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Wednesday, February 17, 2010

The Tax Code And The Citizens United Decision

I assume most of us are troubled by the USSC Citizens United decision. While I’m all in favor of an amendment to clarify that constitutionally a person can only be a NATURAL person not an artificial one, the bar to passing a constitutional amendment is ridiculously high and could take years to pass… if ever.

But are there are other possible avenues of attack to push corporations out of politics?

What about the IRS tax code?
Currently religious and non-profit entities receive tax-exempt status on the condition they NOT engage in political campaign activities. This is NOT considered a restraint on their First Amendment free speech laws. If these groups violate this agreement, they lose that perk.,,id=161131,00.html

Corporations receive numerous benefits such as limited liability protections and tax benefits such as the ability to write off expenses all designed to facilitate commerce.
Why can’t the tax code be changed to make these tax benefits conditional on corporations NOT engaging in political campaign activities?

Technically this would NOT be a restraint on corporate free speech any more than it is with those religious and non-profit organizations.

Corporations, likewise, would remain free to engage in political activities. Only they, too, would be faced with the choice that such involvement would end all of those special benefits in the tax code. Changing IRS code could possibly be done in time to prevent a massive avalanche of corporate money from affecting this year’s election.

Currently a proposal floated by Sen. Chuck Schumer and Rep. Chris Van Hollen does NOT include this approach. You can read their proposal here:

I urge you to contact Chuck Schumer at 202-224-6542 and Chris Van Hollen at (202) 225-5341.

Tuesday, February 16, 2010

Reforming The Anti-democratic US Senate

Contrary to what many believe, the US is not a democracy. And even with a representative government and a constitution, if democratic principles are at the heart of a republic, one could argue the US is not even a republic. Election 2000 again proved that a candidate REJECTED by the People can be imposed upon our nation. In the Senate, a mere 18% of the population gets 52% of the seats. A president and Senate representing a minority of the population can pack the federal judiciary changing US law forever and enter the US into unwise international treaties. This is insane. Our system violates the principle that governments derive their JUST power from the CONSENT of the governed.

Our system is not just anti-democratic, it is so absurdly reform proof system that it has set in cement the politics of 1787. In all our history, not ONE of the 27 ratified amendments to the Constitution has in any way changed the anti-democratic nature of our Constitution. Aside from our antiquated first-past-the-post electoral system which I’d argue is incapable of measuring the Will Of The People, the political side of our government only further distorts the public will. I believe this distortion is so pervasive the Constitution and our electoral systems shape public opinion more than the other way around. It was this Constitution that gave us the Civil War. With all the current dysfunctionality evident in government today, why do we still subscribe to the notion we mere mortals dare not touch what the Framers intended?

The core problem on the political side is the concept of state suffrage… the idea that entities called states deserve equal representation with the People. At the Constitutional Convention, the small population states insisted this anti-democratic concept be written into the fabric of the Constitution as a condition of ratification. On the legislative side, the larger states would receive more representation in the House but state suffrage was embodied in the Senate where each state, regardless of population, received two senators.

This arrangement made sense in 1787 because they looked at politics through a prism that only STATES mattered. After all, it was those fiercely independent states which were negotiating for that “more perfect union” with each other. However, when one looks at how any individual CITIZEN is represented in our Constitution, a more disturbing picture of our system emerges.

When the Constitution was written the ratio between the largest and smallest population states, Virginia and Delaware respectively, was about 21:1. That ratio now between California and Wyoming is about 69:1.

While there may adjustments in the House with states losing or gaining seats, the Senate formula is absolutely frozen. Delaware in 1787, and Wyoming now, each get their two Senators. And since there are no protections in the Constitution against such demographic trends, each state will get their two senators regardless if the ratio becomes 100:1 or 1,000:1. Today the Senate has become perhaps the most anti-democratic and most dysfunctional legislative body on the planet.

Let’s be more precise: states are not represented by two senators, the PEOPLE of each state are represented by two Senators. This was made more evident with the enactment of the 17th Amendment in 1913. It permitted for the first time direct popular elections for each state’s senators. Any citizen who chooses to live in Wyoming now has nearly 70X the influence in the Senate than any citizen in California. What’s wrong with this picture? Such vote weighting/dilution schemes are ILLEGAL on all other levels of government.

We’ve been brought up to believe that this Senate/House arrangement is fair because any given citizen in, say, California, is somehow represented by ALL their state delegation. In reality, no citizen votes for ALL the representatives of their state as one does for a Senator. Citizens can vote for only ONE Representative and only ONE represents any given citizen… not their entire state delegation.

One might think that solving the problem of the anti-democratic Senate might require a constitutional amendment… a formula that itself is bizarre. It requires a high bar of ¾ of the states to ratify, but since 1820, the ¾ smallest states that could ratify any amendment have contained LESS than 50% of the population! In fact, the 12 smallest states that could thwart any amendment today represent a mere 4.5% of the population. However, it’s not just a matter that the small states would object to any such amendment, it’s that the Constitution has an enormous poison pill which protects the Senate against all attempts to reform it short of a Constitutional Convention.

Article V - Amendment
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 Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.

This situation is so bizarre than one proposal to get around this insurmountable roadblock suggested the extraordinary measure to break up the larger states to create 75 states.

I believe that proposal is unlikely to gain any support. American identity is too tied to state residence. Short of a Constitutional Convention I don’t see ANY way to make the Senate more democratic… except possibly through the backdoor.

Under the Article 1, Section 5 each house is free to “determine the Rules of its Proceedings” as well as be the judge of the “qualifications” of their own members.

Section 5 - Membership, Rules, Journals, Adjournment
Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members…
Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behavior, and, with the Concurrence of two-thirds, expel a Member.

When in the Constitution the requirements for votes in either body are mentioned, say to override a presidential veto, we see language such as: If after such Reconsideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a Law.

While implied, I can find no specific mention that the total vote MUST represent a single vote for each senator or representative… only some ratio is given. Is there an opening here?

But what about Article 5 which states “that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.” Suffrage is merely the right to vote and this section seems to imply that all senate votes should weigh the same. But is there an opening here too?

Until some high profile voting rights cases in the 1960’s, the concept of suffrage in US history never guaranteed one person one vote. Sadly, those court cases which established this principle did NOT apply to the Constitution itself which remains the last bastion of vote weighting/dilution schemes in the US. That citizens in the large states quietly accept this situation is a tribute to our secular religion that teaches ours is the best political system in the world.

Given this legal context where the concept of individual suffrage has expanded, why has the concept of state suffrage remained sacrosanct? Can the concept of state suffrage be modified in ways we’ve not yet thought of to CORRECT the undemocratic nature of the Senate? While it’s politically improbable, could the rules of the Senate be rewritten so the vote of each Senator is weighted to represent 1/2 of their state’s total population? In this corrective vote weighting scheme each state would technically retain equal suffrage to vote.

I hope to present some case studies soon on how different some historical Senate votes might have been different if the Senate had been a democratic body. One example from the 75 Stars article is the Senators who confirmed Clarence Thomas represented less than 50% of the US population. He became a key vote in Bush v Gore.

As I wrote 4 years ago the currents of antidemocratic government are insidious.


modified 2-17-10