CHAPTER SIX: THE WAR ON TERRORISM (part one of three)

“War is an ugly thing, but not the ugliest of things. The decayed and degraded state of moral and patriotic feeling which thinks that nothing is worth war is much worse. The person who has nothing for which he is willing to fight, nothing which is more important than his own personal safety, is a miserable creature and has no chance of being free unless made and kept so by the exertions of better men than himself”

— John Stuart Mill

Every American old enough at the time remembers where they were on 9/11!  Some remember it as distinctly as the day President Kennedy was assassinated or the Space Shuttle Challenger exploded after liftoff.  On that fateful September day, radical Islam declared a new religious crusade against Western Civilization.  In an act of war, terrorists sounded their call for the destruction of our very way of life.  Denouncing everything we say we stand for: truth, liberty and justice, they took aim at what they believe our nation is founded upon.  Money!   

As the World Trade Center’s Twin Towers buckled amidst plumes of smoke, hundreds of thousands, millions across the planet cheered for the destruction of America.   Our hearts sank at the tragedy – they praised Allah.  Over a decade later, and the nightmare has only deepened.  The war in Iraq and the ongoing war Afghanistan  collectively endured longer than both World Wars combined.  The death toll is only rising with militant fundamentalists in Pakistan and Iran fueling the chaos. 

Make no mistake about it.  As September 11, 2001 proved- the threat is real.  The wars in Afghanistan and Iraq, the bombings in Spain and England, the attacks on Mumbai, the genocide in Darfur, the fragile stability of Pakistan, and the belligerence of Iran’s president, Mahmoud Ahmadinejad – all of these are testaments to the absolute malevolence we are facing.   

Americans are constantly on terror alert, paranoid much the same as we were of Russian spies and nuclear holocaust during the Cold War.  And every day that we are called on to put our sons and daughters in the line of fire we question our purpose and our resolve is tested.  This dichotomy of good and evil in religion is not new to the history of man, but this time it is most insidious and horrifying. 

Before we can address how we should wage the war on terror, we must first understand the reality of what exact threat it is that we are facing.  What every American needs to understand with absolute clarity is just how severe and pervasive the threat really is, because it is clear that so many of us are unaware of the profundity of this ideological menace. 

Now, media pundits often make the case that our government is war mongering, striking fear into the hearts of American citizens for the tactical purpose of some ulterior motive.  They will argue that the threat is nowhere near as terrible as President Bush made it out to be.  I wish it were the case, but the unfortunate truth is that the media’s conspiratorial claims are misguided and they do the American citizens a horrible injustice by sugarcoating the severity of the clear and present danger posed by Islamic Fundamentalism. 

The jihad being waged by radical Islam is not being fought by a mere band of scattered guerilla warriors hiding in far off deserts or the remote caves of Tora Bora, Afghanistan.  Radical Islam does not consist only of Al Queda and the Taliban; it is a way of life, an extreme and fanatic mentality bread into the hearts and minds of millions across the globe.

We must remember that with the destruction of the World Trade Center, there was a general response within the Muslim world of jubilee.  Two days before the attacks of September 11, the Mufti of Palestine, the senior religious figure in the Palestinian authority, and with millions of followers, openly prayed on radio for Allah to destroy Great Britain, Israel and the United States.   After the Twin Towers buckled, almost immediately, Palestinian airwaves were flooded with propaganda, boasting that a divine blow in the name of Allah had been dealt against the enemy [the United States] and that Israel is to follow.

We must understand further that this propaganda machine is not confined to remote villages or forgotten corners of the world.  The machine is vast, spanning continents and infecting the minds of people in Africa, Asia, Europe, South and North America.  There are the Pakistan based Lashkar-e-Taiba and Jaish-e-Mohammed, who seek the Indian state of Jammu and Kashmir’s accession to Pakistan; the Bangledeshi Jamaat-ul-Mujahideen; the Chechnyan separatist “Special Purpose Islamic Regiment”; the Sunni Hezbollah of Turkey and the Shia Hezbollah of Lebanon.  In Iraq there’s the Abu Musab al-Zarqawi’s al-Qaeda affiliate, and Al-Faruq Brigades, a militant wing of the Islamic Movement in Iraq (Al-Harakah al-Islamiyyah fi al-arak) to name only a few.  There’s the Israeli and Palestinian Al-Aqsa Martyrs’ Brigades and Hamas, which calls for the destruction of Israel.  Armed terrorist organizations are growing in Algeria, Yemen, the Philippines, the Sudan, Russia, Georgia, Spain, France, England, Germany – the list goes on and on as the cancer spreads – even into the United States!

The dangerous ideology these extremists preach is in fact more than simple dogmatic propaganda.  It is a media of terrorism.  And it is so prevalent, literally as ubiquitous as CNN and Fox News are to us Americans, that the fanaticism it preaches has become part of the way the populations of these regions see the world.  The machine targets youth – often the most innocent, those that are lost, without shelter, food, medical care, a family.  It pontificates a culture of hatred, a demonization of western culture, appealing to those in extreme poverty, those with the least hope, by promising heaven in the afterlife if, and only if, an oath to wage jihad against America is taken.

The infiltration of radical Islam into our cultures is so deep and pervasive, it is shocking.   The frontlines aren’t just in Iraq and Afghanistan, or even Pakistan, Israel or India.  Their ideology is spreading like a malignant tumor, feeding on human desperation with frightening speed.  The front lines, my fellow Americans, are in Madrid, Paris, London, Berlin, Washington D.C., New York, right down to Fort Hood, Texas.  Their twisted worldview of unquestionable obedience to Allah and destruction of Judeo-Christian Civilization is in our very own backyards.  Their war, their ideology of hatred, has come ashore our land of liberty, and they have sworn to take us down by any means.

