Confessions of a raving, unconfined lawyer

It surprises me that commentators have not focused on an astounding passage in Mitt Romney’s speech on religion: “Freedom requires religion just as religion requires freedom.” On the contrary, freedom requires nothing more nor less than freedom — the freedom to believe as one chooses, or not to believe as one chooses.

Freedom does not require religion. The Founders, many of whom were secularists by today’s standards, were publicly indifferent to religion, referring only to the vague comforts of a “divine Providence” and scrupulously avoiding parading their religious beliefs in public discourse. In fact the Founders were urban, cosmopolitan and rational, entirely opposed to the rural fundamentalists of that time who called their movement the “Great Awakening.”

When Mr. Romney says that no one should be elected President because of his faith, or rejected because of it, he is simply being hypocritical. Mr. Romney seems to want to have it both ways — to get credit for his religious faith but to keep the specifics of his creed out of bounds. His real point seems to be not that there should be no religious test for public office, but rather that the bar should be set so that he can pass it.

Public morality — a basic respect for others, for the environment, for truth, and for the law — can arise from many sources, not just from religion. A candidate’s commitment to this public morality should be ascertained by reference to his deeds, not the particular pieties to which he adheres. Indeed, religion has often served to divert attention from the candidate’s lack of public morality. Campaigning on the basis of faith opens the door to voting on the basis of the popularity of the candidate’s religion and the height of the stack of Bibles on which he swears the oath of office.

If a candidate wants his faith or that of his opponents not to be a factor in the election, he should not discuss it. The Constitution, and the interests of the religious and irreligious alike, would be best served if we elected a president without ever knowing his or her religion.

It is good that the bald eagle, the symbol of American democracy, has made it off the Endangered Species list. It frees up needed space on that list for American democracy itself. The time is short within which to put democracy on life support and begin emergency treatment.

Democracy has been under attack for years. Perhaps it originated with the “selling of the president” in the Nixon years, perhaps in the Reagan-era penchant to make heroes out of brigands who aided our enemy, Iran, in order to finance their off-the-books effort to overthrow the elected government of Nicaragua. It manifested itself in well-planned and well-financed campaigns to reduce the image of dedicated public servants like Edmund Muskie, Mike Dukakis and Howard Dean to schoolyard taunts. The apotheosis of this trend is the vile spew that emerges from Ann Coulter more regularly than Old Faithful, but it is by no means certain that the limit has been reached.

Whatever the source, it has come to this: the Washington press corps has been bullied to the point that the main issues covered by reporters and pundits alike are the financial condition of the campaigns and the hair styles of the candidates. Every issue of actual importance to the American people, save perhaps (if we are lucky) the Iraq war and health care, is marginalized as the exclusive province of extreme leftists, crackpots, and Beltway insiders. And the range of potential solutions is consistently narrowed to allow only those acceptable to the corporate heavy hitters that finance the campaigns.

It has been a long while since Franklin Roosevelt, in accepting the Democratic nomination in 1932, said, “This is more than a political campaign; it is a call to arms. Give me your help not to win votes alone, but to win in this crusade to restore America to its own people.”

In 1936 Roosevelt went further: “For twelve years this Nation was afflicted with hear-nothing, see-nothing, do-nothing Government. The Nation looked to Government but the Government looked away. … They had begun to consider the Government of the United States as a mere appendage to their own affairs. We know now that Government by organized money is just as dangerous as Government by organized mob.”

It cannot be too late to have that spirit again. Certainly we are at a crossroads in our national history every bit as vital to democracy itself as we faced in 1932, or for that matter in 1776.

It cannot do to protest that certain issues are either too controversial or too boring to command public attention. We, the people, need to free ourselves from the tyranny that smirks at us daily. We need to identify the simple, real issues – the consistent abrogation of democracy, personal liberty and the promise of a better life that have been planned and executed with the billions in profits that were generated just for the purpose of cementing this plutocratic control over our nation.

