Oversight Over All Three Branches of Federal Government

We have it.  We just don’t use it.  The overriding problem is that most of us don’t know that we have it.  Our Founding Fathers gave us the oversight opportunity.  If we don’t like what we see, we should take steps to make appropriate changes. 

It’s a binary choice, yes or no, black or white.  We can on one hand have the status quo where we run the risk of an increasingly biased Supreme Court, ever increasing polarization of Congress, and a President with ever increasing power. 

Our Declaration of Independence railed against biased judges.  In President Washington’s farewell address, he warns of potential despotism of our President and states that political parties must be restrained.  Noting recent evolution of our government branches, status quo is dangerous.

On the other hand we can use the consent of the governed to institute appropriate oversight.  But first we must overcome the negativism of the conservatives who fear that the liberals will take over and overcome the negativism of the liberals who fear that the conservatives will take over.  Our actions must be non-partisan.   

The Founders dealt with a smaller government in a different era of history.  They did not give us a detailed road map.  But they gave us the power to follow the will of the people. 

Bias in the Supreme Court is related to the Congressional confirmation process.  Increased power of the Presidency is related to the reluctance of a highly partisan Congress to restrain the power of the President.  And restraint of the Legislative Branch of our federal government cannot be expected.  We cannot expect the fox to effectively guard the henhouse.  Yet Article I and the first part of Article V of the Constitution give all oversight power to Congress. 

Effective oversight of our branches of government can only come from the second part of Article V of the Constitution.  The only other option, undesirable at best, is overthrow of our government.

On its face, the second part of Article V deals with every aspect of government.  But Congress is designed for, and has functioned well as a legislative body that deals with all legislative matters non involving oversight of the three branches of government.  For most of our history, the better angels of the human nature of those in Congress have provided adequate oversight.  Thus the second part of Article V has been relegated to the archives of the Founding Fathers library. 

Paltry efforts to utilize the second part of Article V for oversight have been unorganized and burdened with partisan labeling.  The bar is high for opening an Article V convention and single-issue frontal assaults have always fallen short.  Leadership in these oversight efforts has been scarce to non-existent.  Whether or not we have increased violence in the streets, we should be aware of the opportunity, and perhaps obligation, for appropriate government oversight. 

The burden falls upon every member of every State legislature. 

Convention of States; a Carefully Orchestrated Poison Pill

Convention of States (COS) is a well-organized group that promotes government reform through an Article V convention.  15 states have voted to approve the COS agenda and apply for an A-5 convention.  Large scale promotion of their interests has taken place over the last several years.  COS is the most well organized group whose stated aim is government reform by use of an A-5 convention. 

It’s a sham.

Efforts at government reform are nothing new.  Many government reform ideas have started as applications to an A-5 convention.  Those that gain traction have found their way into Congress (the other option to an A-5 convention) and some have resulted in amendments to the Constitution. 

But that’s not where the COS bandwagon is going.

COS proposals are not made to amend the Constitution or call an A-5 convention.  Their intention is to drive the wagon past you every day to see if you want to hop on and go in their direction.  The intent is indoctrination.  The bandwagon promotes an ideology to those who may not otherwise form their own independent political views. 

Logically, one would not be able to amend the Constitution for the benefit of one faction at the expense of another faction.  Three-quarters of the states need to ratify the amendment.  It’s not likely that one highly partisan faction would ever control that many states.  The fact that the COS proposals are non-specific makes it even less likely that 38 state legislatures would agree. 

COS’s promotion of the A-5 convention is a sham because a true A-5 convention would open the door to constitutional amendments that would benefit centrist political factions, often in opposition to COS ideology. COS does not want to go in that direction.  Falling just short of the required number of states allows them to continue their well-orchestrated promotions year after year.  If you just want to go for a ride, hop on the wagon. 

The agenda at an A-5 convention has no legal restraints. COS is large and well-funded.  So long as COS ideology remains married to one faction, those opposed fear a COS takeover of the convention.   That’s the poison pill. The real objective of COS is to poison the prospects of an A-5 convention while using this platform to continuously promote their factional agenda.  For those who fund COS, success may be measured by preventing government reform, not by achieving it. 

Many hop on the wagon, sample the concept of an A-5 convention, only to find that it’s going nowhere.

That’s not what our Founders intended.  Historically, it’s been a very long time since the last constitutional amendment.  But for those who fund COS, that lack of action is success. 

Those who fund COS also fund Hillsdale College’s Constitution 101 course.  Once again this is a bandwagon for those who want to belong and don’t excel in independent thinking.  This is all legal but may deceive the general public.  COS is not promoting the concept of amending the Constitution and Constitution 101 is not promoting education. 

