CHAPTER FIVE: ABORTION

 “Before I formed you in the womb I knew you, And before you were born I consecrated you; I have appointed you a prophet to the nations.” 

  Jeremiah 1:5

The controversy surrounding abortion law is as dividing as the rift between Civil War North and South regarding the issue of slavery in America.   It is a an extremely important subject, especially for the “Right Wing Christian Conservative Block”, as it is called.  And the legal nuances inherent in the matter often dominate the decision process in the appointment of Justices to our highest court. 

Before I delve into my position on the matter of abortion, though, I feel it is important to point out that the amount of influence the issue has on our decisions to back candidates is often counterproductive, and in my opinion, distracting.  Particularly, in the Republican Party, I have found that far too many members absolutely will not even consider voting for a candidate that shares 99% of their virtuous beliefs and political foresight if they are not 100% Pro-Life.  Quite literally, stating that you are Pro-Choice in the Republican Party is political suicide.

On the one hand, this steadfast adherence to an issue such as abortion is praiseworthy and I hope that the fight continues to further restrict abortions across our great nation.  On the other hand, as a result of this issue, the Republican Party has become entirely too one-issue oriented.  This is an impediment to the Republican Party’s ability to implement its proper platform on all other issues as we are losing the vote of the common person more concerned with the economy, education, and the environment.

Here is the perfect example:  I sat down to lunch with a client and friend of mine recently.  He is a 90 year old Republican who ran his own dental office for almost as many years and co-founded the McLean Bible Church in Vienna, Virginia.  Extremely devout, I often tease him that he should have been a preacher. 

We got to talking about politics and religion as we always do, and the issue of abortion came up.  His view on abortion is that it is always, unequivocally a sin to abort a child unless there is extreme danger to the mother.  Every single time the subject comes up, he falls back on the Bible passages of Jeremiah 1:5:

“Before I formed you in the womb I knew you, And before you were born I consecrated you; I have appointed you a prophet to the nations.” 

His argument, ostensibly, is that a human being exists at the very point of conception, and therefore its abortion is tantamount to murder if there is not extreme justification.  

Playing devil’s advocate, I asked the following hypothetical:  If you were a Senator, would you vote for legislation that does allow abortions, but further restricts abortions by requiring all women over the age of 18 to prove risk to their health for their abortion to be legal?

He responded as anticipated – Absolutely not!  I countered, arguing that at least it would be a step in the right direction.  To that I was satisfied to gain his concurrence.  However, many in the Republican Party take the counterproductive stance that any abortion is wrong, and therefore would look past this proposed “step in the right direction.”  This type of stubborn mindset is is holding progress hostage – not just as it applies to abortion laws, but also to the remainder of the Republican Platform. 

So, what am I?  Am I Pro-Life or Pro-Choice?  Before I answer, let me note a very real problem in contemporary politics – too many conservatives won’t even listen to a candidate who says he is Pro-Life but believes abortions are proper under some circumstances.  Upon a further elucidation of the facts and moral considerations, however, I believe most  would actually agree that there is a proper, LEGAL, threshold. 

Therefore, I am bold to say, that I am absolutely Pro-Life, however, I do believe that abortions are sometimes an unfortunate necessity and our government does not and ought not have the authority to regulate it to the level of abolishing the practice altogether.  Allow me to explain: 

The paramount case concerning abortion law, unquestionably, is Roe v. Wade, 410 U.S. 113 (1973).   The Supreme Court determined that a right to privacy afforded by the due process clause in the Fourteenth Amendment extends to a woman’s choice to have an abortion.  However, the court maintained that the mother’s right to privacy must be balanced against the state’s two legitimate interests for regulating abortions: protecting prenatal life and protecting the mother’s health.

Arguing that the state interests mature over the course of a pregnancy, the Court resolved this balancing test by tying state regulation of abortion to the mother’s trimester of pregnancy.  The Court later rejected Roe’s trimester framework, but continues to affirm its central holding that one has a right to abortion up until viability, which the court defined as being “potentially able to live outside the mother’s womb, albeit with artificial aid,” adding that viability “is usually placed at about seven months (28 weeks) but may occur earlier.”

Defenders of Roe argue that case precedent prior to the decision delineated a sphere of private interests and that at the core of that sphere is the right of the individual to make the fundamental decisions that shape family life: with whom to marry; whether and when to have children, etc.  However, I would argue regulation of abortion would not be virtually impossible without the most outrageous sort of government prying into the privacy of the home – which was the sole rationale in Roe’s antecedent case of Griswold v. Connecticut, 181 U.S. 479 (1965) where the Supreme Court invalidated only a certain portion of Connecticut law that proscribed the use, as opposed to the manufacture, sale or other distribution of contraceptives.

It is clear that the government would have to sneak into the privacy of the bedroom to determine whether or not contraceptives were being used and it is equally as clear that such privacies must not be invaded without extreme exception.  Abortion, on the other hand, is something that can and is “monitored” outside the bedroom and instead in the doctor’s office. Clearly, the level of privacy is much less intimate, though arguably, not necessarily less personal.

However, I believe the debate surrounding the right to privacy as it pertains to abortion law is actually misguided.  To begin, one might argue that the protection of a woman’s right to privately abort her child is synonymous to the protection of a woman’s right to murder her spouse in the privacy of her basement.  Clearly the government has the right, in fact the mandate to intervene in the latter.  What is the difference between the two?  It comes down to the true issue at the center of the abortion debate – at what point should the law consider abortion as tantamount to unjustifiable homicide?  In other words, when are you committing the murder of a living person?

I believe the decision in Roe was fundamentally flawed.  In reaching their decision, the Supreme Court skirted the issue of unjustifiable homicide, writing, “We need not resolve the difficult question of when life begins.  When those trained in medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man’s knowledge, in not in a position to speculate as to the answer.” 

The “difficult” question, though, is central to the state’s compelling interest of protecting prenatal life, and it is fundamental to the debate surrounding the issue of abortion altogether.  Therefore, the Supreme Court erred in ignoring the question.

By ignoring the issue of life and when a fetus becomes a person, the court was able to shift the debate toward a red herring – privacy.  They focused on the privacy of the pregnant woman and her right to chose whether or not to carry the child to term or terminate.  The harm that the State would impose upon the pregnant woman by denying the choice altogether, the court argued, is evident.  Maternity or additional offspring might force upon the woman a distressful life and future, mental and physical health might be taxed in childcare and there is also the problem of bringing an unwanted child into the world, among others. 

To be clear, I believe that these are compelling concerns.  In fact, I cannot even begin to put a value on saving a child from the horrors of growing up unwanted and unloved.  And it is unfortunate when a woman becomes pregnant, is abandoned by the father, and her life is ruined financially, socially and often times, spiritually.  Further, proponents of abortion will rely on the sudden decrease in crime as a result of abortions, pointing out that since less unwanted children were born, less crack dealers, murderers, etc., were roaming the streets twenty years after the decision in Roe.  A popular book, Freakonomics, has an entire chapter dedicated to that very phenomenon. 

What it boils down to, in my opinion, is this: Roe’s notion that the state’s interest in protecting prenatal life is trumped by a woman’s constitutional right to privacy in deciding whether or not to terminate a pregnancy, is not only erroneous, but it runs utterly afoul of basic morality and the most fundamental of constitutional guarantees – the right to life. 

Does the right to privacy exist?  Yes, and I believe, undeniably.  Also, I ardently believe that the state must not have the right to interfere in one’s privacy.  That is, unless the state has a compelling interest and the regulation is narrowly tailored to address that legitimate interest.  In regards to abortion, the state has a compelling interest, and that is the protection of life. Yet the states have been injudiciously deprived of their sovereign right to police that compelling interest as each state sees fit.    

Morality is the real issue.  Abortion may in fact be “good” for the economy insofar as unwanted children are not brought up in ghettos, crime is proximately curtailed, and the population is controlled, but to champion the right to abort a child in the name of these economic windfalls is disingenuous to who we must be as Americans.  Should we legalize crack cocaine and LSD because it would cost us less not to police it?  Clearly not, because of the harm these drugs are known to have on the user, but more importantly, the harm it causes the user to voluntarily or otherwise inflict on those around them.  Why then should we allow a woman to kill a human being purely for economic concern?  We should not. 

It is obvious that the state has a compelling interest in making it illegal for me to kill my next door neighbor for slandering me, despite the fact that his defamation of my character is causing me extreme mental anguish and possible economic hardship.  So why is it that the state cannot regulate the killing of a fetus?  Because it is not a person?! 

Despite first declining to resolve the question of when life begins in reaching its decision, the court in Roe spent considerable time persuading itself that a fetus is in fact not a person as defined in the Constitution and therefore is not protected as to its right to life.  In their analysis of all the contexts in the Constitution in which the word “person” was used, the court was correct in finding no indication that it had any possible pre-natal application.  They wrote, “all this, together with our observation that throughout the major portion of the 19th century prevailing legal abortion practices were far freer than they are today (in 1973) persuades us that the word “person”, as used in the Fourteenth Amendment, does not include the unborn.”  

The court erred here as well.  To begin, while the word “person” is never defined to include the unborn within the four corners of the Constitution, the converse is equally as true – the Constitution does not expressly remove the unborn from the definition.  And as to abortion laws being “freer” at the time of ratification – are not the protections of personhood afforded African Americans despite the fact that slavery was rampant when the Constitution was drafted?  Could it be, that despite all their collective genius, the founding fathers simply did not think to define person? 

Next, the court turned to legal precedent, arguing that the law of torts and inheritance, for instance, has been reluctant to endorse any theory that life begins before live birth or to accord legal rights to the unborn except in narrowly defined situations and except when the rights are contingent upon live birth.  However, consider this: aside from natural miscarriage, wouldn’t the fetus live and be born but for the intervening abortion?   To terminate the pregnancy, you must kill the fetus.  Logically, does this not mean that there is life being terminated? 

So, an abortion, boiled down to its logical absurdum, is the intentional killing of a living organism that, without intervention, will become a human being.   Who, then, is the court to decide that a human being, which the state has a compelling interest in protecting, exists only upon viability?  Scientifically speaking, yes, the fetus cannot survive as a human outside the womb prior to viability, albeit with artificial assistance, but abortion terminates the further development of that fetus when it naturally could have reached viability.  

The question then, is not one of privacy, but rather one of a compelling interest in protecting life.  It is not the place of the Supreme Court to decide when the compelling interest of protecting life begins or ends.  Rather, this is a question that ought to be left to the individual states.  The protection of the life is properly a decision that must be made by each state’s moral majority through the branches of each state’s independent representative government.  Therefore, it is my opinion that the court’s decision in Roe exceeded the judiciary’s proper Constitutional reach and should be overturned.  

Each state ought to be left to decide for themselves whether or not their interest is strong enough to regulate abortions prior to viability.  Why?  Because the constituents of each state can decide for themselves as to when life begins and when life should or should not be protected as pitted against the concerns of the mother.  The moral majority, which I hope would adhere to the belief that life begins at conception, would determine the appropriate level of regulation propounded by their state legislatures.  This is the true spirit of our democracy. 

The court itself said that it cannot determine when life begins.  Therefore it must not be permitted to tell the states that their constituents’ belief that life begins at conception is erroneous and therefore not compelling.  

Pro-choice advocates argue that the right to privacy at issue is the woman’s interest in having control over her own body and bodily integrity and, therefore, this privacy is one that is of even greater importance than the right to be left alone in the home.  To an extent, I agree.  But they are missing the point entirely.  They are seeing only one side of the issue presented. 

The state absolutely should not have the power to require a woman to have a child.  However, the state does and ought to have the power to regulate against homicide.

There are situations, such as self defense, where homicide is justifiable at law.  For similar reasons, I do believe that abortion is sometimes, though narrowly, justifiable.  

First, and foremost, in the case of rape, I believe that the woman, having not made the conscious and voluntary decision to engage in intercourse, should not be required to carry a child to term.   To do so would perpetuate a second wrong on the pregnant victim by requiring her to endure the physical, mental and social consequences of a pregnancy not a corollary of her action. 

Let us then look at the issue of abortion through another lens:  Sentience.  Sentience is defined as the state of having the power of perception by the senses; consciousness.

When a woman makes the conscious decision to engage in intercourse, she voluntarily assumes the risk of pregnancy.  Having assumed that risk, and having become pregnant, her decision to abort the unwanted child is one to kill a life in being, albeit one arguably without sentience.   What we have, then, is a helpless life that has been brought into being without consent and killed by a sentient woman unable to own up to her mistake.  I believe it is absolutely fair for a state to determine that they have an interest in protecting the helpless life over the privacy concerns of the imprudent mother. 

In the case of rape, however, the mother has not been imprudent insofar as assuming the risk of pregnancy as a consequence of intercourse.  What we have, then, is a matured, sentient woman in whom the family and also the state have already invested, pitted against an insentient fetus.   It is proper for the court determine that the matured woman’s right to privacy outweighs the fetus’ right to life. 

This brings me to the very question I posed to my friend at lunch:  If you were a Senator, would you vote for legislation that does allow abortions, but further restricts abortions by requiring all women over the age of 18 to prove risk to their health for their abortion to be legal? 

In one form or another, all states have statutory rape laws on their books.  The theory behind statutory rape, with respect to a minor female, is that she is too young to give true, voluntary consent to intercourse because of her innocence and ignorance, among other factors, and therefore intercourse with her is without consent – statutorily defined as rape. 

I ask you this then:  what if a 16 year old girl engages in intercourse with her boyfriend and gets pregnant?  Logically, it follows that she did not give true, voluntary consent to the intercourse and that because of her naivety she did not truly assume the risk of pregnancy through her actions.  

In this case – that is the case of a minor, as defined by state statute, becoming pregnant – I posit that it would be constitutionally impermissible for the state to ban the abortion altogether.  Here, the innocence of the minor mitigates against her culpability, and her decision to have or not to have a child, her right to privacy, could be argued to outweigh the compelling state interest of preserving prenatal life, just as in the case of rape.  

Now, having said the above, it is important to note that there are instances when even minors are to be treated like an adult in the eyes of the law and the same should apply in the case of abortion.  By way of example, a 16 year old boy can be tried as an adult for murder.  What of the pregnant 16 year old: can she be treated as an adult and her abortion outlawed except to protect her health?  Quite possibly, yes, but it is the state legislatures, not the Supreme Court that should make that determination.

CHAPTER THREE (part Four of Four) How To Stop Gridlock in Congress:

Term Limits

“Nothing is so essential to the preservation of a Republican government as a periodic rotation.”    — James Madison

 “There is no provision for a rotation, nor anything to prevent the perpetuity of office in the same hands for life; which by a little well timed bribery, will probably be done….”

 — Mercy Otis Warren

Constitutionally speaking, term limits for Congress may ironically prove the least difficult battle in the war to alleviate our republic from the crushing influence money has on today’s political environment.  This isn’t to say it would not be difficult, for the establishment of term limits for Congress would likely require an amendment to the Constitution.

Let me first begin with the difficulty of passing an amendment to the Constitution, especially in regards to the institution of term limits in the legislative branch of our government.  First, it would require two-thirds of both houses of Congress to vote to propose the amendment.  This, in and of itself, poses a huge problem in that a supermajority of congress would literally have to vote to truncate the extent of their own power.  Next, three-fourths of all state legislatures (also congressional bodies) would have to approve the proposed amendment to make it law.

Despite this glaring obstacle, I remain confident that such an amendment is feasible.  While congressional officeholders are, for obvious reasons, most interested in shooting down any term limit referenda, the bicameral legislature, I would argue, is most susceptible to the popular demand of its constituents.   With enough pressure, any candidate vying for the seat held by any incumbent will find it necessary to promise term limits.  Incumbents, to keep their seats, will be pressured to promise the same.  And if they don’t deliver, well, then it is up to the common voter to vote that person out of office.

This has been done before!

George Washington set a precedent in his farewell address published in David Claypoole’s American Daily Advertiser, on September 19, 1796.  Just as he’d resigned his commission as General of the Continental Army years before, he again relinquished his power for the good of our Republic and declined to run for a third term as President of the United States.   Thomas Jefferson also adhered to the, then new, convention of a two-term limit.  In 1807Jefferson wrote in a reply to the legislature ofVermont, “if some termination to the services of the chief Magistrate be not fixed by the Constitution, or supplied by practice, his office, nominally four years, will in fact become for life.”

