.S. political system is suffering from, call it “Government Run Amok,” which in our view threatens this country’s prosperity and standing in the world.

 

Partisan gridlock – One explanation that has been offered for the mediocre results of the political system is a lack of bipartisan cooperation, which more often than not is blamed on the opposition party. 

 

Thus, Democratic leaders had some suggestions to offer after the party switch of Senator Arlen Specter (now D-PA) in April.  Pelosi’s advice to Republicans, San Francisco Chronicle, 4/30/09.

 

"I say to Republicans in America, take back your party," said House Speaker Nancy Pelosi, D-San Francisco. "The party of protecting the environment, the party of individual rights, the party of fairness."

 

http://tiny.cc/22Han

 

Picking up the refrain, former Secretary of State Colin Powell opined that Republicans should stop “repeating mantras of the far right” and develop a more positive message.  Powell Says Shrinking GOP Should Return to the Center, Chris Strohm, National Journal.com, 5/5/09.

 

http://tiny.cc/W9WoX

 

As for what the general public thinks, the growing number of Americans who identify themselves as “independents” or “unaffiliated” may indicate a desire for politicians to take a middle of the road approach. 

 

According to a Pew Research poll, independents represented 39% of the electorate in April versus 33% Democrats and 22% Republicans (“the lowest level of professed affiliation with the GOP in at least a quarter century”).  [These numbers leave 6% of respondents unaccounted for.]  Independents Take Center Stage in Obama Era, 5/21/09.

 

http://people-press.org/report/517/political-values-and-core-attitudes

 

Other polls report somewhat more support for the established parties, especially on the Republican side, but confirm a surge in independents.   Thus, Rasmussen reported the following split in October: Democrats 38%; Republicans 32%; unaffiliated 30%.  Democrats Inch Up in Partisan ID in October, GOP Slips, 11/2/09. 

 

http://tiny.cc/F2YP0

 

It is commonly perceived that the parties are not working together on key issues (e.g. healthcare), and understandably so.  After all, Democrats have stoutly resisted inputs on such issues, while Republicans have voted overwhelmingly against the Democrats’ proposals.  Few Perceive Sincere Bipartisan Efforts in Congress, Gallup, 9/18/09.

 

http://www.gallup.com/video/123029/Small-Number-Perceive-Sincere-Bipartisan-Efforts-Congress.aspx

 

Nevertheless, we are not prepared to attribute the malfunctions of the political system to excessive partisanship.

 

For one thing, partisan rivalry has existed from the start of this nation.  For an insightful analysis of “factions,” see Federalist Paper No. 10 by James Madison:

 

• Factions are inevitable

 

As long as the reason of man continues fallible, and he is at liberty to exercise it, different opinions will be formed.  As long as the connection subsists between his reason and his self-love, his opinions and his passions will have a reciprocal influence on each other, and the former will be objects to which the latter will attach themselves.

 

• the most important reason for factions is “the various and unequal distribution of property”

 

Those who hold, and those who are without property, have ever formed distinct interests in society.  Those who are creditors, and those who are debtors, fall under a like discrimination.  A landed interest, a manufacturing interest, a mercantilist interest, with many lesser interest, grow up of necessity in civilized nations, and divide them into different classes actuated by different sentiments and views. 

 

• and instead of trying to brush the existence of factions under the rug, an enlightened government should strive to mitigate their effects.

 

The regulation of these various and interfering interests forms the principal task of modern [as of 1787] legislation, and involves the necessary and ordinary operations of government.

 

http://www.s-a-f-e.org/federalist_papers.htm

 

Moreover, bipartisan cooperation can morph into the blind acceptance of ideas that deserve to be vigorously debated. Notice how quick the advocates of an ever-expanding role for government are to class dissenting views as of no consequence.  Hey, they might even be talking about us!

 

Thus in September, a White House official characterized participants in the March on Washington as a “fringe element” that did not understand the president’s healthcare proposal.  “Tea Party” protestors “wrong,” Sean Lengell, Washington Times, 9/13/09.

 

"I don't think it's indicative of the nation's mood," David Axelrod, the president's top adviser, said on CBS' "Face the Nation." "My message to them is, they're wrong."

 

http://www.washingtontimes.com/news/2009/sep/13/wh-aide-tea-party-protesters-wrong/

 

True, the president lauded political free speech during a talk to a student group in China, but he has exhibited a rather different view in other contexts.  Obama’s Doubletalk on Political Dissent, Michelle Malkin, Townhall.com, 11/18/09.

 

While [his] press shop feeds paeans to free speech into Obama's globetrotting teleprompter, the White House is still waging war on vocal foes at home. Obama has lectured his critics in Washington to stop talking and "get out of the way." He has stacked his carefully staged town halls with partisan stooges and campaign plants throughout the year. The president recently derided limited-government activists ***

 

http://tiny.cc/N1so1

 

So while there is much to be said for decorum and civility, we see no reason why the parties should be of the same mind on everything – or pretend to agree if they don’t.  If anything, it seems to us, the causes of the Government Run Amok disease lie at the other end of the spectrum.

 

Groupthink – David Stokes, an educator and talk show host, observes that complaints about partisanship tend to be in the eye of the beholder.  “It’s bipartisan if you agree with me.  It’s partisan if you don’t.”  And in the long run, he suggests, vigorous political debate is healthy, while artificial subordination of differences of opinion (or groupthink) can have unfortunate, sometimes even catastrophic consequences.

