G. Restoring Democracy
The General Welfare: A Legislative Agenda for a Better American Future
"We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America."
"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside."
To comment on proposals, join the debate, or add your own suggestions, go to http://thegeneralwelfare.blogspot.com.
Restoring Democracy
Constitutional Amendment: The Senate
The Senate is a fundamentally anti-democratic institution left over from an aristocratic age. Senators from small states represent far fewer voters than Senators from large ones, giving disproportionate and unjustified power to the less dynamic and therefore less populated parts of the country. Moreover, Senators accumulate vast power by seniority, so that a senior Senator may be able to determine national policy. Unfortunately, many politicians, particularly in small states, have learned to abuse this system -- by insisting on disproportionately large Federally funded benefits to their home states, they can become buy loyalty from local contributors and voters, thus allowing them full freedom to impose idiosyncratic views, or purely self-interested corruption, on the country as a whole.
Democracy is still the best solution to the problems of autocratic corruption. The Senate ought to be reformed in accord with modern republican principles.
A total of 120 Senators shall be elected, according to the following rules.
Every two years, 30 Senators shall be elected by a system of proportional representation in a single, national, district for a term of six years.
Each political party shall present a list of candidates, ordered as that party determines by its primary or other system.
Candidates who do not wish to affiliate with a party may create a list that is not affiliated with a party
Voters shall vote for a party, its list, or an independent list.
Each party or list shall receive a number of seats proportional to the number of votes it receives. Seats shall go to candidates in the order of the list. In the event that a candidate is unable to serve or shall resign during the term of office, the seat shall go to the next candidate on the list.
Thirty Senators (15 every other year) shall be elected from single member districts for terms of four years in two classes. Each district shall have the same number of voters, within a margin of 5%. District boundaries shall be determined by an independent commission, which shall attempt to ensure that districts are simple in shape, do not split existing metropolitan areas, and if possible without violating the above principles, follow existing political boundaries. Districts shall be redrawn after each decennial census.
In the event that the Senate rejects a Presidential nomination or bill, the President may, but need not, call a Senatorial election. In the event of such a special election, candidates will run for the unexpired terms of the existing positions.
Constitutional Amendment: Corporate Rights and Obligations
This Constitution grants no rights against the People or their governments to any legal person that is not a human being.
For purposes of this provision, "corporations" shall include similar entities defined or created by law or by permission of the law, that have privileges of entity liability, legal personality or a legal existence separate from some or all of the human beings associated with them, including but not limited to trusts, limited partnerships, and limited liability companies.
Corporations shall be fully subject to the police power and regulation by the states and Federal government.
Corporations shall be deemed state actors for purposes of the Fourteenth Amendment.
Corporations shall not be deemed citizens of the United States or any state under this Constitution, or persons entitled to protection under the Constitution, regardless of the citizenship or rights of the human beings affiliated with them.
Constitutional Amendment: The Electoral College.
The Electoral College shall vote to select as President the candidate who has won a majority of the popular votes cast for President.
If no candidate has won a majority, the Electoral College shall call a run-off election between the two candidates who won the most votes.
Constitutional Compact: The Electoral College
Apparently, several large states have already signed on to this agreement, which has the same result but is much easier to accomplish than an Amendment. I do not know who to credit for the proposal or, more importantly, the work involved in getting it through the relevant legislatures.
Each State that subscribes to this Compact shall vote its electoral votes for the Presidential candidate who has won a national majority of the popular votes cast, regardless of the vote in that state alone.
This Compact shall go into effect and be obligatory on its signatories only when the subscribers control a majority of the electoral votes.
Voting Encouragement Act.
Every national election day shall be a paid vacation day for every citizen who votes.
Each state shall determine a method of registration that ensures that every citizen who receives or renews a driver's license or a state-issued identity card for non-driver is registered to vote.
No state shall bar a citizen from voting for a criminal record unless the citizen remains under supervision of the judicial system (in prison or on parole).