 Then came Franklin Delano Roosevelt.  In 1940, FDR became the first and only president to be elected to a third term.  His supporters cited the war in Europe as a reason for breaking with precedent. FDR won a fourth term in office in 1944 primarily out of strong concerns with changing the chief executive during the ongoing World War.   However, when the war ended, many people across America felt that FDR had altered the presidency to become a more powerful office than the Constitution intended, representing a clear threat to the balance of power between the branches of government.  

Due to this popular sentiment, President Truman ordered the Hoover Commission, which, among other things, proposed that Congress amend the Constitution to limit the number of terms a president may serve.

The result:  our 22nd Amendment which reads as follows:

No person shall be elected to the office of the President more than twice, and no person who has held the office of President, or acted as President, for more than two years of a term to which some other person was elected President shall be elected to the office of the President more than once. But this article shall not apply to any person holding the office of President when this article was proposed by the Congress, and shall not prevent any person who may be holding the office of President, or acting as President, during the term within which this article becomes operative from holding the office of President or acting as President during the remainder of such term.  (second section omitted)

The legislative intent behind the adoption of the 22nd amendemnt limiting the terms of a president is extremely important to note as it forms the exact same foundation for why another amendment must be made to limit the terms in Congress.

There can be little doubt that Congress currently holds significantly more power than does the Executive Branch.  I would posit that the same is true in relation to the Judicial Branch, though perhaps less so as it pertains to the finality of the law.

While we are quick to praise a president for what he has done and crucify him for what he has left undone, the American public fails to realize that the president can actually do very little, especially domestically, without Congress’ seal of approval.  In fact, much of the gridlock in Washington begins and ends in Congress and it is why so much has been left undone for so long.  Yet, we do not hold our senators and representatives to the same level of expected performance.  In the 2000 election cycle, for instance, over 98% of incumbent Congressmen were re-elected, despite the ongoing political turmoil of the day and a shift from a Democrat to a Republican in the White House.

The fact is that Congress holds a vast amount of power and further it is evident that the longer our elected officials remain in power, the more likely they are to win re-election and the more powerful they become.  As congressmen sit on commissions and rise through the ranks through tenure, they become increasingly capable of directing pork barrel spending, for instance.  This one example, by the way, is a major contributor to our budget defecit and it has, to date, proven “uncheckable”.

The very fact that Congress wields so much power and oversight is reason enough for considering term limits to guard against the corruption of power indefinitely held.  More importantly, though, term limits are a means to establish rotation in the body politic and thereby reduce the ongoing (and necessarily hidden) stigma of financial quid pro quo as it pertains to any particular candidate.  Allow me to explain.

Many argue that term limits in Congress would actually result in more candidates being in need of more money, thereby increasing the odds of financial quid pro quo deals with corporate money to purchase elections.  I do not disagree with this notion, per se, however, the point is being missed.   The purpose of term limits for Congress is not to stop the practice of financial quid pro quo, for that ought properly to be the goal of campaign finance reform and lobby reform as above described.  Rather, the function of term limits is to reduce the effect financial quid pro quo arrangements have on our bicameral legislature as a whole and the independent judgment of our elected officials. 

All things being equal, all candidates face the same dilemma:  raise a lot of money from whomever you think might support you or loose to the other candidate willing and/or able to raise more money than you.  This dilemma rings equally as true for incumbent as well as challengers.  Therefore, it follows that the risk of financial quid pro quo is not effected by term limits since the type of candidate, incumbent or challenger, is irrelevant.  However, the existence of a financial quid pro quo, as it pertains to the independent judgment of our elected officials, is in fact more and more destructive the longer that particular elected official remains in office. 

Why? 

Say Joe Smith is elected to his first term in the Senate with enormous financial support from the Tobacco industry.  Basically, he is told that the money will continue to flow so long as he does not vote to make cigarettes illegal or raise the sales tax imposed on their products – a financial quid pro quo.  He can never admit to accepting the money under these terms, less face public humiliation, reprimand, and possible impeachment.  So, he keeps quiet.  Next election cycle, the tobacco industry can now basically blackmail him by 1) threatening to pull their financial support; or 2) releasing somehow to the public, his accepting of a bribe.  Senator Smith keeps quiet.  Third election cycle, then the fourth, fifth, sixth and so on, and the financial quid pro quo line has gotten longer and the noose around the Senator’s neck tighter.  As a result, the special interests of the Tobacco Industry are held higher than Senator Smith’s constituents.  As are the special interests of a growing legion of lobbies which expands the longer he stays in power. 

Whereas, should term limits be imposed on Congress, Senator Smith, in the above example, could not be held under the thumb of any particular lobby for an indefinite timeframe.  With a continuous rotation of Congress, lobbies would be forced to continuously fight for the attention and support of our elected officials – a reality which would foster competition between the special interests (democracy 101) and would also curtail any particular industry’s ability to have an “inside man” ad infinitum by climbing into the pockets of any individual representative and simply staying there.  Lastly, as for Senator Smith, he would be more likely to vote on principle than on special interests if he was barred from being a career politician.

There are a number of arguments commonly posited in opposition to term limits in Congress.  Summarized, they are as follows:

             1. Term limits remove the ‘good’ politicians along with the ‘bad’.

            2. Term limits reduces voter choice.

            3.  Term limits result in a loss of experience in Congress.

            4.  Term limits will increase the power and influence of staff and  lobbies.

Specifically, in regards to the loss of ‘good’ politicians.  Admittedly, this would be a side-effect of term limits.  However, I’d argue that any such loss would be fully offset by the fact that incumbency would be removed as an obstacle for countless motivated, intelligent candidates to add to the value of our government.

Still, some will argue as follows:  If Ted Kennedy is my Senator, and he has been in office for as long as I can remember, and I am happy with his performance, why should I be limited in my choice to vote for him again?  Also, Mr. Kennedy is extremely powerful and therefore able to bring home the pork – I don’t want him gone!

In regards to any particular voter, such as the above hypothetical constituent of the late Senator Kennedy – he has a valid interest in continuing to vote Kennedy into office.  Why would he vote Kennedy out of office if he’s bringing home the public works projects, etc., that provide jobs for himself and his neighbors? 

The problem is this:  Representatives and Senators in the Congress are there to represent the interests of their constituents.  However, as is evidenced by the ever-expanding use of the Commerce Clause, Congress is also charged with regulating the nation as a whole.  That second charge is unduly influenced by an entrenched seniority with the power to appropriate pork barrel funding of special interest projects to regions without proper regard for the needs of the entire national constituency actually paying for the proposed project.   It is beneficial to the state for their official to have tenure, but it is equally as, if not more detrimental to the nation as a whole. 

As to term limits reducing voter choice.   While term limits will, in fact, remove the ability to vote for an incumbent who has maxed out his or her terms, voters will actually benefit from increased choice. The fact is that most voters are being deprived of real choice when over 98% of incumbents win against voter apathy.  By infusing new blood into the system, voters will have new candidates, not career politicians to vote for and, hopefully, will be galvanized by new candidates in touch with the real world.

Will term limits result in a dearth of knowledge and experience in Congress and increase the power of staff, bureaucracy, and lobbyists?  To the contrary, it would remove entrenched staff, bureaucracy, and lobbyists as above discussed, and would encourage the the influx into Congress of a multitude of untainted and eager Americans as legislators, staff or lobby, alike – all probably less likely to be bowled over by special interests and embedded staffs, bureaucracies and lobbies.

The small business owners of America, the employers of over 50% of the population, having endured through the inefficiencies, opportunities and disadvantages inherent in today’s global market competition, and how government over-regulation or under-regulation effects the bottom line, would suddenly throw their hats into the ring.   These new, intelligent minds could renew our democracy, reinvigorate us to vote, and usher in a new era in government where we hold true to our Constitution and the sage foresight of our founding fathers to pursue the promise of our freedom in the face of today’s adversities. 

And, if necessary, these new representatives could always call on the sage advice, knowledge and experience of any faithful and former colleague, staff member or lobby.  After all, what are the dethroned incumbents going to do, hang up when a “newbie” comes to Congress?  I suppose if they did, that might tell us a little something about their true desires for power.  Concomitantly, new politicians are less likely to have the knowledge necessary to exploit the system for personal gain and are more skeptical of lobbyists and special interests.

That is not to say that the experience of those in today’s Congress is not substantial and often of critical importance.  Certain levels of tenure, I believe, are in fact healthy and necessary to the proper function of a bicameral legislature operating within the complexities of the 21st Century.  Certain levels of clearance and closely held government secrets, are perhaps not best for freshmen representatives to hold, for example.  In many respects, such as is in the case in foreign policy, it takes multiple terms to gain proficiency as a true leader on any given subject matter properly under their jurisdiction.

As such, I believe it is proper that any term limits imposed on Congress should not reduce terms in the House of Representatives at all, but should be reduced to two terms (12 years) in the Senate.

As the nauseating battle over the debt ceiling unfolded this summer, we were once again witness to the ostensible veto power the Senate has over the President’s agenda, and more importantly, over the House of Representatives.  Bill after proposed bill has been dead on arrival, why?  Because the bills proposed in the House of Representatives by congressmen taking the interests of their individual state constituents into foremost consideration, are killed by the Senate: a body comprising of only two senators from each state and thereby less capable of representing the regional interests of the state and more concerned with the effect any given decision has on the whole on the United States.

A two term restriction on senators will alleviate the corrupting influence special interests have on the regional interests of individual states.  Many corporations, unions, (factions) operate in multiple states, not to mention globally, and their interests often are not aligned with the desires of any particular state or region.  But when they control the re-election of a Senator, one of only two from each state – we soon find that the Senators are voting in favor of the faction’s special interest, despite the effect it may have on a particular region, even the Senator’s own state.  However, loosen the length of that financial string tied into the Senator’s pocket by implementing a two term restriction, and that Senator will be more likely to vote his conscience and not to the detriment of his state.  More importantly, that Senator, again, only one of two from his state, will not be drowned out by Senators from across the nation with divergent special interests tied with twenty year long strings to wallets thick with money.

Whereas, maintaining the status quo of no term limits in the House of Representatives will ensure that the level of expertise needed in Congress remains.  Further, each state will have a greater voice in what happens in their state, as the Senators will not be bought and told to vote contrary to their state’s interests for sake of the “interests of the multi-state faction.”  Representatives will find a more receptive floor in the Senate, and by reducing the influence special interests can have on the Senate, the individual states can enact regulation at a local, state, and national level, with far less restriction. 

The result – a bicameral legislature that is in greater tune with the concerns of the constituents it represents.  The voices from main street will be louder, and the problems of one region will be dealt with by that region, more efficiently, and with less deliberation and less red tape.  The result will be to reduce the size of government!

For let me be clear – the best way to guard against corruption in the Federal Government is to REDUCE THE POWER OF THE GOVERNMENT.  Returning power to the individual states, as intended by the Constitution, is the answer to how we cripple corruption in Congress.  As James Madison himself wrote in Federalist Paper #10, the key to guarding against the insidious nature of factions is not in eliminating the causes of faction, for that would require the destruction of liberty.  The key to removing the corrosive vice grip lobbying has on our current body politic, is found in reducing the size of government and implementing term limits in the Senate – thereby controlling the effect factions have on the decisions made in the United States Congress. 

TO ALL MY READERS, HAVE A VERY MERRY CHRISTMAS AND HAPPY NEW YEAR.  PLEASE STAY TUNED FOR CHAPTER FOUR: THE ROLE OF RELIGION IN GOVERNMENT, WHICH I WILL BE RELEASING NEXT WEEK.

CHAPTER THREE: (part Three of Four)

CAMPAIGN FINANCE REFORM

As stated in the previous section of this chapter – I believe there are three distinct avenues through which the corrupting weight of corporate money on the federal legislative process can be pacified:

  1. Lobbying Reform;
  2. Campaign Finance Reform; and
  3. Term Limits

I will tackle each proposed course in order, analyzing the need for each, the debates surrounding them, and then make specific proposals respectively.  I continue today with:

Campaign Finance Reform:

“The polluting effect of money in election campaigns…[c]oncentrated wealth . . . threaten to distort political campaigns and referenda…[t]he voices of individual citizens are being drowned out [by the] unholy alliance of big spending, special interests, and election victory.”

 — Skelly Wright, “Money and the Pollution of Politics: Is the First Amendment an Obstacle to Political Equality?” Columbia Law Review 82 (1982): 614, 622.

The deluge of corporate and union money into federal, state and local campaigns is a very real impediment to the individual’s ability to voice his or her concerns within America’s existing political construct.  An ordinary individual – not rich beyond description or backed by corporate treasury, simply cannot voice their outlook on any given issue via the endorsement of an elected official when their meager contributions are stacked against the piles of capital contributed by corporations and unions.  Yet, while this inequity seems so clear prima facie, it actually proves nauseatingly difficult to regulate for the same reason it is difficult to curtail the influence of lobbies.

Let me first begin by discussing two of the oft proposed legislative reforms aimed at reforming campaign finance: (1) Political Action Committee (PAC) expenditure bans; and (2) Soft Money limits.

Unfortunately, these, and many other proposed reforms, tend to run afoul of the protections afforded individuals and corporations/unions (groups of individuals) by the First Amendment. 

A Political Action Committee (PAC) is an organization formed by business, labor, or other special-interest groups to raise money and make contributions to the campaigns of political candidates or parties whom they support.

The reforms pertaining to PAC expenditure bans typically center around banning all expenditures by and contributions to PACs for the specific purpose of influencing elections for federal office.

Remember that in Buckley, though, the Supreme Court held that the only legitimate and compelling government interest in restricting campaign contributions and expenditures sufficient to satisfy the test of strict scrutiny is the government’s concern in preventing corruption or the appearance of corruption.  The Court further defined corruption narrowly as entailing a financial quid pro quo (dollars for political favors).

Despite their laudable goals, advocates for PAC expenditure bans can really only offer vague justifications for the proposed reforms.   Understandably, they complain of an unresponsive government, a political process that has grown increasingly mean-spirited, and decry elected officials who listen more to lobbyists than to their own constituents. While this criticized “influence” is conspicuous, constitutionally speaking, it does not pass as a justification for the proposed reform in that it falls short of the Supreme Court’s test of strict scrutiny in that it fails to allege the existence or appearance of any specific corruption. 

Knowing deep down in the pit of my stomach the corrupting influence the infusion of money has on our body politic, I wish it were not the case that the list of grievances cited by the advocates of PAC expenditure bans simply do not amount to corruption as the Supreme Court has defined it.  Yet, we must always be deliberative in our process and step back in this instance to realize that we cannot advocate the infringement of one group’s right to speech by dint of a perceived or vague inequity any more than we would desire our own freedoms curtailed without concrete justification.  

What of reducing the PAC contribution limit to $1,000 as some advocate should the outright PAC ban be invalidated as above anticipated?  First off, I doubt that any politician would be corrupted by a single contribution of $5,000 (current maximum).  As such, the interest that the contribution reduction would serve is merely curtailing the perceived dominance and influence of PACs in the political process.  Once again, then, the First Amendment will not allow for such a restriction as it serves a government interest that has never been adjudicated as either legitimate or compelling.

Second, I would also add that a similar unintended consequence would arise if PAC contributions were limited just as did arise as a result of the Federal Election Campaign Act’s ceilings on individual contributions to specific candidates.  What interest would be served by rendering it that much more difficult than it presently is for candidates to raise money? In this age where candidates are forced to raise funds day in and day out, candidates would hardly be less distracted by fundraising if they had to raise money from an even greater array of people as a result of the smaller amounts that any one PAC may contribute.

What of soft money reform? 

Hard money is contributed directly to a candidate and is therefore regulated by law in both source and amount, and monitored by the Federal Election Commission.  Soft money, on the other hand, is contributed to the political party as a whole, supposedly for the purposes of party building and other grass roots activities not directly related to the election of specific candidates.  As soft money is not supposed to be used for specific candidate advocacy, it is not regulated by FECA.  However, the Bipartisan Campaign Reform Act of 2002 (also known as the McCain-Feingold Act) prohibited unregulated contributions to national party committees.