 

What causes groupthink?  Watch out for illusions of invulnerability, the presumed morality or superiority of certain segments of society, and the devaluation of dissenting opinions.  Also, remember that no one is immune.  Bipartisanship or Groupthink?  David Stokes, Townhall.com, 2/1/09.

 

Groupthink is an equal opportunity problem.  It is not reserved solely for democrats, republicans, or independents.  It rears its ugly head any time a group takes over, or gets comfortable in power, and loses the capacity for objectivity.  And when there is a “we won/it’s our turn” mindset, groupthink is usually in the air.  It is a most subtle and self-deceptive toxin. 

 

http://tiny.cc/7fub2

 

The nation’s founders seem to have been well aware of such problems, for the Constitution was painstakingly crafted to balance political power. 

 

• The federal government was given certain enumerated powers, notably national defense, international diplomacy, and the regulation of interstate commerce, but it was visualized that the state governments would continue to call the shots in all other areas.  Overall, Madison predicted in Federalist Paper No. 45, the states would hold their own.

 

The powers delegated by the proposed constitution to the federal government are few and defined.  Those which are to remain in the state governments, are numerous and indefinite.  The former will be exercised principally on external objects, as war, peace, negotiation and foreign commerce; with which last the power of taxation will, for the most part, be connected.  The powers reserved to the several states will extend to all the objects, which, in the ordinary course of affairs, concern the life, liberties and properties of the people; and the internal order, improvement, and prosperity of the state.

 

• The power of the federal government was vested in three co-equal branches, with built-in “checks and balances.” Moreover, the legislative branch, which alone had access to “the pockets of the people,” was comprised of two houses, one elected based on population and the other on the basis of giving each state an equal say.

 

Sounds like an effective design to discourage groupthink, but modern day observers note that there have been concerted efforts to reinterpret the Constitution.  The objective, or at least result, has been expansion of the federal government’s power.

 

Thus, Thomas Sowell of the Hoover Institute deplores the appointment of judges on the basis of their political leanings. “Empathy” versus Law: Part IV, Townhall.com, 5/8/09.

 

For more than a century, believers in bigger government have also been believers in having judges "interpret" the restraints of the Constitution out of existence. They called this "a living Constitution." But it has in fact been a dying Constitution, as its restraining provisions have been interpreted to mean less and less, so that the federal government can do more and more.

 

http://tiny.cc/Wn4Ph

 

To which, U.S. Supreme Court Justice Clarence Thomas adds that there are basically two ways to interpret the Constitution – “try to discern as best we can what the framers intended or make it up.”  How to Read the Constitution, Wall Street Journal, 10/20/08.

 

http://online.wsj.com/article/SB122445985683948619.html

 

On the legislative side, Chris Edwards of the Cato Institute criticizes the members of Congress for assuming that the federal government has carte blanche to expand into any area it chooses. Downsizing the Federal Government, 2005, p. 25.

 

Members of Congress should start taking seriously their oaths to uphold the Constitution.  Too often Congress ignores the Constitution or inserts boilerplate language into legislation to claim authority.  Instead, when a questionable program comes before them, members of Congress should ask whether there is Constitutional authority for it and vote against it if they believe it violates the fundamental law of the land.

 

http://www.s-a-f-e.org/downsizing_government.htm

 

To use a current example, consider the proposal that people be required to obtain government-approved healthcare insurance [HCI]. Would such a mandate be Constitutional?   Beware the health[care] insurance police, Donald Lambro, Washington Times, 11/2/09.

 

Congress has never before required Americans to buy a product or service under penalty of law. Yet that's precisely what the healthcare bills pending in the House and Senate would do in the age of Obama, despite compelling arguments that the Constitution gives lawmakers no power to do so.

 

http://www.washingtontimes.com/news/2009/nov/02/beware-the-health-insurance-police/

 

House Speaker Nancy Pelosi’s “not a serious question” response was noted last week.

 

Senator Jack Reed (D-RI) suggests that requiring HCI would be akin to imposing a draft as an incident to raising an army.  Fine, except the Constitution empowers Congress “to raise and support armies,” while saying nothing about healthcare.  History.com, 11/12/09.

 

http://boards.history.com/topic/Current-Events/The-Latest-Washington/520079240

 

Others cite mandatory auto insurance as a precedent for an HCI mandate, overlooking the fact that it is the states, not the federal government, which mandates auto insurance.  Is Obamacare Like Mandatory Auto Insurance?  Andrew Tallman, Townhall.com, 11/17/09.

 

Now, obviously, if we were debating whether individual states could mandate health coverage, at least the levels of government being analogized would be the same. But the leap from what states do to what Congress can do betrays vistas of ignorance concerning our system of government. A college freshman would be embarrassed to make such a weak argument, yet members of Congress have said precisely this.

 

http://townhall.com/columnists/AndrewTallman/2009/11/17/is_obamacare_like_mandatory_auto_insurance?page=full&comments=true

 

All things considered, the phenomenon of groupthink seems rather descriptive of the problems with the U.S. system of governance with which we began.  Furthermore, there is much evidence of the Constitution being reinterpreted in a manner that expands the ambit of the federal government. So perhaps we have found the cause of the problem, or at least one of them, but there is another point that needs to be considered.

