Occupy the Constitution 2.0

I cannot say that my earlier suggestions for a pro-democracy constitutional amendment have ignited a firestorm of grassroots activity. They have, however, elicited enough email responses to prompt my attempt at a yet better-drafter version.

Members of Congress have already proposed a constitutional amendment to deal, in particular, with the Citizens United problem, and the Supreme Court’s general hostility towards campaign finance regulation. As critical as these moves are — I wholeheartedly recommend Larry Lessig‘s Republic, Lost for a compelling analysis of how money has corrupted our political system — I do not believe they are sufficient to generate the kind of revitalization our political system needs if we are ever to replace our entrenched plutocracy with more genuinely democratic government.

Revamping our political landscape in the name of democracy requires, I believe, four critical changes: the legitimation of campaign finance regulation, authority for public financing to reduce the impact of disparate fund-raising among candidates, the constitutionalization of federal voting rights, and legal protection against gross gerrymandering. The following draft amendment embodies this four-part strategy — with thanks to readers who have offered friendly amendments to the amendment.

Draft Pro-Democracy Constitutional Amendment

Sec. 1. Congress may regulate political contributions and independent expenditures regarding elections for any federal office as may be reasonable to protect the fairness and integrity of such elections. Such regulations may include the prohibition of political contributions and expenditures by commercial, for-profit corporations for any federal office.

Sec. 2. States and the District of Columbia may regulate political contributions and independent expenditures regarding elections for any state or local office, or on behalf of any state or local referendum, within their jurisdiction, as may be reasonable to protect the fairness and integrity of such elections. States may delegate such regulatory authority for local offices, referenda and initiatives to the relevant local governments. District of Columbia, state and local regulations may include the prohibition of political contributions and expenditures by commercial, for-profit corporations for any office, or on behalf of any initiative or referendum, within the relevant jurisdiction.

Sec. 3. Regulations adopted pursuant to this Amendment may not have as their purpose the suppression of, or discrimination against, any particular political viewpoint.

Sec. 4. No citizen of the United States who has reached the age of 18 may be denied the right to vote in any election for state or federal office or any referendum, initiative or similar ballot contest conducted in the state of which he or she is a duly registered domiciliary. No citizen of the United States who has reached the age of 18 may be denied the right to vote in any election for local office or any referendum, initiative or similar ballot contest conducted in a local jurisdiction of which he or she is a duly registered domiciliary. Any election regulation that has the purpose or effect of denying the right to vote that is not narrowly tailored to serve a compelling and legitimate government interest shall be unconstitutional. States shall adopt affirmative measures to ensure that citizens may conveniently exercise the rights guaranteed by this section.

Sec. 5. In districted elections for federal, state or local office, every citizen of the United States who has reached the age of 18 shall have the right to vote in a fairly apportioned district that implements the principle of one person, one vote and that has not been drawn substantially for the purpose of defeating political competition and preserving the majority status within that district of any political party.

Sec. 6. Congress may provide for the funding of elections in connection with any federal office. Should any candidate in a publicly funded federal election choose to decline public funding, Congress may permit adjustments to the subsidies provided other candidates according to the fundraising and spending of their privately financed opponents.

Sec. 7. States and the District of Columbia may provide for the funding of elections in connection with any state or local office. Should any candidate in a publicly funded state or local election choose to decline public funding, the state or relevant local jurisdiction may permit adjustments to the subsidies provided other candidates according to the fundraising and spending of their privately financed opponents.

Sec. 8. Congress may enforce the rights protected by this Amendment through appropriate legislation.

Occupy the Constitution

The Occupy Wall Street movement has brought a level of energy and inspiration to participatory Left politics unseen since the 2008 Obama campaign and with, perhaps, yet more enduring potential.

Among admirers who are unfazed by the pathetic attempts at trivialization voiced by Republican politicians and their media propagandists, the chief anxiety seems to be the absence of a specific policy agenda around which to rally the citizenry.

If OWS is to become a lasting force, however, in American policy, its objectives have to go beyond policy proposals that aim at ameliorating our short-term economic distress. The movement has to try to reshape the institutions through which we conduct our politics. Government “of the people, by the people, and for the people” will remain an unlikely prospect as our political institutions are now rigged.

And there is simply no hope of doing the work that needs doing unless significant changes are made to the Constitution of the United States.