Advocates of campaign finance reform often assert that soft money is the most corrosive in American politics today and typically push for barring federal officeholders, candidates, and national political parties from accepting unregulated soft contributions.  They also advocate subjecting all election-year expenditures and disbursements by political parties, including state and local parties that could affect the outcome of a federal election and also including expenditures for voter registration, get-out-the-vote drives, and any communication that identifies a federal candidate, to the full range of federal regulations.

Reformers want to ban soft money because it undeniably invites the wholesale evasion of the contribution limits now in place by allowing corporations that would not otherwise be permitted to contribute to candidates’ campaigns to make large soft-money donations to political parties.  Yet, given that soft money cannot be used to advocate the election or removal of any particular candidate from office, it is again difficult to establish a link between soft-money contributions and the appearance or reality of quid pro quo candidate corruption that alone provides a constitutional predicate for regulation.

 Again, this issue comes back to Buckely.  Regulating speech other than express advocacy of the election of particular candidates, the Supreme Court said, “would create intractable vagueness problems and cause unacceptable chilling of protected, issue-oriented political speech.”  In other words, such an overreaching ban on soft money contributions would stifle speech regarding controversial political issues and the qualities of government policies, resulting in an abridging of the exact type of speech the First Amendment is meant to protect.

Enter the Supreme Court’s 1996 decision in Colorado Republican Federal Campaign Committee v. FEC, which held limits on independent expenditures by political parties (expenditures not coordinated with any candidate) to be unconstitutional.  Well, if individuals are not capped in their expenditures, it follows logically that the Court will eventually determinate that party spending on political activity cannot be limited, whether or not coordinated with any particular candidate, and also that contributions to the party by PACs or otherwise, will also be immune from regulation.

And then came the starkest example of the Supreme Court’s determination to defend the principles of the First Amendment as it pertains to campaign finance reform.  In its January, 2010 decision in Citizens United v. FEC, the Supreme Court struck down sections of the McCain-Feingold Act and overturned a 20-year-old ruling that had previously prohibited corporations and unions from using money from their general treasuries to produce and run their own campaign ads.

The Bipartisan Campaign Reform Act of 2002, (BCRA/McCain-Feingold Act), amended FECA to ban national political party committees from accepting or spending soft money contributions. While the legislation was challenged in McConnell v. Federal Election Commission (2003), and again in Federal Election Commission v. Wisconsin Right to Life, Inc. (2007), most of the act remained unscathed with only parts being effectively, though not formally, invalidated.  The particular provision at issue in Citizens United, however, was Section 203 of the BCRA, which prohibited corporations and unions from using their general treasury funds to make independent expenditures for speech that is an “electioneering communication” or for speech that expressly advocates the election or defeat of a candidate.  

By the terms of the Act, an electioneering communication was defined as “any broadcast, cable, or satellite communication” that “refers to a clearly identified candidate for Federal office” and is made within 30 days of a primary election, and that is “publicly distributed,” which in “the case of a candidate for nomination for President . . . means” that the communication “[c]an be received by 50,000 or more persons in a State where a primary election . . . is being held within 30 days.”

The facts in Citizens United were as follows:  Citizens United, a nonprofit corporation, released a documentary critical of then-Senator Hillary Clinton, as she sought Presidential nomination as candidate for the Democratic National Party. Anticipating that it would make the documentary available on cable television through video-on-demand within 30 days of primary elections, Citizens United produced television ads but was concerned about possible civil and criminal penalties for violating the BCRA should they air them.  As such, Citizens United sought declaratory and injunctive relief, which they appealed all the way to the Supreme Court, arguing that that the BCRA was unconstitutional as applied to the documentary. 

In its decision the Court pointed out that it had previously recognized that the First Amendment applies to corporations, (First Nat. Bank of Boston v. Bellotti, 435 U.S. 765), and extended the protection to the context of political speech, (NAACP v. Button, 371 U.S. 415).  The Court remembered that it had invalidated FECA’s expenditure ban, which applied to individuals, corporations, and unions, because it failed to serve any substantial governmental interest in stemming the reality or appearance of corruption in the electoral process.  However, the Court also had to contend with its 1990 decision in Austin v. Michigan Chamber of Commerce, 494 U.S. 652, where it upheld a corporate independent expenditure restriction, bypassing Buckley by recognizing a new government interest in preventing “the corrosive and distorting effects of immense aggregations of [corporate] wealth . . . that have little or no correlation to the public’s support for the corporation’s political ideas.”

The court overruled its previous decision in Austin, stating as follows: “The First Amendment prohibits Congress from fining or jailing citizens, or associations of citizens, for engaging in political speech, but Austin’s antidistortion rationale would permit the Government to ban political speech because the speaker is an association with a corporate form…Political speech is indispensable to decision-making in a democracy, and this is no less true because the speech comes from a corporation…This protection is inconsistent with Austin’s rationale…First Amendment protections do not depend on the speaker’s financial ability to engage in public discussion…Distinguishing wealthy individuals from corporations based on the latter’s special advantages of, e.g., limited liability, does not suffice to allow laws prohibiting speech…Under the antidistortion rationale, Congress could also ban political speech of media corporations.”

As result of this constitutional rubric, it is quite clear that any restriction aimed at limiting  access to politicians, such as by way of enacting ceilings on the amount of money the national parties, PACs or even corporations can spend on a campaign add, for instance, would likely be considered by the court as a direct and substantial restriction on the ability of candidates and citizens (or a group of citizens represented by that PAC or corporation) to engage in protected political expression.  As such, no law abridging such rights will likely stand. 

With this matrix in mind, some have proffered the following as a means to accomplish campaign finance reform at the federal level without running afoul of the First Amendment:

 All elections at the federal level shall be publicly funded by taxpayer’s dollars.  Each candidate will be entitled to a pre-determined level of capital with which to run their campaign.  Each candidate shall be required to, among other things, obtain a target number of signatures to qualify for the funds.

Admittedly, this general construct is intriguing.  Unfortunately, it won’t work.  To start, it is worth pointing out that any such system of campaign finance would have to be crafted with extreme care to guard against unintended consequences.  For instance, we could easily create a slippery slope in the process of determining who is and is not eligible for the public funds.   By making it too hard to qualify for the funds, we likely would disenfranchise some and by making it too easy to qualify for the funds, we could bankrupt the system.

 Such a publicly funded system would arguably address the directly corrosive effect lobbying and campaign fundraising is allowed to have on the political process. 

Nevertheless, I posit that such a system is constitutionally obtrusive and would, in reality, do little to remedy the iniquity.

While public funding of campaigns would not place any restriction on individual and corporate expenditures in violation of constitutional precedent, it would place that very same restriction on the candidate.  This already runs afoul of case law.

More importantly, establishing public funding of campaigns in an effort to skirt the rigors of strict scrutiny would do absolutely nothing to stop individuals, corporations, PACs, etc., from spending as they desire, in any amount, advocating issues and party platforms.  The result would be one where a candidate is allotted a pittance via public funding of his or her campaign and then would be at the mercy of their party to back them.  Why?  Because if the party did not back them, they’d back another candidate and flood the airwaves with millions of dollars worth of “propaganda” carefully designed to walk that fuzzy line between issue and candidate advocacy.  The natural result: every candidate will pine for the backing of their political party, Democrat or Republican alike. 

All such a system will do is make the national parties that much more powerful by making them the bankrollers of campaigns and putting candidates squarely in their pockets.  Whatever deals the party has made with the lobbies, corporations or PACs would have to be abided by the candidate if he or she were to have any hope of obtaining the candidacy, much less win re-election.   

So, where do we go from here? 

It is important to note that in the wake of the Buckley decision, where campaign contributions have ceilings, candidates can no longer raise money in the traditional, relatively efficient way of attracting large donations from a small number of donors.  As an unforeseen consequence, candidates are now forced to campaign day in and day out, year after year, in order to amass disorienting numbers of small contributions.  It’s no wonder nothing gets done in government!

Campaign spending must then be regulated with the aim of reducing candidate fundraising chores in lieu of the goal of restricting political expression.  Regulation with fundraising control as a rationale for spending limits is constitutionally defendable because the harm remedied by curtailment is not the speech itself, but the effect the necessitated campaigning has on the candidate and the candidate’s ability to perform his or her elected duties.

With this reasoning in mind, and remaining fully aware of the corrupting influence money is having on our body politic, I proffer the following as a means to accomplish campaign finance reform at the federal level without running afoul of the First Amendment:

By doing two things: 1) placing a relatively high cap, but a cap nonetheless, on the amount candidates can raise and spend per election; and 2) requiring full disclosure of the source of those funds, we can force candidates to choose wisely amongst their donors and the “strings” attached to those dollars. 

Admittedly, this restriction on the amount of money a candidate can spend on a political communication during a campaign would reduce the quantity of any particular candidate’s expression.  However, such a spending cap would entail only a marginal restriction upon the candidate’s ability to engage in free communication for it would permit them to raise and spend a relatively large amount and would not regulate the content of the candidate’s speech. 

This form of regulation, then, would be content-neutral and, as such, only intermediate scrutiny would be necessary in the review of its constitutionality.  Applying the O’Brien test: the law would serve the substantial government interest of preserving the integrity of the democratic process.  Though intermediate scrutiny does not require the law to be the least restrictive means of curtailing the content-neutral speech, this law would be narrowly tailored to govern the actions of a finite group – candidates. 

Candidates, I would argue, are vying for the opportunity to serve the republic, and as incumbent or hopeful public officials, such a spending cap restriction is no less reasonable than the fiduciary duties imposed on professionals in the prosecution of their vocation.  Lastly, the law would leave open alternative means of communication in that the candidates would in no way be forbidden to attend any further galas or fundraisers where they may be given an opportunity to speak to the public at large once their “cap” is met, so long as it is not for the narrow purpose of raising money for their campaign.  The law also would not curtail the public’s (individuals, corporations, PACs) ability to expend moneys and invite the candidate as, perhaps, an honorary keynote speaker.

Because campaign finance reform and lobbying reform, as above described, are so fundamentally complex and constitutionally problematic, I believe only small and incremental reforms are possible with respect to either one – that is, barring an amendment to the Constitution.  Given the dire need for reform, I wish this were not the case, but even facing the corrosive effects money is having on our body politic, I can see no legitimate government interest sufficient enough to amend the First Amendment.  Therefore, each reform must be carefully drafted to anticipate strict scrutiny under the law with case precedent always in mind.

CHAPTER THREE (Part Two of Four)

As stated in the previous section of this chapter – I believe there are three distinct avenues through which the corrupting weight of corporate money on the federal legislative process can be pacified:

  1. Lobbying Reform;
  2. Campaign Finance Reform; and
  3. Term Limits

I will tackle each proposed course in order, analyzing the need for each, the debates surrounding them, and then make specific proposals respectively.  I begin today with:

 Lobbying Reform

While I have heretofore been critical of the effect lobbying has had on the decisions made by our elected officials, let me be clear in stating that I believe lobbying, per se, is not the underlying problem in Washington.  Rather, the EFFECT lobbying is allowed to have on our elected officials as a result of our political system is to blame.

To clarify, the root of the problem is not born of the fact that any particular lobby has the ability over their competitor to shovel millions of dollars into the pockets of our politicians, for this is a natural and positive byproduct of capitalism and true to democratic ideals, rather the problem is that our politicians need that money to survive.  Our elected official’s need for money to survive in the political forum renders them voiceless without the say of their “financiers,” resulting in the average constituent, you and I, being disenfranchised.

I believe that lobbying is essential to our republic as the informed discussion of public issues and debate are integral to the operation of our democracy.  Lobbyists are often experts in a given subject capable of examining various economic, commercial and other functional interests and often advise congress on how to formulate legislation.  To that end, lobbying in America serves a very useful purpose.  However, when lobbying, as it has become in not all but many respects, turns merely into above-board bribery, it undermines the legislative process and is ultimately destructive of our democracy.

Lobbying, which by definition is the act of soliciting or trying to influence the votes of members of a legislative body, is a powerful form of speech and petition, and therefore the act, in and of itself, is protected by the First Amendment. 

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

                                         –First Amendment to U.S. Constitution 

Because the discussion of public issues and debate are so integral to the operation of the system of government established by our Constitution, any prohibition of speech, including the petition of government itself (aka lobbying), must serve a legitimate, narowly tailored purpose.   Though I would have it no other way, this serves as a very large hurdle for lobbying reform to overcome. 

In order to analyze the impediment to lobbying reform presented by the First Amendment, we must start with case law.  An expanding line of Supreme Court cases has ruled the following as it pertains to the curtailing of speech: 

To begin, there is the doctrine of no prior restraint.  Essentially, government cannot punish someone before they have spoken or try to prevent them from speaking as to do so would constitute censorship and would result in society always being deaf to a particular message.   However, the government can, in varying degrees, promulgate laws regulating the content of speech and content-neutral speech.  

Content-based regulation centers around the limitation or punishment of speech because of the content of the message or the stance of the speaker.  In order for any such curtailment to be constitutional, the regulation must pass the test of strict scrutiny.  Strictly speaking, the law must serve a compelling government interest and must be narrowly tailored as the least restrictive means of curtailing the specific speech.  Per the Overbreadth Doctrine- if the law punishes protected speech, it is void, and if it the law is too vague it shall also be invalidated because people of common intelligence would be unsure what speech is actually prohibited, theoretically resulting in all speech being chilled.

Content-neutral laws, on the other hand, are unrelated to the content of the speech and do not favor one viewpoint over another.  This type of regulation is notably subject to the O’Brien test from Chief Justice Warren’s opinion in United States v. O’Brien (391 U.S. 367 (1968).  Under the O’Brien test, content-neutral laws are subject to intermediate scrutiny rather than strict scrutiny.  The law must serve a substantial government interest, the law must be unrelated to the content of the speech, and the law must be narrowly tailored but not necessarily as the least restrictive means of curtailing the speech.  Lastly, the law must leave alternative channels for communication.

In which category would you place lobbying?  The question, of course, is a red herring of sorts because it is important to note that the level of scrutiny required in judicial review of lobbying depends not on the act of lobbying itself, but rather upon the language of the law and how that statute aims to restrain lobbying. 

In Buckley v. Valeo (424 U.S. 1 (1976)) the Supreme Court laid down precedent that continues to resonate in the halls of justice and the chambers of Congress today.  “Some forms of communication made possible by the giving and spending of money involve speech alone, some involve conduct primarily, and some involve a combination of the two,” the court wrote, “Yet this Court has never suggested that the dependence of a communication on the expenditure of money operates itself to introduce a non-speech element or to reduce the exacting scrutiny required of the First Amendment.”

The court in Buckley went on to distinguish O’Brien from the case before it as it considered the appeal to key provisions of the Federal Election Campaign Act of 1971 (FECA).  Where O’Brien dealt with clearly content-neutral regulation (administrative interest in the preservation of draft cards) the court argued that it was “beyond dispute that the interest in regulating the alleged “conduct” of giving or spending money arises in some measure because the communication allegedly integral to the conduct itself is thought to be harmful.”

The court distinguished limitations on expenditures from limitations on the amount any one person or group may contribute to a candidate or political committee, upholding the latter and invalidating the former.  

The argument was this:  “A restriction on the amount of money a person or group can spend on a political communication during a campaign necessarily reduces the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached.”  Whereas, a limitation on political contributions, “entails only a marginal restriction upon the contributor’s ability to engage in free communication, for it permits the symbolic expression of support evidenced by a contribution but does not in any way infringe the contributor’s freedom to discuss candidates and issues.” 

The court found that FECA’s limitations on contributions were constitutionally valid because they served a legitimate administrative interest in preserving the integrity of the democratic process without directly infringing upon the candidate’s or individual’s rights to engage in political discussion.  In contrast, the court invalidated the Act’s expenditure ceilings because they felt that the provisions placed direct restrictions on the ability of candidates, citizens and associations to engage in political expression, altogether in violation of the First Amendment.  

Pop Quiz:

Which do you believe is the proper role of government in relation to the First Amendment?

        1.  The government should remain neutral as people in the private sector compete in the political marketplace.  If some people have more money than others, and if their greater resources permit greater access to the public officials, the result is not something the government should or can remedy consistent with the First Amendment.