 

Limited attention span – Remember Pogo’s quip that “We have met the enemy and he is us.”  Before placing the blame for a malfunctioning political system on conniving politicians, activist judges who have misinterpreted the Constitution or whoever, perhaps everyone should look in the mirror.

 

Many Americans are poorly informed about policy issues, proposed legislation, and the like, and this is surely not due to a lack of information.

 

There was a time when the printing press was a revolutionary development, leveling the playfield between the upper classes and ordinary people.  Then came telegraph, the telephone, radio and television.  Now we are in the Internet age, with Web pages, e-mails, blogs, micro blogs (e.g., Twitter), and social networking sites, all increasingly accessed by cell phones and other handheld devices. 

 

The following video (4 minutes) provides a hard-hitting series of observations about the revolution that is in process, including these.  By 2010, Gen Y [aka Millennials] will outnumber Baby Boomers.  There are over 200 million blogs on the Internet.  It took 38 years for radio to build an audience of 50 million people; Facebook acquired 100 million users in 9 months.  And we no longer search for the news, it finds us.

 

http://www.youtube.com/watch?v=sIFYPQjYhv8&feature=player_embedded#

 

But with so much content available, people quickly reach the overload point.  Most videos that are over 2 minutes long will not be watched.  A message must be boiled down to 140 keystrokes or less for posting on Twitter.  If viewers do not like what someone is saying on television, they will simply change the channel.

 

Perhaps an analogue of Gresham’s Law (cheap money drives dear money out of circulation) is at work, whereby breaking news and trivia trump important information.  Or to paraphrase an old joke, people may wind up knowing more and more about less and less until they know everything about nothing.

 

We get it that the public is hungry for political leadership, but there is a dismaying lack of clarity about the specifics. The Permanent Tea Party, Daniel Heninger, Wall Street Journal, 11/5/09.

 

Independent voters across the U.S. have become like the massive cattle herd John Wayne drove from Texas to Kansas in "Red River." These voters are spooked and on the run, a political stampede that veered left in November 2008 and now right a mere year later. They will keep running—crushing incumbents, candidates and political models of the left and right—through November 2010 and onto 2012 until they find a person or party capable of leadership appropriate to our unsettled times. And yes, Virginia, the possibility of a man on a white horse in 2012 is not out of the question.

 

http://online.wsj.com/article/SB10001424052748704013004574515453039975302.html

 

But wait a second, didn’t these same voters elect the leaders who are currently in office?  Seems to us that they should accept some of the blame.  Also, why in the world should the country be looking for a “man on a white horse” (or dictator)?

 

So let’s chalk up a short public attention span as another source of the Government Run Amok disease.  

 

Next week – We know the U.S. political system is malfunctioning, and at least some of the causes.  Now on to some potential solutions.

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11/30/09 – RX, part one – Reform Congress

 

Lest SAFE be viewed as a bunch of alarmists, here is one more analysis suggesting the Government Run Amok disease could be life threatening.  The general theme: opportunities to avert or minimize problems in the pipeline, such as surging energy prices, sharply higher interest rates, and massive tax hikes, are being ignored in favor of secondary issues – and it will not be pretty when the problems hit in full force.  We ain’t seen nothing yet, Victor Hanson [Hoover Institution], Washington Times, 11/28/09.

 

As these storm clouds gather, Congress bickers on Saturday nights about borrowing even more money for health care reform, yet another federal entitlement. 

 

http://www.washingtontimes.com/news/2009/nov/28/we-aint-seen-nothing-yet/

 

Now on to this week’s topic, suggesting a cure for GRA. We will begin with Congress.

 

Throw the rascals out – A mid-term election is coming up next November, and the voters can send some new legislators to Washington if they have a mind to do so.

 

Judging from a recent Rasmussen poll, there could be some big changes.  Indeed, the poll indicated that 57% of the voters would be disposed to fire all the members of Congress and start over.  A 2008 poll (taken at the time of the financial bailout bill, aka TARP) yielded similar results, as shown in the following table.

 

 

Replace

Keep

Not sure

August 2009

57%

25%

18%

October 2008

59%

17%

24%

 

http://www.rasmussenreports.com/public_content/politics/general_politics/august_2009/57_would_like_to_replace_entire_congress

 

But these results are fanciful, because voters do not vote for Congress as a body – they vote for the representative from their Congressional district and the senators from their state.  Regardless of what people around the country may think of House Speaker Nancy Pelosi, for example, voters of the ultraliberal 8th District of California (most of San Francisco) have kept her in office since 1987 and will likely continue to do so.  Many other members of Congress will not be at risk in 2010 due to occupying safe seats or, in the case of 2/3 of the senators, not having to run at all.

 

Still, the stakes will be high in 2010, with the parties fighting to maintain or improve their position.  The Republicans, in particular, will be hoping to replicate their mid-term victory in 1994 when their House candidates subscribed to a Contract with America that was supposed to bring about “the end of government that is too big, too intrusive, and too easy with the public's money.”

 

http://www.house.gov/house/Contract/CONTRACT.html

 

The Contract with American commitments were clearly and fully expressed, and if all of them had been implemented the impact could have been tremendous.  Take the proposed Fiscal Responsibility Act:

 

A balanced budget/tax limitation [3/5 vote in each house for a tax increase] amendment and a legislative line-item veto to restore fiscal responsibility to an out- of-control Congress, requiring them to live under the same budget constraints as families and businesses. (Bill Text) (Description)

 

The House of Representatives passed the balanced budget/tax limitation amendment after the 1994 election, but it fell one vote short of the 2/3 vote required in the Senate.