Yet, in America, we tend to think of this extreme fundamentalist sect as being in the decided minority in the nation of Islam, small and distant.  And while the terrorist acts on 911, in Madrid and London’s train stations, in Germany, in Mumbai, now make us turn our heads, we still generally think of Muslims as good, law abiding, faithful, loving people because we don’t see the fanaticism in the Muslims that live amongst us. 

In America, this belief in the goodness innate in Muslims as a religious people is accurate and right.  We know that not all Muslims are part of radical Islam, we have faith in the moral compass of our Islamic neighbors, and rightfully so.  But, the false logic is this.  Just because the majority of Muslim Americans are peaceful, virtuous, law abiding people, it does not mean that all are.  Not internationally and not domestically. 

The Qur’an is a beautiful religious text, and in its purpose to the nations of Islam as the verbal divine guidance and moral direction for mankind it stands as perhaps the finest piece of literature in the Arabic language.  Just as the Bible teaches morality, compassion towards others, and the rule of law, so does the Qur’an.  In fact, The Qur’an itself cites an intimate, reverential relationship with the earlier transcribed Torah and New Testament, attributing their similarities to their unique origin from having been revealed by the one God.

It is He Who sent down to thee in truth, the Book, confirming what went before it; and He sent down the Law (of Moses) and the Gospel (of Jesus) before this, as a guide to mankind, and He sent down the criterion (of judgment between right and wrong).

 -Qur’an 3:3

But our sense of security is false when we translate what we know of domestic Islam into a belief that extreme fundamentalist Islam is few in numbers and that, as “Muslims”, they actually follow the Qur’an.  Whereas our system or ordered liberty is founded upon the Judeo-Christian virtues that celebrate the sanctity of life and teach us the truth that love is the fulfillment of the law, radical Islam teaches their children to hate in life and die for the sake of Allah.

These radicals, we must understand, don’t follow the Qur’an.  They think they do, in fact they obstinately proselytize that they do.  But in fact, many of them have not even read the Qur’an.  Discounting the hundreds and thousands of these radicals that are illiterate, those that do read often don’t read the Qur’an.  While the Qur’an teaches compassion, love and equal justice, they instead follow the teachings and writings of men like Mohammad Ibn Abdul-Wahhab, an 18th century zealot desert preacher who preached that all forms of adornment and modernity are blasphemous and that all non-believers in his version of Islam must be converted or destroyed. 

Unlike traditional Islam, Wahhabism treats women as third class citizens, imposes the veil on them, and denies them basic human rights such as the freedom of traveling within the country or leaving it without permission or Mahram (a relative male chaperon).

In addition, Wahhabism outlaws the celebration of Almoulid, the Prophet Mohammad’s birthday, forbids religious freedom, outlaws political freedom and forces the public to observe strictly regimented prayers.  Wahhabist authorities intimidate the masses by publicly beheading convicted killers and hand-amputating alleged thieves.   Perhaps most telling of this “theology’s” absolute perversion is the fact that it considers itself to be the only correct way in all of Islam, and any Muslim who opposes it is a heretic who must be enslaved.

This is not Islam as learned from the Qur’an, rather a fundamentally savage, backward and perverted form of preaching that is contrary to the Qur’an and it is used to brainwash legions of extremist Muslims to become hell-bent on the destruction of America.  It is not the Qur’an that has taught them to wage jihad and convert by the sword or die in martyrdom with the promise of a thousand virgins.  Rather, it is an entirely different set of books, books of jihad written or orally passed down by Wahhabist-style preachers who follow and embellish upon Mohammad Ibn Abdul-Wahhab’s teachings and the like.

What we see all across the world is the utilization of these perverted teachings in order to preach Wahhabism through wrote memorization to an illiterate or otherwise impoverished, desperate and credulous set of Muslims.  In Afghanistan, the Taliban employ this technique with horrifying efficiency through a network of Saudi Arabian funded schools called Madrasahs.  In these Medrasahs no subjects are taught except for Wahhabism.  The hopeless are brought in, given food and shelter, with the requirement of submitting to the teachings therein.  

Medrasah, literally means school, and historically they have not been anti-American, anti-Western, pro-terrorist centers having less to do with teaching basic literacy and more to do with political and theological indoctrination.  And certainly not all are today.  But, these Medrasahs of which I speak are widespread and they are effectively brainwashing a generation of desperate Muslims to hateAmerica, to hate western civilization, and to covet the destruction of all that we stand for.

They brainwash their recruits and followers to believe that they’ve revived the Islamic jihad, dividing the world into two camps, the Muslim and the non-Muslim.  They sermonize that Allah is happy when non-Muslims die.  That the laws of Islam, the books of jihad, demand that non-Muslims are to be taken to the slaughter.  To these radicals, any non-Wahhabist Muslim, to include American Muslims, are called Kafirs (infidels), cows to be taken to market, sold, and butchered.  Quite literally, they are brainwashed to believe that no infidel is innocent, period.

Americans must understand that a countless horde has demonized us.  It seems so odd and inconceivable to us that so many people have been brainwashed to this end.  But, to fathom this mentality, again, we need only look to our own, relatively recent history.  Recall that Christians, out of the desperation caused in the aftermath of World War 1, fell for the extreme Nazi propaganda machine calling for the eradication of the Jews.  If we fell for it, why would the Muslims not when faced with similar extreme conditions?