I have identified a “top ten” list of issues that all form a part of this juggernaut. All of them involve the use of law – tax law, election law, and the Constitution itself – to guarantee that dollars, not votes, will determine national policies. None of these issues will be covered by the press in 2008. It would be foolish to imagine that any presidential candidate will take up all of them, but even one or two would change the center of debate and put a real agenda on the table.

Without further ado, and in Letterman order, they are:

10. Corporate “Free Speech”

Corporations are fictitious persons in the eyes of the law, and as such are entitled to do what people do in business – own property, make contracts and so forth. But corporations live forever and their wealth and influence can grow exponentially, while people die and to some extent their interests and concerns die with them. When corporations first came upon the scene, they were viewed as creations of the sovereign (the state or, before the Revolution, the King) that chartered them, and could be subjected to whatever restrictions that sovereign chose to impose. Corporate existence and powers were a privilege, not a right. Their existence was viewed as intertwined with the public good, since the combination of the capital of individual investors made possible such public necessities as canals, bridges and railroads.

One of the great ironies of American history is that the majestic Fourteenth Amendment, adopted after the Civil War to ensure the right of all persons to due process of law and equal protection, was first applied by the Supreme Court to give corporations the right to be free of state regulation in the public interest. While that principle was eroded during the New Deal, corporate entitlement to constitutional rights remained unchecked. Another irony is that this view to some extent was piggy-backed upon the move for recognition of labor unions, which are associations of individuals, and the growing sense that unions were entitled to use their group power to advocate for their members.

The culmination of this folly was in the doctrine that corporations, which are organized to engage in business, can spend as much of their wealth as they wish on advocacy of causes of their choice. All they need is the agreement of management – since shareholders have virtually no power to control the spending of corporate funds. This power far exceeds what unions enjoy – union members have the right to stop the use of their dues money for advocacy of which they disapprove, as do lawyers and university students, but no such right exists for shareholders whose capital fuels the corporation. Corporations are no longer bound by the idea that their operations are limited to those activities which further a public purpose and that they may be confined to that purpose by regulation.

9. Copyright

Patents and copyrights were originally viewed as necessary to promote cultural and scientific progress by giving authors and inventors the right to exclusive use of their creations for a limited time. Copyright protection now lasts for 70 years or more, and patent protection has been abused by trivial modifications that extend patent life, as well as by filing patent claims on obvious ideas, genetically modified bacteria and plants. Intellectual property is now a “squatting” device to prevent competitors from producing cheap generic drugs or improvements on existing technology. We need to reform this system to give creative works back to the people – the “public domain” – after a more reasonable period of protection.

8. Wealth Taxation and Capital Gains

The decrease in estate taxation – the only form of wealth taxation we currently have –together with favorable capital gains rates has concentrated 99% of all wealth gains in the hands of the top 1% of Americans. Extreme wealth has become the way to avoid having to earn income by producing goods or services. Even Switzerland, no enemy of wealth, has a wealth tax on the living as well as on inheritances.

When top estate tax rates were at their highest from 1940 to 1976, American businesses were the engine of productivity for the entire world. Apparently the notion of losing a significant part of their wealth upon death did not deter those hardy entrepreneurs. Now their descendants find it easier to build portfolios than factories.

The same people who now assail the estate tax as a “death tax” also claim that people ought to be able to keep the wealth that represents the fruits of their efforts. The fly in that ointment is that upon death, their wealth passes to people who didn’t lift a finger to earn it. Let’s call that bluff – it’s not the supposedly hard-working decedent who pays the estate tax, but the ne’er-do-well heirs who are very much alive. Whatever part of that pinata the government takes in taxation they can make up by working for a bit.

Every economic argument that is made for lowering the tax rate on capital gains could also be made for lowering the tax rate on wages. Yet tax rates on wages are the highest of all, and workers have to pay an additional, regressive tax on wages (but not on unearned income) in order to support the Social Security system. Capital gains advocates have a point — that those gains were realized over a period of years, during which the cost of living also rose. The equitable solution is to index the basis (purchase price) of the capital asset for the cost of living during the time it was owned, which will reduce the taxable gain somewhat, but then apply the same tax rate that everyone else pays.