        2.  A system of free expression is one in which there is fair deliberation on what the public good requires, and inequality of resources can seriously distort that deliberation by heightening the level of one voice and diminishing another.  The government should enact legislation to promote a more equal and fair public debate.

Answer:  Both!  Allow me to explain.

Consider James Skelly Wright’s argument in his 1976 Yale Law Journal Article, Politics and the Constitution:  Is Money Speech.  In it, the Chief Judge of the United States Court of Appeals for the District of Columbia started with the “pluralist” belief that the First Amendment’s highest function is to let group pressure run its course unimpeded, for to interfere would skew the process that determines the public interest.  I happen to agree with this philosophy, however, I also agree with Judge Wright’s assertion that the pluralist model, “gives undeserved weight to highly organized and wealthy groups and drains politics of its moral and intellectual content.”  He went on further to argue, “what the pluralist rhetoric obscures is that ideas, and not intensities, form the heart of the expression which the First Amendment is designed to protect.”  

The simple fact remains that lobbying in the United States has spiraled out of control.  John Smith who owns a small business on Main Street simply cannot compete with the money Wall Street firms or energy conglomerates can throw at lobbyists to wine and dine our elected officials.  The result is not, as many politicians and even our Supreme Court Justices have oft argued, “theoretical,” and it certainly is more than an unsubstantiated undue influence to the detriment of the common constituent.  The result is the sub-prime lending scandal, forty years of inaction as it relates to our energy independence, immigration, education reform, and the list of inaction/biased exploits goes on and on.  The impact is real, it is significant, and it is destroying our republic! 

But, given the constitutional constraints of the First Amendment protection of free speech and petition, how do we reform lobbying in America without trampling on the rights of the lobbies in favor of the common man? 

I would argue that any restriction aimed at limiting a lobby’s access to politicians, such as by way of enacting ceilings on the amount of money the lobby can spend on a dinner party for a congressmen, would be a direct and substantial restriction on the ability of candidates and citizens (or a group of citizens represented by that lobby) to engage in protected political expression.  As such, no law abridging such rights should stand.  

Therefore, the only way to properly regulate lobbying, as I see it, without running afoul of the First Amendment, is to require more transparency than is currently mandated in the system.  Each dollar spent by a lobbyist to reach the ear of a congressman or candidate, to include dinners, fundraisers, galas, gifts, trips and excursions – the entire gamut of lobbying tactics commonly employed, from $1 and above, absolutely must be accounted for and reported by the lobbyist and his firm to a Commissioner of Accounts in the JUDICIAL BRANCH.   When a lobbyist advises congressmen or their staffers on proposed legislation, their hourly rate must be accounted for, the bill they were advising on and any specific language proffered must be catalogued, and the judiciary shall have jurisdiction of review and penalization for abuses and undue influence.  

It seems clear to me that the judicial branch should have the authority to oversee the proprieties of lobbying and congressional action as such an oversight power would constitute a check and balance in conformity with constitutional spirit. 

This burden of full disclosure and transparency must be placed on the lobbying firm and it must also be placed on the individual congressmen to report exactly what fundraisers, galas, etc., they attend and who hosted/financed the event. 

Because no speech or petition is restricted (albeit hopefully discouraged) by such regulation, the judicial mandate of strict scrutiny need not apply in review of its legality.  That having been said, such regulation, clearly, would serve the legitimate government purpose of avoiding corruption or the appearance of corruption by affording everyone clear, digestible access to information linking the efforts of lobbies to the actions of Congress.  This would be accomplished by placing a relatively minute, ministerial task on Congress and lobbies – hardly too burdensome considering the magnitude of the corruption it stands to bring to light.  Finally, the task to the judiciary would be similar to that of a Commissioner of Accounts’ responsibility to audit accounts for decedent’s estates – a function they already perform.

Please see my next post: Chapter Three (part three of four) in reference to Campaign Finance Reform.

CHAPTER THREE (Part One of Four):

LOBBYING, CAMPAIGN FINANCE REFORM, OR TERM LIMITS:  HOW TO STOP GRIDLOCK IN THE UNITED STATES CONGRESS

 “For of those to whom much is given, much is required. And when at some future date the high court of history sits in judgment on each one of us—recording whether in our brief span of service we fulfilled our responsibilities to the state—our success or failure, in whatever office we may hold, will be measured by the answers to four questions:

First, were we truly men of courage—with the courage to stand up to one’s enemies—and the courage to stand up, when necessary, to one’s associates—the courage to resist public pressure, as well as private greed?

Secondly, were we truly men of judgment—with perceptive judgment of the future as well as the past—of our own mistakes as well as the mistakes of others—with enough wisdom to know that we did not know, and enough candor to admit it?

Third, were we truly men of integrity—men who never ran out on either the principles in which they believed or the people who believed in them—men who believed in us—men whom neither financial gain nor political ambition could ever divert from the fulfillment of our sacred trust?

Finally, were we truly men of dedication—with an honor mortgaged to no single individual or group, and compromised by no private obligation or aim, but devoted solely to serving the public good and the national interest?”

–John F. Kennedy in a speech delivered to a Joint Convention of the General Court of the Commonwealth of Massachusetts on January 9, 1961.

After graduating from the University of George Mason School of Law, I sat for the Virginia State Bar in 2006 and was sworn in at the Supreme Court of Virginia as a licensed attorney.  Listening to the commencement speech of the Honorable Chief Justice Leroy Rountree Hassell, Sr., the first African American appointed to the court, a tremendous sense of honor came over me.  I distinctly remember looking around at my fellow Juris Doctors readying to be sworn in to the sacred practice of law in the Commonwealth, thinking, “hear we are, the next agents of justice.”

However, I’d already been steeped in the practice of law since January of 2005, having petitioned the Supreme Court for permission to practice in my third year of law school under the guidance of an attorney already admitted to the bar.  Petitioning the court was unfortunately necessitated by the unexpected near death of my father that winter. 

In a matter of weeks, my father had gained somewhere near fifteen pounds of water weight.  We later learned that this was a result of extreme heart failure brought on by the idiopathic triggering of a superfluous electrical pathway in his heart.  As a result, his resting heart rate would spike upward of two-hundred, instead of the normal sixtyish beats per minute.  His heart literally turned to mush, losing its elasticity and ability to pump oxygen and blood to his vital organs.  His ejection fraction, the measure of how much blood the heart pumps out with each pump versus the amount it withholds, plummeted, his organs shut down and on Christmas Eve, 2004, he literally died.

My father was revived and immediately airlifted to Fairfax Hospital, renowned as having one of the best cardiology departments in the world.  He underwent emergency heart surgery for the insertion of a balloon pump.  The next morning, Christmas day, the on-call pulmonary specialist told me, point blank – my father would not last an hour.

Well, he did.  And after nearly a month of induced coma, he came home on February 7th, my birthday, and we opened our Christmas presents with family on Easter.  To this day his doctors are in awe at his recovery…he is, quite literally, a walking miracle.  So let me pause to say, to all, no matter how dire a situation seems, remember, there is always hope!  I digress, except to say that the exact same is true of the present and future of our great nation.

My father was the senior partner, manager and owner of my law firm, Kidwell, Kent & Curran.  It’s a small, general practice firm, consisting of only three attorneys, myself, my father, and J. Charles Curran, a dear friend and mentor.  As such, upon the event of my father’s sudden sickness, it fell upon me to take up the mantle by tackling his caseload and managing the firm.

When I took over, approximately eighty-five percent of the firm’s income was derived from real estate oriented revenue.  In 2004, the height of the real estate boom, we were conducting an average of four residential or commercial real estate settlements a day.  But, as luck would have it, in 2006, the exact summer I was sworn in to the practice of law, the real estate market collapsed in the wake of what is now commonly referred to as the sub-prime lending scandal.

Almost overnight, my firm went from conducting four settlements a day to conducting as little as four in a month.  The bubble had burst and what ensued was the precipitous decline of our economy into the “Great Recession.” And now the feared – “Double Dip Recession”. 

The economic fallout across our nation has been unprecedented – somewhere between seven to ten million homes now sit vacant in a rising tsunami of foreclosures as unemployment lines rap around city blocks in haunting similarity to the soup lines of the Great Depression.

Suddenly, there I was, a young, ideological attorney fresh out of law school, beyond green behind the ears and faced with the task of reviving a law firm staring down the throat of looming bankruptcy.  The livelihood of my entire family hinged on the income generated by Kidwell, Kent & Curran – my sister was our Senior Real Estate Processor, my father the owner, and now my economic fortunes were equally as entwined with the success or failure of our small family business.  Failure was simply not an option.

What was I to do?  I decided immediately that the best thing to do was diversify.  Just like any savings plan, stock portfolio or otherwise, the answer, I thought, lied in delving head first into new areas of law not previously or long since practiced at our firm. 

I found myself practicing domestic relations, handling divorces, child custody and spousal abuse cases.  I defended alleged drug dealers, some innocent, some not, prosecuted squatting tenants, and even “chased ambulances”, to use the term loosely, to land  personal injury cases.  But all of it left somewhat of a sour taste in my mouth.  So, I moved on to different pastures where I hoped that my legal expertise could better serve justice.

Through friends in worship, I was invited to local churches and assisted living facilities to conduct seminars on estate planning and charitable giving, and I traveled to regional real estate brokerages to coach agents on the legal minefields of the increasingly litigious market.     

Being that the firm’s primary focus has for decades been on real estate law, I suppose it was natural for me to find expertise in one of the fastest expanding phenomena of the emerging real estate market:  the Short Sale.

A short sale, simply put, is when a lender that has a mortgage, or Deed of Trust, secured as a lien against a particular parcel of real estate, allows the owner of that property to sell the property short of what they owe on their mortgage.  The owner’s real estate agent will list the property as contingent upon third party approval, that is, the lender’s approval, of any ratified contract of purchase and sale.  Once a contract is in hand, a package containing the owner’s W-2s, tax returns, pay-stubs, account statements and a letter explaining why they are in economic hardship is sent to the lender for consideration.

The short sale has become one of the largest market shares of all homes sold in the wake of the sub-prime lending scandal and is utilized as an alternative to foreclosure.  The lender, in essence, reviews the hardship package and if it determines that it will yield more income on its investment by allowing the short sale than by instituting foreclosure, the lender approves the sale, often with stipulations requiring the borrower to execute a new Note promising to pay back the deficiency over time.

In one form or another, the thought had long been swelling in my head, but I will never forget the day I was driving back to the office after having conducted a seminar on the short sale process at a local Long and Foster Realty brokerage.  My head was racing with recent memories of the clients crying in my conference room, pleading for me to save them from being ousted from their American Dream.  The mounting pressures of scraping to cover payroll, pouring what little savings I’d accumulated into the firm to keep it afloat – it all just hit me.  I pulled off the road, ironically into the parking lot of a Bank of America, and looked into the rearview mirror- 

“How did this happen,” I asked myself aloud, staring at the too tired reflection of a man in his twenties.  And there it is… how did this happen?  How did America, what I’d grown up to know is indisputably the greatest nation on this planet, the sole remaining superpower and the epicenter of economic opulence, come to this?  How were so many people out of work?  And personally, how the hell was I going to survive the worst economy since the Great Depression and do so in a firm dependent on real estate, the very market that has been enduring through the Great Recession two years longer than every other industry and in many respects caused the recession?

How did this happen?  The answer, of course, is multi-pronged and complex.  That being said, there is one major cause of the Great Recession that speaks volumes of the rampant corruption and back-door dealing that has permeated the body politic of the United States Congress. 

The corruption of which I speak is not necessarily born of malevolent intent or even self-dealing, though this certainly exists and is an issue.  Unfortunately, it is a corruption that is systemic, proliferated as an inbuilt feature of our political system, and it is debilitating to the proper purpose and function of our government.

Sadly, the political underpinnings of the Great Recession, just the same as those of the Great Depression, are cases in point of this ingrained corruption of which I speak, and that is precisely why it is so absolutely imperative that we come to recognize the severity of the issue and address it with first priority! 

It is against this corruption that the protestors comprising the ubiquitous and spreading Occupy Wall Street movement, should be protesting – and I hope that they read my message to assist in their finding a more enlightened voice to their cause.  I understand their anger because I myself am the prototype Small Business, literally off Main Street, being stomped out in this economy.  However, I do not agree with many of their destructive rioting as it is misplaced and dangerous.  Most comprising the movement, and therefore the movement itself,  need to better understand what they are truly fighting for – and more importantly, why it is so imperative that all of us fight for it. 

The world, the economy, government and politics – they are all intertwined in a highly volatile, complex system, where one directly affects all others.  Therefore, to understand the critical status of our debt ridden economy, the Walk on Wall Street members, Republicans, Democrats – every American, needs to first understand, on a deeper level,  exactly how we got into this mess.  While some blames and complaints are definitely well placed, it is premature to scapegoat corporations as the sole culprit.  To a large extent, in fact, the Walk on Wall Street should be a Walk on Congress.

In the years leading up to the Great Recession, extensive deregulation of the financial industry opened the door for the short-term, profit motivated masterminds of Wall Street to conjure and implement exotic schemes that literally mortgaged the very security of the United States, and by extension thereof, the world economy.  It was a gamble which fueled the boom of the real estate market as well as an explosion of personal credit debt, and it was every tax paying American that eventually paid the pot when the wager was lost.

How was this allowed to occur?  As the Leaders of the Group of 20 cited in their “Declaration of the Summit on Financial Markets and the World Economy,” in November, 2008:

During a period of strong global growth, growing capital flows, and prolonged stability earlier this decade, market participants sought higher yields without an adequate appreciation of the risks and failed to exercise proper due diligence. At the same time, weak underwriting standards, unsound risk management practices, increasingly complex and opaque financial products, and consequent excessive leverage combined to create vulnerabilities in the system. Policy-makers, regulators and supervisors, in some advanced countries, did not adequately appreciate and address the risks building up in financial markets, keep pace with financial innovation, or take into account the systemic ramifications of domestic regulatory actions. 

Quite literally, the watchdogs on Capital Hill were asleep at the wheel and in many cases they found it in their best interests to simply look the other way.  Senators were relentlessly and effectively lobbied to pull the teeth from statutes aimed at quelling the foaming mouth of the profit at all cost machine that is Wall Street.  The Securities and Exchange Acts of 1933 and 1934 (enacted in response to 1929 Stock Market Crash), as well as subsequent financial reforms, were simply not enforced, and a host of new legislation opened the door for moral hazard and unregulated risk.  Why?

As a result of a $70 trillion “stash” of worldwide fixed income investments seeking higher yields than those offered by U.S. Treasury bonds, Wall Street rose to the occasion, bringing forth financial innovation in a move to link this glut of money to the real estate market.  This represented a seemingly endless tide of gold to line the pockets of everyone in the mortgage supply chain from the mortgage broker selling the loans, the banks funding the brokers, to the goliath investment banks backing them, and as a result the behavior of lenders changed swiftly and dramatically. Lenders offered unprecedented loans, both in type and volume, even to undocumented immigrants, and the government did absolutely nothing to stop it!

As a result, the sub-prime lending scandal ensued.  The unbridled deregulation and outright failure to enforce the laws already on the books allowed lenders to loan money to individuals or companies looking to invest in residential or commercial properties with “teaser” interest rates below prime (the prime interest rate as reported by the Wall Street Journal bank survey).  Commercials blitzed our televisions and soon millions of Americans were looking to take out a second or third line of credit on their home or to purchase as many properties as they could with hopes of flipping them for a profit.   We were enticed with interest only loans or adjustable rate mortgages, (ARMs), with beginning teaser rates so amazing, how could we not jump into the pot? 

Even more, when we clicked on the site of the newest internet brokerage ready to lend us money, we found we weren’t even required to prove our financial solvency.  Traditionally, borrowers taking out conventional loans would be required to put somewhere around 20% of the value of the property down, but, by 2005 the median down payment for first-time homebuyers was around 2%, with nearly 50% of loans made with no down payment at all.  We were almost being provoked to mortgage our futures.

But, the enticement didn’t stop there!  We flocked to the brokers when they first offered stated income, verified assets (SIVA) loans, requiring only that we state our income without providing any proof other than having some money in the bank.

