Magical Thinking: Not a Subsitute for Rigorous Checks and Balances

By Timothy Villareal

According to the initial reports in the New York Times last year, the Obama administration was aiming for “plausible deniability” when it launched a cyber war on the Iranian nuclear weapons installations. (Author’s note: Those who deny Iran is pursuing nuclear weapons, not nuclear energy, tend to be the same people who refuse to publicly address Israel’s nuclear weapons aresenal, in effect, turning a blind-eye to both.)

Given the dire repercussions of warfare, be it of the cyber variety like Stuxnet or the bullet variety, it would seem that a self-respecting democracy would afford itself some role in the decision of whether to go to war in the first place. According to Andrew Bacevich, professor of international relations at Boston University, “Were a foreign country to disable the U. S. nuclear arsenal through cyber attack, we would most assuredly consider it an act of war. We should not be surprised that a foreign country might consider a U. S.-orchestrated cyber attack against its nuclear program in a similar light.”

Americans would do well to ask the following question: How did we get from Point A) a government supposedly by and for the people, to Point B) a government that is willing to engage in de facto acts of war – all without the consent of the governed?

Arguing for the Constitution in Federalist No. 46, James Madison admonished the Anti-Federalists by writing, “They [Anti-Federalists ] must be told that the ultimate authority, wherever the derivative may be found, resides in the people alone, and that it will not depend merely on the comparative ambition or address of the different governments, whether either, or which of them, will be able to enlarge its sphere of jurisdiction at the expense of the other. Truth, no less than decency, requires that the event in every case should be supposed to depend on the sentiments and sanction of their common constituents.”

It goes without saying that the American people have never been engaged on the question of whether the advantages of launching a cyber attack against Iran’s nuclear installations outweigh the disadvantages, namely the potential for a retaliatory attack by Iran; an attack that could be just as “plausibly deniable” as the one our own government launched.

The framers of the Constitution rightly vested Congress with the power to declare war on other nations; a necessary and proper instrument to avoid a descent into de facto monarchical rule, of which executive warmongering is a most essential ingredient. But principles, including separation of powers, when in any way tethered to magical thinking, lose their force. The United States Senate, treasured by many as a bulwark against a tyrannical, or potentially tyrannical, Executive branch is anything but.

The recent cyber war is a prime example of the Senate’s failure. The unresolved questions of international law vis-à-vis cyber attacks aside, the reported action against Iran clearly had a military aim – to disrupt Iran’s de facto military installations – and therefore the question must be asked: Has the modern United States Senate – that “august” guarantor of state sovereignty -done anything whatsoever to rein in the Executive branch’s unilateral war making abilities toward foreign nations, including cyber war-making?

On the contrary, instead of seeking legislation to rein in the Executive branch’s ability to launch secret de facto wars against foreign nations, which could ignite similar retaliations upon us, the U.S. Senate Intelligence Committee has passed, overwhelmingly, a bill to prevent Executive branch whistleblowers from speaking with journalists. Among other disclosures, the leaks that informed the American people that our government has indeed engaged in a cyber war against a foreign nation, which could invite retaliation, serves as the basis for the U.S. Senate’s crackdown on executive branch truth-tellers – as if we need less, not more of them.  (After the Senate Intelligence Committee passed the bill a media furor erupted.  Bill Keller of the New York Times and others identified the dranconian nature of the bill.  Senator Feinstein, Chairman of the Senate Intelligence Committee, is now “seeking alternatives” to the bill.)

As Madison wrote, “Truth, no less than decency, requires that the event in every case should be supposed to depend on the sentiments and sanction of their common constituents.” The United States Senate in 2012, as an institution, has no grounds on which to base its implicit claim: namely, that the states its members supposedly represent have sanctioned, or would sanction, taking the entire Republic not only into the dangerous realm of offensive cyberwar – a realm in which frenzied actions outpace intellectual consideration – but into that even more dangerous zone of politics that the framers rightly warned against: the ability of the Executive branch to take the entire nation into foreign wars without the consent of the governed.

To suggest that the existing structure of the United States Senate has done anything to safeguard the independence of states in the face of an overbearing federal government is magical thinking indeed.

Are Small State Democrats Any More Pro-Voter Than Tea Party Leaders?