7. Executive Compensation

Most people are offended by the idea of a CEO making as much as 300 skilled workers do, but corporate boards routinely approve it and say it is needed to attract highly qualified executives, who presumably are the only people motivated not by a desire to make a contribution to the world but only by money. Corporations should be able to spend their money as they choose, but there is no reason for the government to encourage it. We now permit corporations to deduct from their taxable income everything they spend on salaries and stock options, but there is no reason why this has to continue. The simple solution is to say that everything up to 40 times a worker’s pay is deductible, and the rest is not.

6. Repeal the Presidential Dollar Coin Act of 2005

Under legislation actually enacted in 2005, four one-dollar coins are being issued each year with the intent of honoring every deceased president regardless of merit or length of service. William Henry Harrison, who served for only a month, will get his coin in 2009; Rutherford Hayes, who squeaked into office thanks to election fraud, will get his in 2011. Grover Cleveland, who was lucky enough to be elected in nonconsecutive terms, will get two coins – both in 2012 – making him the first president after Washington to get two coins.. Warren Harding will get his turn in 2014, and Richard Nixon in 2016. (The series will not include ex-presidents who are now alive unless they hurry up and die before 2014. Long life to you, George.)

There is also a parallel gold coin series honoring all the First Ladies – er, make that Spouses – which may give us the chance to decide whether having an Eleanor Roosevelt dollar is a fair trade for Pat Nixon. As of now, Warren Harding’s extramarital paramours do not count as spouses, nor does Sally Hemings.

Democracy requires a respect for ideas and institutions, not of people unless they contribute to our institutions and earn our respect. In an inspired 2004 New Yorker cover, Eric Palma proposed Ray Charles for the ten-dollar bill. This coin program is the opposite – a mindless, though perhaps premeditated, affirmative action program for the banal, the corrupt and the incompetent who have managed to grasp high office.

5. Election Reform

Voter participation levels have long been scandalously low. The media constantly reinforce the idea that the most important factor in elections is the level of contributions, not the level of popular support. Apart from spending limits, we need to give the electoral process back to the people. The easiest and cheapest way to increase voter participation is to schedule Election Day on a Sunday when fewer people are at work.

Primaries have turned into a media circus in which the voters of Iowa and New Hampshire control which candidate becomes a front-runner. The campaign season should be shortened by having all primaries in May or June.

We currently allow taxpayers to allocate $3 of their taxes to the public campaign fund. In a presidential election year, let’s let them allocate their $3 to a declared candidate or party, regardless of whether that candidate or party has accepted spending limits.

4. The Vice-Presidency

The office of Vice President, formerly a harmless joke, has become an expensive joke. Every President in recent times has pledged to make his Vice President a sort of “co-President” with important but unspecified responsibilities. The consequence of this is Dick Cheney, whose responsibilities, in addition to being unspecified, are carried out in total secrecy and entirely without accountability. The idea of the Vice-President serving as a tie-breaker in the Senate is an anachronism left over from the days when there were only 30 Senators. A better way to break ties would be to allow the District of Columbia to elect one Senator.

We ought to get rid of the Vice-Presidency as an elected office, instead permitting the President, following the election, to nominate a Vice-President (as the 25th Amendment now provides in cases of vacancy), whose sole duty would be to take over in case the President dies or is incapacitated. The Senate should elect its presiding officer, just as the House elects its own Speaker.

3. Pardon Power

Now it turns out that the President of the United States thinks a sentence for perjury before a Federal grand jury should not exceed the time served by Paris Hilton. Only partisans, of course, would think it unseemly for a President to commute the sentence of someone whose silence might keep his bosses out of jail. The constitutional pardon power should be limited so that it cannot be exercised on behalf of the President or Vice President or anyone who has worked for either of them or contributed to them or to their campaigns.