 

http://www.civilrights.org/monitor/vol8_no1/art8.html

 

A legislative line-item veto (exercisable by the president, subject to override by both houses of Congress) was enacted later, but to no avail because the U.S. Supreme Court held it violated the Separation of Powers doctrine.  High Court Strikes Down Line-Item Veto, Richard Carelli, Washington Post, 6/25/98.

 

http://www.washingtonpost.com/wp-srv/national/longterm/supcourt/stories/ap062598.htm

 

Not that this effort was unproductive, because with all the talk about balancing the budget – plus the dynamic of competition between the parties and a booming economy – the job actually got done during the closing years of the Clinton Administration. 

 

Without structural support for a balanced budget, however, the tide of red ink soon resumed.  Some people blame the tax cuts after the Republicans regained the White House in 2001; others (including us) would place more stress on the failure to control spending. Either way, it is hard to square the Republicans’ approach during these years with their traditional advocacy of limited government and fiscal discipline.  Could it be the “Grand Old Party” was seduced by the lure of using big government for its own purposes?  Leviathan on the Right, Michael Tanner, Cato Institute (2007), p. vii.

 

. . . no factor has been bigger than the rise of a new brand of conservatism – one that believes big government can be used for conservative ends.  It is a conservatism that ridicules F. A. Hayek and Barry Goldwater while embracing Teddy and even Franklin Roosevelt.  It has more in common with Ted Kennedy than with Ronald Reagan.

 

http://www.s-a-f-e.org/leviathan.htm

 

Will there be a Contract with America 2.0 in 2010?  Former House Speaker Newt Gingrich has been discussing the subject with Michael Steele, Director of the Republican National Committee, and he shared some of their thinking at C-SPAN’s Cable Center Class, 11/13/09.  Video (3:32)

 

Whatever the name (Steele favors a First Principles label), there would be a series of proposals on jobs, energy, healthcare, education, etc. intended to help the Republicans make the transition from opposition party to alternative party. 

 

The actual “contract” would be announced around September 2010, close enough to the election to reflect the circumstances then applicable, but with enough time for voters to reflect on the Republican commitments and make a reasoned decision.

 

http://www.youtube.com/watch?v=jDWggzMOWlA

 

Maybe Contract with America 2.0 (or First Principles) is a great idea, maybe not, time will tell.  It would help to know what circumstances will exist next September, e.g., will GovCare have gone through or been turned back, what will the jobless rate be, etc.  Also, one would want to study the specific Republican proposals (and any Democrat responses).

 

But one point was amply demonstrated after the Republican comeback in 1994.   Never place too much trust in any leader, group of leaders, or political party.

 

Gains achieved through a spirited campaign and purging of some of the less effective/reliable/honest incumbents in 2010 and 2012 (when the presidency will also be at stake) could prove temporary.  Durable progress requires structural changes. 

 

Term limits – The longer politicians stay in Washington, the more likely they are to fall under the spell of promoters of this, that or the other government program.  Campaign cash is one inducement; another is the delight of being courted and praised.  The only requirement is a willingness to spend other people’s money for arguably good causes.  Potomac Fever, Chris Edwards, Cato Institute, 12/12/05.

 

The spending impulse of [legislators] is reinforced at every turn in Washington. Congressmen are bombarded with funding requests during visits from constituents, at receptions, in phone calls to campaign contributors, in meetings with lobbyists, in discussions with other members, and in news articles.

Congressional hearings add to the pro-spending climate. Rather than being like court proceedings, where a balance of views is heard, hearings are dominated by witnesses who favor more spending. Witnesses skillfully flatter members for their wise support of supposedly vital programs.

 

http://www.cato.org/pub_display.php?pub_id=5333

 

OK, ban the lobbyists, some people may say, but we doubt this is feasible.  The United States is a free country, after all, and the First Amendment guarantees the right to “petition the government.”

 

A more practical answer might be to limit the time that members of Congress can spend in office, with the hope that they will leave before Potomac Fever sets in. To this end, a Citizen Legislature Act (limiting senators to two terms, and limiting representatives to either three or six terms) was included in the Contract with America.

 

(Description)

 

Packaged as a Constitutional amendment, the CLA did not receive the required 2/3 vote in the House and lacked sufficient support in the Senate as well.  Term Limits: The Fight Dies Hard, Time, 6/5/95.

 

To win the two-thirds of both Houses needed to send a constitutional amendment to the states for approval, backers would have to replace or win over 63 House members and, at last count, at least 24 Senators.

 

http://www.time.com/time/magazine/article/0,9171,983018,00.html

 

Having taken office expecting the Contract with America promises to be taken seriously, freshman Congressman Joe Scarborough (R-Florida) became disillusioned when GOP leaders developed “collective political amnesia” about the promises that had been made.  Rome Wasn’t Burnt in a Day, Joe Scarborough, HarperCollins (2004), page 21.

 

Weeks after his stunning ascension to majority leader in November 1994, Dick Armey suggested that since Republicans were now running Congress, term limits were no longer necessary.  As columnist Bob Novak noted, “The House roll call votes on term limits were rigged so that every Republican had a change to vote for one version of term limits while no version actually received enough votes to pass.  Hypocrisy was the watchword.”

