Saturday, July 07, 2012

Taxing power is limited as well

There is concise discussion of The Semicolon in Paul Moreno's discussion of Congress's taxing power in today's Wall Street Journal.  The constitution grants Congress "power to lay and collect taxes, duties, imposts, and excises, [watch this comma] to pay the debts and provide for the common defense and general welfare of the United States."  This phrasing links the purposes of taxes to Congress's power to lay and collect them. Congress's power to tax is enumerated in the purposes to which taxes will be put.

At the constitutional convention, Gouverneur Morris attempted to replace the comma with a semicolon, thereby making the phrases on either side of the semicolon separate powers of Congress. 

Paul Moreno continues the discussion describing historical use of the taxing power to regulate (which is unenumerated), with the Supreme Court's varying approach to it.  His point is that John Robert's opinion has opened up a new way to use taxes to regulate without clear limits.

Moreno's article follows a July 2nd unsigned WSJ editorial dealing with the the varying levels of validity for each taxing power that seems to be enumerated in the Constitution.

John Roberts giveth and taketh away.

Thursday, June 28, 2012

The Long View of the Supreme Court’s Obamacare Decision

Most commentators have missed the importance of today’s Supreme Court opinion. Chris Wallace nicely summarized the NATIONAL FEDERATION OF INDEPENDENT BUSINESS decision as giving a legal win to the Democrats and giving a political issue to the Republicans. Others pointed out that the insurance mandate can now be characterized as the largest tax increase in U.S. history, and a regressive one at that. There is a more important though longer term effect.

The Constitution has several time delays built in, so that a sudden “good idea” has time to be vetted before taking full effect. House members have two year terms, the President four years, and the Senate six years. The advantages of incumbency further increase the time delay. The Supreme Court has higher time delays. They are appointed for life. They never come up for reelection. According to the Supreme Court website, the average tenure of a justice is 16 years. No Supreme Court justice has been impeached and convicted.

Marbury v Madison (1803) was the first case under the constitution in which a law was declared unconstitutional.  What is often not remembered is the cleverness of the decision.  The decision allowed the new President, Thomas Jefferson, to do what he wanted to do (withhold appointments of Federalists – not Jefferson’s party).  It also had the additional political benefit of reducing the scope of the Supreme Court’s power.  These facts gave the Supreme Court cover to take to itself the power to declare laws unconstitutional, which was not specified in the Constitution although it was generally assumed to be possible.

No law was declared unconstitutional for fifty years (Dred Scott v Sandford, 1857).  Marbury v Madison is profoundly passive aggressive.  Marshall was able to add to the court’s power, notwithstanding that he never used it again himself.  The court obtained long term power while the politicians in power got what they wanted. 

Now let’s turn to today’s ruling.  Five justices supported the proposition that neither the commerce clause nor the necessary and proper clause were rationales for Congress to force citizens to purchase medical insurance.  It was a full-throated defense of limiting congress to enumerated powers.  In the long term, the target is Wickard v. Filburn (1942), which said that a farmer could not produce wheat for his own use because otherwise he would buy wheat on the open market.  The court ruled that growing wheat thus affected interstate commerce, hence farmers growing wheat for their own use could be regulated by the federal government.

Today’s decision brings the court closer to overturning Wickard by building up precedents that would make it a logical next step.  If Wickard is to be overturned and be perceived as legitimate, it cannot be done by a 5 to 4 decision, and it cannot be done without precedences.  Just as Brown v Board of Education (1954) was based on numerous precedents in the fifty-odd years after Plessy v Ferguson (1896), overturning Wickard will require the same care and time horizon. This is the long game for liberty.

Wednesday, June 13, 2012

Elinor Ostrom RIP

This is a sad day.  A few years ago Elinor Ostrom's work inspired me to think more broadly about governance.  Although she is cited most for her 1990 book,"Governing the Commons," I read an updated version she published in 2005, "Understanding Institutional Diversity."  The latter work includes her insights from the 1990 book and a summary of even more (400+) instances of commons governance in the world.  She developed a check list of success criteria for these invented-every-time systems, which could be used as governance principles for many kinds of organizations.  She showed a refreshing anti-ideological, empirical approach to studying a wide range of governance systems.  We are forever indebted to her.