True useful reforms don’t come from a radical factional perspective.  Reform happens when thoughtful leaders seek to correct a problem in a way that helps the substantial majority without wrongful harm to the minority. 

The Antidote to Special Interests

A-60 will reduce the influence of special interests.  In order to control the United States Congress at this time, special interests need only control a few powerful congressmen.  That has effectively blocked votes on those issues that favor the special interests while opposing the will of the people.  But with R-60 in place it the special interests would need to have influential control over 46 of the 50 state legislatures in order to block a vote on an issue.  And without that control, the vote will take place, the will of the people will be voiced, and the new law may be passed.  This is in spite of the wishes of those same powerful congressmen who may have aligned with the special interests. 

Lawmaker’s Creed

Derivation of the Lawmaker’s Creed is the second sentence of the Declaration of Independence.  It is a brief summary of the just objectives of today’s lawmakers.

Maximize the efficiency of the economic engine that drives our economy while simultaneously maximizing the satisfaction of the constituents.

An efficient economic engine provides the most and best production of goods and services.  At the same time happiness of the voters is considered.  At times this becomes a trade-off with self-determination and capitalism on one side and overall welfare and community needs on the other side.  Lawmakers who stray too far to the economic efficiency side fail to protect the welfare of the people.  Lawmakers who stray too far in the direction of socialism damage the efficiency of the economic engine.  This efficiency/satisfaction choice provides the basis for our two political parties.   And moderate political views, considering both efficiency and satisfaction, benefit

High Cost of Prescription Drugs

(58) Facebook

The US pharmaceutical industry spent $6.1 billion on advertising prescription drugs directly to consumers in 2017. [64] Since 1962 these ads have been regulated by the Food and Drug Administration (FDA) to ensure that they are not false or misleading. The United States and New Zealand are the only two countries where direct-to-consumer (DTC) advertising of prescription drugs is legal.

It would seem that the 6.1 billion dollars contributes to the UNP, not the gross national product or the gross domestic product but the useless national product. If we eliminated that spending, doctors would still need to prescribe drugs. The money goes down a rabbit hole with no benefits to the public. Big pharma gets the benefit and we get higher drug costs. Its time for a change. Let the voters to decide, not the unelected bureaucrats in the FDA (who may be taking bribes from big pharma).

The Bar is Too High

Times change and governments need to adjust to those changes.  Article V of the Constitution was added for the purpose of keeping up with the times and making corrections.  17 Amendments have been passed over the last 230 years.  But it has been nearly a half century since we introduced and ratified a new Constitutional Amendment. 

Polarization has divided the country.  The super majorities needed to pass a new amendment would mean that the two parties would have to agree. 

We lack a consistent source of information that all can agree upon.  We have two information sources.  We listen to one or listen to the other.  News and social media are married to one source or the other.  The information supplied by these two sources is typically shows little agreement.  All facts are subject to challenge.  The scenario is similar to two opposing attorneys in a court room.  Anyone that has sat through a courtroom trial knows that trials can get ugly.  Our hyper polarization is ugly.  Even when one side is 100% right and the other side is100% wrong, the people are choosing to listen to the argument of their attorney.  Truth and facts are often irrelevant.  Every aspect of our existence has become political. 

The right complains about the administrative state and declining morality.  The left complains about racism and income inequality.  Both are locked into their perpetual cycle of circular information that supports their cause.  With widespread expansion of news media and social media, we have ended up with two sets of mutual admiration societies.

A half century ago we had David Brinkley and Walter Cronkite were competing to give us the news.  It appeared once a day on TV on the evening news.  Claims of fake news and alternative facts were non-existent.  Social media did not exist.  The average margin of victory for individual states in the 1960 presidential election was 6%. 

In the 2012 and 2016 presidential elections the margin was 16% and 17% respectively.  Polarization has become so strong that Congress is ineffective.  It does nothing more than put out fires and conduct day-to day housekeeping.  At times Congress is more engaged in playing power-grabbing political games that conducting the business of the day.  Major issues are often pushed to POTUS & SCOTUS.  That’s not the way our Constitution was designed. 

Common ground does exist.  Fighting a perpetual ideological war is not natural to human nature.  Both sides can agree on some negative aspects of the administrative state or agree on some morality issues.  Both sides can agree on a reasonable approach to racism and income inequality.  It does not have to be a perpetual ideological war.  We all have opinions.  This is a democracy/republic.  The people should be driving the bus, not the polarized Congress and the polarized media.  Opinions of the people should dominate.  We need to bypass Congress and the media and let the people make important decisions. 

