Some problems with our democracy

           There’s a famous quotation of Winston Churchill’s: “Democracy is the worst form of government except for all the others that have been tried.”   I wouldn't argue with that (although I'm not as sure as I used to be) but it still is worthwhile  thinking about some of our problems.

     First, there are a big batch of  problems centering around the election process.
      How should the candidates be selected?  We have a primary process which many people feel is very  unrepresentative and certainly seems to come up with some dillys.  We used to let a few party leaders in a “smoky room” pick the nominees.  We’ve changed that, but maybe that was better than what we came up with.
      Financing determines, or at least has an overwhelming effect, on the outcome of many elections.  We seem to be unable to find an effective way to eliminate, or even reduce, the effects of different levels of  financing for different candidates.  We keep fiddling with laws, but nothing seems to work.  I have a germ of an idea there which I'll cover in another blog.
        It is very hard to get voters to make a decision based on policy differences among the candidates rather than superficial differences or unproved criticisms.  It seems like the only people dumber than the candidates are the voters.  The cleverest, or most underhanded, campaign manager finds a way to use soundbites on TV to get votes for his candidate.  Somebody told Adlai Stevenson “All the thinking people are with you.”  He said “That’s not enough.  I need a majority.”  This was recognized as a potential problem back in the days of the founders.  A recent book “The Myth of the Rational Voter” discusses the effects of voter biases and special interest groups in some detail but doesn't indicate how to improve the situation.
         For selecting the president, we use an electoral college with a 200 year old procedure which would never be considered in a modern democracy. Several states, Maryland being the first, have passed legislation which would effectively eliminate the electoral college.  The legislation places a  requirement on their electoral college voters to vote for whichever candidate gets the most votes nationally after enough other states pass the same requirement so that the total electoral votes of all states with this law would make a majority in the electoral college.  In effect, this is a way to go to a popular vote election without requiring a Constitutional amendment.
        In accordance with the Constitution, states set the eligibility rules and procedures to be used in all national elections..  This leads to a variety of  restrictions on the electorate, subject to the limitations of the 14th and 15th Amendments.  It also leads to quite different procedures with respect to recounts, etc. in each state.  This situation led to the Supreme Court becoming the deciding venue for the 2000 election in a decision which came close to a Constitutional crisis.
        Even the mechanics of voting are still very controversial.  Paper ballots, optical scanners, punch cards, touch screens, we can’t seem to agree on an effective method.  All of these issues lead to the question of whether we shouldn’t have some kind of national election policy to standardize procedures.  After 200 years, you'd think we could do better.

         .A second set of problems centers on the desire to protect minority rights.
     The basic protections are those directly established and mentioned in the Constitution (Bill of Rights).  The Supreme Court is the most important institution in interpreting the Constitution and determining the meaning of laws. But that is not as straightforward as it sounds.  There have been lots of arguments over how the constitution should be interpreted, not least on the Court itself, and sometimes interpretations change.  A major question is whether the Court should apply the "original intent of the founders" or try to find the real intent in terms of changed conditions.

            For example, the Court recently announced a decision on the meaning of the second amendment.  They spent their time parsing that very short sentence, arguing about the meaning and significance of “militia”, and probably pretty much ignoring the fact that both the world and weapons are very different now than they were 250 years ago.

            The most straightforward way to get at that issue, it seems to me, would be to have a constitutional convention to update the constitution.  Procedures to do that are provided in the Constitution.   Modern technology would be used to produce a complete, up-to-date record of all the discussions involved in writing, and then confirming, the new constitution.  We would know just what it meant.  That would eliminate all the unproductive arguments about original intent.  And we could provide clear-cut statements about things like a right-to-privacy which are now found in rather arcane places like the 14th amendment or the Commerce clause.

            Some might argue that it’s too hard to write and adopt a constitution so we shouldn’t take the risk.  But if that’s the case, why are we going around the world telling countries with histories of violence and little or no history of democratic institutions that they should do exactly that?

         A third group of problems is a set of miscellaneous, but very basic issues not really settled even after more than 200 years of existence as a democracy.

        One of the biggest of these is uncertainty in the relative powers of Executive and Congress to declare war.   We have yet to find a politically feasible way to ensure that the Congress has the fundamental responsibility as specified in the Constitution.    Do we still agree that Congress should have that power?  If so, how should it be implemented?          

          A second issue relates to the responsibility the courts have to interpret the meaning and constitutionality of laws passed by the legislature. In the process of doing that interpreting some people think they overstep and assume legislative responsibilities, i.e., become “activist” judges.  Do we need to define the authority of the courts more clearly?