A seed of anti-Semitism, just as it did in Nazi Germany, has burst, bringing Christianity, and all other faiths into the crosshairs.  Hitler committed a crime against the youth of Germany by stealing their innocence and brainwashing them with a message of hatred.  Radical Islam is committing the same crime against non-radical Islam, stealing their youth, capitalizing on desperation and ignorance to instill a fundamental hatred of any non-radical, Muslim, Christian, Jew and Hindi alike.  In many regions of the world, hundreds of thousands of these radicals comprise the majority and any non-radical Muslim living in the purview of these terrorist havens is treated like a cow, a target to be slaughtered on site.

One would think that drawing a similarity to Hitler’s Nazi regime would be the most horrifying analogy possible.  Yet, the circular dogma that lead to fascism under the Nazi regime was actually less dangerous and sinister than radical Islam.  In Hitler’s Germany, Nazi’s hated and killed in the name of the Fuhrer, while in radical Islam, jihadists terrorize in the name of God.   Their creed is the same; destroy all those that do not believe as they do.  With the Arian race, this hatred was primarily confined to the Jews, whereas radical Islam has widened its sights and taken aim at Christians, Budhists, Hindi, and even Muslims that do not believe as they do.

America must wake up to this unfortunate reality.  And we must be willing to appropriately and decidedly address any insight to violence against Western Civilization, regardless of whether the origin of the incantation is domestic or foreign.

A clear understanding of this threat, though, is only the first step to thwarting it. The next question is one that has to date eluded us on many fronts; how do we fight this terrorism?

As aforementioned, we must first look inward to see what we are made of.  To be clear, I’m not talking of our strength and resolve, as I believe our endurance through the Iraq and Afghanistan Wars is proof of America’s tenacity.  Further, a proper understanding of the threat’s pervasiveness should only fortify our steadfastness as a nation.  Rather, I am talking about our morality.  Perhaps more pointedly, I am talking about our priorities.

You see, these terrorists have made a calculated decision in the way they are waging their war.  Presented with the dilemma of taking down a giant, a world superpower with a vastly superior military, they have hedged their bet.  Strictly speaking, they have bet that we are consumed by money and that if they can take down our economy, they can win their war.  Why do you think Osama bin Laden chose the World Trade Center as his first target on 9/11?    

Radical Islam preys on the impoverished, brainwashing extremism into the minds of those living in extreme conditions.  They promise something as simple as food and shelter to the hopeless, the desperate, and the forgotten souls of society, and then bombard them with fanaticism.  It is a vicious cycle of impoverishment leading to fanaticism and extremism which inexorably results in violence.

Radical Islam is aiming to create the same impoverished and hopeless reality in western civilization.  It starts with one street in Detroit perhaps, where nobody has jobs, everyone has been evicted from their homes, crime and drugs are rampant.  Then they offer their poisoned apple in this extreme reality, promising the fruits of a happier, sanctified life.  Instead, they will give over strict fanaticism, breed extremism, and eventually demand violence.  We are already witness to this reality. 

They hope to do this, first, by bringing down our economies.  Their design is to turn our collective societal wealth and comfort on its head, lead us into bankruptcy and then allow what they perceive as our immorality to tear us apart from within.  Much like the Spanish Conquistadors divided and conquered Incan civilization when they came ashore in South America, they aim to factionalize us, get us to fight amongst ourselves over a dwindling supply of money, and then convert us by the sword when our defenses are down.

We must understand that, to the terrorists, we are not a nation of moral, benevolent people.  Instead, we are non-believers who are laden with greed.  They see us as power hungry demons thirsting for global dominance and filthy riches.  Their bet is that in bankruptcy we will turn our back on our own Constitution; that we will brush our Bill of Rights under the rug and denounce everything we say we believe in.   

Of course, each one of us will unwaveringly respond to this gross characterization adamant that we are not what they perceive us to be.  We believe it in our hearts – we know it!  And I absolutely believe it to be the truth that we are not these greedy, filthy demons; rather we are a force for justice, for liberty, for morality and peace. 

That being said, and it utterly pains me to say, our greed and increasingly sedentary ways are of grave concern.  Our economic crisis is beginning to shed light on some of our true, less flattering colors.  And it is incumbent upon us, individually and as a nation, to take a long hard look at ourselves in the mirror.  We must recognize our flaws, embrace the fact that we have a lot of work to do, understand that we are far from perfect, and move forward with our core ideals reaffirmed.  If we can do that and only if we can do that – the war on terror is already won and America will come back stronger than ever.

To start then, let us look in the mirror. 

The economic collapse, exacerbated by the war on terror, is testing the moral fabric of our society.   Capitalism, our fundamental system of free commerce, is being impeached, our banks and industries are collapsing, and our infrastructure is corroding in disrepair.  Our homes, nearly ten million of our American Dreams, now stand vacant, devoid of families.   Unemployment has reached 10% nationwide, crimes of extreme moral turpitude, divorce and domestic violence are rising sharply and our boarders are being invaded by illegal aliens without respect for the law. 

Unfortunately, while these trials and tribulations befall us, our government is failing us.  As we look to our elected officials, too often, the mirror they reflect of us is one in accord with radical Islam’s disgusting critique of our society.  I say this because Washington’s answer to all our troubles seems to be one dimensional: throw money at the problem and demonize the opposition.  Mark my words – if this continues, we fail.

The question that presents itself in this pivotal moment in history is whether, in the face of deepening financial turmoil, we will continue with the materialistic, over-indulgent, sedentary mindset that set us up for our current economic collapse, or whether we will reaffirm our moral grounding as a nation and fight for all that is good in America by standing, rolling up our sleeves, and doing what is right, regardless of the difficulty.