A clear path exists that will allow us to bypass the polarized Congress and media.  Expecting Congress to do this sets the bar too high.  However, Article V allows us to bypass Congress.  We do not need to push issues to POTUS & SCOTUS.  If an issue is important, then let the people decide the issue.  Let them vote on it.  The R-60 modified national referendum proposal will allow voters to decide important issues that Congress chooses not to legislate.  It is detailed at articlev.blog. 

Improving Our Balance of Power

Establishment of an appropriate balance of power in our government is not a simple process.  The Founders, brilliant educated men, originally created government ruled by the Articles of Confederation.  They soon found out that the flaws in that system were very substantial.  Lessons learned from several years of flawed government were part of the process of learning a better way to create a government.  The result was that the Founders created our present day Constitution.  It begins:

“We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America”

The Founders started out with a flawed form of government with the Articles of Confederation.  Today’s Constitution is better.  But they intentionally stated that it was not perfect, just more perfect.  Its main structure has lasted over 230 years. The Founders fully understood that, with the passage of time, some changes may be needed.  That’s why Article V was added.  And it has been used 17 times. 

Guiding principles of our government are stated in the second sentence of the Declaration of Independence.  The second sentence mentions the word ‘happiness’ twice.  It was the intention of our Founders to create a government with a primary objective to satisfy the people. 

Over the past decade, the congressional approval rating has hovered around a dismal 17%.  That’s historically low.  During this time, both political parties have occupied the White House and held majorities in Congress.  Congressional approval rating is a reasonable indicator of the level of satisfaction of the people.  In the last decade, we have failed to fully meet the original objectives of our Founders.  This justifies a search for government reform. 

During this time frame, the level of polarization has been unusually high.  In the 1960 presidential election, the median margin of victory for individual States by each candidate was 6%.  In the last two elections, that median margin of victory for individual States was 16% and 17% respectively.   More than ever, we are a nation of red states and blue states. 

As the Founders observed the government under the Articles of Confederation, they found major problems with the balance of power.  As we look for ways to improve our government today, we also find issues with balance of power. 

It seems that Congress picks and chooses which issues it will legislate.  The will of the people does not always get out of congressional committees.  This is truer for issues of passion as compared to day-to-day housekeeping duties.  For example, climate change issues are recognized as a major issue on a world-wide basis, but our Congress has not recently addressed the issue.  The majority of Americans may favor an assault weapons ban, but Congress has taken no action.  With too few congressional solutions, passion increases and polarization increases. 

And it seems that Congress is scared, for fear of political consequences, to take up issues related to abortion, or gay marriage, or school prayer.  On the topic of immigration, it seems Congress is more interested in keeping the political football in the air than passing meaningful legislation.  

Congressional oversight is lacking.  Several election cycles have not resulted in a change in behavior.  Are entrenched interests hijacking members of Congress between the time of their election and the time to cast votes on these issues?

Some of these issues end up in the Supreme Court.  Our Founders did not intend SCOTUS to solve legislative issues.  But, on issues of passion, we find rulings on reproductive rights, gun rights, gay rights, and campaign financing.   These rulings were made, not only without the vote of the people, but also without the vote of the people’s elected representatives.  We have no oversight of SCOTUS. 

In fully functional democracy/republic, the people should have recourse over the actions of Congress and SCOTUS.  Whether it is because of entrenched interests or because of a high degree of polarization, Congress is failing to meet some of our expectations. 

Balance of power is insufficient.  The three branches of government lack full responsiveness to the will of the people.  The Founders gave us Article V. This allows us to make appropriate changes. 

Article III created SCOTUS.  We soon found that subsidiary courts were necessary.  Ultimate judiciary power still remains in the Supreme Court. 

Article I created the legislative branch.  We may choose to consider a subsidiary legislative function while allowing ultimate legislative power to remain in the hands of Congress.  Article I, Article II and Article III may all be altered without changing the ultimate power of each of those branches of government.  The proposal outlined below is intended to improve the balance of power. 

It is called R-60.

This pseudo 4th branch of government involves a vote of the people.  Many fear direct democracy because the government could be subject to rule by passion rather than reason and logic. This proposal falls short of direct democracy for three reasons.  It’s not just a majority vote, it’s a supermajority vote.  It’s initiated by elected representatives of state governments not directly by the people.  And it is subject to veto by Congress. 

27 states allow some form of referendum.  A very substantial number of countries have national referendums.  Negative consequences as a result of these direct democracy initiatives have been very limited.

R-60 requires a 60% majority to pass.  Razor thin margins are more likely to cause animosity and backlash by the minority faction and increase the possibility of having one or more additional referendums.  In addition, the likelihood of a congressional veto increases with smaller victory margins.  Creating a high bar for success may reduce the number of ballot proposals. 

