Saturday, January 20, 2018

The Onion Solution to the Government Shutdown

Here we go. Again.

In October of 2013 the satirical news site, The Onion, ran a piece entitled “Heroic Broken Sewage Pipe Floods Congress With Human Waste.” [1] “Calling the busted cylinder a national hero,” the article read, “sources confirmed Wednesday that a sewer pipe in the U.S. Capitol building valiantly burst open, pouring more than 1.5 million gallons of raw sewage into Congress and flooding the Senate and House of Representatives with human excrement, sludge, and wastewater.” A picture ran with the article depicting members of Congress covered with filth.

Where the fault should lie for the inability of Congress to pass a budget by the deadline, thus causing much of the federal government to officially shut down [2], will be answered only in a partisan manner. But the new age abhorrence of compromise has made it impossible for the national legislature to function properly, and that should be perfectly clear to all.

Political parties too have once again revealed themselves as the public nuisances they truly are. Instead of going about the business of governance, congressional partisans engage each other in a game of chicken, planning in advance how they will blame the other party in the event that no one swerves out of the way in time. With their usual uncharitable assessment of the intelligence of the average American, they hope no one will notice that interparty mudslinging takes priority over all other concerns. (Why we are surprised when politicians continue to behave like politicians once they are in office is a subject we should take up sometime.)

Many changes can be contemplated above and beyond pleading with politicians to change their behavior, but until such visions are instantiated we have to play in the ballpark we’re in. So we ask ourselves what we can do, within the framework of the Constitution, about the fact that Congress seems to find it overly difficult to pass a budget. And the answer might be that they should stop trying.

The president didn’t have to submit an annual budget for the whole federal government before the enactment of the Budgeting and Accounting Act of 1921. [3] The Constitution doesn’t require it. All it does require is that all “Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills,” (Article I, Sec. 7) and that no “Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time.” (Article I, Sec. 9)

Getting rid of the budgeting process as it is now practiced, while it may seem to be irresponsible at first blush, would actually force Congress to look at line items on a more individualized basis. Since we could expect that appropriations would accompany these line items, a process of the kind being suggested here might even engender a heightened awareness of expenditures not derived from the treasury. This is not to say that deficits necessarily portend the disaster advertised, but it could not be harmful to enhance the consciousness of our senators and representatives.

But the greatest benefit to such an approach would be to eliminate all of the deadlines and government shutdowns. A dispute over one or two items wouldn’t require the federal government to close for business. 

Or perhaps we’ll just have to call upon the intrepid sewage pipe.

Thursday, January 11, 2018

There's No Gerrymandering for an At-Large Election

It has by now been widely reported by The New York Times and others that a “panel of federal judges struck down North Carolina’s congressional map on Tuesday, condemning it as unconstitutional because Republicans had drawn the map seeking a political advantage.” [1] Let it be clearly understood that this is not simply the court’s interpretation of the goings on in North Carolina, but an indisputable fact. As the court pointed out,

“Legislative Defendants do not dispute that the General Assembly intended for the 2016 Plan to favor supporters of Republican candidates and disfavor supporters of non-Republican candidates. Nor could they. The Republican-controlled North Carolina General Assembly expressly directed the legislators and consultant responsible for drawing the 2016 Plan to rely on ‘political data’—past election results specifying whether, and to what extent, particular voting districts had favored Republican or Democratic candidates, and therefore were likely to do so in the future—to draw a districting plan that would ensure Republican candidates would prevail in the vast majority of the state’s congressional districts.” [2]

You read that correctly. The state’s district map was drawn with the specific and open intention of favoring Republican candidates for Congress. In fact, “the state legislator responsible for drawing the 2016 Plan said he drew the map to advantage Republican candidates because he ‘think[s] electing Republicans is better than electing Democrats.’”

“But,” the court said, “that is not a choice the Constitution allows legislative mapdrawers to make. Rather, ‘the core principle of [our] republican government [is] that the voters should choose their representatives, not the other way around.’”

Given such blatant behavior, it would have been odd if the three-judge district court panel had not stricken down North Carolina’s gerrymandered congressional map. And since this case is doubtlessly headed for the Supreme Court, it will be just as odd if the high Court doesn’t deal with the case in the same way. It is hard to conceive of how the Court could uphold a scheme that is designed to discriminate against a group on the basis of beliefs protected by the First Amendment.

But, sometimes we are surprised. Aren’t we?

But it is worthy of note in this connection that gerrymandering only works for the House of Representatives. The voting area for Senate seats can’t be gerrymandered, because senators are elected by the entire state. The same would be true if there were no congressional districts and members of the House were elected at-large. By this is meant that a state-wide election would be held in which all of the candidates would compete for the seats of a given state. In a state with three representatives, the top three candidates in terms of votes would go to Congress to represent the state. In a state with fifty-three representatives, the top fifty-three would win congressional seats.