Then, the no income, verified assets (NIVA) loans came out. Unbelievably, lenders no longer even required proof of employment. Borrowers just needed to show proof of money in their bank accounts. Finally came NINA, or No Income No Assets loans.  These NINA loans, often referred to as “Ninja” loans, allowed us to borrow money without having to prove or even state any owned assets. All that was required for a mortgage was a credit score, and not even a good one!

Another industry was primed to capitalize on the seemingly endless flow of financing to the common consumer, the residential home builder.   Demand exploded into full out frenzy and builders began throwing up houses at record pace.  Better yet, with demand soaring, housing prices were skyrocketing for the already invested, and homeownership reached an all-time high.  All seemed beautiful in the boom world of supply and demand.

But, as we all now know… it was all horribly wrong!

I distinctly recall one particular mortgage offered from a fly-by night brokerage to first-time clients of my law firm.  It took me literally an hour to decipher the convoluted terms of the Note being offered to my clients and what I read was beyond alarming.  So, when my clients came to the settlement table, I asked them what they thought the terms of their loan were.  As you might have guessed, what they thought they were signing up for was completely different from what they were actually being asked to sign. 

My clients explained that they were purchasing their first home, recently married and willing to extend themselves a little as she was expecting and they needed the extra room.  They were under the impression they were getting a thirty year loan with a fixed interest rate at 2.75% per annum with interest only payments required for the first three years.  Not even close! 

In reality, the circuitous Note they were presented with was interest only for the first thirty days, fixed at 2.75% interest for the first year, and adjustable every six months thereafter, at prime plus 5% and with a cap at 18% interest per annum. 

This Note was alarming on multiple levels.  To start, the margin, being the lender’s scope of profit on the loan, at the time, was usually set at prime plus 2.5% to 2.75%, this was prime plus 5%.  Second, and more alarming, the loan was amortized over thirty years at the greater of the margin plus 5% or 9.25%, and was due, in full, in fifteen years.  This meant that while the interest rate was kept artificially low, as a teaser, for thirty days of only interest and then principal and interest at 2.75% for a year, the principal balance would actually increase at a startling rate.  After paying on their loan for two years they would have owed tens of thousands more than the amount of their original loan and greater the value of their house. 

Why not just refinance immediately?  They could, but, by the very terms of the Note’s prepayment penalty clause, they would have been required to pay a hefty fine if they did so within two years and especially if they did so with another lender.   

And third, as the stack of forms for them to sign ambiguously indicated, the loan had already been sold, twice, to two different loan servicing providers, prior to their signing.  This Note was a product of predatory lending to say the least.

The worst part about this scenario was the fact that my clients had absolutely no idea what they were about to sign and would not have had any idea unless I had taken the time, in my capacity as an attorney at law, to explain the terms of the Note at settlement.  These were well educated individuals, both with masters degrees, and settled in well respected professions.  I advised them not to sign the documents and, to date, they remain as clients.

But, imagine if these two individuals were a young, entrepreneurial minority couple tantalized at the prospect of finally being able to attain the very icon of the American Dream – their first home.  Imagine further that they were told that their mortgage payment for a $600,000 residence, a home large enough for themselves, their children and their parents, would only run them $1,200 a month.  Even better, if they went with the settlement company that the builder of their brand new American Dream recommended, the builder would contribute $5,000 to their closing costs.  A sweet deal, right?  No!

First, the settlement company recommended by the builder would most certainly be a subsidiary or otherwise be affiliated with the parent, builder company, and the settlement company would “kick back” a majority of the title insurance earned at closing.  To make a personal gripe, this is allowed only through a loophole in the Real Estate Settlement Procedures Act that the Housing of Urban Development (HUD) continually fails and refuses to properly police!  

Because of the affiliation between the builder and settlement company, the settlement company had no care for the interests of the borrower/purchaser.  Not representing the borrower, the settlement agent, even if asked about the terms of a Note or Deed of Trust at settlement, would not be bound by any fiduciary duty to accurately explain the documents to the borrower.  In fact, they are barred in doing so because doing so constitutes the unauthorized practice of law.  And, as for the $5,000 in settlement costs, well, the builders simply upped the price of their new homes to cover this amount, charging a little more here and there for extras or even deliberately excluding a necessity from the initial offer to entice the buyer to upgrade from the base model.  Brilliant capitalism in grand excess!

The result:  borrowers signed documents they simply did not understand, and in three months, a year, maybe two or even three, suddenly they were not required to pay the promised $1,200 a month for their mortgage, but rather, $4,200 a month.  When the clock tolled and their mortgages shot up, millions of borrowers across the country were suddenly unable to pay, and this dawned the crash of the real estate market.

Between 1997 and 2006, the average value of real estate in the United States increased by an astonishing near 125%. The mentality, then, was that houses would increase in value not primarily on par with inflation as they had historically, but rather, as super-investments promising the highest rates of return around.  You could refinance your house, take out a second or third line of credit, with no proof of income, buy a car with the change in your pocket, put your kid through college, and in six months your house would be worth another sixty thousand.  For a period of years, in fact, this was the reality, but it was nothing more than a thin and beautiful veil masking the inexorable and ugly truth.

While the price of real estate skyrocketed, the average income of an individual in that same timeframe did not.  In fact, it stayed absolutely flat!  From 1980-2000 the national median home price range averaged approximately three times median household income. This ratio accelerated to over four and a half times median household income by 2006. 

It was not long before the builders that were throwing up homes at record pace on the naïve speculation that demand for homes would continue to climb without an attendant rise in income, simply outpaced demand.  Suddenly, there were too many homes and too few people willing or able to make the investment.  Supply and demand had finally broken through the frenzy to unveil the dreadful truth. 

The coalescence of these factors resulted in a sudden downward pressure on the value of real estate across the United States.  The nail in the coffin, so to speak, would come when the first wave of adjustable rate mortgages (ARMs) re-set.  Countless homeowners found themselves suddenly unable to pay their mortgage and when they turned to their lenders to refinance to a lower, more manageable rate, they were now being told that the principal balance on their outstanding loans were in excess of the plummeting value of their home.  Since the lender could not sufficiently secure the loan necessary to refinance the outstanding adjustable rate mortgage, they would not extend the necessary financing.  The housing bubble had officially burst!

A positive feedback loop began whereby those unable to refinance defaulted on their loans and foreclosures spread like wildfires, further driving down the value of forest after forest of homes.  Second, third, fourth and continuing waves of adjustable rate mortgages re-set, and those homeowners were also unable to refinance.  They defaulted and the foreclosure of their homes fed right back into the downward spiraling market, further pulling the value of real estate into the tank. 

By fourth-quarter 2007, over 15% of sub-prime ARMs were in foreclosure or over ninety days delinquent.  By second-quarter 2008,  a staggering 25% were delinquent.  In 2007, lenders instituted foreclosure proceedings on over 1.2 million properties, a dramatic 79% increase over the year prior.  In 2008, lenders instituted 2.3 million foreclosures and 2.8 million in 2009.

The saga, as we all know, does not end there.  We’ve unfortunately become all too familiar with the terminology that has been thrown around in the wake of the sub-prime lending scandal.  Toxic loans, mortgage-backed securities, and credit default swaps, to name a few.  This is because an additional and major catalyst of the sub-prime crisis, beyond the abovementioned predatory and deregulated lending practices, was the advent of banks entering into the mortgage bond market. 

The traditional mortgage model involved a bank originating a loan to the borrower and retaining the entirety of the default risk.  The significant risk of losing their investment in the secured real estate understandably forced banks to lend cautiously.  But, this traditional model crumbled under a new “originate to distribute” model as a result of banks entering the mortgage bond market. 

Banks were now able to sell the mortgages and distribute credit risk to investors through what we all now know as the mortgage-backed security (MBS). Suddenly the lenders issuing mortgages no longer retained any risk and by selling the mortgages to investors, they could immediately replenish their funds, enabling them to issue more loans and generate mountains of transaction fees.  This unfortunately created a moral hazard in the industry as loan originators were now only concerned with generating money for their pockets via origination charges without parallel regard for the quality of the underlying credit.

But, even with the advent of the MBS, the regulated banking industry had only so much money to go around.  As such, the security market from 1992 to 2004 expanded at a steady but marginal rate.  But now, in order to satiate the demand of foreign and domestic investors Wall Street was going to have to come up with something genius.  Millions of lobbying dollars spent and in comes the 2004 United States Securities and Exchange Commission (SEC) decision on the Net Capital Rule allowing United States investment banks to issue substantially more debt.  It was this exact debt that was utilized by the investment banking industry to purchase volumes of mortgage-backed securities. 

The share of sub-prime mortgages passed to third-party investors via mortgage-backed securities increased to approximately 75% in 2006.  American homeowners, consumers, and corporations owed nearly $25 trillion in debt with traditional depository banks retaining only $8 trillion of that total and an astonishing $10 trillion came from the securities markets.

Now, my aim is not to delve into the pros and cons of allowing investment banks to issue debt and purchase mortgage-backed securities.  In fact, aside from the debt element, I am not so sure that I do have any theoretical problem with it if properly regulated.  But, what is extremely important to understand is why the securities bazaar comprising the lion’s share of the market was and remains such a crisis from a policy standpoint, especially insofar as it contributed to the Great Recession.

Politically speaking, the problem is a complete and utter lack of regulation of what is commonly referred to as the shadow banking system. The shadow banking system is a network of lenders, brokers and opaque financing vehicles such as hedge funds and investment banks which by definition do not accept deposits like the common depository bank and are therefore not subject to the same regulations. 

In allowing investment banks to underwrite massive amounts of debt they were in reality given cart blanche permission to procure mortgage-backed securities and essentially intertwine themselves into the same pool as depository banks without the requirement of adhering to nearly as stringent of regulations.  And they capitalized on this opening!

In the years leading up to the crisis, the top four U.S. depository banks moved over $5 trillion in assets and liabilities “off-balance sheet” into the shadow banking system, enabling them to bypass scores of regulations.  Why would they do this?  Money!

The ability to issue large amounts of debt opened the door, but the investment banks were investing in mortgage-backed securities based upon a false assumption that housing prices would continue to rise in the foreseeable future, and that borrowers would also continue to make their mortgage payments.  In doing so, the investment banks were engaging in financial leverage: borrowing at a lower interest rate and investing the proceeds at a higher interest rate.  This strategy proved profitable during the housing boom.  In fact, the New York State Comptroller’s Office reported that Wall Street executives took home bonuses totaling $23.9 billion in 2006 alone.

Now, hindsight is 20/20, sure, but given the stagnation of individual income as compared to the staggering escalation in housing affordability, it should have been clear to the investment banks that their bet was, in the very least, a short lived risk.  In reality, though, lenders certainly didn’t care because they were raking in processing fees.  And the investment banks, they were concerned only with short-term profit and the executives, it seems, concerned more with their year-end bonus rather than the long term financial viability of their firms, let alone the consequences of a predictable real estate meltdown.

The entire financial system, from mortgage brokers to investment bank executives and Wall Street risk managers, was undeniably tilted toward short-term risks for the sake of the almighty buck while ignoring long-term obligations and underlying risks to main street America.  They were playing with trillions of dollars, all held as debt over each American’s head, and our government failed completely to regulate their actions – actions which evidently were governed by greed and reeked of moral hazard.  This is what the Walk on Wall Street movement is protesting – even if they don’t realize it.

Then, it hit the fan!  The investment banks’ brilliant financial leverage strategy, as we now know, resulted in almost incalculable losses when real estate values plummeted and mortgages began to default.  Unregulated, these shadow banking entities were unconscionably vulnerable because they borrowed short-term in liquid markets to purchase long-term, illiquid and risky mortgage-backed securities. The downturn in housing and rising foreclosure rates resulted in investment banks being subject to rapid deleveraging, requiring them to sell their long-term assets at depressed prices.

The extent of the vulnerability the investment banks were allowed to risk is astonishing.  The top five investment banks in the United States reported over $4.1 trillion in debt for fiscal year 2007 alone, nearly a third of total U.S. gross domestic product!  And as a result, the top three U.S. investment banks, institutions “too big to fail”, faced financial meltdown in the wake of the sub-prime lending scandal.  Lehman Brothers went bankrupt, sending the stock market into a downward spiral and Bear Sterns and Merrill Lynch were sold at fire sale prices. 

What was the result for the average American?  In the first three quarters of 2008 alone, owners of stocks in U.S. corporations suffered nearly $8 trillion in losses.

Unfortunately, the rabbit hole spirals deeper.  As I said before, Wall Street was literally betting on our economy, and doing so with our money.  More concisely, while underwriting trillions in bad debt to purchase mortgage-backed securities, they were hedging their bets by simultaneously wagering with the other hand that the very mortgages leveraged as a carrot to the masses as a means to buy into the American Dream would fall into default and a “credit event” would occur.  These loans, doomed for default, were understood by this other hand to be “toxic” and they were betting that we’d fail to make our mortgage payments! 

Quite literally, this other “hand” of Wall Street wanted us to fail to meet our mortgage obligations and fall into default.  They didn’t care if this meant foreclosure for countless hard working families, that wasn’t their problem, because the pushers of the Credit Default Swaps (CDS) made their money at sale of the product and investors raked in the doe the instant default became reality.

Now, when I said that deregulation of the financial industry resulted in exotic products, perhaps the starkest example would be the credit default swap.  The credit default swap is an extremely complicated product, one that requires a mathematical formula spanning the length of numerous blackboards to set out.  But, boiled down to its roots, a credit default swap is a bilateral contract between the buyer of the contract and the seller of the contract, for protection.  The protection buyer, purchases the contract from the seller of the CDS and is required to pay a quarterly spread or fee to the seller.  The CDS contract then references a third-party, or “reference obligor”, such as a borrower on any mortgage loan, and if that third party, which, by the way, is in no way shape or form a party to the CDS contract, defaults on their mortgage payment, the seller of the CDS pays the buyer par value for return of the subject CDS bond, an amount that usually reaches into the many millions.  In short, we fail to pay our mortgage, and some investor gets filthy rich!

According to a 2010 International Swaps and Derivative Association (ISDA) Market Survey, over $62 Trillion of outstanding credit default swaps have flooded the financial industry, but this approximation is likely low as not all of them are documented using the ISDA standard promulgated forms – not to mention the additional proliferation of Basket Default Swaps, Credit Linked Notes and Loan Only Credit Default Swaps.  All of these exotic products are not traded on the open exchange and are therefore not reported to any government agency tasked to regulate them.

So, while wildly unregulated in the sale of the CDS, the same Wall Street companies were simultaneously selling the mortgage-backed securities to other investors – perhaps one of the most sickening displays of moral turpitude imaginable!  Not even the best of magicians could pull off this slight of hand!  With one hand Wall Street was convincing investors that the underlying credit comprising trillions of dollars worth of mortgage-backed securities were sound, and with the other hand they were convincing their other clients to invest in a CDS, a product with its value fundamentally linked to mortgage default. 

Was everyone asleep at the wheel, or were heads just turning in the other direction?  Why would any congressman allow this to happen?  Unfortunately, the answer, plainly and simply, is systemic corruption!

Allow me to once again indulge in an analogy with the predicate of an axiom that we all know, “history repeats itself”. 

The 1929 stock market crash which signaled the beginning of the Great Depression was in large part caused by problematic stock trading practices permitted under a laissez faire regulatory scheme.  Perhaps the most notorious of these practices was the unchecked convention of buying stocks on the margin. 

Buying on the margin consists of purchasing stocks or other securities with capital borrowed from a broker and utilizing other securities as collateral. The aim, of course, is to amplify profit on the positive equity potentially earned on any particular holding.  To begin, the net value, or the difference between the value of the security and the broker’s loan, is equivalent to the amount of one’s own cash used. This disparity is required to stay above a minimum margin requirement designed to protect the broker against a fall in the value of the security.

Here is an example: 

James purchases stock in a corporation for $1,000, using $200 of his own savings, and $800 borrowed from his broker. Here, the net value (share minus loan) is $200. As a requirement of the loan, the broker demands a minimum margin requirement, or leverage rate, of $100.

Suppose the stock, for whatever reason, drops to $850. The net value is suddenly only $50 (net value ($200) – stock value loss of ($150)).  James is forced by the terms of the broker’s loan to either sell the stock or pay out of his pocket to bring the investment back to the minimum margin requirement.