When Democratic politicians like Senate contender Heidi Heitkamp from the small, less-populated states like North Dakota defend the existing Senate structure (www.nytimes.com/2012/07/28/opinion/collins-land-of-the-mega-voters.html) – which is a structure that directly suppresses the voting power of most Americans – it makes one wonder whether there is much daylight between them and some in the Tea Party leadership whose government reform ideas would even further suppress the voices of citizens in large and mid-size states.

Some of the constitutional reform ideas emerging from the Tea Party movement congressional leadership – ideas intended to check the federal government’s power – not only mirror the existing rationale for the disproportionate, undemocratic Senate structure, they mirror the same kind of illogic that is on the Republican Party establishment’s fiscal plate: namely, spending billions every month on the military-industrial complex, while millions of children in this country are faced with hunger.

Democrats in large states have a right to ask: Are the Heidi Heitkamps of the world really all that different from other voter suppression believers, like those in the Tea Party congressional leadership?

If continuing to spend billions on the salaries of Karzai cronies in Afghanistan while America’s needs at home go unaddressed strikes you as illogical, take a look at the rear-view mirror government reform ideas coming from some Tea Party leaders.

Notwithstanding the fact that roughly 160 million Americans reside in the ten most populated states, yet are represented by only 20 out of 100 senators in the federal lawmaking process, a congressman from Utah, Rob Bishop, is promoting a constitutional amendment, known as the Repeal Amendment, that would give small states – like, you guessed it, Utah – even more power over the lives of the majority of us who reside in large states – including the half of the U.S. population residing in just ten states. If ever adopted, the amendment would permit the repeal of federal laws if two-thirds of state legislatures vote for a repeal – irrespective of a state’s population. In addition, some in the Tea Party leadership seek the repeal the 17th Amendment, which allowed for direct election of U.S. Senators.

According to some Tea Party leaders, these types of wholly backward-looking constitutional reforms would fend off further federal encroachments into the lives of Americans. Yet beliefs about fending off federal encroachments have nothing whatever to do with what states we happen to live in; they have to do with the principles we Americans hold dear. That begs the question: Why cling to the antiquated notion that the undemocratic, grossly disproportionate Senate structure can somehow be America’s great guarantor against an overreaching federal government?

Reinvigorating our other two branches of government, the legislative and judicial, would do far more to counterbalance the ”unbound” Executive branch – to borrow from the title of a recent book by University of Chicago professor Eric Posner and co-author Adrian Vermuele – than reverting back to eighteenth century notions of the Senate’s role.

To that end, one forward-looking solution that would bring electoral equity to the U.S. Senate would be the adoption of a constitutional amendment that would allow states to voluntarily relinquish their right, guaranteed under Article V of the Constitution, to two Senate seats. States voluntarily relinquishing their right to two Senate seats could then place those two seats in a collective with other states, to be deemed “States in the Common Interest,” thus providing a path to fair Senate representation. A provision in the amendment itself, which would give Congress the statutory leeway to determine the rules for Senate election, could result in either fair representation based upon geographic boundaries, or better yet, nationwide elections of U.S. Senators with minimum vote count requirements.

The achievement of a multiparty – and equitable – U.S. Senate would afford all Americans the chance to advance their authentic political values on a level playing field in a modern, mobile nation, where our beliefs about the proper role of the federal government begin and end with our political consciences, not mere lines on a map.

Democratic Senate contender Heidi Heitkamp of North Dakota, and other Democrats from small states, politician or not, should think about why their political consciences matter so much more than the majority of Americans whose voices and influence are suppressed by the antiquated U.S. Senate structure.

The Tenants Who Would Be Barons

by Timothy Villareal

“Taxpayers are now on the hook for as much as $200 billion to rescue Fannie Mae and Freddie Mac, and if you want to know why, look no further than the rapid response to this bailout from House baron Barney Frank.”  So went the criticism from the Wall Street Journal editorial board of former House Financial Services Committee Chairman, Barney Frank.  The editorial was but one arrow in the Journal’s editorial quiver to pin the blame on the Democrats, and Rep. Barney Frank in particular, for the subprime mortgage mess that ultimately led the nation, and the world, to the economic brink.   The “baron” of the House, the Journal editorialists insisted through this editorial among others, must be held personally accountable for his years-long effort to push housing policies that ultimately led to the economic collapse of 2008.