Regrettably, our government is acting only to reinforce our materialism, exactly as they have for decades.  Government policy has encouraged us to spend on credit and take on mounting debt to where by the end of 2009, total U.S. consumer debt reached an astronomical $2.45 trillion, with total individual household debt, including credit cards, mortgage, home equity, and student loans, skyrocketing to nearly $17,000 per household.  The mean average unpaid credit card balance jumped to $3,389 per person in America. 

Believe it or not, this spelled disaster for the Federal Government, but not because the amount was too high, rather because the total U.S. Consumer debt had dropped sharply from $2.56 trillion at the end of 2008.  The recession meant that people weren’t spending.  Something had to be done!

So, in short-sited reaction to this fiscal meltdown, our government has responded with an economic stimulus plan centered on encouraging us to spend.  First, we were given a measly $200 tax refund and encouraged to quickly go and spend it – God forbid save it.  And, we spent it, plus some, just as the government wanted us to.  Why?  Because, we’ve been told that our economy is based upon consumer spending and that if we stop spending, the engines of our economy will grind to a halt.  If Washington can just keep us spending our hard earned money, they believe the economy will continue to grow at a healthy rate.   Unfortunately, they are wrong!  And they are wrong because our spending is no longer rationally linked to our production.  Because income is being eclipsed by our expenses we have for decades now been forced to live on credit.  What happens when that credit runs out?

Washington governs itself with this same spendthrift state of mind that we have individually adopted, and as a result the United States public debt (the “Federal Debt”), which consists of two calculations: “Debt Held by the Public”, defined as U.S. Treasury securities held by institutions outside the United States Government, and the “Gross Debt,” which includes intra-government obligations such as securities held by the Social Security Trust fund or the Federal Reserve, is absolutely staggering. 

Note that the costs incurred in World War II, in addition to President Roosevelt’s New Deal, and the social programs of the Truman presidency caused a sixteenfold increase in the Federal Debt from approximately $16 billion in 1930 to $260 billion in 1950.  As a Republican, it pains me to say that this debt more than quintupled during the Reagan and Bush presidencies from 1980 to 1992. Then came the war on terror and during the administration of President George W. Bush, the debt increased from $5.6 trillion in January 2001 to $10.7 trillion by December 2008, rising from 58% of GDP to 70.2% of GDP.   But now, under the Obama administration, the situation has deteriorated at a far more alarming rate.

As of September, 2010, the Federal Debt of $13.56 trillion was approximately 94% of U.S. annual GDP – now, in January, 2012, our debt of $15+ trillion is more than 100% of our annual GDP.  In simple terms, we are drowning.  And this is what radical Islam wants.  Because, with such unconscionable debt, more and more of our money must go to the purchase of government debt, rather than into investments in productive capital goods such as factories and computers, leading to lower output and incomes than would otherwise occur, further exacerbating the situation.  A downward spiral is begun much the same as an individual with too many credit cards fighting to pay even the minimum monthly balance, drowning in interest, and never saving for the future. 

The Federal Debt is a phenomenal threat to our national security.  Why?  Because if higher marginal tax rates are used to pay the rising interest costs of this debt, individual and corporate savings will be reduced and work, industry, and innovation will be depressed.  How then will we pay for the renovation, much less the re-engineering of our decaying infrastructure?  We won’t!  We will continue to import 9,013,000 barrels of oil per day at a staggering cost of $297 billion per year.  Over $50 billion of which goes to countries that harbor and arm terrorists bent on our absolute destruction.    

In fact, the interest costs on our debts are already forcing reductions in government programs that the government actually ought to be administering.  And, it’s not just the federal government – nearly every state in the Union is facing a massive budget crisis.  As a result, more and more Americans are out on the street with nobody to turn to.   No help, no food, no hope.  This growing crowd of people has already become malcontent and in many cases outright enraged at the government.  Occupy Wall Street is just the beginning.  How much worse will it need to get before there are armed riots in the streets?

It is upon the most impoverished, uneducated, enraged and hopeless of this crowd that radical Islam will focus upon to recruit domestic terrorists.  It is upon these people they are already successfully preying upon in Europe.

Unfortunately, the situation is only primed to worsen.  As a result of our over-consumption, individual, corporate, and government alike, and the tremendous amounts of money we have spent bailing out Wall Street, we will eventually have to pay a price in terms of higher taxes to meet the interest on that debt.  Higher taxes will unfortunately become requisite to meet the claims of our foreign creditors.

Yet, our government, on both sides of the isle it now seems, is increasingly adept at hearing one message sounding from us: no more taxes.  How then can the government deal with this debt?  First off, to date, they have not.  For thirty plus years our government has kicked the can down the road for future generations to deal with the problem.  That generation is us, now!

Historically, in an attempt to forego raising taxes, such debts have been met with the temptation to default by stealth.   In other words, allowing the dollar’s value to deflate. 

But, the dollar’s deflation means something equally as grave for Americans – inflation.  Soon, we likely could see the cost of a gallon of milk rise to $15, an ear of corn to $5, cereal, butter, sugar, meats, our entire grocery bill could go up in cost by 20-30%.  This inflation, coupled with an unemployment rate that continues to climb, and where salaries are frozen or slashed for those still employed, spells even further economic disaster.  It is a recipe for civil unrest! 

More and more people will fall into impoverishment.  The middle class will become the poor and the poor will become the destitute.  It is in this economic climate that radical Islam wants us to fester.  We must wake up from this nightmare immediately because commodities have already skyrocketed in cost and that expense is already being passed on to the American consumer.  Across the board, everything from groceries to clothes, plastics, etc. have already increased in cost by 5-15% in the last few years.  Inflation has already begun!