As a byproduct of laissez faire regulation, margin requirements were extremely loose in the 1920s. Brokers required investors to put down only 5-10% of their own money, whereas today, in response to the Great Depression, the Federal Reserve’s margin requirement limits debt to 50%.   So, when the stock market began to contract at the tail of the roaring twenties, many investors received margin calls. If these investors could not deliver their own money to their brokers within a certain timeframe their shares would be sold.  Unfortunately, the market was quickly saturated with market call after market call and as many individuals did not have the equity to cover their margin positions, their shares were sold at rapidly declining prices.  A positive feedback loop ensued, causing further market declines and additional margin calls.

Sound familiar?  The fall of the real estate market which pulled us into the Great Recession is analogous to the crash of the stock market which lead to the Great Depression in that the sub-prime lending scandal ostensibly was all about buying stock, investment in real estate, on the margin, with money that was not truly in existence but speculated to eventually, if not soon, arrive.  Both the boom of the roaring twenties and the boom of the early 2000s were built upon speculative equity. 

Sure, the details are quite different, and unquestionably contemporary financial markets are vastly more complex, but the root cause for the meltdowns, in both the Great Depression and Great Recession, remain strikingly similar.

The Securities and Exchange Acts of 1933 and 1934 were promulgated in order to guard against exactly the economic fallout that has occurred in the Great Recession.  Yet, despite being privy to the lessons of history’s past, statute after statute was pushed through Congress to give entire swathes of the financial industry exemptions from regulation, and almost unfettered freedom to conjure and implement exotic products as well as expand into supplementary markets without regard for the intrinsic conflicts of interest therein created or the long-term risks to the stability of the financial market as a whole.  

It is critical to the analysis of the current economic crisis, however, to note that the government’s release of their necessary regulatory grip on the financial industry did not happen merely over night.  Instead the deregulation and adoption of ill-advised legislation has been a steady process lead by a gloriously mounted lobbying effort of major Wall Street firms and a concomitant and growing lack of political will to enforce or enact legislation to guard against market excess and conflicts of interest.

For example, Jimmy Carter’s Depository Institutions Deregulation and Monetary Control Act of 1980 (DIDMCA) phased out a number of banking restrictions, expanded their lending powers, and raised the deposit insurance limit from $40,000 to $100,000, thereby reducing the lender’s risk per loan.  In 1982, Congress passed the Alternative Mortgage Transactions Parity Act (AMTPA), which allowed non-federally chartered housing creditors to write adjustable-rate mortgages. The Act was the subject of major criticisms surrounding banking industry deregulation argued to have contributed to the savings and loans crisis, yet it remains in full force and effect.  By 2006, approximately 80% of all sub-prime mortgages were adjustable-rate mortgages.

The 106th Congress, under Bill Clinton, passed the Gramm-Leach-Bliley Act in 1999, effectively repealing major portions of the Glass-Steagall Act of 1933. The Glass-Steagall Act was enacted after the Great Depression with the purpose of separating commercial banks and investment banks in order to avoid latent conflicts of interest amid the lending activities of the former and rating activities of the latter. Economist Joseph Stiglitz criticized the repeal of the Act, blasting its repeal as the “culmination of a $300 million lobbying effort by the banking and financial services industries…”  (Stiglitz – Vanity Fair – Capitalist Fools).  The Act’s repeal has been central to the proliferation of complex and opaque financial instruments such as the credit default swap. 

Deregulation (which, I will hereinafter use when referring both to the failure of our government to enforce existing laws and the enactment of ill-advised legislation) of the financial industry has been steady and deliberate at the lobby of major market players.  Finance, insurance and real estate sectors spent over $2.5 billion lobbying congress between 1998 and 2006, leading all other sectors, including the health sector.  Is it any wonder why Wall Street got its way, despite the glaring signs of impending doom?

It depends only upon the lobby, the National Rifle Association or any one union for example, and in whose “pocket” they lie, whether the Democrats or Republicans will vote in favor of any particular lobby and their special interests.  So, while it is convenient to point across the isle at the other side, the reality is that the problem permeates both political parties.  At the push of lobbies, our elected officials, more and more, are persuaded to deregulate in the name of free market capitalism, and further seem to believe that deregulation is necessary.

As a registered Republican, though, and it pains me to say – many of Congress’ misguided behests are personifications of an absolutely precarious philosophy that exists as a staple within the contemporary Republican platform.  It exists on both platforms, as I just mentioned, but I speak here of the mentality within the party of which I am a devout member.

I’ve volunteered in a number of Republican campaigns in the Northern Virginia region; from local Board of County Supervisor, School Board, Delegate and State Senate races to campaigns for election to the United States Congress.  At every committee meeting, fundraiser or local rally I hear one version or another of the same pronouncement.  An absolute decree that government, as a whole, both at the state and federal level, should not in any way shape or form regulate the free market.  This, obviously, is a subset of the cry for smaller government, both of which I happen to agree with… to a degree. 

A very real problem within the Republican Party exists in the fact that many seem to blindly believe that ANY regulation is tantamount to socialism.  There is absolutely no question that the ever expansion of government is entirely corrosive of the economy.  However, there is a fine line between over-regulation and under-regulation.  To espouse the removal of all regulatory “schemes” as a platform, is ill-informed, short-sited, and simply dangerous.  To do so is to espouse anarchy.

As a lawyer, I am perhaps uniquely aware of the need for “regulation”.  Regulation is simply another word for law, which I have already said is created to protect persons, liberties, and properties; to maintain the right of each, and to cause justice to reign over us all.  With the exception of the Almighty in the afterlife, there can be no justice if not by way of man enforcing the laws of man. 

Practicing in criminal law highlights it most perhaps, but a truism of man’s nature is equally as apparent in varying degrees when I sit as a mediator between a husband and wife beyond reconciliation and well down the unfortunate road to divorce:  Homo Homini Lupus – Man to man is wolf!  It is unfortunate that this platitude necessitates regulation, but it is naïve to promote resultant anarchy through the espousal of the absolute removal of government regulation of the free market.  Unfortunately, so many of us are doing this in order to win a vote.

Reducing the size of government is a big ticket item today, and it ought to be.  I believe in it so ardently that I tackled the issue first and foremost in this thesis.  But, reduction in government does not necessarily mean or require the eradication of regulation.  To argue as such is simply illogical and presents a false choice.  Nevertheless, let me clarify.

There are basically two types of regulation:  1) regulation to protect; and 2) regulation requiring action or inaction.  The former is within the true and proper purpose of government.  The latter is beyond the scope of government function and in all cases ought to be abolished*.  Taxes, I suppose, would fit into the second category, and so I asterisk my statement to note that there are certain limited, and I do mean absolutely limited, exceptions to that rule which must be strictly defined and instituted to perform a clearly identifiable and narrow purpose.

The Great Recession was caused by a deregulation of the first type of abovementioned regulation – regulation to protect.  What ensued? 

By November 2008, individual Americans lost more than 25% of their net worth, the S&P 500 was down 45% from its 2007 high, and housing prices had dropped 20% from their peak two years earlier, shedding nearly $5 trillion in speculated value. Total retirement assets dropped by 22%, from approximately $10 trillion in 2006 to $8 trillion in 2008.  In short, just as in the wake of the 1929 stock market crash, we were left out to dry.

In response, the Federal Government announced a $600 billion program in November 2008, to purchase the mortgage-backed securities financed by Fannie Mae and Freddie Mac in the hopes of lowering mortgage rates.  By March 2009, the Federal Reserve’s balance sheet was expanded to further purchase agency (GSE) mortgage-backed securities, bringing its total purchase of toxic securities up to $1.25 trillion and counting.  OnFebruary 17, 2009, the American Recovery and Reinvestment Act was signed into law by President Obama, with $787 billion earmarked for spending.  All of this is at the enormous expense of the individual American taxpayer.  We have been caught paying the wager lost by corporate America! 

Now, let me pause.  Reading to this point, you may think that I am 100% against free market capitalism and that you may as well stop reading this and turn to Karl Marx’s Communist Manifesto.  Quite to the contrary!  I belive that in order for liberty to prevail, all men and women must be free to attain to the fullest stature of which they are innately capable and that in order to do so free market capitalism must rein supreme.  The most essential pillar to build upon liberty’s foundation is that of free market capitalism!

As I said before, America is built upon the idea that if one works hard enough, if he or she is willing to roll up their sleeves, society should leave the individual free to reach his or her full potential.  This philosophy, this potent and powerful mind-set, undeniably, is the backbone of America’s success, for it is the blood, sweat and tears of the individual that has engineered our nation’s prosperity.  I am absolutely, 100% against the abolition of free market capitalism, in any way, shape or form!

Can you tell I’m a lawyer?  Now that I’m through with my disclaimer…

Above, I’ve used terms to describe Wall Street as the profit-at-all-cost machine and thrown executives under the bus by highlighting their exorbitant bonuses and terming their lemming’s as the short-term, profit motivated masterminds of Wall Street who conjured and implemented the exotic schemes that literally mortgaged the very security of the United States, and by extension thereof, the world economy.  Do I question their motives?  Do I question their moral compass?  Do I question their risk assessments?  Yes!  But, to be frank, as a business man myself, I not only understand, but appreciate their position.

You see, Wall Street, when you boil it down to its most fundamental roots, is not so different from Main Street, despite what CNN would like us to believe.  Just like my small, family-run, general practice law firm, Wall Street goliaths are motivated by one overriding concern – money!  Quality of product and customer loyalty aside (which is of utmost importance at Kidwell, Kent & Curran = shameless plug), Wall Street is, by the very nature of free market capitalism, married to the profit margin.  Who will buy stocks if their futures are forecast to deteriorate?  Nobody!  (Except for the ridiculous practice of shorting stocks which, as a side note, is in itself a moral dilemma).

Corporations trading on the open market, and the board members sworn to uphold the salient interests of their firm, then, are beholden to the stockholder.  Stop, then, and put yourself in the shoes of a stockholder.  Many of us, in fact, should find this easy, as we do, in one form or another, own stocks.  They might be in mutual funds, held in a brokerage account, or casually traded on our iPhone apps.  What do we all wish for, and ultimately demand?  We demand that the stock turn us a profit or we dump it, period, no ifs ands of buts! 

Multiply our individual want of short-term profit on any particular stock by $70 trillion worldwide.  This is what Wall Street was looking at.  And some of the smartest people in our nation, graduated from the likes of Yale and Harvard, conjured schemes to make you and I money as we demanded.  Fortuitously, of course, they also made themselves heaps of cash.

Simply put, Wall Street did what free market capitalism demanded – they met demand by providing supply, of money!  On this factor alone, I cannot and will not fault them.  In fact, to an extent, I applaud them. 

You see, those of us who are stockholders, in any form, can be broken down into two selves:  1) the stockholder; and 2) the individual.  I point this out because our stockholder self, demanding short-term, if not long-term profit, but profit nonetheless, has interests inherently contrary to that of our individual self.  Allow me to explain.

Our stockholder self wants whatever corporation we have invested in to do all it can to make a profit.  We’d like to think, in theory, that this means pure innovation to out do the competitor.  But, in reality, our stockholder self knows this may include investing in risky endeavors that yield a short-term profit, skirting environmental regulations, or increasing profit margins by cutting employee wages or procuring cheaper materials.

Meanwhile, our individual self wants higher wages even though our company is cutting costs to cow-tow to their investors, and we complain when they outsource to India or look to China for cheaper materials. 

We go to Walmart to buy clothes on the cheap, but complain when they come into our town and destroy the small businesses comprising our downtowns.   Why?  Because, on each end, whether as the consumer or as the supplier, money seems to be our governor. 

Look at the price of a Hybrid vehicle.  On average it is three to five thousand dollars more than the same car without a hybrid engine.  If it were the same cost, aside from adrenaline junkies, we’d all probably buy the Hybrid.  But even most “tree huggers” can’t choke down the extra green involved in purchasing the same car, with less horsepower, for thousands more.  Why?  Because money talks!

So, given an opening in the law, which allows you to make money, perhaps even a lot of money, and do so 100% legally, will you take it?  What if it is perhaps morally questionable and the risks are exceptional?  What if nobody questions it?  Will you go for it and become rich?  I know you’d like to say no. 

So, imagine you are a board member, one of, say, twelve, elected to your position with the solitary direction of finding ways for your company to make money for those invested.  Now this opening presents itself; an opening that means millions and millions to your stockholders, and, oh yes, yourself.  The unbridled risks that eventually backfired and thrust us into the Great Recession are proof that those on Wall Street, in any case, went for it.

It is a function of man that we try to better our position always, and, unfortunately, will do so at the cost of our fellow man if necessary.  Homo Homini Lupus – Man to Man is Wolf!  This animalistic instinct necessitates government, law, regulation!  The history of the Great Depression taught us many lessons and, if headed, many warnings could have prevented the Great Recession.  Why did Congress not listen?  Why did they allow such extensive deregulation despite the lessons of history? Again, the answer is Faction!

As James Madison argued in Federalist Paper 10, the problem of faction is, “most likely, not least, severe in a small republic, for it is in a small republic that a self-interested private group would be most likely able to seize political power in order to distribute wealth or opportunities in its favor!”  He was arguing that the policies of a federal government, comprised of the states, would not easily be hijacked by the interests of any one state, whereas, the states, individually, would be at risk of falling prey to noxious factions within.

The problem is this: Wall Street, and the individual corporate conglomerates that comprise it, being so “in bed” with the federal government is tantamount to a small republic.  In making the federal government a “good ol boys” network indebted to their money, lobbies are able to pull the strings of our congressman and bring them into their very fold.  The result is a faction, a small republic if you will, (many of them with a workforce the size of any one of the 13 colonies), that is divorced from the reality of its constituents and more concerned with distributing the common wealth to itself.  Money for power, power for money!  And such is the nature of politics.  But it does not have to be so. 

The Journey from Congress to K Street,” was published in 2005 by Public Citizen, a non-profit government watchdog group.  Their report analyzed hundreds of lobbyist registration documents filed in compliance with the Lobbying Disclosure Act and the Foreign Agents Registration Act, finding that, since 1998, 43% of the 198 members of Congress who left government to join “private life” have registered to lobby  Not only is there a job awaiting our elected officials after their term is through, but there is a seemingly endless parade of money thrown their way to convince them to vote in favor of the lobby while in office.  Between 1998 and 2006, the top thirteen lobbying sectors spent a combined $15 billion plus on persuading Congress this way and that, not even including campaign contributions.

The lamentable, clear fact is that corporate interests are taken into consideration by dint of their unmatched spending power at the apparent disregard of concern for the common constituent.  Money does buy access in Washington, access that amplifies corporate influence which often results in swaying congress to promote the interests of the few at the immediate or eventual expense of the many. The question that presents itself, then, is how can this be dealt with? 

There are three distinct avenues, and all of which, by their very nature are intrinsically entwined, I believe the corrupting weight of corporate money on the federal legislative process can be pacified:

  1. Lobbying Reform;
  2. Campaign Finance Reform; and
  3. Term Limits

I will tackle each proposed course in order, analyzing the need for each, the debates surrounding them, and then make specific proposals respectively.

(Please see upcoming post for part two of Chapter Three- LOBBYING REFORM)

CHAPTER TWO:

THE ROLE OF GOVERNMENT 

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

– 10th Amendment to the Constitution (1791)

Tour the vastness of America, from sea to shining sea, and you will find that Republicans on the West Coast will almost universally answer the same as Republicans on the East Coast when asked what they believe is the core principle of the Republican platform.  “Small Government”, they will answer.

This central belief is echoed in every Young Republican or County Republican Committee meeting across this great land.  On our campaign brochures and bumper stickers you will usually find key phrases such as “cut government spending”, or “Washington is spiraling out of control”.  In one form or another, the concept finds its way into nearly every Republican campaign.

But what do we mean when we say government needs to be smaller?  At first blush, you may think this to be a rhetorical question.  But it is not!

I ask the question because, unfortunately, as Republicans, and certainly as a nation, we’ve forgotten the answer and seem to remember only the slogan.  So many of us no longer fully understand the power of this political “sound-bite”, and it is evidenced by the way we have been leading our constituents. 

During the Bush presidency, government spending at the federal level increased at a historic pace, and concomitantly, the deficit spiraled out of control.  Did the federal government shrink?  Now there’s a rhetorical question! 