No state shall use electronic voting machines unless the machine generates a paper record that can be verified by the voter and preserved for recounts.
In the event that one or more states violate this Act, the FEC shall create a national voter registry system with a secure national voter identification card to be used for Federal elections and shall cause such a card to be issued to every citizen who has a social security number.
The Filibuster Correction Act.
Historically, the primary use of filibusters has been to permit entrenched and powerful minorities to stop attempts to reduce their privileges -- most famously, attempts by slaveowners and, later, racists, to prevent and slow the abolition of slavery and granting of equal rights to former slaves and their descendants. Based on history alone, the filibuster ought to be abolished completely.
However, with or without filibusters, the Senate remains a fundamentally antidemocratic institution, empowering entrenched representatives of small one party states far beyond any rational basis. True democratic republicans would advocate for its democratization, redistricting Senators to fairly represent the population.
In the absence of fundamental reform to bring the Senate into the modern era, its sole justification is as a brake on the sometimes-too-precipitous movements of popular opinion as reflected by politicians. The filibuster -- the right of any Senator to speak indefinitely on a bill and thereby single-handedly prevent its passage -- potentially supports this antidemocratic, anti-majoritarian function of the Senate, by allowing a single conscientious individual the ability to stop the entire governmental apparatus. However, under present rules, filibusters are so easy, requiring no conscientiousness at all, that they have simply become a vehicle for special interests to hold up the country. A system in which one senator can stop needed legislation or create a situation in which 40 Senators, potentially representing less than 10% of the country, can stop legislation is fundamentally unjust.
This statute lessens the power of an individual Senator to abuse the system on behalf of special interests, without completely eliminating the power of conscience.
If at any time, no Senator wishes to speak on the floor of the Senate to the content of a bill, debate shall be deemed and declared finished.
Filibusters must be in person.
No Senator shall debate any bill for more than one hour unless the Senator's speech is related to the content of the bill. A Senator who speaks for more than one hour and is not discussing matters relevant to consideration of the bill shall be declared out of order and may be required to cede the floor by vote of a simple majority of Senators present and voting.
Filibusters must be relevant and to the point--no reading of phone books.
Debate may be cut off by vote of 60% of those senators present and voting.
Filibusters must have supporters who are willing to listen to them.
Debate may be cut off by vote of Senators representing 60% of the population of the United States.
Filibusters should represent a significant part of the population, not just a handful of lightly populated states.
Any rule of the Senate permitting a minority of Senators to block legislation or other action shall expire at the end of each Congressional session and may be reenacted only by vote of an absolute majority of all Senators and a vote of Senators representing a majority of the US population.
Allowing single Senators or Senators representing only a small minority of the population to permanently cripple our legislature is fundamentally unfair. Antidemocratic rules ought to remain in place only if they have support of the majority.
The Corporate Speech And Freedom Protection Act.
In Citizens United v. FEC, five members of the Supreme Court granted business corporations First Amendment rights on the ground that corporations are "associations of citizens," that corporate money is speech, and that restrictions on corporate electioneering are a form of censorship. This reasoning is stunning in its disregard of the realities of politics and the foundations of corporate law.
In fact, large corporations are not associations of citizens, or even of human beings. The actual humans associated with our multi-national corporations are unlikely to all be citizens. But more to the point, they are employees, with no membership rights whatsoever under standard corporate law. Outside of some university faculties, employees don't elect their bosses, and even in the universities, they have no vote for the board of directors.