The first and most important thing we must do in order to intelligently combat terrorism, then, is to revamp our economy.  I’m not speaking of turning our back on capitalism in favor of socialism as many of the disillusioned have proffered out of fear.  Not at all.  In fact, I believe passionately that the key to our economic salvation is capitalism, in its true, pure form.

We must unleash the power of American ingenuity; promote and foster intellectual investment in American business so that we may once again produce for export as well as domestic consumption.  For Washington’s belief that consumer spending is essential to keep the engines of our economy running is true, but it is only half of the equation. 

Production is the necessary second half of the economic equation, for when a company produces something that people want to consume, the basic and elementary economic law of supply and demand is fulfilled.  Yet, for decades, America has failed to produce at a level necessary to meet the demands of our own consumption and the result is nearly a trillion dollar a year trading deficit.

The U.S. has held a trade deficit since late in the 1960s, but since 1997, our trade deficit has been increasing at a rapid rate.  Between 2005 and 2006 for example, the U.S. trade deficit increased by $49.8 billion to a worldwide record high of $817.3 billion.   It is now over a trillilon dollars per year.

 “We must always take heed that we buy no more from strangers than we sell them, for so should we impoverish ourselves and enrich them.”

–Fernand Braudel, The Wheels of Commerce

To be clear, the concern here is not necessarily with the size of the trade deficit.  This is because the trade deficit can be affected by myriad factors such as the cost of production (land, labor, taxes) in the exporting economy vis-à-vis the importing, the cost and availability of raw materials, exchange rates, trade restrictions, and the price of goods manufactured.  In fact, as Milton Friedman, the Nobel Prize-winning economist and father of Monetarism contended, trade deficits are not necessarily, in and of themselves, omens of economic failure, because high export levels increase the value of the exporting currency, eventually reducing aforementioned exports, and vice versa for imports, thus naturally removing trade deficits not due to investment. 

By reductio ad absurdum, 19th century economist and philosopher Frédéric Bastiat, even argued that the national trade deficit was an indicator of a successful economy, rather than a failing one. Bastiat predicted that a successful, growing economy would result in greater trade deficits, and an unsuccessful, shrinking economy would result in lower trade deficits.  And it seems these theories are being proven fundamentally sound given that since the Great Recession began the annual U.S. trade deficit has fallen by over $3 billion.

The real concern here is the fact that the Federal Deficit is mounting along side a trade deficit – compounding the issue.  Essentially, we are borrowing money to trade in the red.  Or to play off of a syllogism:  We are borrowing from China so we can rob Peter to pay Paul.

The reason for this phenomenon stems from America’s continuing failure to produce goods for the marketplace, both domestic and international.  The free system of enterprise, the liberties afforded us as a people, long left people like Andrew Carnegie to modernize the production of steel.  Yet, for a number of reasons, America is no longer producing goods for sale.  Instead, we consume and put the cost on our credit cards, individually, and as a nation.

Post-World War II, America was primed as the world’s industrial superpower.  The factories previously manned by “Rosie the Riveter” women in order to crank out the war machines were primed to build modern America.  And when the greatest generation returned from saving the world from fascism they were ready to go to work in the only true remaining industrialized nation on the planet.  All other industrialized nations sizeable enough to compete, after all, had been leveled in the war.

What came next were America’s economic golden years.   Through grit and hard work, we built the wealthiest, most industrialized, modern nation on the planet.  The United States GDP grew to a record $482.7 billion by the end of the 1950s. In the 1960s our nation enjoyed the most sustained period of economic expansion we’d ever known, accompanied by rising productivity and low unemployment. With real income rising 50% during the decade we were sitting pretty with more Americans enjoying the luxuries of the middle class lifestyle than ever before.

But, then came the advent of deindustrialization in the late 1960s and early 1970s. Among other factors, increased free trade, globalization and high corporate taxes resulted in U.S. companies shifting their manufacturing and heavy industrial operations to second- and third-world countries with lower labor costs.  It literally became more attractive to the American corporation’s bottom lines to dismantle their industrial infrastructures in favor of producing elsewhere.  While this meant a flood of cheaper imported goods into our economy for us to purchase, these policies resulted in a massive reduction in the percent of the U.S. labor force engaged in industry (from over 35% in the late 1960s to under 20% today).

Detroit and the auto-industry are an unfortunate example of de-industrialization and the effect it has had on our nation.  Once the world’s largest center of automobile production and associated with a high standard of living, Detroit today is associated with a high concentration of poverty, unemployment and manifest racial isolation. The vast urban production complexes that once built the automobiles driving on our highways stand abandoned and over one third of Detroit’s residents now live below the poverty line.  Similar fates have befallen the steel industry of Pittsburgh, the manufacturing and shipping industries of Baltimore, and so the list goes on. 

The simple fact stands that the American economy has undergone a fundamental shift from a manufacturing and industrial based economy to a service based economy. 

After World War II service industries accounted for less than10% of non-farming employment, compared with 38% for manufacturing. But, since the late 1960s the American economy has moved away from producing goods to providing services at a disquieting rate.  

In 1970, there were approximately 50 million service-providing workers in the United States and 23 million employed in the goods-producing sector, representing a service-to-goods ratio of about two-to-one. According to the Bureau of Labor Statistics, the ratio of service-to-goods workers soared to five-to-one with over a third of the U.S. population employed in the service industry by 2005.  The face of our economy has completely changed – and it is destroying us.

American consumption currently accounts for over 70% of our GDP.  Of this 70%, half is spent on services, such as hair cuts, car washes and restaurants.  The problem, then, is this: if we’re just going out to restaurants, what are we selling to the rest of the world?  With all that China is selling to us, what are we selling to them and the remainder of the world?  Very little!  And hence our enormous trade deficits. 