Note that R-60 alters Article I by creating a second method of creating law.  This pseudo 4th branch of government has congressional oversight.  R-60 proposals may be vetoed by Congress for any reason.  But if 60% of the people vote for the proposal, any veto may have negative consequences at the polls.  That’s a reasonable balance of power and creates some degree of congressional oversight.   Initiation of an R-60 referendum is intended as the consequence of Congress not taking up an issue that is important to voters.  Influence of entrenched special interest on congressional votes will be overshadowed on the issues addressed with R-60.

Article II will be altered as the President will not have veto power over a successful R-60 proposal.  Just has a supermajority of Congress can override a presidential veto, the supermajority of the people can prevent a presidential veto. 

Article III will be altered as SCOTUS will not have the power of judicial review over a successful R-60 proposal.  As a lawmaking body, R-60 is expected to pass laws that conform to the Constitution.   In the case of R-60, judicial review will be executed by Congress.  Effectively, we would have 535 judges who each swore and oath to the Constitution.  The power to veto an R-60 proposal on the grounds that is violates the Constitution will rest with Congress. 

This is oversight over SCOTUS.  R-60 proposals may overturn rulings by SCOTUS.  The court was given the power to interpret the Constitution but not to extrapolate those rulings in a potentially biased direction.  Creation of R-60 gives more weight to the opinion of the supermajority of the people than to nine potentially biased judges. 

Thomas Jefferson said this about judges:

“Our judges are as honest as other men, and not more so. They have, with others, the same passions for party, for power, and the privilege of their corps…. Their power [is] the more dangerous as they are in office for life, and not responsible, as the other functionaries are, to the elective control.”

In addition, a recent development may be relevant.   In a public confirmation hearing, our most recent addition to the Supreme Court said, in a passionate voice, “what goes around; comes around”.  In context, this was a clear threat to those who opposed his nomination and the party that they represented.  The concept of unbiased judges on the Supreme Court may no longer be valid. 

Any opportunity for judicial oversight of the R-60 process may effectively kill the process because court challenges to a proposal would cause unreasonable delays. 

Two methods of initiating an R-60 ballot proposal are worthy of consideration.  Just as for other ballot proposals, gathering an adequate number of signatures is possible.  But two concerns arise.  Validating the signatures of a very large number of voters may be cumbersome, expensive and subject to challenge.  Secondly, this method allows the passions of the voters to be expressed in a manner that mirrors direct democracy.  True opponents of direct democracy will object. 

A second method may be an appropriate compromise between direct democracy and a Congress that chooses not to act.  Members of state legislatures represent voters.  It is their job to use logic and reason over passion.  R-60 proposals may be initiated by state legislatures.  Exact proposal language would need to pass each legislature. 

In Congress, a very small number of elected representatives control the legislative process.  And when those very few elected representatives do not agree with the majority of the people on a specific issue, they still control the process.  And history has shown that single issues may not be enough to cause those elected representatives to be voted out of power.

Just a few people in one political party can cause an issue to be tabled indefinitely.  But if state legislatures have the power to initiate an R-60 proposal, then 50 disparate groups have that opportunity.  If a small group of states wished to promote a ballot issue on climate change or overturn Roe v Wade, then the people could control that part of the government rather than being forced to tolerate the whims of those few elected officials that control Congress.  This is Congressional oversight without the risk of full direct democracy and its potential mistakes of passion. 

In order to achieve R-60, an Article V convention will need to be called to begin the process of amending the Constitution. The amendment must be ratified by 38 States.  At that convention, the number of States approvals needed to initiate an R-60 proposal will be decided.  A maximum number of R-60 proposals per election will also be decided.  Initiating and R-60 proposal by collecting signatures may also be considered. 

Achieving positive results for any issue of concern is a two-step process.  First amend the Constitution to adopt R-60.  Secondly several states will get together to place the issue on the ballot.  In both cases voters need to contact their state legislators to promote their wishes.  This process allows voters to completely bypass the US Congress, and still achieve action on issues of concern.  Influence of special interests on the process may be greatly diminished. 

Balance of power is an important key to the function of our government. 

My email is spade@new.rr.com.  I would appreciate it if you could tell me what you think of this proposal.

Dale Leitzke

A failing grade for today’s government

The Founders did an amazing job of setting up our democracy/republic.  The Federalist Papers represent the views of the best thinkers of their time.  But they were not prophets or oracles.  They could not see the future. 