Corporate law is quite clear: directors are elected by the shares, on a basis of one share one vote. Shares are not citizens; they are legally defined bundles of rights. In the modern economy, most of them are held and voted by institutions, not human beings. The actual people who decide how to vote the shares are, by and large, fiduciaries under legal obligation and intense market pressure to use their votes in order to maximize share value, without regard to any other value that a citizen might care about. In the case of our largest shareholders, the pension funds, the voters are under a legal obligation to ignore even the actual financial interests of the human beings behind the fund: they are supposed to act on behalf of a purely imaginary beneficiary who is always on the edge of retirement, with no loyalty to the firm, its neighbors or the countries in which they operate. They are specifically barred by law from considering the possibility that young pension beneficiaries (or older ones with children or a sense of social solidarity) might care more about job quality or job security today than about maximizing the size of a pension sometime in the distant future. Even when the law does not force these fiduciaries to work for a purely imaginary legal construct instead of representing real people in all their complexity, the market does. Any mutual fund manager who sought to learn, let alone vote in accordance with, the actual values of her customers would necessarily underperform the market and quickly be out of business.
The corporate system is designed to suppress, not reflect, the full complexity of actual citizens' values and commitments. Real people generally like their stock prices to go up and the corporations they work for to make money, but they have many other, and more important, values as well. All those other values -- justice, decency, patriotism, getting home to see your children, survival of the species, beauty and humor -- drop out in internal corporate decision -- making as our laws structure it.
The Citizens United decision, then, is very wrong.
But it can easily be fixed. All that is required is a statute that demands that politically active corporations in fact be what Justice Kennedy's myth claims they are: associations of citizens.
Like any association of citizens in a democratic society, politically active corporations should meet minimally democratic standards. That is, they should make their decisions by democratic voting (direct or indirect). Or, if they are not going to be democratic, at least they should be funded entirely by voluntary contributions, so that contributors can control them by withholding support. That's not democratic -- it's one vote per dollar, not per person -- but at least it gives the donors control.
At the Federal level, to correct the problem for the whole country, the following Amendment to the '34 Securities Act would do it. This proposal relies on well established Federal securities law and is clearly permissible under existing Supreme Court precedent including Citizens United and Buckley v. Valeo, which extended First Amendment free speech protection to contributions and expenditures of money in campaigns.
Each of the provisions is designed to ensure that money spent by corporations reflects the views of the human beings who created or are the source of those funds, and not simply the views of fiduciaries who may be acting under misapprehension of the true interests of the institution they represent or in defiance of those interests or the will of those they represent.
Note that the statute respects Buckley v. Valeo and does not attempt to limit the impact of private wealth on our political processes. Any group of citizens who wish to organize to lobby or campaign may do so in corporate form under clause 4. Any owner of a closely held corporation--or individual or group that controls a corporation--is completely free to cause the corporation to pay a dividend, in which case the money will be individual and not corporate, or to form a Political Corporation. Any corporate employee is free to spend his or her own money and to organize with other corporate affiliates so long as they do so in the proper legal form. Thus, the only individual whose "freedom" to spend money to lobby or influence an election is restricted is the person who wishes to spend money that is not his or her own. That freedom -- the freedom to steal -- is not worthy of constitutional protection.
All corporations subject to the Act shall disclose all expenditures made with intent to influence any election, referendum, or the content or enforcement of any statute, regulation or governmental action ("Electioneering/Lobbying Expenditures").
a. All such disclosures shall include the source from which the corporation obtained the funds used for Electioneering/Lobbying Expenditures.
b. If the source of Electioneering/Lobbying Expenditures is general treasury funds or other corporate property which could be converted into general treasury funds, the corporation shall further disclose the source of such funds, including its best estimate of
(i) which corporate participant(s) or role(s) are the ultimate source of the funds
and
(ii) which corporate participants would be likely to receive them if they were not used for Electioneering/Lobbying Expenditures.
c. All such disclosures shall detail the positions or candidates or governmental action for or against which the corporation advocated and its rationale for believing that such advocacy or positions were in the corporate interest.
d. False or misleading disclosure shall be subject to the criminal and civil sanctions of the Act, including section 10(b).
