Thursday, December 31, 2020

A Veto That Cannot Be Overridden

Associated Press reports that “Senate Majority Leader Mitch McConnell all but shut the door Wednesday on President Donald Trump’s push for $2,000 COVID-19 relief checks, declaring Congress has provided enough pandemic aid as he blocked another attempt by Democrats to force a vote.

“The GOP leader made clear he is unwilling to budge, despite political pressure from Trump and even some fellow Republican senators demanding action. Trump wants the recent $600 in aid increased threefold. But McConnell dismissed the idea of bigger “survival checks” approved by the House, saying the money would go to plenty of American households that just don’t need it.

“McConnell’s refusal to act means the additional relief Trump wanted is all but dead.” [1]

So, that’s that. It would have been nice to have the Senate take a vote on the issue at least, but McConnell says no.

A couple of years ago, when “asked if the Senate would consider legislation to protect special counsel Robert Mueller, McConnell responded, ‘I’m the one who decides what we take to the floor, that’s my responsibility as the majority leader, and we will not be having this on the floor of the Senate.’” [2] But search the Constitution, the federal statutes, even the Senate rules, and you won’t find such power given to the the majority leader. It’s simply a custom that has developed over the years.

It is a custom, your humble servant submits, that is unconstitutional. Voters from each state select two senators to represent them. Representation in this context should clearly involve presenting legislation for the Senate to deliberate on. But if the Senate majority leader doesn’t want a vote to be taken on that legislation, there will be no vote. This effectively deprives the state represented by the senator proposing the legislation of its representation in the Senate: it deprives that senator of her ability to represent her state in an effective and meaningful manner.

But the Senate majority leader is only one senator, representing one state; and he isn’t even his state’s entire delegation. One senator is effectively empowered to prevent any bill from coming to the floor for a vote, even if it would pass if it was voted on.

The House of Representatives has, from time to time, operated under the “Hastert Rule,” otherwise known as the “majority of the majority rule,” whereby the Speaker of the House allows proposed legislation to come to the floor only if it has the support of the majority of the majority party. [3] [4] When operating, the rule applies even though the legislation would pass if brought to the floor. [5] This practice has the same constitutional problems, even though the Speaker of the House, unlike the Senate majority leader, is mentioned in the Constitution.

Any senator or representative should have the ability to propose legislation that is voted on by the entire body. And any legislation passed by one house should be voted on by the other. Any other practice is an abandonment of republicanism. There needs to be a constitutional amendment imposing that requirement.  


Thursday, December 10, 2020

No Longer Republican

Article II, Section 1, Clause 2 of the U.S. Constitution says that the electors for President are to be chosen from each state “in such Manner as the Legislature thereof may direct....” [1] Texas has filed a request with the U.S. Supreme Court for leave to file a complaint, alleging that the electors of four states—Georgia, Michigan, Pennsylvania, and Wisconsin—were not actually chosen in that manner, but that other authorities in those states conducted the election in a manner not authorized by their state legislatures.

Apparently, the Texas attorney general is of the view that the legislatures of those four states were too incompetent to rise in their own defense, and stood by in seeming helplessness while their respective state officials ran roughshod over their carefully constructed statutory edifices. The request is accompanied with factual allegations that would require a lengthy process of evidentiary fact-finding. But what Texas is hoping for is that the Court will either stop the electors from those states from voting at all, or send the matter back to the respective state legislatures to appoint electors. [2]

These four states have two things in common: all four of them went for Joe Biden in the 2020 presidential election, and all four of them have Republican majority legislatures. What is obviously afoot is that Texas is trying to get the Supreme Court to order the Republican state legislatures to directly appoint electors regardless of the popular votes in their states.

Sixty-two electoral votes are at stake. If all of those votes were taken away from Biden, he would no longer have the required majority of electoral votes, and the election would go to the House of Representatives. If the Republican state legislators select electors for Donald Trump, that would raise his electoral vote total to a majority, giving him the presidency.

One might expect that the Supreme Court will, after the fallout from Bush v. Gore, seek to ward off this cynical ploy with a crucifix. But I have learned not to predict the future, or to be surprised by anything in American politics.

What is certain is that if the Supreme Court effectively awards the presidency to Donald Trump, the United States will no longer be able to legitimately claim itself to be a republic. Either way, the Republican Party has already forfeited the legitimacy of its moniker.