Saturday, December 31, 2011

Problems with Citizen Assemblies

California's citizens' commission on re-districting was supposed to be a non-partisan process.  They were created by an Initiative and charged with creating new congressional districts based on the 2010 census. This article from Pro Publica details the ways that the Democrat party gamed the system by influencing the commission through intermediaries.  This is not a knock on Democrats; they just happen to be the overwhelming majority in California.  Republicans would likely have done the same if they could.

This kind of influence is endemic to one-time citizen decision-making events.  The professionals usually win.  Another example is the British Columbia Citizens Assembly, which produced a "better" voting system which was notable for the complexity of its recommendations and for the influence of experts on the process.  And it wasn't ratified by the voters.  Other examples are California's initiatives (many) and referendums (a few) which are heavily influenced in the last two weeks before election day by advertising (including mis-information) paid for by affected interest groups.

Citizen participation is more needed than ever at points in the political process other than the election of representatives.  However, unless citizens have the time to develop their own independent expertise, their influence over governmental processes will be limited.

Nice try on re-districting.  Without some algorithmic control over drawing congressional boundaries, such as restricting boundaries to straight lines, natural water boundaries, and state,county or city lines, once-a-decade commissions are at the mercy of the entrenched.

Monday, November 14, 2011

This Time Is Different

This Time Is Different, subtitled "Eight Centuries of Financial Folly, "a recent book by Carmen M. Reinhart and Kenneth S. Rogoff is a seminal economics work.  It is as significant as Friedman and Schwartz's Monetary History of the United States.  It is astonishing that nearly every country in the world has defaulted on its debt sometime in the last 100-200 years.  The United States has not formally defaulted on its debt, but it unilaterally imposed a reduction in its debt when it left the gold standard in 1933.  Some countries such as Greece have defaulted many times.

Countries with democratic roots have a particular proclivity to default.  After all, these countries are governed by their people, majorities of whom can and often do vote themselves benefits paid by voting minorities or foreign parties.

My interest upon reading This Time is Different was whether there is some way to prevent this seemingly inevitable slide into default.  I am sympathetic to the view that US federal power is too great, but this begs several questions.  1) How do we know when federal power is too great?  2) How do we prevent the creep of excessive federal power?  3)What constitutional feedback loops would there have to be to prevent "too much" power?  4) What cultural feedback loops would be needed to support the constitutional ones?

These questions beg in turn what experts on various areas of political science have written about this.  Public Choice people may have some answers.  Constitutional Design people may know something. 

This blog has been inactive for a while.  Prior posts dealt with how democracy can be used to fix democracy.  My bias is still that American democracy can repair American democracy.  This bias is not a Rousseauian bias grounded in the belief that mankind is perfectible.  Rather, it is grounded in the belief that Americans can embrace our human frailty (we once believed in sin after all) and with clear eyes design our way to a more stable governance.

Wednesday, February 25, 2009

California Constitutional Convention "Summit"

The California Constitutional Convention (CCC) "Summit" yesterday in Sacramento was revealing on several levels. First, as Joe Mathews has already stated, the politicians in attendance pleaded for inclusion as Convention Delegates. The most persuasive argument for not including them was that voters wouldn't trust such a convention and would vote down the initiative calling the convention. A person who was on a board or commission pleaded that no provision be incorporated that would automatically sunset boards and commissions.

Second, the constitutional fixes most often mentioned missed the reasons the problems exist. At the top of everyone's list of things to fix were 1) 2/3 majority required for budget, 2) term limits, and 3) the Initiative process. However, voters like these features if only because they don't trust the CA legislature. The problem to address is the credibility of the CA legislature, which requires structural reform. Every idea presented at the summit was "inside the box," offered by people mentally if not physically inside the system. No one suggested anything that would give voters something that would make them feel comfortable with the three citizen controls listed above.

My previous post on a Continuous Referendum Assembly, a riff off of Steven Hill's work on Citizen Assemblies, is such a comprehensive suggestion. Steven Hill's approach would be an excellent basis for the make up of the CCC membership, as he presented during the summit.