Larry Lessig has made an overwhelming case that money is corrupting our democracy. Money has that power, in part because the Supreme Court has interpreted the Constitution to protect plutocracy. But our Constitution, as interpreted by the Court, also lets transient majorities in state legislatures so finagle our legislative elections as to undermine genuine electoral competition. If our “representatives” don’t have to compete for our votes, their positions are quite unlikely to mirror our preferences.

Consider that, in the convulsive 2010 congressional mid-term elections, 87 percent of the incumbents who stood for election were re-elected — this, at a time when public approval of Congress was in the low 20s. If nearly nine out of ten incumbents get to keep their jobs even when the public hates their handiwork, what kind of democratic accountability do our elections actually provide?

It is commonly said that high rates of incumbent retention reflect a world in which voters despise Congress, but love their local representatives. There is, of course, another explanation: legislatures have stacked the deck in favor of protecting incumbents.

There are many ways in which our Constitution undermines democracy. The legislative disenfranchisement of the District of Columbia, the setup of presidential elections and the malapportionment of the Senate are all conspicuous examples. Yet, if recent history is a guide, changing any of these provisions — the makeup of the Senate could not be undone without a new constitutional convention — would be extremely difficult.

It should be less contentious, however, to rally around three ideas that ought to elicit widespread public support across a considerable political spectrum — undoing the constitutional protection for corporate spending, expanding the adult franchise so that all Americans can vote and authorizing the public funding of elections. Toward that end, I have appended below yet another draft of what a pro-democracy constitutional amendment could look like.

Rep. Jesse Jackson, Jr. wrote some years ago of his puzzlement that the American Right seemed always ready, willing and able to rally around proposed constitutional amendments, no matter how improbable — whether it’s a “Human Life” amendment, or a pro-school prayer amendment, or now an anti-gay-marriage amendment. Would it not seem more promising to organize the American people around a constitutional ideal in which people actually believe, namely, democracy?

To cement its role as a new anchor for the Left in American politics, OWS participants should endorse both policy proposals to increase economic fairness and prosperity in the short-term and constitutional changes that will restore government accountability as a meaningful aspiration in America.

DRAFT PRO-DEMOCRACY CONSTITUTIONAL AMENDMENT
Sec. 1. The freedom of speech shall not be construed to deny Congress authority to prohibit or otherwise regulate political contributions and expenditures by commercial, for-profit corporations for any federal office.

Sec. 2. The freedom of speech shall not be construed to deny authority to the States to prohibit or otherwise regulate political contributions and expenditures by commercial, for-profit corporations for any state or local office, or for any state or local referendum or initiative, within their jurisdiction, and or to delegate such regulatory authority for local offices, referenda and initiatives to the relevant local governments.

Sec. 3. No citizen of the United States who has reached the age of 18 may be denied the right to vote in any election for state or federal office or any referendum, initiative or similar ballot contest conducted in the state of which he or she is a duly registered domiciliary. No citizen of the United States who has reached the age of 18 may be denied the right to vote in any election for local office or any referendum, initiative or similar ballot contest conducted in a local jurisdiction of which he or she is a duly registered domiciliary. Any election regulation that has the purpose or effect of denying the right to vote that is not narrowly tailored to serve a compelling and legitimate government interest shall be unconstitutional. States shall adopt affirmative measures to ensure that citizens may conveniently exercise the rights guaranteed by this section.

Sec. 4. In districted elections for federal, state or local office, every citizen of the United States who has reached the age of 18 shall have the right to vote in a fairly apportioned district that implements the principle of one person, one vote and that has not been drawn substantially for the purpose of defeating political competition and preserving the majority status within that district of any political party.

Sec. 5. Congress may provide for the funding of elections in connection with any federal office. Should any candidate in a publicly funded federal election choose to decline public funding, Congress may permit adjustments to the subsidies provided other candidates according to the fundraising and spending of their privately financed opponents.

Sec. 6. States may provide for the funding of elections in connection with any state or local office. Should any candidate in a publicly funded state or local election choose to decline public funding, the state or relevant local jurisdiction may permit adjustments to the subsidies provided other candidates according to the fundraising and spending of their privately financed opponents.

Sec. 7. Congress may enforce the rights protected by this Amendment through appropriate legislation.

“Job Creators” or “Hostage Takers?”

When I started blogging occasionally for Huffington Post, I resolved to confine my use of this platform to issues on which my professional background in constitutional and administrative law would give me (and any readers I might have) the advantage of some actual expertise.

