CHAPTER FIVE: ABORTION

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

  Jeremiah 1:5

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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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 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.

WHAT I SEE IN AMERICA’S DESPAIR: HOPE!

Across this great land, the faces of the once proud and mighty seem to be weighed down in mounting anxiety.   Our confidence is shot as everything seems to have gone wrong and the outlook appears only a downward spiral.

Unemployment is still over 9% nationwide with 8%+ unemployment expected through 2014.  Commodity inflation is squeezing our pockets as well, with over 1 in 10 Americans on food stamps and 1 in 4 children across the states finds themselves without ample food on a daily basis. In the wake of our nation’s credit downgrade, the stock markets are crashing with fears of a double dip recession, while we the people stop and ask, when did the recession ever end? 

Time Magazine termed the decade from 2000 – 2010 as the “Decade from Hell”, but in 2011, it only seems to be getting worse.  Mother Nature, it seems, is equally disgruntled.  This year alone we have witnessed record breaking blizzards across the east, massive flooding across the Mississippi watershed, record Tornadoes that have taken unimaginable life and caused catastrophic damage, wide-spread drought the likes of which have never been seen, and a heat wave that literally set thousands of record highs across the nation while parts of Texas experienced 57 consecutive days of 100 degrees or higher temperatures.  And least we forget the Tsunami that wiped entire cities from Japan’s coast and plunged them into a nuclear crisis on par with Chernobyl. 

Our nation is facing crisis in every direction; from the war on terror and economic depression, to climate change and educational, institutional and infrastructural decay.  In many ways the shining light on the hill is flickering in the dark, teetering on the brink of a blackening abyss borne of domestic decay and international pressures.  To many, and certainly for me, it’s become palpable.  Something is wrong – worse than normal. 

The sun that once graced the amber waves of grain is graying behind a looming storm of mounting predicament.  There is a measurable sapping of confidence across our land, both in the confidence that our future will be bright and in the confidence our people have in our government as a just institution.  Sleepless nights are replete with the nagging nightmare that America’s decline is inevitable, that the next generation must lower its sights, expect to die younger and endure into a diseased planet.  In the wake of the sub-prime lending scandal, homes have been lost, jobs evaporated, businesses shuttered and families turned upside-down in economic depression.

The reports of massacres the likes of Virginia Tech, Fort Hood and the Tragedy in Tuscon seem to be increasing in regularity and the media continuously bombards us with reports of global warming and looming economic catastrophe.  We find ourselves in the midst of two wars that have collectively endured longer than our nation’s involvement in the Revolutionary, Civil, and both World Wars combined, and with the crisis in Libya added to the shoulders of our over-stretched military.  Globally, we are witness to famine, water shortage, genocides and the spread of tyranny and extremism – none of which seem to have been curtailed by the efforts of those fighting the good fight.

It’s nearly become overwhelming, but in America’s despair, what do I see?  Hope.  I don’t see the inevitable decline into a lesser existence.  I see the strength and wisdom of a society freer than all on this planet – free in a republic to make the changes necessary to tackle the critical issues facing us.  I see hope!

Yet, while there is hope, there must also be action.  And, therein lies our problem.  When the citizens of this nation turn to their political leaders, too often, they find them deaf to their cries or so deeply entrenched in party line, demonizing the other side and virtually factionalizing our nation, rather than uniting it to the common goal of tackling these critical issues.

But, America is too important, and we as a people are too resilient to simply fade into the dark.  What we as a nation stand for: life, liberty and the pursuit of happiness, and as the shining light of the last best hope for the remainder of humanity, must be preserved. 

Our system of government is flawed, but more perfect than any other on this globe.  Therefore it is up to this generation to again pick up liberty’s torch and collectively face the enemies of freedom that lurk in the dark. Let us give the greatest generation a run for its money, for the current status quo, a norm of division, hatred and faction, must be shunned so that we may continue the pursuit of a brighter future for us all.  We must climb back atop that hill and shine the light, embracing our flaws, facing the escalating issues and daunting tasks before us as one nation, under God, with the common goal of tackling them for a more perfect union for our people and for all peoples across this world. 

For it is also a constituent of the American Dream that all who have the privilege of freedom also have the honor and duty to fight for it.

This is precisely why I have written my book – LEADING BY EXAMPLE: RETURNING OUR REPUBLIC TO ITS REVOLUTIONARY ROOTS.  In it, I address the myriad critical issues facing our nation.  More importantly, I have painstakingly researched each subject in order to do much more than most political treatises seem to do these days: I not only diagnose the problem, but take it a step further and propose solutions. 

Therefore, as a gift to my fellow patriots, I am releasing my book for free.  My goal here is not to make millions (though that would be nice), rather, my goal is to help educate and galvanize my fellow Americans to action. 

I will be releasing each chapter, dependent upon size, as three or more blogs, throughout the next several weeks.  My hope is that my readers will spread the word, pass my message along, and spark a lively conversation/debate as to these critical issues and, more importantly, how to resolve them.  I want for people to propose solutions and how they think we should address the issues.  What I don’t want is for people to sit back and simply gripe about the issues facing us, and how the Republicans and Democrats are failing to address them, pointing fingers – Capital Hill does enough of that for us (unfortunately).  Let’s put our heads together America, and dig out of his hole…NOW!

Recognizing, as we do, the importance of dealing with education, illegal immigration, the environment, etc., we can no longer allow our representatives to promise reform and fail to deliver.  We must revolutionize with lightning speed, the likes of which we have not seen since we completely re-tooled industrialized America in a matter of months to churn out the bullets, planes and ships necessary to win World War II. 

With equal, perhaps greater resolve, we must retool and revitalize our industrial complex to modernize and erect a new, efficient energy grid.  Talking about the potential of solar energy, wind power, and how we theoretically can rid ourselves of dependence on foreign fuel will no longer cut it. 

Talk is cheap.  We must take immediate action to revamp public education in order to properly prepare our children for the rigors of a global marketplace.   We must finally take steps to remove corruption in our government and demand fidelity in our representatives, rather than perpetuate it through our continued indifference to incumbent fraudulence.

But, to do so, we must all come together, united to the singular goal of prevailing as a cohesive, patriotic force.  Together, we can accomplish anything, but in a House divided, we will all fail.  We must collectively cast aside our egocentric factions as the critical issues into which I’ve delved are faced by all Americans, regardless of race, creed or party. 

Guided by our shared American ideals, we must shun our growing predisposition to demonize one another; individually and systemically to the summit of Capital Hill.  We must stand up, all of us, and demand that our elected officials reach across party isles, not for bi-partisan reform, but for American reform!   

Returning to our revolutionary roots, relearning and reaffirming our core principals as a nation – this is how we will win the war on terror, revitalize our economy, and advance a more perfect union for ourselves and our progeny.  In this dark hour, it is our privilege as a free people and our absolute duty to lead our families, our neighbors, and the remainder of the world, by shining example.

IT IS TIME FOR SOMEBODY TO STAND UP!  WELL, I AM STANDING RESOLUTE.  JOIN ME!!