           The Executive branch has the responsibility for seeing that laws are carried out properly, but the Congress has an “oversight” role.  What is the boundary between those?  When can the Executive refuse to cooperate in investigations?  Can the Executive issue “signing statements” to limit the extent of legislation passed by Congress?  Signing statements were used by Bush for more than twice the total number of applications by all previous presidents.

            One of the processes which seems nearly “busted” is that of nominating federal judges, particularly for the Supreme Court.  The Senate is charged with an “advise and consent” responsibility, but in recent years that’s become very partisan and doesn’t seem to really serve its intended purpose.

            Another major problem is the ambiguity in the split of authority between the states and federal government.  Much of the federal law in this boundary area is based on the rather thin argument that the constitution gives Congress the right to regulate interstate commerce.  A recent Supreme Court case on whether congress had the right to forbid guns within a 1000 feet of schools hung on the issue of whether this was interstate commerce or not.  The law was thrown out because of the decision that having a gun didn’t depend on interstate sales.  Can you imagine a decision on whether we want guns in schools in this day and age depending on that sort of argument?  We need to make the split of authority and responsibility much clearer.

       Finally, a somewhat more general question.   “How should a democracy function when the country is fairly evenly divided so that the "minority" is actually very large, say 49%?   In that situation the question is not so much that of protecting "rights" of  the minority as it is just how should decisions get made.  Fairly often this situation results in a stalemate which we attribute to a "partisan" Congress, but is really the result of the even split in views of the country.  I think this pretty well describes the U. S. since 2000, but is common all over the world.  For example, in Palestine Hamas and Fatah, in Mexico- two main parties, in Algeria the election of an Islamic party which was subverted by a coup, and in Pakistan- military party vs civilian. 

         The U. S. seems to get locked up (mostly by the senate) with divisions not nearly as close as 51-49.  I think it is quite possible to conceive of having major changes in the functioning of our government when we are in such condition.  One of the most obvious is to make the period between elections smaller when this situation obtains.

Tax the Wealthy!

   Chris pointed out an article in the Times (http://www.nytimes.com/2010/10/10/business/economy/10view.html) in which a Harvard professor goes through a specious analysis to demonstrate why he would have a disincentive to accept extra writing jobs like this one for the NYT if the Bush tax cuts for the wealthy aren't renewed.  If he isn't capable of a better job of analysis than he shows here, turning him off is one of the strongest arguments I can think of for letting the cuts expire.

   He starts out by saying that he really doesn't want any more money for himself, but he might take on extra income assignments to have more to leave his kids.  He can't be all bad, right?  His analysis then compares how much an extra $1000 income could produce for his estate after 10 years with and without the tax cut.  But so far as I can tell, he also adds in all other existing taxes for the case where the tax cuts expire and no other taxes for the case where the tax cuts are extended.  After that he then assumes an estate tax at the maximum marginal rate in the first case and no estate tax in the second..  To have that maximum rate apply the rest of his estate has to be in the multimillions so the whole exercise is pretty meaningless.
   He does refer to some other studies which conclude that an increase in the tax rate at the top of the scale does not produce as big a proportional increase as the same increase in rate at the  low or middle of the scale.  I looked up that reference and I don't know how good the study was, but he quoted their conclusion correctly.  However, they also added the conjecture that this probably happened mostly because at the low and middle ends, the poor schnooks are getting their money by working for it and can't do anything when rates go up.  At the top end, most of the income comes from capital assets and the owners can find ways around the increased rates.  In other words, they don't work any less, they just work harder at finding ways to avoid the tax.
    My conclusions?  Soak the rich and increase the estate tax.

What would utopia be like?