Now, when I bring this up at the county meetings, my fellow Republicans are quick to point out that President Obama is much worse, and Nancy Pelosi is tantamount to a socialist antichrist.  The disdain expressed for the Democrats is visceral.  And, to be frank, I find it distasteful. 

I find it repugnant because the former affability and deference in politics is not just missing, but will soon prove extinct when the hatred of the “other side” is systemic, right down to the grass roots, as a preached and learned incantation.  What’s worse is that the ones who lose out are the people.  “We must retake America,” my fellow Republicans will shout- and I agree, but they go further to rant that the Democrats are liars, socialists, communists, evil.  This is plain ridiculous. The fact that they are misguided does not make them evil. 

It is necessary that we, as Republicans, break free from this need to vilify the Democrats.  This is necessary for many reasons, but of paramount importance is the fact that the problem in government does not stem only from the Democrats’ misguided ways.  Unfortunately, the problem lies on both sides of the isle.  Both are spending too much and doing so while presiding over the expansion of our federal government into arenas entirely outside its appropriate reach.  Both parties are running afoul of the true purpose of government and, as such, it is unacceptable to point out the inequities of the Democratic Party with a blind eye to the problems permeating our own. 

So, back to my “rhetorical” question: What do we mean when we say “small government”?  And to be more succinct, I suppose I should ask – what should we mean?

One answer to the question is rooted in the Bill of Rights.  The 10th Amendment to the Constitution is clear: “The powers not delegated to the United States (Federal Government) by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”  Seems pretty explicit, right?

Thomas Jefferson described the 10th Amendment as “the foundation of the Constitution” and added, “to take a single step beyond the boundaries thus specially drawn … is to take possession of a boundless field of power, no longer susceptible of any definition.” I couldn’t have said it better myself. 

Jefferson’s formulation is where we glean the doctrine of “strict construction”, an adherence to the actual or intended meaning of the language found within the four corners of the Constitution. 

But, just as the definition of the American Dream has proven to be complicated, so too has the doctrine of strict constructionism.  In fact, the meaning of “strict construction,” may be different depending on who uses it and in what context.  A Justice of the Supreme Court asking counsel at oral argument whether a statute should be construed strictly is likely using the term differently than a candidate on the campaign trail using the term as a surrogate for a broader set of conservative values.

The problem with the Republican campaign trail today is that so many of us have not only lost the true understanding of what we mean when we say “small government” but we have also misconstrued the purpose of Jefferson’s words. 

From Nixon to Regan and through the Bush administrations, our Republican presidents have promised to appoint strict constructionist judges to the Supreme Court.  Yet, even Ronald Regan’s 1986 appointee to the Supreme Court, Antonin Scalia, the justice often touted as the intellectual anchor of the conservative wing, and the justice most identified with the term, has himself said that he is “not a strict constructionist and no-one ought to be,” calling the philosophy “a degraded form of textualism that brings the whole philosophy into disrepute.” 

One can understand and even appreciate Justice Scalia’s words as they seem to be a reaction to the political misuse of the term as a coded label to earn votes while simultaneously misrepresenting the true spirit of the philosophy as a theory of Constitutional interpretation.

Again, canvass the whole of the electorate spanning the nation, and innocently, our fellow Republicans will almost universally say that strict constructionism requires that only the exact language found in the Constitution may be followed.  This is wrong!  And the problem with this message being mistaken is that its true definition and meaning absolutely must form the foundation upon which the true and correct Republican platform ought to be re-constructed. 

Instead, strict constructionism is a philosophy that emphasizes judicial restraint and fidelity to the original intended meaning of the Constitution. 

Allow me to give an analogy for clarification:

As an attorney at law, when a client asks me a question to which I do not know the answer (which, by the way, let me point out the rarity of this occasion, wink)… what do I do?  The first thing I do is go into my firm’s library and pull the Virginia Code to look for a statute on point.  I pull the actual book over searching Westlaw or LexisNexis for a very particular purpose: to learn the legislative intent behind the subject statute! 

When I look up a particular code section, I not only get the black letter/strict language of the legislation, but I am also able to read a description of the history behind the enactment of the statute as well as case law on point.  In reading through and understanding the legislative intent behind the strict, stone-etched statute, I am able to extract the full meaning of the codified law.  As a lawyer, this is invaluable. 

The same modus operandi absolutely must be followed in the application of the Constitution to how we, as Republicans, lead this great nation, and promote the varying actions of state and local government in relation to that of the federal government.

When we say, “small government,” in addition to an understanding of the proper purpose of government, whether on a local, state or national level, we must also be conveying the necessity of adherence to the intended meaning of the 10th Amendment as a means to hamper the federal government’s ability to hinder our individual ability to carry forward liberty’s torch.   

Why is this so important?  Because we, as a nation, are losing control.  Individual liberties are being trampled by a federal government expanding at unprecedented speed.  State sovereignty is being usurped through over dependence on the interstate commerce clause.  Deficit spending is out of control, states have become reliant upon federal funding, and the balance of power has shifted, wherein the federal government ostensibly has all the power and the states only those explicitly granted to them.  In different form, and in a different millennium, we are finding a tea party necessary to show our disdain for a tyrannical hand taxing us without properly representing us.

Turning once more to the annals of history, we are thereby able to extract the legislative intent behind the adoption of the 10th Amendment.  And it is vital that we do so, because an understanding of the intended meaning behind these final words in the Bill of Rights educates us as to the true and proper purpose of government under our Constitution.  This precise knowledge is what we as Republicans have lost; and we must regain it in order to empower us to lead by example again.

To begin, one need look no further than the Declaration of Independence itself.  Our decision to absolve ourselves of any allegiance to Great Britain was made in reaction to, “a long train of abuses and usurpations,” by the British Crown, evincing, “a design to reduce them (us) under absolute depotism.”  Jefferson next penned a list of grievances to which petitions for redress had long been unanswered and which established factual evidence of the establishment of an absolute tyranny over the colonies by the British Crown.

The tyranny of a far off government which ruled over the lives of the colonists without regard to justice and the common good, which stripped us of all representation, voice and security, necessitated the waging of the Revolutionary War.  And when our independence was won, we were justly reticent to create a central government to preside over the union of the states, much less grant it powers over their sovereignty. 

This fear of a strong central government was further evidenced by the delay in the endorsement of the Articles of Confederation.  Although the Articles of Confederation were adopted by Congress on November 15, 1777, it was not until March 1, 1781 that Maryland became the final state to sign, thusly forming the union of the states as a single nation for the first time.  The delay was caused by the ongoing war, but also as a consequence of strong public sentiment in opposition to vesting powers in a national government presiding over the sovereign states.  

As a result, Article II of the Articles of Confederation declared that, “each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled.” 

This intent that the central government have few and well defined powers was so universal, in fact, that the government proved too weak to function.  Because the central government had no power to collect taxes, for example, the Articles of Confederation were dissolved and replaced by the Constitution. 

And finally, the history of the ratification of the Constitution itself lends to the legislative intent behind the enactment of the 10th Amendment.  An ideological battle raged between the Federalists and Anti-Federalists who disagreed as to whether a Bill of Rights was even necessary to the ratification of a Constitution which vested powers in a federal government. 

In Federalist Paper 84, Alexander Hamilton asserted that ratification of the Constitution did not mean the American people were surrendering their rights, and, therefore, protections were unnecessary: “Here, in strictness, the people surrender nothing, and as they retain everything, they have no need of particular reservations.”

Anti-Federalists, such as Patrick Henry, on the other hand, publicly argued against the Federalist proposed Constitution as a clear threat to individual rights, expressing fear that the President would become a king much the same as the tyrannical King George from whom they had just won their independence.

The desirability of a Bill of Rights was powerful and widespread, a sentiment the Anti-Federalists capitalized on in the 1788 ratification convention in Massachusetts.  The Federalists were forced to agree to the Massachusetts Compromise permitting delegates with doubts as to the Constitution to recommend amendments to be considered by Congress subsequent to ratification.  Notwithstanding this compromise, North Carolina refused to ratify the Constitution until clear progress was shown toward the codification of a Bill of Rights.

And so, in 1789, the First United States Congress met in New York City’s Federal Hall, first, and foremost, with the task of considering proposed amendments to the Constitution, the majority of which pertained to the protection of individual rights.  As a result, the Bill of Rights, penned by James Madison, and based in large part on George Mason’s Virginia Declaration of Rights, were adopted.

The legislative intent behind the enactment of the Bill of Rights, which includes the 10th Amendment, then, is quite clear. Learning from then recent history, Americans were aware of the dangers a disassociated, central government with vast, undefined and unquestionable powers, posed to the liberty for which they had just fought and won.   They understood the necessity of explicitly outlawing the encroachment by the government onto those liberties, and in doing so, intended to delineate the limits of the federal government’s powers.

Through a long line of Supreme Court rulings, ranging from Wickard v. Filburn, wherein the court ruled that the Congress, via the commerce clause, could regulate the production of wheat on a family farm; to Garcia v. San Antonio Metropolitan Transit Authority, where the court forever changed the standard of review of the constitutionality of a federal law to whether that law is “destructive of state sovereignty or violative of any constitutional provision,” the intended meaning and application of the 10th Amendment to the provision of federal governance has changed drastically.  

However, while many of my contemporaries quibble in the fascinating intricacies of each of these cases and the effects they have on the way in which the federal government goes about its business, I posit that the true meaning of the 10th Amendment, the legislative intent behind its enactment, comes from a historical understanding of the very purpose of government itself.  As such, any “construction” of the 10th Amendment, or the Constitution, and the powers therein granted to the federal government and reserved to the states, absolutely must be based upon the proper purpose of government, and be rooted in a proper understanding of that purpose. 

In other words, I believe the best way to understand the 10th Amendment is to gain an understanding of what law is meant to accomplish and what government’s true and limited purposes ought to be.  This knowledge of the true purpose of government was the antecedent to the Declaration of Independence, the Constitution and the Bill of Rights, for without it the founding fathers could never have penned any of the documents as they did, nor would they have structured our system of ordered liberty as they did. 

The legislative intent behind the 10th Amendment, then, is found in an understanding of the role of government.  Moreover, an understanding of the proper purpose of government allows us to regulate how we, as Republicans, promote certain actions as government leaders.

What, then, is the role of government?  What ought to be its purpose and its limits?  As Republicans, we must re-learn the answer to these questions, for it is out of a misguided and ill-informed understanding of the role of government that the Democrats are operating to project what we call “socialism” onto our society.

Government, by very definition, is political direction and control exercised over the actions of the members, citizens, or inhabitants of communities, societies, and states.  This political direction and control is both created and exercised in the application of law.  To understand government, and its proper purpose, then, we must delve even deeper to define law.

Building from history, I again find that it is unnecessary for me to re-invent the wheel when defining law.  In his thesis, The Law, French economist and statesman, Frederic Bastait, defined law as “the organization of the natural right to lawful defense.  It is the substitution of a common force for individual forces.”  He went on to say that, “this common force is to do only what the individual forces have a natural and lawful right to do; to protect persons, liberties, and prosperities; to maintain the right of each, and to cause justice to reign over us all.” 

Government, being the administrator of the law, therefore, can only have, as its purpose, the protection of persons and their liberties and prosperities, and do so through the administration of justice.  It is when the government attempts to do more than this that it not only tramples the rights of some of the constituents it is sworn to protect, it becomes a legal framework for injustice. 

To be more clear, a legal framework for injustice arises when the government, sworn to protect liberty, destroys that liberty through the enactment and execution of laws designed to give government more power than it ought to have.  It is on this slippery slope that the government is able to transfer property in whatever form, land, money, etc., from the person who owns it, without his consent or compensation, to someone else, and do so legally.   And it is well down this slippery slope that our federal government now finds itself.

This, “legal plunder”, as Bestait called it, is born of two roots:  the first is human greed.  Law itself is necessitated by this first root.  And it was the legislative intent of our founding fathers to guard against this greed by creating a system of checks and balances through the division of power amongst the executive, legislative and judicial branches of government.  The second cause of legal plunder grows from the seed of false philanthropy.  Today, though, it has become the mentality of too many, Republicans and Democrats alike, that the government should not only be just, it should also be philanthropic.  The government, for the better part of a century now, has been utilized as a tool to extend welfare to all. 

This is certainly not to say that welfare for all is a bad thing – no, I’m instead pointing out the problem with how this philanthropic ideal is currently being implemented.  Unfortunately, a paradox occurs when the federal government tries to create welfare for all.  Ironically, by taking more and more from the haves, and giving to the have nots (legal plunder), the government makes things worse for everyone. 

Going back to why I find it distasteful when Republicans vilify Democrats:  Given the state of affairs in America; how much has been left undone and needs to be tended to, it is no wonder that the Democrats find it necessary to utilize the government toward social agendas designed to establish a greater welfare for their constituents.  Their “socialist” agendas, I don’t think are born of any hatred for America and the continued prosperity of our people.  To the contrary, they are trying to fight, as they know how, for the continued prosperity of our people.  Their intentions are admirable, not evil, and we, as Republicans, must understand and certainly respect this if we are to ever work in concert with them to properly address the critical issues facing our nation. Simply put, it is not a question of whether these critical issues need to be addressed, rather, it is a question of how!

My applause for the Democrats, therefore, stop there.  The Democrats may not be immoral and plot through malevolent conspiracies, but they are certainly misguided. And, unfortunately, their well-intentioned imprudence has grave consequences, many of which we now face.

The Democrats’ use of the federal government to not only promote, but require social change through federal programs that reach across state boarders into communities and households, is born of false philanthropy.  Many of the ills in our society that these federal programs are intended to address, desperately need to be addressed, no question, but it is not the role of the federal government to address them through ever expanding agencies designed to mediate the welfare of us all.

The problem with socialism and the redistribution of wealth, as policy, is that it not only erases the incentives to innovate, but causes great displacements in capital, labor and even populations as both intended and often as an unintended consequence.

A historical example of this is the Smoot-Hawley Tariff Act of 1929 which is commonly considered to be one of the contributing causes of the Great Depression.  The law was passed by Congress to institute the highest tariff in U.S. history.  It taxed thousands of imported items at increased rates with the intent to increase our nation’s revenue on imported commodities.  The idea was to make American goods less expensive than foreign goods, putting money in the pocket of American industry rather than foreign.  Seems like a pretty good “philanthropic” intention, right? 

Unfortunately, foreign nations passed retaliatory tariffs and refused to import many of our leading American exports, such as cars and radios.  Retaliatory tariffs were passed by countless countries and the European continent even went so far as to repudiate its war debt from World War 1.  The result: American exports plunged over 50% from 1929 to 1932.  The unintended consequences, though, were far more extensive. 

The tariff hike crippled leading American industries.  The Act, for instance, spiked the tariff on countless items used in the manufacture of Ford’s and General Motor’s vehicles.  U.S. automakers not only sold fewer cars to Europe as a result of retaliatory tariffs, they also had to pay higher prices for crucial components in their end product.  This cost, of course, was passed on to the American consumer who now had fewer and ironically more expensive options, as well as less money. 

A second historic example arises out of President Roosevelt’s New Deal intended to combat the Great Depression.  In 1933 he succeeded in passing the Agricultural Adjustment Act (AAA).  In essence, AAA worked as follows:  some farmers were paid to not plow and produce from part of their land; produce prices were set to pre-depression levels; processors were taxed to pay for the massive cost of the program; and the secretary of agriculture was vested with vast power to set the processing taxes, peg the price of countless commodities and determine how much land farmers should not harvest.

AAA was passed in a philanthropic effort to combat the farm problems exacerbated by the Great Depression.  The problem, boiled down to its roots, was that there were too many farmers producing too much.  Too much?  Here’s how.  Farmers could not sell their farms and move to the cities as they had in the years leading up to the Great Depression as result of the housing crash.  As a result, each farmer produced as much as he could in an effort to sell as much as he could with hopes of earning enough to put food on the table.  Problem was, every farmer was doing that, and the market was saturated, driving prices further and further down.  The economic law of supply and demand was, unfortunately, working against the farmer.

Moreover, the Smoot-Hawley Tariff Act, which caused the unintended consequence of retaliatory tariffs, meant that foreign nations were no longer buying farmer’s overproduction.