On April 2nd of 2009, Chairman Frank fired back at his critics on the other side of the aisle, and the Wall Street Journal in particular, with a special order speech documenting in detail his legislative record on federal housing policy.  Yet in giving the speech, Frank not only jousted back at those who would attempt to blame him for the worst financial crisis since the Great Depression, he gave a prime example of how at least one of our nation’s founding assumptions about the legislative branch simply did not materialize quite as expected.

Defending the establishment of a smaller upper chamber in the legislative branch, the author of Federalist No. 63, James Madison, argued that the Senate, which was to be comprised of cooler heads more concerned with the country’s international reputation, would be a necessary counterweight to the “numerous” members in the House of Representatives; representatives whose short time in office necessarily meant that their legislative concerns would be more immediate, and also necessarily meant that they could not be answerable for the long-term polices affecting the nation.   Federalist No. 63 reads: “The objects of government may be divided into two general classes: the one depending on measures which have singly an immediate and sensible operation; the other depending on a succession of well-chosen and well-connected measures, which have a gradual and perhaps unobserved operation…And yet it is evident that an assembly elected for so short a term as to be unable to provide more than one or two links in a chain of measures, on which the general welfare may essentially depend, ought not to be answerable for the final result, any more than a steward or tenant, engaged for one year, could be justly made to answer for places or improvements which could not be accomplished in less than half a dozen years.”

Though Congressman Frank’s speech on April 2, 2009 certainly defended his legislative track record promoting rental housing – a record that bucked the then-prevailing wisdom that the expansion of subprime mortgages was sound – even his critics would be hard-pressed to characterize Frank’s role in the United States Congress as a “tenant.”  Indeed, the Wall Street Journal prefers to characterize him as a “baron.”  And why not?

Frank has been in the United States Congress for three decades and has a played a key role in housing legislation.  The same can be said for the chairmen and ranking members of other House committees – decades in office, with legislative paper trails that might best the Bible in word count.  As his ardent defense of himself against the charge from the Wall Street Journal proved – the charge that he was the chief legislative architect of the subprime mortage mess – Frank was very much “made to answer” for the policies he promulgated in previous years, and indeed, the previous decade.

Firing back at his critics, Frank said in that same speech, “In 1994, the last time the Democrats had a majority before 2007, my predecessor, an excellent consumer fighter from the State of New York, helped pass a bill called HOEPA, Home Ownership Equity Protection Act.  It said to the Federal Reserve: Regulate subprime loans.” 

Taking it a notch further, Frank singled out by name the Wall Street Journal editorialists who blamed him for the 2008 financial collapse. “I respect the press,” the former chairman declared, “But the people who write the Wall Street Journal editorials in this, Mr. Paul Gigot and Mr. Stephen Moore, are cowards and liars.”  He then went on to place his unpublished letter to the Wall Street Journal, which outlined his efforts to promote rental housing as an alternative to home ownership for low-income Americans, into the congressional record. 

And yet, Federalist No. 63 expressly cites as among the justifications for the establishment of the Senate not just the likelihood, but the certainty, that House members could not be held answerable for that class of legislation that depends upon “a succession of well-chosen and well-connected measures.”   Federalist 63 argues that, “The proper remedy for this defect [the House of Representatives] must be an additional body in the legislative department, which, having sufficient permanency to provide for such objects as require a continued attention, and a train of measures, may be justly and effectually answerable for the attainment of those objects.”

If Congressman Barney Frank and editorialists Paul Gigot and Stephen Moore could ever agree on one thing, it would be this: House members are no transient tenants, but powerful, landed barons who can indeed be held answerable for legislation that requires “continued attention, and a train of measures.”

As this particular justification for the establishment of the United States Senate put forth in Federalist No. 63 no longer holds relevance, a larger question must be asked:  Is it not time we reexamine the upper chamber’s other justifications?   Indeed, given that over half of the United States population resides in just ten states, with only twenty out of one hundred senators to represent them, it seems only fair that, at minimum, defenders of the upper chamber’s existing undemocratic, grossly disproportionate structure put forth some new rationales for why bicameralism in a modern, mobile society is even necessary. 

The old rationales are fading fast.