   There are a lot of people unhappy with the progress, or lack of progress, Obama has made on the many economic, social and political problems he faced when he took office.  Me too, to some extent.  But that brings to mind a really tough question, or major project most likely.  Suppose we accept the fact that our present technology is powerful but has limits, that our present knowledge of economics and finance enables us to do lots of things but has limits, or in general, that we have many powerful techniques of attacking the world's problems but they all have limits.  The other major consideration in solving all these problems is that people can't get along.  Rich and poor, Democrats and Republicans, Sunnis and Shiites, Taliban and Afghans, etc. all are at each others throats.  They're all trying to optimize their own progress.
   So my question is this.  Suppose some aliens from another world sent some flying saucers here over one weekend and sprinkled an anti-conflict dust over the entire world.  When we woke up the next Monday morning, everyone in the world had lost all desire to fight with someone else over anything.  We're all just one big happy family interested in solving the world's problems and improving everyone's standard of living and happiness quotient as rapidly as possible.  How fast could we progress in achieving some such goal as this?  Would it be possible to put together a study which would answer this question to any degree of reliability?  What I'm looking for is some sort of standard to measure Obama, or any other world leader say, against.  It's clearly unreasonable to hold someone responsible for slow progress if, in this imaginary utopia, it would take a century to make substantial progress.
   I'm interested in some sort of answer even though it might be necessary to make assumptions as to how to proceed.  For example, I don't care whether you use a planned economy or just let capitalism do the job.  But I do want it to recognize real world limits.  Like there are billions of people around the world who have to have jobs which put them on the road to the same standard of living as everyone else in the world.  Like providing transportation and energy for everyone in the world will have to produce pollution of some sort.  And all other real-life limits.
    What would this utopia look like and how fast could we get there?

We the People (and Corporations)

   The recent Supreme Court decision in Citizens United v Federal Election Commission has raised a lot of discussion about how corporations will be dominating future elections-and maybe this one coming up.  The complications of campaign financing are very hard to deal with and I have some ideas which I'll discuss in another blog.  But the thing that really gets me most about this case is that the arguments are based on considering corporations as having the same rights as individuals.
    I found it hard to believe that the court could be conceding the same rights to corporations as is allocated to individuals by the constitution.  I haven't read the full decision, but in the summaries and discussion I've seen, there wasn't even any consideration of whether corporations should be treated this way.  The only vague reference I found was Roberts' mention of "associations of people" having the same rights as individuals.  I find the description of a corporation as an association of people pretty inadequate.  I presume he's thinking of the stockholders, but they no more make the decision as to what candidates should be supported than they do how the corporation should price its products.  It's very  clear that the top management, probably usually without even the Board being consulted, decides how much money to spend where.
   I decided to try to find how and where the Court decided that corporations should have all the rights of individuals and it's an unbelievable story.  It goes clear back to 1886 and the case of Santa Clara County v. Southern Pacific Railroad.  That case involved an argument about whether the railroad should be taxed on the full value of properties which were mortgaged even though the law made it clear that individuals should not be.  The Court decided for the railroad and that it should be taxed like an individual.  BUT THERE WAS NO DISCUSSION DURING THE HEARING IF CORPORATIONS SHOULD HAVE THE SAME RIGHTS AS INDIVIDUALS.  And there was no mention in the recorded decision itself of that finding.  
    Instead, in a short summary of the case which always appears on the first page of the decision and is written by a clerk, or reporter, the reporter inserted the line "The court does not wish to hear argument on the question whether the provision in the Fourteenth Amendment to the Constitution, which forbids a State to deny to any person within its jurisdiction the equal protection of the laws, applies to these corporations. We are all of the opinion that it does."  And ever since then corporations have had the same rights as individuals.  Incidentally, the reporter was a former president of a railway company.
    Actually, it's not quite as simple as that.  The Wikipedia entry on Corporate Personhood lists many cases from that one up to recent years which bear in some way on the issue.  Most of  the arguments for personhood seem to depend on the 14th amendment, but I didn't find any one which seemed to settle the issue conclusively.  There are many dissents which explicitly disagree with that position.  Hugo Black stated it very strongly:  "If the people of this nation wish to deprive the states of their sovereign rights to determine what is a fair and just tax upon corporations doing a purely local business within their own state boundaries, there is a way provided by the Constitution to accomplish this purpose. That way does not lie along the course of judicial amendment to that fundamental charter. An amendment having that purpose could be submitted by Congress as provided by the Constitution. I do not believe that the Fourteenth Amendment had that purpose, nor that the people believed it had that purpose, nor that it should be construed as having that purpose."
   This is one of the many issues which I feel should not be determined by trying to figure out what someone meant back at the time of the writing of the Constitution, or in this case the time right after the Civil War.   It seems to me that corporations should have just those rights which the state which provides the incorporation documents explicitly provides.  It should derive no rights automatically from the Constitution.  If congress wants to specify some general rights that all corporations should have it should pass legislation to that effect.
If later Congresses decide to change-limit or add to- those rights, they should be able to. 

First Blog

I'm still  not sure whether I want to have a blog, but since Terry and Chris suggested I do so, I've decided to set one up anyway.  I don't have any idea what I might be saying, but it will be primarily aimed at you kids.  Let's see what this looks like.