 

 http://www.s-a-f-e.org/rome.htm

 

Would another run at term limits make sense now?  The scourge of Potomac Fever remains alive and well, and other arguments carry weight as well.  Here are several from Cato Institute’s Handbook for Policymakers, 7th edition.

 

• In a June 2008 poll by Gallup, only 12% of respondents expressed confidence in Congress. [This was unusually low; the current approval rating is in the mid twenties.] 

 

• Nearly half of the states have term limits for their legislatures, and attempts to eliminate such limits (e.g., a California ballot initiative in 2002) have generally been rebuffed.

 

• National polls have shown strong national support for term limits, e.g., 67% per an NBC/Wall Street Journal poll in 2003.

 

• Term limits might encourage leaders from the  private sector to take time out from their careers to serve as citizen legislators, especially if (as Cato advocates) a three-term limit was set for members of the House.

 

http://www.cato.org/pubs/handbook/hb111/index.html (section 8)

 

Term limits would also have some potential drawbacks, in our opinion, which should be taken into account.

 

• Some Congressional functions are complex and require specialized knowledge, e.g., oversight over national intelligence or tax policy.  And while many “old timers” in Congress deserve to be retired, there are some whose leadership and expertise would be missed.

 

To appreciate the potential impact of term limits, check out the House and Senate seniority lists on Wikipedia.com.  They show that (1) many members of the current Congress have served far longer than would be possible with the proposed term limits, and (2) a mass retirement would result unless current officeholders were exempted (defeating the purpose of the exercise).

 

House of Representatives: With a 6-term limit, over half the membership would be barred from seeking reelection in 2010 – including 60+ members with 20 years in office or more.  Anyone elected in 2004 or earlier would be excluded with a 3-term limit, raising the attrition rate to over 70%. 

 

http://en.wikipedia.org/wiki/List_of_current_members_of_the_United_States_House_of_Representatives_by_seniority

 

Senate: Nearly two-thirds of the members would be ineligible to seek reelection when their current terms expire.

 

http://en.wikipedia.org/wiki/List_of_current_United_States_Senators_by_seniority

 

• By reducing the level of Congressional experience (and in some cases competence), term limits would tend to weaken the influence of Congress vis-à-vis the executive branch.  Other changes in the system might be needed to preserve a proper balance.

 

• Term limits would not necessarily upset the cozy way in which business is done inside the Beltway.  Many members of Congress remain active after leaving office, often continuing to participate in the legislative process as high-paid lobbyists.  National Suicide, Martin Gross, Berkley Books (2009), pp. 198 et seq.

 

In all, there are now 68 former members of the House who, from 1998 to 2005, moved just a mile away to K Street in Washington as lobbyists, with a raise in pay from $165,000 to upwards of $500,000 or even a million a year.  A study by Public Citizen of the swift movement from Congress to Lobby-land shows that 43% of the eligible Congressmen who left Congress have become registered lobbyists.  The percentage in the Senate was even higher, some 50%, or 18 out of 36 senators, a statistic that should shock sleepy citizens.

 

http://www.s-a-f-e.org/national_suicide.htm

 

On balance, we believe term limits would be a good thing.  But they would not be an unmixed blessing, and we would be inclined to favor a six-term (not three-term) limit for the House.  It is also unclear how such limits would be imposed.

 

• Obtaining 2/3 approval of both houses of Congress for a Constitutional amendment could prove difficult.  Indeed, the Cato Handbook (page 92) flatly states that “a Congress controlled by career politicians will never pass a term limits amendment.” 

 

• Establishing Congressional term limits under state law has been tried.  No dice; such an approach was disapproved by a 1997 decision of the U.S. Supreme Court.

 

http://www.washingtonpost.com/wp-srv/politics/special/termlimits/stories/ar022597.htm

 

• Another approach would be asking Congressional candidates to pledge they will not run for more than a specified number of terms.  No Constitutional amendment or even legislation would be required, and the Cato Handbook (page 93) says “self-limiters” have served their constituents well and felt free to vote in a fiscally responsible manner. 

 

Maybe, but the voluntary pledge approach seems perversely selective.  Why should citizen legislators limit their time in office, e.g., Joe Scarborough who chose to resign and return to private life in September 2001, while political hacks serve term after term?  If term limits are to be, we think they should apply to all members.

 

*  *  *  *

There is one approach left that might serve to get term limits, and perhaps a balanced budget amendment and other constructive changes as well, namely a Constitutional convention.  But no such a convention has taken place since 1787, and convening one now would entail risks as well as opportunities. 

 

Tune in next week as the discussion continues.

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12/7/09 – RX, part two – a Constitutional convention?

 

How can the Government Run Amok disease be cured?  We reviewed some ideas for reining in Congress last week, e.g., term limits and a balanced budget amendment.  They seem promising, but would require Constitutional amendments – via one of the routes specified by Article V. 

 

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that . . . no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.

 

http://www.constitutioncenter.org/ncc_edu_Text_of_the_Constitution.aspx

 

“Good luck with that,” wrote one reader, but it is not in our intellectual DNA to assume that the American people are incapable of demanding action that is needed to save the country.  Also, for all the approvals required, a dozen amendments have been proposed and ratified in the past 100 years – including the Twenty-Second Amendment (1952) that established term limits for presidents.