AAA, then, was designed to rein in overproduction by paying farmers not to produce and lift farm prices by setting them to a more affluent period, pre-depression.  But, again, unintended consequence reared its ugly head.

Giving the Secretary of Agriculture the power to make contracts with millions of processors, farmers and distributors, to set prices, levy taxes and legislate parity, resulted in an unprecedented expansion in the Department of Agriculture.  The Washington bureaucrats, in an effort to regulate supply and demand on a national level, and despite their compilation of voluminous data ranging from average acre yield to production aggregates, turned the U.S. from a top food export to a major food importing nation. 

Everything from cotton, corn, and wheat, to pork and beef production in America declined rapidly.  Why?  1) The bureaucrats proved inept at accurately predicting what prices were reasonable, taking into consideration weather variation and world production levels; 2) farmers switched from producing crops set at a low price to higher pegged commodities, and farmed their best acres, leaving fallow their already unproductive acres; and 3) competition between farmers was rendered futile because prices were fixed and kept in parity with the prices of other industrial and consumer products.  While the farmers earned more for their reap, AAA sewed the reality of higher costs and greater scarcity in food and other commodities.  With America still enduring the Great Depression, AAA resulted in many impoverished Americans going hungry.  Also, with fewer commodities being produced and sold, unemployment rose as textile companies were forced to lay off their workers.

Contemporarily, there can be no doubt that the government bailouts in reaction to the financial crisis of 2008 are already producing unintended consequences.  For instance, despite the prolonged “solvency” of many of our lending institutions, very little has trickled down to the consumer and lending has continued to dry. 

Given all of the above, I have come to a conclusion – an epiphany in the form of a short and simple phrase.  It boils the purpose of government down to one short truism defended by the very history of America’s birth and the legislative intent behind the framing of our Constitution.  The phrase is straightforward and easy to digest – it is therefore my hope that Republicans can better understand and thusly enact this “sound bite” as an elucidation of the phrase, “small government”.  Without further ado:

STAY TUNED FOR THE RELEASE OF THE SECOND HALF OF CHAPTER TWO: THE ROLE OF GOVERNMENT!!  THANK YOU FOR READING AND FOR YOUR COMMENTS. 

CHAPTER ONE:

LEADING BY EXAMPLE

It is impossible to read the history of the petty republics of Greece and Italy without feeling sensations of horror and disgust at the distractions with which they were continually agitated, and at the rapid succession of revolutions by which they were kept in a state of perpetual vibration between the extremes of tyranny and anarchy.

If now and then intervals of felicity open to view, we behold them with a mixture of regret, arising from the reflection that the pleasing scenes before us are soon to be overwhelmed by the tempestuous waves of sedition and party rage.

– Alexander Hamilton, in “Federalist Paper 9”, 1786.

Throughout the whole of human history man has been confronted with myriad obstructions to the realization of true and complete liberty.  From tyranny on one end to anarchy on the other, a spectrum of societal constraints have to date impeded our advance to the full realization of a free and ordered society for all.

Today is no different.  But, as the fruits of the American Dream we now enjoy are built upon the shoulders of our learned predecessors, we are also privy to the lessons of history’s past.  And it is through an understanding of our history that we can forge a more perfect union for our future. 

The collective conscience of our founding fathers, memorialized in our Declaration of Independence, espoused in the Federalist Papers, and ratified in the Constitution, was not simply conjured in a vacuum and birthed in a single, brilliant and random epiphany.  Rather, these learned men were inspired by scholarly predecessors such as Montesquieu, John Locke, and the Barons who penned the Magna Carta. Our founding fathers gleaned from the anthology of erudite minds that began paving the intellectual road to liberty long before the Philadelphia Convention in 1787.

Alexander Hamilton wrote to his fellow New Yorkers in the 9th Federalist Paper that, “the science of politics, however, like most other sciences, has received great improvement. The efficacy of various principles is now well understood, which were either not known at all, or imperfectly known to the ancients.”

It was the wisdom of earlier prophetic political minds that informed our founding fathers to the necessity of distributing power into distinct departments; the implementation of legislative checks and balances and the representation of the people in the legislature by congressmen of their own appointment.

In their collective genius, our founding fathers engineered a Constitution meticulously calculated to act as a guided means through which the benefits of republican government could be retained and its imperfections lessened in adherence to a blueprint for a free society.

Ironically, the most ardent impediment to the continued evolution of liberty in theUnited Statesis our government, and the obstruction arises out of the very danger warned of in federalist papers nine and ten as necessitating the need for our federal form of government in the first place.  This enemy to liberty is factionalism; and it is wreaking a cancerous havoc on our federal government!

Before I delve deeper into this issue, it is necessary to define what a faction is.  James Madison defined factions in Federalist Paper 10 as, “a number of citizens, whether amounting to a majority or minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interest of the community.”

To me, though this definition is accurate, it does not elucidate the whole truth.  To understand factions one must first appreciate their qualities.  Since factions are a collection of individuals forged in common goal regardless of the common good, it follows that the pedigree of all factions stems from the very nature of man.  Factions, comprised of individuals, are governed by the same animalistic instincts driving their apparatus – survival of the fittest, plunder if necessary!  

I do not impetuously make this indictment for again, it is the chronicles of history that bear witness to the roots of this universal truth.  The incessant wars and genocides that rage even today, the duplicity in commerce that created the need and want for slavery, and the sweat shop “workers” of modern society, are all testaments to this unfortunate attribute of man.   A fatal tendency is born into our very DNA it seems, a primeval instinct that impels us to satisfy our desires and prosper at the expense of others if necessary.

“Now since man is naturally inclined to avoid pain – and since labor is pain in itself – it follows that men will resort to plunder whenever plunder is easier than work,” wrote the French economist Frederic Bastait in his masterpiece titled, The Law: A Classic Blueprint for a Free Society.  He went on to further state that, “the proper purpose of law is to use the power of its collective force to stop this fatal tendency to plunder instead of to work.  All the measures of the law should protect property and punish plunder.”

Our founding fathers were innately aware of the dangers of factions, arguing for a strong central government capable of thwarting this stalwart antagonist to the sovereignty of liberty.  But what happens when the federal government implemented as a means to prevent faction becomes rotten and unproductive because of the influence of factions?  Make no mistake – this is exactly what has happened!

The reason why Americans are currently so disgusted with their government is because of the very instability, injustice and utter confusion that factions have introduced into today’s public arena.  There are a multitude of factions influencing the three branches of the federal government, all taking different form and some more polished than others after two plus centuries of politics.  There are the religious camps, the gun and tobacco lobbies, to name a few, but there are two factions that have cloaked the American Dream in shadow more than any other. 

These two factions are the accumulation of nearly every camp desirous of influencing policy inAmerica.  They are the accretion of the lobbies, deriving their power from nearly every American who exercises their right to vote.   Nothing gets done without their say – Nothing!  Because without them, the lobby would simultaneously have no sounding board and no gavel.  These dueling factions of which I speak are none other than the Republican and Democratic National Parties.   

Currently, as I write this thesis, we, the American people find ourselves more alienated from the federal government than perhaps at any point in American history.  And, unfortunately, the distrust is only deepening.  Why, then, is the electorate so disgusted with the government?  Because the Democrats and Republicans, while both have gained, lost, and regained control of government, respectively have done too little to address the critical issues facing our nation.  And what they have managed to do, they have done inefficiently and without proper moral compass. 

Just as our colonial predecessors found themselves governed by the tyrannical hand of a distant monarchy, we too are increasingly presided over by the growing reach of a federal government which for a majority of the electorate is geographically and ideologically detached.  And while the federal government increasingly infringes upon our personal liberties and impedes our ability to prosper on our own hard work in the name of great social equalization, it simultaneously is ignoring public unrest and has for far too long refused to addresses mounting tribulations facing the constituency as a whole. 

We are witness to sky rocketing debt and deficits on the federal and state levels with nothing done to address the crisis except for the establishment of an investigative commission (which costs more money), and which has no legal authority to stop the bleeding.  Financial reform, even though it is undeniably necessary and critical to the continued prosperity of our capitalist economy, was filibustered by congressmen betrothed to and indebted to financial institutions with interests contrary to the common good.  Now those same congressmen vow to dismantle the regulations.  The invasion of illegal aliens continues with nothing done, forcing states likeArizonato take matters into its own hands.  Finally, after months and months of partisan bickering and unfounded fear mongering over phantom death panels, healthcare reform was passed, but with no public option and with only the support of one third of the electorate.  Nothing has been done to address climate change, campaign finance reform, free trade reform to bring jobs back toAmerica, and the list goes on and on.  Overseas, nothing done about Iran’s nuclear program, nothing done to effectively deal with North Korea; nothing done to further peace in the middle east; nothing done to address the genocides sweeping Africa, and again, the list goes on and on.

The question that presents itself, then –  is why is nothing being done?  The answer lies in the entrenched interests of party line – the endless campaign for votes in the next election. The very reason why factions have been able to get such a strong hold on our government.

Here is a current example.  The president, as Executive in Chief, has the Constitutional authority to police America’s borders to protect the interests of the American people.  Notwithstanding this power, George W. Bush, a Republican, did nothing to effectively control the mass invasion of illegal immigrants swarming across the border.  Now, Barack Obama, a Democrat, is also doing nothing.  Nothing is being done by both parties for the same exact reason: the fastest growing demographic in America is the Hispanic vote, and if either party cracks down on illegal immigration, it risks losing that vote for generations – or is it because some companies profit from the cheap labor and are wealthy enough to influence legislation?  Both? Unacceptable! 

It is entirely unacceptable when government, an institution designed and tasked to serve the people, acts contrary to the public’s interests for the sole purpose of maintaining its own existence. 

You see, it has all come down to political posturing.  As a Senator, if I block a bill proposed by the other party from passing, I get to boast about that to my constituents, maybe even run a campaign ad regarding how ineffective the candidate for the other party is.  If I don’t vote for the bill and it passes but turns out to be a failure, again, I win.  It’s almost like a sick, twisted prisoner’s dilemma American politics finds itself in. And while the Democrats worry about the prospects of the Democrats retaining or losing control of Congress and the Republicans worry about the same, who worries about the well-being of the American citizens?   

In addressing the dangers of factions, James Madison wrote in Federalist Paper 10,The instability, injustice, and confusion introduced into the public councils (by factions), have, in truth, been the mortal diseases under which popular governments have everywhere perished; as they continue to be the favorite and fruitful topics from which the adversaries to liberty derive their most specious declamations.”  This same danger wields a sharpened sword atLiberty’s neck today.  We must therefore act expeditiously to control the effects of these factions, or face the disintegration of theUnited States just as history witnessed the fall of theRoman Empire.

The political posturing of both parties stands in the way ofAmerica’s continued progression, stifling the very innovation that laid the foundations of our now distressed American Dream.  The holding of the party line for the vote in the next primary, not to mention the next general election, over the good of the constituency as a whole has endured for far too long as a systemic cancer in our democracy and is the seed from which outsized distrust in our government has grown.

To solve this growing problem, or lessen its effects, many would argue the answer lies in the insertion of a third, fourth or a seemingly endless parade of political parties into the foray of American politics.  The swift rise of the popular Tea Party is a testament to this line of thinking.  Yet, while at first blush enticing, this would not solve the problem, but would in fact exacerbate it. 

More parties would mean only more factions, in varying degrees of strength, yes, but added internal strife nonetheless.  Eventually, these now numerous factions, for the sake of maintaining or gaining control of Congress, would forge ungodly alliances at the expense or, in the very least, without proper regard for the needs of the people.  These alliances would be less capable of tackling critical issues as they’d be even further removed from the reality of the issues facing their constituents.  Instead of focusing on environmental legislation, they’d be focused on maintaining the alliance, forced into backroom deals and compromises of every kind before they even got around to how they would campaign on a single platform to win the next election. 

History, again, has taught us this lesson, for we need look no further than the aligning of the Nazi and Conservative Nationalist parties inGermanywhich paved the way to the passage of the Enabling Act of 1933, empowering Hitler to his dictatorship.

In building upon the sage advice of James Madison, “the inference to which we are brought is, that the CAUSES of faction cannot be removed, and that relief is only to be sought in the means of controlling its EFFECTS.”  Adding more parties would be like adding fuel to the fire because it would do nothing to regulate against the effects of faction.  

Over two centuries after the ratification of our Constitution, and with only twenty-seven amendments, it is understandable that certain effects of faction were not anticipated within its framework.

We have to remember that in 1787 the population of theUnited Stateswas less than four million.  Now, with more than double that living inNew York Cityalone, there are companies that employ more workers than lived in some of the states at the time of the ratification of the Constitution. The complexities of an international commerce and communication system that is evolving in stride with the explosion of technology, combined with the stress of four hundred million residing within our boarders could hardly have been contemplated by the founding fathers anymore than the Athenians could have predicted the cause of the first World War. 

The complexities of today highlight the sections of the Constitution that were vague and requires of us critical thought as to the areas not mentioned within its four corners. But, let me be clear, these societal intricacies in no way require us to abandon the sagacious construct therein formulated.

Among the purposes of the government, as organized under the Constitution, is the charge to protect against the dangers of faction.  Therefore, learning from history, and building upon the scholarly shoulders of our founding fathers, we must thicken government’s shield to guard against the effects of faction.  And, in order to do so, we must amend our system of government.

I speak of a revolution.  Not a revolution borne of sword or gun, but one of intellect and renewed dedication to the soul of our ordered liberty.  Just like the decaying inner cities of our nation require a face lift, a second look, so too does our government if we are to continue to form a more perfect union.

To be clear – I do not advocate revolution by way of dismantling the Constitution.  To do so would be contrary to every morsel of my being and to everything I know in my heart to be good and just about the government of theseUnited States.

Instead, I propose a dramatic revolution within the political party that I believe has traditionally adhered more closely to the principals propounded in the Constitution itself, but today is unfortunately contributing to the ailments that plague our society.  And, learning again from history, ironically I propose, among other things, that the Republican Party return to its conservative roots in order to fundamentally revise American politics and change the direction our nation is headed.  I believe that the Republican Party’s failure to do so will mean more than the simple devolution of the party into irrelevance, but will spell the far more horrifying consequence of America’s systemic demise.

In this thesis my goal is to lay out a new platform for the Republican Party.  A platform that is truer to Republican values than what is being practiced today, but also one that draws lines in the sand where needed and erases the negative mindset that purveys American politics on both sides of the isle.  Starting at the grass roots level, the platform must be used by the Republican Party to revitalize the electorate while tackling the mounting critical issues facing us as a nation.  This platform will usher in a new era of liberty and prosperity for Americans and do so by more closely adhering to the legislative intent behind the Constitution, as well as buttress core principles, such as checks and balances, that constitute the backbone of our system of governance. 

The Republican Party has lost its way, and failure to react accordingly will only result in the continued degradation of the American Dream.  As Republicans, it is no longer sufficient to say no to everything the Democrats proffer, or to demonize them because they did it to us when we were in office.  Americans deserve so much more and better than what we’ve been providing as their entrusted leaders.  They know it, and we know it!

Very clearly, if we are to tackle the issues facing our nation, Republicans and Democrats alike, our government, our institutions, all of us must transcend the infighting that has kept our great nation from progressing as it should.  We must pull ourselves from the mud and work toward perfecting our union, rather than sitting idle and resting on our laurels.  We have a choice, here and now.  Do we continue to wallow in our mediocrity and allow our once great nation to disintegrate as mightyRomedid centuries before, or do we reaffirm our ideals and fight harder than we have ever fought to restore the American Dream in all its wonder for ourselves and for future generations?

Part of me would like to quote a founding father here, but if another shoe fits, wear it.  As Spiderman’s uncle once said, “With great power comes great responsibility.”  Nothing could be more true.  TheUnited States of America, as the strongest and most affluent nation on this planet, has a unique responsibility as a beacon of hope for all mankind.  But we as a nation cannot be the light shining on the hill for all other nations to bear witness if individually, as Americans, we are lost in the dark, and worse yet, our government is leading us into a deepening abyss.  And so, it is up to us, Republican, Democrat, Independent – all Americans to pick upLiberty’s torch and forge a path out of the shadows. We must become the path once more. 

We must LEAD BY EXAMPLE!