No, the Constitution doesn’t require that members of the House be elected by district. [3] Electing representatives on an at-large basis would be perfectly permissible under the Constitution. Indeed it was not until 1842 that Congress enacted legislation requiring House members to be elected by single-member districts, and six states were electing their representatives on an at-large basis at the time. [4]

Would this give members of more marginal parties a chance to gain congressional seats that the current system doesn’t afford them? That could be bad or good, depending on your perspective, and depending on what sorts of parties increased their access. Nonetheless, we could expect the major parties to put forth enough candidates to make sure that all of the seats are covered, and there is no reason to suspect that people would be, because of this proposed change in this system, more inclined to vote for third parties than they are now. Besides, it is not at all clear that enhancing the electoral chances of third parties is a bad thing. A Green or Libertarian here or there would hardly be the end of the world. It is true that there are small parties that dream of visiting some ghastliness on us all someday, such as Nazis or full-blown Communists. But there is no reason to think that an at-large system will make them any more popular than they are at present.

Another possible concern is that in large states it will be difficult for people to keep track of all the candidates. That would be a problem if the idea was that people would be casting multiple votes. But they wouldn’t be doing that. They would only cast one vote, for the candidate they like the best. Finding the candidate one likes best shouldn’t be too onerous. And it will once and for all rid us of the superstition that geographic proximity equals similar political interests. It is quite possible for a candidate who resides on the other side of the state to represent your interests better than one who lives next door to you. 

In any event, if gerrymandering is a problem to be gotten rid of, a good way to do that is to switch to at-large voting for members of the House. 

Friday, January 5, 2018

But Are They Serious?

The decision of the Trump administration to commence the vigorous enforcement of federal marijuana laws has resulted in bipartisan opposition, it seems. [1] “Attorney General Jeff Sessions, long a vocal opponent of the legalization of marijuana,” has “rescinded an Obama-era policy that discouraged federal prosecutors in most cases from bringing charges wherever the drug is legal under state laws,” [2] and both Republicans and Democrats have “reacted with dismay and howls of betrayal….”

Marijuana has been legal in Colorado since January of 2014, and has developed into an established industry in the state. [3] Naturally, “Senator Cory Gardner of Colorado, a conservative member of the Republican leadership who has rarely broken with the Trump White House,” is none too pleased. He has declined to participate in “a federal assault on the expanding $1 billion legal pot business approved by voters in Colorado, and” has “threatened to try to block all Justice Department nominees until Mr. Sessions” backs off. “’I am obligated to the people of Colorado to take all steps necessary to protect the state of Colorado and their rights,’” he says, pointing out that “he had been assured by both President Trump and Mr. Sessions before voting for the attorney general’s confirmation that backtracking on marijuana would not be a focus of the administration.”

Mr. Gardner is “not the only unhappy Republican. Senator Lisa Murkowski of Alaska” where marijuana is also legal [4], “said in a statement that she had repeatedly discouraged Mr. Sessions from taking action on marijuana, a move that she called regrettable and disruptive.”

Medical marijuana is legal in Florida [5], and, as The New York Times reports,

“Representative Matt Gaetz of Florida, a leading Trump ally in the House, said the decision would deny relief to suffering cancer patients, including children. He said the move by Mr. Sessions was ‘heartless and cold, and shows his desire to pursue an antiquated, disproven dogma instead of the will of the American people. He should focus his energies on prosecuting criminals, not patients.’” 

Of course, Democrats haven’t been silent either:

“Representative Nancy Pelosi of California, the Democratic leader whose state began allowing the sale of recreational marijuana this week, also pointed to the strong national sentiment for legalization shown in votes around the country in recent years.

“’Attorney General Jeff Sessions’s decision bulldozes over the will of the American people and insults the democratic process under which majorities of voters in California and in states across the nation supported decriminalization at the ballot box,’ she said. ‘Yet again, Republicans expose their utter hypocrisy in paying lip service to states’ rights while trampling over laws they personally dislike.’

“She and Senator Patrick J. Leahy, Democrat of Vermont, said they would try to use a pending spending package to prevent Mr. Sessions from following through on the plan to overturn an Obama-era policy that made marijuana prohibition a low priority for law enforcement. Mr. Leahy noted that such a provision had previously passed the Senate Appropriations Committee with support from both parties.”

But two pertinent facts are being concealed, whether willfully or not, by all of this rhetoric. The first is that the president, as the chief executive, is constitutionally mandated to “take Care that the Laws be faithfully executed…,” [6] and there remains a federal prohibition of marijuana. When it comes to enforcement of federal marijuana laws, it doesn’t matter if Donald Trump or Jeff Sessions oppose or support marijuana legalization. It doesn’t matter if they have an earnest personal desire to smoke pot. Their job is to enforce the law, and if they refuse to do so it is an abrogation of their constitutional duty.

The second is that Congress is the legislative branch of the federal government. The laws that are enforced by the executive branch don’t come from the sky. Federal marijuana prohibition didn’t emerge from the ground. It is there because Congress passed a law saying it should be there. And it could pass legislation saying that it should no longer be there. But with all of this rhetoric we are hearing from members of Congress, none of them are saying that they will introduce legislation to repeal federal marijuana laws and leave the question to the states. Instead they are trying to put the blame on the administration, which is only saying that it will enforce the legislation that Congress has passed. Now if Congress passes such legislation, and the president responds with a veto, then the blame can be placed with him. But not before. 

Until then one should be forgiven for thinking that the outrage being expressed isn’t serious.