On this particular occasion, however, with our political system seemingly stuck at the depths of dysfunction, I feel the need to rant. The occasion is yesterday’s speech by House speaker John Boehner (R-OH) to the Economic Club of Washington. This is how he summed up the current state of the economy: “Job creators in America are essentially on strike.”

To be “on strike” is a telling metaphor — especially interesting if one suspects, as I do, that Speaker Boehner is typically not in sympathy with strikes. To strike, by definition, is to refuse voluntarily to perform the work you would otherwise be doing — the kind of thing that right-wing pundits would normally call “extortion.”

So, I have a proposal. From now on, instead of using “job creators” to identify the businesses that are sitting on huge piles of cash, raking in unprecedented corporate profts, and benefiting from tax breaks and bailouts that have underwritten a cushy life for unaccountable CEO’s, let’s call them what they really are: “hostage-takers.”

The hostages are us.

The hostage-takers want you to believe that tax cuts are always good for the economy. So, how did we do after the Bush tax cuts? As summed up by Ronald Brownstein,

On every major measurement, the Census Bureau report shows that the country lost ground during Bush’s two terms. While Bush was in office, the median household income declined, poverty increased, childhood poverty increased even more, and the number of Americans without health insurance spiked. By contrast, the country’s condition improved on each of those measures during Bill Clinton’s two terms, often substantially.

The hostage-takers want you to believe that regulations kills jobs and, let’s face it, those child labor laws really did kill factory work opportunities for 10-year olds. But regulations can actually create jobs, by generating markets for new goods and services, and by boosting consumer demand as a result of increasing confidence in the marketplace.

Excessive regulation is hardly the problem that created the housing crisis and banking sector meltdown. Quite the reverse. So, to say that regulations per se are the enemy of growth is just wrong.

The hostage-takers want you to believe that all business needs in order to start hiring again is “certainty.” Guess what? There is no “certainty” in the economy; there is only risk. Political scientist Jacob Hacker has documented in compelling terms what he calls the “great risk shift” — the poisonous trajectory of right-wing public policy in which the corporate elite and their political allies have shifted economic risk from their shoulders and placed it on the shoulders of workers and the middle class, who now have less job security, fewer benefits, and a lower median wage, even as productivity improves.

I now have a modest proposal. Let’s stop negotiating with hostage-takers. Let’s stand up to them. Let’s insist that the machinery of government was not designed to accelerate the concentration of wealth in the hands of a very few, while the rest of the population experiences the worst poverty rate in decades and the most dramatic income inequalities in nearly a century. Let’s remind the hostage takers that ours was intended to be a “government of the people, by the people, and for the people.”

And we don’t pay ransom.

Memo to Obama: Use Market Jitters to Seize the Initiative

Thanks to the debt ceiling deal no one liked, official Washington seems poised now to wait for a cumbersome congressional process to drag the country again through an extended spectacle of pathetic political gamesmanship. Critical points on the time line between now and January 1 include the end of the fiscal year (September 30), at which point the government shuts down unless appropriations are enacted, the November 23 reporting date for the congressional Committee of Twelve, and the December 23 deadline for a congressional vote to head off sequestration. As things stand, we can expect an eleventh-hour, 59th-minute political nightmare on each of these dates.

Here’s an idea for the president: Don’t wait. Seize the initiative. Offer a progressive plan within the next two weeks, and demand Congress enact it by the end of the fiscal year.

The parameters for the plan should be straightforward. The Committee of Twelve is supposed to produce $1.5 trillion in deficit reduction. Make $2 trillion your target. But achieve half that deficit reduction through revenue enhancement and economic growth generated by a redirection of government spending away from low-return subsidies and towards investment in infrastructure, the clean energy sector, and research and development, plus short-term stimulus through extended unemployment insurance and a payroll tax moratorium.

And now for the hard part: Announce you are putting on the table the option of an October 1 government shutdown unless Congress enacts a plan that you find acceptable – a plan that must be jobs-and-growth oriented, protective of the middle class, and focused on revenues, not just cuts. (At the very least, this will tempt the GOP to taunt you with a continuing resolution too good not to sign.)

You will be standing on high ground. Just keep repeating the words, “families,” “middle class,” “growth,” and “jobs.” The markets want to see the United States take actual leadership and show it can address problems before we have a gun, already cocked, to our collective head. Please lead the way.