2. Oath

There is little more disheartening than the claim that the President has the right to lie repeatedly to the American people and to Congress. Impeachment is an illusory remedy, since it requires a majority of each house of Congress to be in the hands of the opposing party. Clearly, the oath the President takes – to support and defend the Constitution – has become inadequate to the task of reining in this epidemic of duplicity. Let’s add another oath for the President to take on Inauguration Day – to “tell the truth, the whole truth, and nothing but the truth.”

And finally we come to …

1. Electoral College

It all boils down to this. We claim to be the greatest democracy in the world, but the Electoral College is the mote in the eye of that claim. Frustration of the will of the majority appears to be the main goal of electoral strategists, and obviously it has already occurred, with disastrous consequences. The cause of this is the nonsensical requirement that the President be elected by shadowy Electors, not by the people. Since electoral votes are counted by state, campaigning is directed entirely to those states with a chance of tipping to one party or the other, discouraging voting by anyone else. And the weighting of those votes is distorted to an enormous degree by adding two votes to each state’s count of representatives, thus tripling the influence of small states that get only one vote in the House. The election of a President should be a national affair, not an occasion for sectionalism or parochialism. Our goal should be to have the President elected by the people, period.

It is a paradox that we expect a president to have the strength of leadership to stand up to America’s adversaries while at the same kowtowing to the punditocracy that trivializes the concerns of ordinary people. Restoring the balance of American democracy should be the single most important theme of the next election. If it isn’t, we can expect the outrages of the present to surface in the years and decades to come.

A new group called Unity08.com is proposing to create a moderate force to run candidates for President and Vice-President from different parties in order to break the stalemate and posturing that characterize the two-party system.

Back in 1796, that’s how the system worked. The candidate who finished second became Vice-President. The winners were John Adams (Federalist) and Thomas Jefferson (Democratic-Republican). They happened to be the two best qualified, even though they were from opposing parties and significant disputes occured during Adams’ term.

The system broke down in 1800 when both Democratic candidates (Jefferson and Aaron Burr) received equal numbers of votes (the Federalist, John Adams, finished third). The solution was the Twelfth Amendment — requiring members of the Electoral College to cast two votes. That cleared up the problem of who would be President and who would be Vice-President. But it forced the nation into a system where the President and Vice-President were nearly always from the same party (Lincoln’s second Vice-President, Andrew Johnson, succeeded to the presidency on Lincoln’s death and survived impeachment by only one vote).

The vast aggrandizement of presidential power in the 20th and 21st centuries should lead to a reexamination of this system. The Vice-President’s primary constitutional role is to preside over the Senate, a position which fits nicely with the idea of the Vice-President as the leader of the electoral minority. Wouldn’t we be better off today if George Bush’s Vice-President were … Al Gore? A LOT better off?

We need to get rid of the Electoral College and provide for direct popular election of the President on a nationwide basis. And we ought to think about ditching the Twelfth Amendment while we’re at it. Instead of “may the best person win,” why not “may the best two candidates win?” (Political scientists have been pushing variants on this for some time.)

A system of this kind would get every voter, in every state, passionately interested in the election. And it would get people thinking about not just who their first choice for President would be. They would have to think: of the remaining candidates, who my favorite considers to be bozos, which one would I want leading the opposition and potentially becoming President? That would add a great deal of civility and wisdom to the electoral debate without a great deal of effort. It might help centrist candidates win office. And all it takes is a constitutional amendment.

(We’d also need to modify the 22nd Amendment to give anyone a maximum of eight years as President and a maximum of, say, twelve years combined as President and Vice-President.)

We are used to corporations complaining about restrictions on the movement of capital. “We can’t enact a minimum wage because that would skew the market.” “We can’t force corporations to keep the manufacturing in the US because the market will be flooded with cheap imports anyway.”

Immigrants are capital moving on its own initiative. That form of capital needs to move as freely as any other. If American jobs are taken, well, call Customer Service and complain to whoever in the Third World answers the phone.