 

http://en.wikipedia.org/wiki/List_of_amendments_to_the_United_States_Constitution

 

All of these amendments were proposed by Congress and ratified by the states, but, as discussed last week, the members of Congress would predictably be unenthusiastic about curbing their own powers and prerogatives.  To get balanced budget and term limits amendments, therefore, it might be necessary to convene (or at least threaten to convene) a Constitutional convention.  Here are the steps prescribed by Article V:

 

2/3 of states ask Congress to “call a convention to propose amendments”

Congress (by 2/3 vote of both houses) calls a convention

The convention proposes amendments

The amendments are ratified by 3/4 of the states

 

By one account, there are standing calls from 29 states (including Delaware and Pennsylvania) for a Constitutional convention.  It would supposedly take only 5 more states (or 2 if the rescission of prior calls by Alabama, Florida and Louisiana were challenged in court) to reach the 2/3 level and start the ball rolling.

 

http://www.sweetliberty.org/standing_calls.htm

 

The forgoing is stale news, it turns out. There have been two campaigns in living memory that fell short, the first seeking to overturn controversial Supreme Court decisions on voting districts and apportionment (1960s) and the second seeking a balanced budget amendment (late 1970s and 1980s).  Although the state calls may not have been formally rescinded, they probably do not have continuing vitality.   

 

http://en.wikipedia.org/wiki/Convention_to_propose_amendments_to_the_United_States_Constitution

 

Still, the idea of an Article V convention worries many conservatives.  They suggest that Congress would pick the delegates (by who knows what process), and that the delegates could do whatever they wanted at the convention.  The Battle to Stop the Constitutional Convention, Tom DeWeese, American Policy Center, 1/16/09.

 

The fact is, once 34 states petition Congress to convene a Constitutional Convention, the matter is completely out of the States' hands. There is absolutely no ability to control what the delegates do in the convention..

 

http://www.americanpolicy.org/more/battle.htm

 

These points carry some weight, but on balance the fear of a runaway convention seems overblown. Suppose the convention decided to gut the Bill of Rights, for example, as foreseen by the American Policy Center.  Bob Unruh, WorldNetDaily, 12/12/08.

 

Don't for one second doubt that delegates to a Con Con wouldn't revise the First Amendment into a government-controlled privilege, replace the 2nd Amendment with a “collective” right to self-defense, and abolish the 4th, 5th, and 10th Amendments, and the rest of the Bill of Rights. Additions could include the non-existent separation of church and state, the “right” to abortion and euthanasia, and much, much more.

 

http://www.wnd.com/index.php?fa=PAGE.view&pageId=83364

 

We suspect the public reaction would be quite negative if such things happened, and that few state legislatures would ratify the convention’s handiwork.  

 

Most Americans are currently satisfied with the Constitution, or at least do not favor tampering with it. The most common criticism of the Constitution is that it does not place enough limits on government power. 59% of voters say Constitution is just fine; 39% say it doesn’t restrict government enough, Rasmussen Reports, 7/3/08.

 

In the latest survey, only 14% of voters think the Constitution places too many restrictions on what government can do, while 39% say it is not restrictive enough and 38% say it’s about right as is.

 

http://tiny.cc/EnpTs

 

If an Article V convention would involve risks for conservatives, moreover, it might also create opportunities.  The Case for a Federalism Amendment: How the Tea Partiers can make Washington pay attention, Randy Barnett (professor of Constitutional law at Georgetown University), Wall Street Journal, 4/23/09.

 

http://online.wsj.com/article_email/SB124044199838345461-lMyQjAxMDI5NDIwMzQyNDMxWj.html

 

As Professor Barnett notes, conservatives are not the only ones who would fear an Article V convention.  If a growing number of states were calling for a convention, Congress might be stampeded into acting preemptively – as it has done before.

 

It was the looming threat of state petitions calling for a convention to provide for the direct election of U.S. senators that induced a reluctant Congress to propose the 17th Amendment [ratified in 1913], which did just that.

 

As for Barnett’s “federalism amendment,” it smacks too much of attempting to turn back the clock.  Considering all that has changed since 1789, we doubt it would be feasible (or perhaps even desirable) to restore the original line of demarcation between federal and state powers.

 

 The founders visualized that the activities of the federal government would be carried out pursuant to the powers given to Congress and the president by the Constitution, e.g., raising armies and fighting wars, regulation of commerce among the several states and with foreign nations, making treaties, coining money, borrowing money, raising taxes, etc., with all other functions of government reserved to the states. See Federalist Paper 45 on centralization or decentralization, authored by James Madison.

 

The powers delegated by the proposed constitution to the federal government, are few and defined.  Those which are to remain in the state governments, are numerous and indefinite.  The former will be exercised primarily on external objects, as war, peace, negotiation, and foreign commerce, with which last the power of taxation will, for the most part, be connected.  The powers reserved to the several states will extend to all the objects, which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the state. 

 

http://www.s-a-f-e.org/federalist_papers.htm

 

Then came the Tenth Amendment.  “The powers not delegated to the United States by the Constitution, nor prohibited to it by the States, are reserved to the States respectively, or to the people.”

 

Years later, President Madison vetoed a bill providing for a federal public works program on grounds that – irrespective of the economic merits  – “such a power is not expressly given by the Constitution.” His conclusion is elegantly expressed, and the logic seems impeccable.  Veto message to the House of Representatives, March 3, 1817.