Analogy time:  Think of Jamaica, or almost any destination in the Caribbean archipelago.  What is the common thread between the economies of these beautiful islands?  All of their economies are primarily dependent on the tourism industry.  They do not produce much of anything, rather, they provide services, and as a result their economies are weak, unemployment is high, and those that do work earn low wages.  Well, in America, the problem is much worse to scale. 

While we provide services to ourselves, all we are doing is redistributing wealth amongst ourselves.  But, in order to provide those services we are consuming products from overseas.  The result: we are redistributing wealth amongst ourselves from a dwindling pot.   

There has been a forty-year mass exodus in America from our time-honored tradition of rolling up our sleeves, working hard, and making products for sale in the marketplace.  Instead of reversing this trend, however, the drift has been worsening in recent years.  Post 9/11, the United States has shut down nearly 45,000 factories, equating to a loss of one-third of our manufacturing jobs in that timeframe.  At the end of 2009, 12 million jobs in the U.S. were geared toward the manufacture of goods.  The last time so few jobs in the United States comprised the manufacturing sector was prior to World War 2, before we climbed out of the Great Depression, and when our population was far fewer in numbers.

The result is a reality in America where overall capitalization in the stock market exceeds 100% of U.S. GDP.  Historically, the stock market’s value has been approximately 58% of GDP with lows hovering at 37% in the early 1950s and 25% during the Great Depression. Highs in this measurement were around 75% of GDP, each occurring at all the significant market downturns in the last eighty years, including the 1929 and 1966 crashes. 

As recently as 1991, the market was at the historic 58% level of GDP. Since then, however, we’ve completely lost site of this economic indicator.  By the 4th quarter of 1999 stock market capitalization increased to a confounding 185% of total GDP!  

We’ve all seen this at play.  Each day when we watch the news or check our phone apps, we see that the stock market is soaring or strong.  But how can it be that the Dow Jones Industrial Average is doing so well when America is drowning in unemployment and debt?  The answer, unfortunately, is that two economies have burgeoned.  One for the rich, and one for the poor, with the middle class being torn in either direction, more often than not toward the poor.

America’s economy now primarily consists of one’s and o’s – digital currency for the rich to play with and the poor to sit out.  When we aren’t producing anything the only way to make money is to invest in others that do and maneuver around the marketplace with snakelike craft.  Wall Street is first-rate at this, but the result is the constant ebb and flow of boom and bust in the marketplace.  The dot.com and sub-prime lending bursts are just the most recent, and with each bubble, the rich are getting richer; with each burst, the poor are getting poorer. 

This last crash has been the most telling of this wealth disparity.  Since the dawn of the Great Recession, Americans have lost an estimated average of more than a quarter of their collective net worth; housing prices, historically our largest nest egg, have dropped over 30% from their 2006 peak; total retirement assets, Americans’ second-largest household asset, dropped by 22%; savings and investment assets lost $1.2 trillion and pension assets lost $1.3 trillion across the board. Taken together, these losses approximately total an unimaginable loss of $10 trillion from the pockets of hard working Americans.

Meanwhile, the number of millionaires living in the U.S. has spiked.  In 1928, one year before the Great Depression began, the wealthiest .001% of the U.S. population owned about 892 times more than 90% of the nation’s citizens. Today, the top .001% of the U.S. population owns over 976 times more than the entire bottom 90%. 

Then there’s this fact which has Americans enraged: according to a study by the Institute for Policy Studies, in 2008, top executives in the United States took home salaries that were 319 times greater than the average worker (about $10 million per CEO).  We see reports of massive profits and obscene bonuses at the very firms who owe their continued existence to $700 billion in TARP funds – our tax dollars.  No wonder we are exercising our First Amendment right to assemble in the streets and protest corporate greed.

Here is where we must be very careful however.  Many have begun to argue that the financial crisis is merely a subset of a systemic crisis – capitalism itself.  According to Samir Amin, an Egyptian Marxist economist, for example, the constant decrease in GDP growth rates in Western Civilizations since the early 1970s created a growing surplus of capital which did not have sufficient profitable investment outlets in the real economy.  The alternative was to place this surplus into the financial market, which became more profitable than capital investment, especially with subsequent deregulation.  The result being the financial bubbles that keep on bursting.  This, by the way, is exactly what radical Islam wants us to do – impeach our own economy.

But, capitalism is not to blame.  I do agree that the decrease in GDP growth rates have lead to insufficient profitable investment outlets in our real economy, leading to engorgement in the financial market.  The problem, however, is failure to produce, not capitalism.  Our economic policies must again be geared toward the promotion of capital investment, because socialism, history has shown us, will do just the opposite.  Capitalism, then, is the answer!

Instead, our government is itching to intervene in corporate operations in order to cut CEO pay.  But this is America. We don’t disparage wealth. In fact, we always have and must continue to encourage it.  This is precisely why President Obama’s $500,000 cap on executive pay sets a bad precedent.  Cutting executive pay simply is not the answer.

Instead, regulating corporate expenditures is a disincentive to innovate and produce.  Government intervention in the free market, we must continue to recognize, is a very dangerous thing.  Now, Obama’s decision actually was palatable in that it applied only to executives of firms that we, as taxpayers, bailed out to the tune of $700 billion- but it must stop there. 

CEO’s making as much money as they do, we must understand, is a natural function of the free market.  Understandably upset at our losses, we often forget that these people lead major multinational corporations with scores of employees and $50 billion in annual revenue. Performing properly, they create thousands of jobs, deliver a lifetime of wealth for innumerable investors, and drive life-changing innovation.  While most chief executives are in fact compensated at a far lower rate than our NBA superstars and Hollywood celebrities, the criticisms thrown at them are far more relentless.  Moreover, in the economics of large multinational corporations, $10 million is no more than a line item budget amount for office supplies such as pens and paper.  