It appears that the Bay Area Council will hold a similar summit in Southern California. There were less than a dozen people from the south-land at the Sacramento event. We have a long way to go.

Saturday, February 21, 2009

Continuous Referendum Assembly

The founders of our country were fully aware of the excesses of legislatures, but they were able to blunt only a few of them. They intended the three branches of government to check each other, reducing possible overreach by legislators and the executive (the judiciary was “the least dangerous branch”). California and other states have this three-part government structure. We know well today that these checks may prevent dominance of another branch, but they also produce a political arms race which results in every branch becoming larger and more powerful.

Many techniques have been tried to prevent the worst abuses. Different redistricting schemes, part-time legislatures, term limits, caps on spending, caps on taxes, Initiatives, recall elections, citizen watchdog groups, campaign finance reform, super-majorities to pass higher taxation, campaigns to reduce “waste, fraud, and abuse,” appointment of judges, election of judges, various voting schemes for the legislature and executive, elimination of voter qualifications, sunset laws, line-item veto power, defunding by executive inaction, lowering voting age, executive agencies to make regulation fair – the list could extend to infinity. We have not found anything that works, despite having tried so many ideas.

We have a professional political class, one that makes its living at politics. This class encompasses legislators, regulators, staffs, lobbyists, and consultants. Those that are not elected politicians either have been or aspire to be. They are the inevitable result of democratic adolescence, that period after the framers of our first constitutions have gone. The Public Choice theorists have written about the perversities of political agents for several decades. We understand this problem. We are at a loss for an effective solution.

Some of our solutions have proven to be worse than the disease. In California, the highest profile example is the Initiative. In the Initiative we see the defects Plato saw in democracy. The mob makes law, and the rest of the population then defensively also makes law or elects representatives who promise to protect them from the mobs. It is another form of political arms race, where more law is the solution. According to Plato, this kind democratic behavior leads to tyranny, which is to say that this is not new.

Let us admit that citizens and the professional political class have their own separate strengths and weaknesses, which are often complementary. The professional political class knows how to write law, interpret law, and enforce law. They know how to get things done in a political system – probably any political system. The downside is that of the guy with a hammer seeing everything as nails – the solution for everything is a law, or legal action. They have interests that are different from those who elect them.

Citizens, on the other hand, do not have law-making skill, but they do have common sense. Particularly in the United States, with a large middle class, and where nearly everyone identifies themselves as middle class even when they are not, common sense is in abundance. We tap this abundance only every two years – what a waste!

We need both the law making skill of the professional political class and citizen common sense. Rather than remake the legislature, executive, or judiciary, we need a way to inject citizen’s common sense into government. To prevent the excesses of the Initiative, we should not give citizens law-making power. We should give them referendum power instead – the power to say “yes” or “no”, like current state referenda, and like jury trials. However, unless citizen referendum power can match the political class’s high volume and low cost of law-making power, the professional political class will continue to run wild. I call this Continuous Referendum Power.

We need a body of citizens, randomly chosen (like trial juries; makes Gerrymandering irrelevant), who meet as long as the legislature, with the same investigative powers and pay as the legislature, to both take apart laws recently passed and nullify the parts of them they deem unwise, and to look at laws passed long ago to nullify if they are ineffective or inefficient. With fewer exceptions than the military draft of World War II, no voter should be exempt, and they cannot be challenged or opt out as in trial juries. They should serve for a year or two, and then be ineligible to serve again. In compensation, we should pay these randomly chosen citizens for life for the extreme disruption to their lives.

Continuous referendum power is orders of magnitude better than voting every two years. Legislatures will less often risk logrolling and earmarking – to name a few abuses -- to get measures passed. A Referendum Assembly can and often will take apart the ingredients of a compromise to make sure that a true majority supports each portion. They will be able to say “no” to laws passed at midnight at the end of legislative sessions, dubious laws passed by voice vote, laws empowering agencies rather than the legislature to make tough decisions, or laws spending more than taxes take in. A Referendum Assembly will have sufficient people and time to look at old, obsolete, obtuse, perverse, complicated, undecipherable, and failed laws. Their bias will be less law. Their bias will be common sense.

Copyright William Wiltschko 2009