 

http://www.constitution.org/jm/18170303_veto.htm

 

Fast-forward to today, when the federal government is involved in a great many public works and social programs that have little if anything to do with its enumerated powers (the Constitution does not mention social security, healthcare, agriculture, education, etc.).  Under the Constitution as it is now interpreted, any legislation by Congress will be upheld unless a specific prohibition can be pointed to in the Constitution.

 

There are a few dissenters, such as Representative John Shadegg (R-AZ) and Senator Tom Coburn (R-OK), but they make their case as a matter of principle and do not expect to undo what has been done.  Enumerated Powers Act Brings Constitution to Capitol Hill, Andrew Grossman, Heritage Foundation, 7/30/08.

 

http://www.heritage.org/Research/LegalIssues/lm29.cfm

 

In short, the enumerated powers doctrine is dead.  Instead of trying to bring it back to life, fiscal visionaries should focus on opposing wasteful or ill-conceived programs at either the federal or state level using arguments such as does more harm than good, costs exceeds benefits, overlaps with programs of other agencies or governmental units, or could be better addressed by the private sector. See the Budget Discipline page of this Website, “where to cut” section, for some examples.

 

http://www.s-a-f-e.org/budget_discipline.htm

 

Another consideration that may point to an Article V convention is that the U.S. political system has been operating for 220 years with only modest changes (at least formally) to its governing document (the Constitution).  Now, like an aging motor vehicle, the system may require a general overhaul as opposed to routine maintenance.

 

We have already talked about Congressional term limits and balanced budget amendments, which we favor, and a “federalism” amendment that seems dubious. Here are some other ideas that might be considered at an Article V convention?

 

• Repeal of the Sixteenth Amendment (authorizing a federal income tax) – Although Professor Barnett presented this proposal as part of his federalism amendment, it stands on a somewhat different footing.  The idea would not be eliminating federal tax revenues, but collecting them in a different way. The Case for a Federalism Amendment, Randy Barnett, Wall Street Journal, 4/23/09.

 

Congress could then replace the income tax with a "uniform" national sales or "excise" tax (as stated in Article I, section 8) that would be paid by everyone residing in the country as they consumed, and would automatically render savings and capital appreciation free of tax.

 

As readers may recognize, such a switch would be consistent with the FairTax, which is a proposal to replace all federal income and payroll taxes with a national sales tax.  An essential step in implementing the FairTax is said to be repealing the Sixteenth Amendment, so as to preclude any backtracking on elimination of the income tax.

 

SAFE believes the federal income tax system is inequitable and unduly complex.  We view the FairTax as one of three ways to fix the system, the others being a flat tax or radical overhaul.  See the Taxes page of this Website for discussion.  Accordingly, the repeal of the Sixteenth Amendment seems like an appropriate agenda item for an Article V convention, but its approval does not seem essential.

 

http://www.s-a-f-e.org/taxes.htm

 

• Reining in the executive branch – Many of our examples of Government Run Amok disease relate to the executive branch.  Is this any way to govern a country? 11/16/09.  Ergo, action may be required beyond shaping up Congress.  

 

If the U.S. system of government was likened to a motor vehicle, Congress might be seen as the brakes.  It can block proposed programs by declining to provide the required funding. It can also kill established programs by withdrawing funding, although this power has been exercised all too infrequently.

 

When it comes to new undertakings or changes in policy, on the other hand, Congress is not equipped to provide effective leadership.  With 500+ principals and an unwieldy structure, it has great difficulty making and implementing decisions. No wonder cynics say there are two things one should never watch, making sausage and making legislation.

 

The executive branch can act as the motor of government because its members all report to the president.  Thus, when David Walker (CEO of the Peterson Foundation, formerly U.S. Comptroller General) talks of the need for “committed and inspired leadership” to address the government’s long-term fiscal problems, he says such leadership could only come from the president.  If you want good answers on healthcare, ask good questions!  2/11/08.

 

Fine, except that presidents do not invariably provide good leadership – as has been demonstrated time and again – and someone needs to hold them accountable. As we said in last week’s entry, after reviewing what happened after the Republican Party electoral comeback in 1994, “never place too much trust in any leader, group of leaders, or political party.”    

 

We appreciate the advice of Alexander Hamilton in Federalist Paper 70 that “energy in the executive” is a hallmark of good government, and also that it is better to vest the executive power in one person (the president) than in a council.  As Hamilton also says, however, the legislature plays a key role in setting as opposed to executing policy.

 

In the legislature, promptitude of decision is oftener an evil than a benefit.  The differences of opinion, and the jarrings of parties in that department of the government, though they may sometimes obstruct salutary plans, yet often promote deliberation and circumspection; and serve to check excesses in the majority.

 

Who is in a better position to hold the president accountable on a regular basis than the members of Congress?  True, the ultimate arbiters are the American people, but they only get to decide who will be president every four years. Yet the current relationship between Congress and the president is not conducive to such a role for Congress, perhaps because of undue emphasis on the separation of powers. 

 

# Presidential appearances before Congress are infrequent (State of the Union address, budget message, other subjects at the president’s initiative) and one-way (the president speaks, members of Congress listen).

 

In a September 9 address to Congress, for example, the president offered a litany of arguments in support of his healthcare plan.  Most of the points had been made before, and some may not have been 100% accurate – including a statement that illegal immigrants could not get coverage under the plan.  Obama’s speech was full of chronic deceptions, David Freddoso, Washington Examiner, 9/10/09.