We are understandably upset at the chasm growing between the rich and the poor, and as such, it is only natural for the middle class to look up at the rich with disdain as they fall toward the lower class.  However, it is my opinion that the only real problem with CEO compensation is the fact that we, the government and the media are demonizing the wrong people.  Out of anger, we are looking for a scapegoat, the rich.  We’ve grown to hate those that are succeeding in their industries because our livelihoods are vanishing. 

We must pause, take a step back and realize just how un-American the abhorrence of the rich is and turn our attention back to the real problem facing our nation’s economy. 

America is the land where enterprise and the chance at becoming rich has always been encouraged.  We must never discourage people from getting rich, lest we discourage innovation and progress.  It is wrong of us to detest those that have gotten rich in their industries.  What is proper is for every American worker to be upset at the fact that there are fewer and fewer opportunities for them to get rich or even sustain middle class status.  We should also be mad that many of the rich are ostensibly hijacking Congress to ensure they remain rich despite the hurtful consequences to the remainder of the constituency.

The real problem in America, what is causing the growing rift between the rich and the poor in our nation is not capitalism, it is how we are wielding the power of the free market.  We built our nation through hard work and determination, but for decades now we have been content to sit idle instead of continuing as the pioneers of industry.  

Why?  To an extent it is because of human nature.  As I said before, man is much like water, instinctually inclined to take the path of least resistance.   So, again, let us take a long hard look in the mirror.  Individually, most of us would rather work in the services sector as white collar workers rather than in a theoretically more difficult blue collar vocation.  It certainly is physically less demanding.  As a nation, we worked so hard building modern America, generating massive amounts of wealth, and sometimes we feel entitled to kick back and relax.  This is only human nature, and the wealth accumulated in our golden years afforded us the ability to utilize our mental talents toward innovation and pay others to do the back breaking labor for us.  Why fix your sink when you can pay a plumber to do it, right? 

But we must awake from this apathy because, as a nation, we no longer have the money to pay the plumber.  Unfortunately, though, we’ve been very slow to wake from our lethargy in part because our economic and tax policies have compounded the issue by encouraging our instinctual indolence and masking its effects. 

Now, you are probably wondering why I am talking so much about the economy in a chapter purportedly aimed at the issue of international terrorism.  The reason is simple.  Our economic security is intrinsically linked to our national security, especially when it comes to the war on terror.  The insolvency of our nation will bankrupt our ability to fight terrorism abroad and lead to civil unrest within our boarders.   This must not happen because we absolutely must win this war.  What we face in radical Islam is a clash of civilizations and they have made it very clear that it is either us or them.  Failure, then, is not an option. 

Here is what radical Islam thinks of us: we are succumbing to sloth.  We are greedy, we want to consume everything, and we don’t want to have to work for it.  Radical Islam is betting that we are the next Rome and that we will implode, falling upon the sword of our own opulence.  They forecast that globalization and the additional financial pressures their mounting campaigns of terror have on our bottom line will result in us becoming slaves to the third world.  They believe that the third world upon which we prey for all that we consume will surpass us; that the balance of power will shift in their favor and we will grow weaker and weaker.  Their hope is that our current economic crisis will snowball into a downward spiral, leaving us broken and powerless to stop the spread of their twisted creed.

But they are dead wrong!  Americans work harder than the citizens of any other nation on this planet.  We are the most innovative workforce on the globe and our collective talent eclipses all others.  Laziness, while an exacerbating factor, is not to blame.  Resting on our laurels is.  This crisis is borne out of our societal ignorance and collective indifference to the direction we have allowed our government to steer the economy for the last forty years.  We’ve all been playing ignorant to the effects of our service based economy; our natural human instinct to take the easy road has blinded us as to the inevitable rise of Asia as an economic powerhouse with whom we must compete.  But now, after decades of craftily avoiding the unavoidable through the stock market, we are finally learning the truth.  The truth of the matter is this: we must get back to work producing for ourselves and the rest of the world.  For the rest of the world also wants and is willing to compete for the standard of living we’ve shown them is possible.

This is precisely why educating America about the true threat facing us, the true crisis facing our economy, and how to transcend these challenges is of paramount importance.  The silver lining in the Great Recession is the fact that it is opening our eyes.  The extremes we are facing, massive unemployment, for instance, are shaking us from our apathy, forcing us to ask the tough questions.  The key is to answer those questions intelligently and educate America as to just how far down the wrong path we have gone so that we may redirect.

I believe that in America, our privileges, the opportunities we have, our wealth, our power – this has not made us weak and lazy anymore than it did the greatest generation before they left for World War II.  We’ve had more opportunity than any civilization before us to venture down that road of lethargy, and in many respects we have, but hopefully to realize the evils of excess.  In fact, the liberties afforded us in our Constitution have afforded Americans the ability to witness first hand the pitfalls of materialism run amuck.  This experience, and the freedoms still afforded us, give us a unique perspective from which to correct our course, as well as the power.  Perhaps the greatest majesty of our American tradition of ordered liberty is that we are all free, individually and institutionally, to look into the mirror and make the changes necessary.  It is this power, properly wielded, that will win the war against terrorism as well as bring back our economy.

Having gained so much, we have so much to lose and American’s will not let go easily.    It is the same determination which lead us to erect the Hoover Damn, the Empire State Building and the interstate highway system, that will empower us to overcome the current economic crisis, avoid future recessions and win the war on terror.