Clause 1 is a disclosure requirement, the central focus of the Federal securities laws. It provides that those whose money enriched the corporation should know what use the corporation made of it. The Citizens United court explicitly urged Congress and the legislatures to use disclosure to mitigate the impact of its decision. The disclosure requirements of Clause 1 are likely to have some shaming effect on corporations, particularly with respect to relatively controversial lobbying exercises. However, disclosure alone may also make it easier for corporate elites to coordinate or compete or for governmental officials to pressure corporations to join in such competitions, and thus could conceivably lead to higher, rather than lower, corporate expenditures to influence politics; therefore, it should be combined with substantive regulation as well.
Any corporation subject to the Act may make Electioneering/Lobbying Expenditures from corporate treasury funds. The corporations shall decide whether to make such expenditures and what position to take as a corporation by following the procedures of this Clause 2.
a. Only the corporation's board of directors or its express delegates may initiate the process for approving an Electioneering/Lobbying Expenditure under this Clause 2.
b. Any human being affiliated with a corporation subject to the Act shall have a right to speak in favor of, or in opposition to, any proposed Electioneering/Lobbying Expenditure. The corporation shall pay reasonable costs associated with disseminating such speech to other corporate affiliates. No person shall be disciplined, fired or otherwise retaliated against for exercising her or his right to speak under this sub-clause.
c. All proposals for the corporation to incur Electioneering/Lobbying Expenditures must be approved by a process satisfying ordinary democratic norms, including, at a minimum, direct approval by majority vote of the Affected Individuals on a one-person-one-vote basis, or indirect approval by representatives elected by such a vote.
d. Affected Individuals shall include investors, employees, suppliers and customers who have contributed towards the funds used, purchased goods at above the corporation's costs (not taking into account any Electioneering/Lobbying Expenditures) or sold labor, goods or services to the corporation for less than the corporation could have paid (not taking into account any Electioneering/Lobbying Expenditures).
e. The corporation shall bear the burden of proof to demonstrate effective, universal enfranchisement of Affected Individuals.
f. Any corporation with a board of directors the majority of the voting members of which are elected by employees on a one person one vote basis shall be exempt from sub-clauses c and d.
Clause 2 makes clear that any corporation may participate fully in the democratic debate (satisfying Bellotti and Citizens Union) providing that it uses democratically legitimate internal decision making processes. Business corporations that use the provisions of clause 2 will be restrained by ordinary democratic norms -- the positions they lobby for will have support of the actual citizens whose money or work made the corporation's expenditures possible.
Clause 2 is an internal governance rule similar to the regulation of corporate elections under the Williams Act and other long-standing provisions of the securities regulatory regime. It adds ordinary Free Speech protections to internal corporate decision-making when such decisions are intended to affect wider American politics, in order to ensure that ordinary American freedoms are not destroyed by moving politics "inside" the corporate shield and to fully protect the corporation's assets from seizure by fiduciaries or agents acting beyond their permitted roles.
In reality, we assume that few business corporations would choose to avail themselves of clause 2, because most business corporations are not run along democratic lines and would not choose to introduce internal democracy.
Any corporation funded only by contributions directly from human beings acting in their individual capacities (a Political Corporation) is exempt from Clause 2, provided that it receives no material part of its budget from sale of goods or services, investment income or contributions from entities or non-citizens.
This provision makes clear that organizations that are created to lobby or electioneer, such as political parties or committees of correspondence, are important parts of our political system. Citizens should be free to use associations and organizations to coordinate and amplify their voices. Corporations that are created specifically to influence politics, unlike business corporations, do not expropriate money dedicated for economic growth in order to unfairly manipulate the political system. The key defining characteristic of a Political Corporation is that it can clearly demonstrate that the money it spends came from citizens who were aware they were dedicating their money for this purpose -- not from customers who were simply buying a product, employees trying to make a living, or abuse of trust by fiduciaries using money with no clear owner at all. So long as the Political Corporation is funded only by identifiable human citizens, those citizens are free to organize in any way they choose and provide for any method of decisionmaking permitted by general law.