Madison talks about the reason of elected officials being superior to the passions of the people.  It’s a good argument against direct democracy.  But it seems that there is a flaw.  If both parties, for political reasons, fail to address the passions of the people, then the faction problem is solved by stopping the faction from happening altogether.  As concluded by Madison in Federalist #10, this destroys our liberty.  

Essentially, if we can’t vote on it and Congress refuses to vote on it, we have eliminated the faction by destroying our liberty.  And punting the issue to the Supreme Court does not allow reasonable representation by the people, either direct or indirect. 

It is understood that we should not attempt to change government for light and transient causes.  But the most important factions persist for decades and gather major attention of political candidates and elected officials.  Most voters have an opinion on reproductive rights, gun rights, or voluntary school prayer, campaign-financing, gerrymandering, or gay marriage. 

But we haven’t recently voted on these issues and our elected officials, from both parties have avoided these factional issues for their personal political reasons.  Our liberty is being denied. 

With political will, this liberty can be restored through the use of Article V of the Constitution. 

Function of R-60

This specialized referendum has two purposes.   Without R-60, we have very little oversight of the Supreme Court.   Just as the average American can be biased, Supreme Court judges can be biased.  Nominating and confirming judges to the Supreme Court can be and sometimes is a partisan exercise.  The connection between the will of the people and the potentially biased rulings of the Supreme Court has not been well established in recent years.  Ultimately, oversight over the Supreme Court will likely be the main reason for an R-60 referendum vote. 

History has shown that an Article V convention has almost been held on several occasions.  The only reason that is has not been held is that Congress, as it became aware of the sentiments of the people, has chosen to take up the issue.  This negated any reason to hold the A-5 convention.  The momentum of the proposed A-5 convention effectively caused Congress to take action. 

Passage of R-60 is likely to have a similar effect on Congress for most issues.  If Congress believes that a majority of Americans favor passage of a new law, it is likely to take up the issue in order to prevent a potential backlash from voters.  If the R-60 referendum passes and Congress had the chance but did not take up the issue, voters will see that Congress failed its duty to act and this may create negative consequences at the polls.  Momentum toward an R-60 vote is likely to cause Congress to act.   

Introduction

AMERICA AT RISK

Democracy is a weak form of government. A constant conflict exists between those in power, whose primary objective is to obtain more power, and the wishes of the general population to retain a fair and just government.

Key to continuation of a democracy is balance of power. The objective of those who wish to obtain more power is to tear down the balance of power. In recent years, in this country, those whose objective is to obtain more power have succeeded in reducing checks and balances. This is a result of the smartest and best positioned leaders seizing opportunity and executing a long term plan.

Our Founders set up Congress to be the primary place of power in our government. It is Article I of our Constitution. It follows that those seeking to obtain more power must first reduce the power of Congress in order to achieve their objectives. Secondly, those seeking more power must reduce the stabilizing influence of the courts.

Those seeking more power favor a more authoritarian form of government. Loyalty and support of a strong leader brings favor, over and above traditional power, to loyal power seekers. A shift to a more authoritarian form of government has taken place in recent years in this country. Here are some examples.

The trial of Bill Clinton and the trial of Donald Trump have provided overriding evidence that, considering the recent political climate, a President cannot be impeached and removed from office. This alone substantially increases the power of our most powerful leader.

The leader of Senate has refused to allow open discussion on many high profile pieces of legislation. For many issues, Congress has ground to a halt. That has weakened the branch of government created by Article I of the Constitution. This is in addition to the fact that many important issues such as gun rights, reproductive rights, and campaign finance reform have been punted to the court system rather than legislated by Congress. Fewer actions by Congress, by default, give more power to the other two branches of government. Extrapolation of this trend gives all the power to the President.

Congress’s ability to oversee appointments to the Supreme Court has been seriously weakened. The President may now appoint biased judges at will. Note the open bias of the most recent Supreme Court nominee and the 9th grievance against King George III in the Declaration of Independence railing against biased judges. When the court is packed with biased judges by a President who seeks to be an authoritarian leader, the court becomes a rubber stamp on the wishes of the President.

Our laws indirectly allow the power shift.

This reality in hand, the average American should consider that the authoritarian ruler outcome was not intent of our Founders and is in direct opposition to the principles laid out in the second sentence of the Declaration of Independence. The fourth sentence of the Declaration of Independence gives Americans groundwork to oppose the concept of authoritarian rule. Change is often difficult. Common knowledge is that it is easier to work within the system that to throw away the system and start over. Article V of the Constitution provides an opportunity for changing the laws. The other, and less desirable, option is taking to the streets and moving in the direction of an uncertain outcome.

Working on change through the use of Article V is the logical option.