Pat Buchanan is right in one respect — every nation, including the US, needs to be able to protect its borders against unrestricted entry. But someday it will dawn on the politicians that you can keep a thousand people out, but not a million. The question is, how to handle those million people in a way that maintains border security?

We have made a big mistake in entrusting border control and naturalization to the same agency. They are entirely different functions. Immigration is the process of evaluating people who are already here, most of whom are good, honest people, to decide upon what conditions they may remain here or become citizens.

Here’s the simple plan: Anyone who wants to enter the US and is not on a terrorist watch list may enter the US if they follow the rules. The rules: Present yourself at a consulate or a border entry station, show the identity papers you have from your home country to prove who you are, and consent to have your photograph taken and submit a DNA sample, fingerprints and a retinal scan. Then prove you have a few thousand bucks to support yourself for the next few months — the same money you would have given to the “mules” to get you over the Rio Grande. If you do that, you get a Social Security number and a six-month visa entitling you to work. The employer must notify Immigration Control when you are hired and when you leave employment.

After six months, you must report back. If you have not gotten in trouble and have worked for at least half of that time, you get a five-year visa on the same terms. If you fail to report, or if you don’t meet the test, you go back across the border and can’t come back. If you get through the five-year visa successfully, you get a Green Card. Period.

Most of the people who try to get across the border want only one thing: to work and to be good, honest, productive members of society. They will jump at the chance to live here without fear and to work “on the books.” Those who don’t will be traceable and can be deported. The number who sneak across the border illegally will decline to a trickle. Problem solved.

I posted the following in response to the Radio Open Source blog’s question to the effect of “Are you happy with the 2006 election results?”

These days, I’m happy when Democrats win, relatively speaking. But I’m not overjoyed.

First, Democrats in office don’t guarantee much of anything. With the “unitary executive” still in the White House, there is virtually no chance they will affect foreign or military policy. They would have to precipitate a constitutional crisis to do that, and they just won’t — the Democratic Party of Watergate is long gone. Moreover, Democrats cannot maintain party unity the way the Republicans have under DeLay and Frist. They would have to risk being tarred with the “liberal tax-and-spend soft-on-crime tree-hugger” label in order to reverse the massive transfer of wealth that has funded both Republican supporters and Republican campaign chests. And not many Democrats are willing to be called names in order to do the right thing.

Second, even if Democrats win now and in 2008, democracy is still in intensive care. The bogus voting machines and corrupt state election officials are still there. In the campaign arena, money trumps all other means of communicating with voters. The “pundits” who cover politics most intensively can no longer tell the difference between a bald-faced lie and a ham sandwich, or else are willing to let the conglomerate network owners silence them. Most voters have no appreciation of history or civics and stay away from the polls even as soldiers are fighting for their — or someone’s — right to vote.

Third, millions of votes nationwide simply do not count for much. I live in Massachusetts, where all the races were decided by significant margins. We get to vote for unimportant offices like Clerk of Courts, while we are unable to vote for members of agencies that affect our lives every day, like the Turnpike Authority and MBTA. Nationally, because of the Electoral College system, voters in most states are ignored. This system is a relic of the 18th century, when states as such had a much greater importance in our national life. Today, with voters moving several times in their lives, it is beyond ridiculous.

The Democrats will have a significant agenda in the House, and in the Senate too if they win it. And no doubt, the prosecutors will be busy putting Republicans in jail. But there has to be a greater agenda for our national democracy in the next two, four and six years. Here are my three priorities, which no national political figure has addressed:

1. Abolish the Electoral College and have a direct popular vote for President.
2. Overturn the Supreme Court decision striking down campaign finance reform on the basis of “free speech.”
3. Convince centrist Democrats and Republicans to form a centrist third party that would immediately have a sizeable caucus in Congress. Fringe groups can never gain traction, but a centrist third party will be able to abolish the two-party lock on the political process and form alliances with core Democrats and core Republicans on an issue-by-issue basis.

Let’s get some major political figures to even start speaking of these issues, and I’ll be happy indeed.