Tuesday, November 24, 2020

Lying Should Be Expensive

We prosecute people for perjury when they lie under oath. Someone can be sued for defamation if he lies about another person. But it seems that someone can publish fake news with impunity. Yet fake news can cause more widespread damage than perjury or defamation.

Someone who commits perjury can thwart justice in a single court case. Defaming someone can ruin his reputation, and hurt is family. These are both serious evils. But spreading fake news can damage an entire society, causing large groups of people to act based on disinformation.

Those who perpetrate lies to the public can in no way be considered to be acting for the public benefit. One who does such a thing clearly hopes that people will act based on false information; reasoning that people would act differently if they were properly informed. Considering the latest, if the false information that there was pervasive fraud in the recent presidential election had not been promulgated, there would be no protests over the results. This is not to say that protests of themselves are a bad thing. But it is a bad thing to inject disquietude into the populace when there is no reason for it. And it is seriously harmful to convince a large segment of the population that our nation’s electoral system can’t be trusted, since the only alternative is a system where there are no elections.

People who purposely spread false news must be dealt with. But it isn’t the sort of thing that you want to entrust to governments. We know all too well that the machinery of government can be worked to persecute political opponents. But we have a legal system that allows aggrieved parties to bring their own court actions.

The spreaders of fake news eventually must specifically name someone. For example, during the campaign there were voices to be heard saying that Joe Biden is a socialist. That’s a ridiculous accusation. But it very well could have cost him votes. Biden should be able to sue anyone who disseminated that preposterous lie, to include President Trump.

True, Biden is a public figure, and we do have freedom of speech in this country. But that doesn’t mean that he, or any other public figure, must weather disinformation. It simply requires that he prove that anyone he sues for defamation intentionally spoke or wrote of him falsely, or with reckless disregard of the truth. [1] 

But aren’t lying politicians a part of our culture? Indeed. But it should stop. And those victimized should start utilizing the courts against libel and slander. It may seem to some office holders that a better look is to rise above it. On the other hand, it is evident that the unscrupulous are gaining significant advantages from public credulity.

Perhaps if lying started to cost liars money, it would reduce this public nuisance considerably. It would also make our political campaigns a lot more civil.

Thursday, November 19, 2020

Roadblocks to Dictatorship

President Trump has invited Michigan’s Republican legislators to the White House for a meeting on Friday [1], and there has been speculation that he will try to persuade the state lawmakers to send electors who will vote for him rather than Vice-President Joe Biden, who has won the election in that state. [2] Would that work?

Article II, Section 1, Clause 2 of the U.S. Constitution provides that electors are to be appointed in the manner that “the Legislature thereof may direct....” [3] This language seems to mean that a state legislature could appoint electors in total disregard of the state’s popular vote. And if there was nothing other than the Constitution to consult, that would, in fact, be the case.

But there are federal statutes to consider, according to which electors are to be chosen on the Tuesday after the first Monday in November. [4] Of course, the counting of the popular vote can take some time past that date, so the electors can be chosen on a subsequent day in the manner that the state legislature has prescribed. [5]

Now states are required, by federal statute, to provide for the final determination of any controversy or contest regarding the appointment of their electors. [6] Critical here, is that state laws on point must be “enacted prior to the day fixed for the appointment of the electors....” In other words, a state legislature can’t simply change the rules after the election.

So if Donald Trump wants the Michigan State Legislature, Republican by virtue of gerrymandering, to send electors to vote for him, federal law will not permit it. The only gambit he could employ would be to convince Republican state legislatures to appoint electors against the will of the people of their states, with the idea of arguing before, ultimately, the U.S. Supreme Court, that the statutory requirement that state legislatures have to make their rules before election day is an unwarranted and unconstitutional infringement of their power to appoint electors in any manner they please.

We can hope (perhaps, against hope) that Republican politicians aren’t quite that devoted to Donald Trump. But there is something else that the Republican Party might try.

When the electoral votes are read before Congress, the presiding officer asks for objections. Objections have to be in writing, and signed by both a member of the Senate and the House of Representatives. [7] The respective houses both then separate, to make their determinations. This isn’t really a way for the Republican Party to overturn the results of the election, because if the Senate and the House of Representatives don’t agree, the votes of the electors certified by the state’s governor are counted, and that’s the end of it. But it can be a nuisance, especially if done repeatedly. And it might be a way for Republican members of Congress to demonstrate to Donald Trump’s devotees among the electorate that they gave the last full measure of devotion.