Any corporation subject to Clause 2 may create a Political Corporation to accept contributions from such of its affiliates (defined as affected individuals under clause 2) as may choose to participate. The costs of creating and administering the Political Corporation may be assumed by the creating corporation and, if provided in kind with no cash component, shall not be deemed a contribution to the Political Corporation.
Clause 4 provides a simple alternative, modeled on existing PAC law, to fully protect the ability of managers, employees and investors to use their connections in the corporation for collective action. Any corporation that chooses not to comply with Clause 2 can nonetheless create a separate legal entity -- with any decisionmaking procedure its creators choose -- to coordinate the political activities of its affiliates.
Note that Political Corporations ordinarily would not be subject to the Act, or, therefore, to the disclosure requirements of Clause 1. To the extent that corporate affiliates have genuine desires to take collective political action, the Political Corporation route protects them, even accepting the equality of dollars reasoning of Buckley v. Valeo.
The Antitrust Correction Act.
Whereas, the courts have sometimes misinterpreted the Antitrust Act as intended merely to protect consumers against high prices, and
Whereas, our democratic capitalist system is endangered by high concentrations of power and wealth, and
Whereas, dominant companies often have an incentive to reduce innovation, and
Whereas, large corporations often develop the power and incentives to corrupt the democratic political process, and
Whereas, democratic capitalism cannot succeed if market driven institutions are able to control the political regulators that are meant to regulate the market and its institutions, and
Whereas, the Antitrust Act is intended, inter alia, to reduce the threat posed by size alone, and
Whereas, professional standard setting and quality control do not raise the central concerns, now be it enacted:
Monopoly and oligopolistic power may be proven and are illegal under the Clayton and Sherman Anti-Trust Acts even if they have no demonstrable effect on consumer prices,
Any corporation that is large enough to influence elected officials, or to exercise monopsonistic power in the labor market, or to increase consumer prices above the cost of production, or that is not a price taker when acting as a buyer or as a seller, is a conspiracy in restraint of trade and shall be required to divest or split until it is small enough to alleviate such concerns and to be subject to ordinary market and political control.
The Clayton and Sherman Antitrust Acts, as amended, shall not be used to regulate any union, or any association of licensed professionals, including lawyers, doctors, accountants, architects, professors or engineers, or any bona-fide association of universities. This provision shall create no rights or defenses for those institutions under any other statutes.
The Honest Elections Act.
All candidates for Federal office shall be permitted but not required to elect to participate in Federal funded campaign finance.
Every television, radio and cable station that is licensed by the United States, uses United States airwaves or utilizes any instrumentality of interstate commerce shall be required to provide 5 hours of broadcast time during the one month prior to every general election and encouraged to contribute additional time.
The required time shall be a condition of the broadcast license and any station (and its owners) that does not provide the required time shall be in violation of its license and it (and its owners) shall be ineligible for renewal of that or any other broadcast license. The total contribution of stations that contribute more than the minimum required amount shall be a contributing factor in determining whether a licensee shall be renewed or permitted to obtain additional licenses.
The FEC shall specify by rule or regulation the specific blocs of time or a method for determining such blocs. The blocs shall include both short blocs during regularly scheduled shows and half hour blocs and shall be during both prime and less valuable time slots.
The FEC shall allocate the available time blocs to participating candidates by lottery according to rules and regulations it shall promulgate.
In general elections, each candidate's chances in the lottery shall be weighted according to the number of votes such candidate's party received in the most recent election.
Every such station shall be required to sell additional time to participating candidates on terms no less attractive than the best terms they offer any advertising customer.
No candidate programming or advertising pursuant to this Act shall be deemed speech of the station broadcasting it, which shall be, for these purposes, deemed a common carrier.
All participating candidates shall be entitled to campaign matching funds from the US in the amount of
(A) four times the total contributions received by the candidate from citizen donors who donate $100 or less,
(B) less the sum of
(i) the total amount donated by non-citizens, including corporations and other entities regardless of domicile or state of organization, plus
(ii) any amount in excess of $1000 from the candidate's own funds.