With all the talk among Kerry supporters about leaving the country, it occurred to me that there might be a market-based win-win solution here. After all, illegal immigrants cross our borders each day, often paying thousands of dollars to criminal gangs to smuggle them in under horrendous conditions.

Why not let people sell their American citizenship to the highest bidder? After all, we let corporations buy tax credits and pollution rights. Letting individuals sell what they own is just plain old-fashioned free enterprise.

Immigrants taking advantage of this approach would (a) avoid risking their lives to enter the country, (b) avoid the constant fear of being deported, and (c) not take any net jobs or other benefits from Americans, because the economy would lose one existing worker for every new one. And the people selling their citizenship could use the money to establish financial independence, which usually improves the chances of achieving citizenship in one’s new home country.

Naturally, known terrorists would be ineligible to participate in this scheme. But for the rest of the world — what’s wrong with trying it?

Since I’m a natural born citizen over the age of 35, if this goes through I’m going to wait for my call from Arnold Schwartzenegger. Arnold baby, you want something; I’ve got it; let’s talk.

In the last century, there has been an arc of political movement that brought us from a country of Babbitts and nativists to a symbol of progress and civility, and now back again. You can measure it in three elections: In 1928, with evolution one of the hot issues, the nation rejected an urban Catholic Northeasterner, largely with the votes of rural evangelical Protestants bolstered by the anti-Catholic Ku Klux Klan, who felt that no Protestant should ever vote for a liberal Catholic. In 1960, with civil rights one of the hot issues, the nation elected an urban Catholic Northeasterner who pledged that his faith would never guide his decisions. And in 2004, with evolution once again a hot issue, the nation rejected an urban Catholic Northeasterner, largely with the votes of rural evangelical Protestants, bolstered this time by leaders of the Catholic Church, who felt that no Catholic should ever vote for a liberal Catholic, especially one who pledged that his faith would never guide his decisions.

The only thing worse than no progress at all is the reversal of progress. In terms of the moral state of our civilization, are we better off now than we were in 1928?

“Americans have been spared the violence and savagery of terrorist attack on our soil since September 11, 2001.”

— John Ashcroft, November 9, 2004.

Well, he’s certainly a glass-half-full kind of guy, isn’t he? Who knew?

What else is there to say? Except to say it in Danish, of course: http://www.magazine.dk/nyhed_286.html

Half the country believes in salvation through force. The other half believes in cowering under the bedsheets. Or so the pundits say.

Actually, it’s more complicated. There are definitely a left and a right wing in this country, but there’s also a center that was pretty dissatisfied with both candidates. Now I’m definitely on the left, but I think the center deserves its due. And frankly, voters looking for Anyone But Bush would have welcomed a centrist. Some of those voters held their noses and voted for Kerry, but others did the same and voted for Bush. How could they have broken this logjam?

We need three parties in this country. It’s as simple as that. Not the Nader party or the Greens, but a center party that can attract enough votes to hold the center against the extremes and become the second choice of enough people to win office a large part of the time.

Step One: Abolish the electoral college and institute direct popular vote with an instant runoff.

Step Two: Have the Democratic Party break up and split its organization and financial resources between two new parties: one centrist and one left of center.

No, it won’t result in Republican supremacy. The centrist party will get off to a running start and draw centrist voters and dollars from the Republicans. Left Democrats will be able to sharpen their ideological message without having to coddle the centrists — just as the Republicans did after ousting the Rockefeller wing in 1964.

The centrists will almost certainly win elections if instant runoff prevails, because they’ll be everyone’s second choice. That won’t spell defeat for the left — what spells defeat is the present system that forces the left to shut up every four years while the Democratic standard bearer utters platitudes about issues that cry out for more.

The right wing will win elections in Mississippi and Idaho, and the left wing will win elections in New York and California, providing enough of a base to goad the center with ideas that might eventually break through to a majority. With three parties in Congress, the process of building coalitions will become more transparent and involve the voters a hell of a lot more than is the case now.

Well?