But first- back to the mirror.  We are currently making a lot of mistakes, and unfortunately money seems to be the governing factor in our rash decisions.  For starters, we are cutting education – an extremely short-sited, reckless and irresponsible response to our financial crisis.  I will delve into that in a later chapter.  

Here’s an interesting example of money overriding our logic: California passed SB 1449 on October 1, 2010, reducing the possession of less than an ounce of marijuana to a civil infraction where the person in possession is slapped with the equivalent of a mere parking ticket.  The reasons sited by Governor Schwarzenneger were the cost to police the illegal drug and the possibility of raising tax revue if it were to be fully legalized and regulated.  Both of these are valid considerations, no question.  However, the problem is this:  the decision to ostensibly legalize the drug was made solely on fiscal grounds without proper consideration of the effects of the drug or why it was made illegal in the first place.  Now, to be fair, marijuana is not cocaine or meth, and its effects arguably are not even as bad as alcohol.  A valid argument for marijuana’s legalization on the basis of its effects versus alcohol can certainly be made, but the decision to legalize it in California was based solely on monetary concerns.  This is wrong!  If money is the only consideration, the same argument can be made for the legalization of all narcotics.  The same reasoning has been utilized in California to justify the release of criminals convicted of assault with a deadly weapon, battery, domestic violence, and attacks on children. 

It is unforuntaely quite clear that the tactic being employed by radical Islam, namely to destroy our economy, is effective.  In many respects, it is forcing us to turn on our own moral compass.  Why, because it is hard to stay moral when it comes down to dog eat dog.  They know this to be human nature.  We must not let this happen, because the more we allow this to occur, the more we are at risk of civil unrest, revolution, loss of freedom, and a continuous wave of crisis that will lead to us turning on ourselves and our institutions.  Divide and conquer!

Radical Islam abhors our freedom above all else.  It therefore aims to force us to erode the freedoms protected in our Constitution for the sake of our security, because it is in a tyrannical system where freedoms are forgotten and the individual is nothing that their fanatical worldview can take root.  

Unfortunately, they have already begun to succeed.  In reaction to their terror, our freedoms have been truncated under the Patriot Act and our personal boundaries are being invaded by humiliating pat downs.  The government has created a vast domestic spying network to collect information about Americans in the wake of 9/11 and subsequent terror plots.  An immense network of over four thousand counter-terrorism organizations utilizing state and local law enforcement agencies to collect information about thousands of US residents has been created to feed information to Washington for analysis.  Big Brother is upon us!  Is it necessary?  Yes, unfortunately.  But we must not allow it to go too far – if we haven’t already.

Daily they are forcing us to decide what freedoms we are willing to forego and where to draw the line.  While many of us will say we don’t mind giving up a little bit of our freedoms for the sake of security, the issue arises when we find ourselves on the slippery slope to foregoing too many of those freedoms to a government that becomes immune to habeas corpus.  It is on this slippery slope that we already find ourselves, and we must be careful not to allow the protections our forefathers fought for to be swept away out of fear.   That is what the terrorists want.

Our history from 9/11 on shows us that the longer the war on terror continues, the more pervasive we allow it to become, the greater number of rights and personal freedoms the government will find it necessary to overwrite for the sake of our own security.  This, in and of itself, makes the war on terror one where time is very much of the essence.  We must therefore act decisively and expeditiously to push radical Islam back and eradicate this threat. 

Stage one to winning the war on terror, as I have mentioned, is to revamp and revitalize our economy.

If you look at Lehman Brothers, Goldman Sachs, the sub-prime lending crisis, the collapse of the Celtic Tiger, Greek debt, all the way back to our very own dot.com burst, and even the savings and loan crisis, we must realize that what we are dealing with is far bigger than these individual crisis themselves.  We are dealing with a fundamental shift in the way the world economy operates.  While for two hundred years America and Europe dominated world production, investment, manufacturing, and exports, Asia is now out-producing us.  Instinctively, many have called for protectionist policies in reaction to this truth, but this is unwise.  

As a result of production, Asia’s economy, most notably China’s economy, is growing leaps and bounds just as ours did post-World War II.  Consequently, Asia’s consumer market is estimated to be twice that of ours by 2020, and therein lies our opportunity. 

The first step to dealing with the current financial crisis was to stop it from becoming another Great Depression.  To that end, TARP, and all the subsequent bailouts have been aimed at stopping the bleeding.  Arguably, they have succeeded, for now- but they are mere band-aids covering a massive laceration because they are propping up arcane business models and industries that now serve only as relics of America’s past industrial strength.   The proof in this assertion is the fact that despite all the government “stimulus” unemployment continues to rise. 

Stage two to dealing with the current financial crisis is to get the global financial systems working properly, and in tandem with reality, a task that hinges on stage three – reducing unemployment, and fostering growth through economic policy geared toward encouraging capital investment and production. 

I have absolute faith that we can meet this challenge.  We already have the brand names and the custom built products recognized around the world, and when you combine that with the advantage of having the most innovative and technologically advanced economy in the world along with the most creative talent in the world, we absolutely have it within our power to rise to the occasion.  The re-birth of the American Dream in this generation is possible and the way we do it is by tapping into our native genius and creative talent to produce high technology goods for the remainder of the world.  We must ride out to meet the challenges presented by the growth of a middle class in India and Asia and capitalize on their consumer needs.  Our salvation is in producing these high technology goods to satiate our own domestic consumption as well as for export to the remainder of the world, for doing so will satisfy the basic economic law of supply and demand. 

PLEASE STAY TUNED FOR PART TWO OF CHAPTER SIX: THE WAR ON TERRORISM!

 

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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.