 

http://www.washingtonexaminer.com/opinion/blogs/beltway-confidential/No-cure-58480702.html

 

As usual, the members of Congress had no opportunity to comment or ask questions.  We have no wish to condone the outburst by Representative Joe Wilson (R-SC), who has quite properly apologized for the incident, but can appreciate the sense of frustration that may have triggered it.  Here is how things went according to the transcript.

 

[President Obama] Now, there are also those who claim that our reform efforts would insure illegal immigrants. This, too, is false. The reforms -- the reforms I'm proposing would not apply to those who are here illegally.

[Mr. Wilson]: That's a lie. [Elsewhere reported as “you lie,” we do not know which was actually said.]

(AUDIENCE BOOING)

[President Obama] That's not true.

And one more misunderstanding I want to clear up: under our plan, no federal dollars will be used to fund abortions, and federal conscience laws will remain in place.

 

http://www.cnn.com/2009/POLITICS/09/09/obama.health.care.transcript/

 

 # Presidents and key advisers can claim “executive privilege” to withhold information from Congress or other bodies on many matters, including policy discussions and state secrets.  While the privilege is not absolute, the courts have generally upheld it.  Background on Executive Privilege, Aziz Huq, NYU School of Law, 3/23/07.

 

http://www.brennancenter.org/content/resource/background_on_executive_privilege/

 

# Presidents retain advisers (aka “czars”) who not only provide advice but also perform administrative functions.  Most of them are not approved with the advice and consent of the Senate.  This approach sometimes creates confusion about who is in charge of a given functions, and it also undermines the effectiveness of Congressional oversight.  Examining the History and Legality of Executive Branch Czars, Matthew Spaulding, Senate Judiciary Committee testimony, 10/6/09.

 

As the number of czars expands, and the President's policy staff grows, and there are more and more individuals acting more and more as administrative heads rather than advisors, Congress should raise questions as to whether those individuals should be subject to executive privilege or can be compelled to testify before Congress. The President cannot have it both ways.

 

http://www.heritage.org/Research/Thought/tst100809a.cfm

 

Now granted, Congress and the president communicate in many ways.  The president and/or advisers go to Capitol Hill for discussions, or stay in touch by telephone or electronic devices with legislators, and Congressional leaders may be invited to the White House.  But the president can set the ground rules and limit participation as desired, so such communications are of limited help in testing the president’s thinking or holding him/her accountable.

 

One way to publicly test the president’s thinking – which is certainly not accomplished by the screened, if not scripted, questions at town hall meetings and press conferences – would be to adopt a parliamentary system of government like the one used in the United Kingdom.

 

But a parliamentary system has problems too; perhaps a less sweeping change should be considered.  How about a Constitutional amendment providing for monthly sessions in Congress at which the president would respond to questions from members?  Such sessions would be informative, and they might result in better decision-making as well.  Bipartisanship or Groupthink?  David Stokes, Townhall.com, 2/1/09.

 

I think we would have better leaders, if they had to actual[ly] debate their stuff directly with Congress – at least on occasion.  Photo-ops and handshakes aside, I wonder how much better a good, heated, executive-legislative argument might be for our national political health.

 

http://tiny.cc/7fub2

 

Consideration might also be given to a Constitutional amendment limiting “executive privilege” to state secrets. So long as national security is not jeopardized, why shouldn’t the president et al. have to explain how policy decisions were arrived at, who was involved, and any issues that arose in implementation?

 

*   *   *   *

An Article V convention would entail risks as well as opportunities. It is not clear that one should be called for, nor what the results would be.

 

Nevertheless, as has been discussed, (a) there are serious problems with the U.S. system of government, (b) it is hard to see them being addressed without Constitutional amendments, and (c) the amendments would be hard to get via the Congress proposes/state legislatures ratify route.

 

Sometimes it is necessary to take chances in life, e.g., to break a completed side of a Rubik’s Cube in order to solve the overall puzzle.

 

We would love to know your views on calling for an Article V convention.  Please respond to ww3@atlanticbb.net.

 

 

Feedback on 12/7/09 entry

 

I'm not in favor of having a Constitutional Convention. My biggest concern is that it would afford the opportunity for mischief to those who wish to turn the Constitution into a wish list. The "Writers" provided a wherewithal for amending the Constitution that has served us well these many years. – Alex F. Wysocki, Conservative Caucus of Delaware

 

I fully support the idea of Congressional term limits, but can see no hope for making it happen unless the members voluntarily limit themselves or the voters limit them. A Cons. Conv. with the present Congressional make-up could be a real disaster! SAFE director

 

Given who holds the reins of the power structure at the moment, we could be in a lot of trouble calling a Constitutional convention.  It could be re-written in a manner that we would not like.  SAFE director

 

Let the revolution begin, again...no more taxation, without representation...throw the bums out.   SAFE member, Arizona

 

OK, OK, it was just a thought.  But remember the adage, “nothing ventured, nothing gained.”  Publius

 

For future reference

 

We subsequently read about another idea, namely amending Article V (via a one-time Constitutional convention) so as to empower the states to propose amendments without prior Congressional action. The authors argue that the risk of a runaway convention would be manageable, and their concept seems more promising to us than Randy Barnett’s Federalism amendment.   The States Can Check Washington’s Power, David Rivkin and Lee Casey, Wall Street Journal, 12/21/09.

 

http://online.wsj.com/article/SB10001424052748704304504574610120356499810.html

 

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