Sunday, August 2, 2015

The Birth of the Electorate Paradigm Shift


[Guest Contributor - Donald G. Mutersbaugh Sr.]

Let’s start here: regular politicians aren’t addressing the issues ordinary Americans are concerned about. Trump is simply saying what a lot of average Americans think; they have had enough of the politically correct advisors telling them what they should and should not think. The level of discontent seems to be bad enough that most Americans are now paying attention before they go to the voting booth and pull the lever.

Donald Trump says it like it is; he doesn't really worry about what the mainstream media says – for that matter, it doesn't really make a difference what the leadership of either the Democratic or the Republican Party says. For this he is castigated: using freedom of speech to express an opinion that is contrary to the stagnant, self-serving, destructive messages of the so-called professional politicians who are trying to get into or stay in power. Can you imagine? Is it any wonder that our country is being destroyed from within when you have so-called “news organizations” saying that they are going to cover Mr. Trump’s run for the presidency in the Entertainment Section instead of the Political Section?

What is happening with Donald Trump is nothing short of miraculous: he is causing a paradigm shift in the electorate. Most true Republicans are dissatisfied, and they are in a “silent majority” revolt. The conservative part of the Republican Party is tired of being lied to; it seems to be happening with increasing frequency. The Republicans have control of the House of Representatives and the Senate; what promises have they fulfilled since the electorate gave them control? Now, with the presidential season upon us, with an unprecedented number of candidates running for the Office of President, why should we, the electorate, believe any of it? It is the “same old – same old” because the majority of the candidates are calcified bureaucrats being managed by RINOs and consultants who espouse non-winning strategies. Establishment favorites of the politically connected seem to be terrified that they will lose their influence in the decision-making process – and rightly so.  

Don't get me wrong; I think that everybody involved in this process is a loyal American who loves God and country. And a large share of the blame belongs to the current two party system which normally would not allow anybody but the favorite of either party to rise to the point that they are the one nominated. Would Mr. Trump run as a third-party, independent? He has threatened to. Could this possibly be a replay of Ross Perot’s run for the Presidency? If that did happen, would the outcome be the same? Maybe the Republicans would get lucky and he would siphon more votes from the marginally satisfied Democrats to allow the Republican nomination to win (wishful thinking, I know, especially if the true conservative part of the Republican Party stays at home and decides not to vote at all)!

Let's go back to the paradigm shift for a little more discussion. One manifestation of this election season is that regardless of what happens to Mr. Trump, he has definitely caused a change in the direction and tone of conversations, interviews, and stump speeches concerning many topics which are of interest to most Americans (not so much politicians – except as it relates to their electability). The message that Mr. Trump brings to the game is resonating with the electorate. Perhaps they see in him somebody who is not a professional politician! Whether you like him or not, he is a winner. He says what he means, and he means what he says. For most of us, this is a refreshing message. I believe that people are tired of candidates that stand before us and bloviate about all of the things that we want to hear – regardless of whether they're true or not. And, because he speaks to issues that are important in his mind, he has indirectly changed the course of many issues that perhaps the other candidates wish to discuss – but in a politically correct manner. In doing this he has changed the course of the election discussion; this also might help explain why the other candidates are attacking him. Of course, being ahead in most of the polls makes him a moving target; but the interesting thing to note is that he is controlling the conversation – and it is resonating with the electorate!

I personally believe that the current debate format should only allow for the top five contenders. Even reducing the number from 16 to 10 will not allow for an intelligent discussion to occur; there are just too many people, too many issues, and not enough time to allow each candidate to really present themselves to the American electorate. And this is a problem because the image of the Republican Party needs to be vastly improved. Further, it would be highly desirable for the Republican “powers to be” to encourage the marginal candidates to withdraw from the race. There is nothing more distressing to me than to see former President Ronald Reagan's eleventh commandment violated: “Thou shalt not speak ill of any fellow Republican.” By allowing these other losers to continually attack those who might have a chance at winning the nomination – and even the election – only provides rhetorical ammunition to the opponents of the Republican candidate.

I am hopeful that the power structure of the Republican Party will recognize that there has been a paradigm shift, and they take that knowledge with them when they do their planning on how to win a national election. If they do nominate a moderate, establishment candidate, I hope that they at least give him a toolbox with Mr. Trump's candor and leadership dynamics. Perhaps they can capitalize on this phenomenon, “The birth of the electorate paradigm shift.”

____________________________________

Donald G. Mutersbaugh, Sr. earned his Bachelor of Science degree from the University of Maryland and his Master of Business Administration degree from Mary Washington College. He is the former Associate Administrator of Information Resources for the U.S House of Representatives under Speaker Newt Gingrich.

Tuesday, June 16, 2015

Stopping Obama's Usurpation of Advice & Consent

This also appears at: http://www.constitutingamerica.org/blog/stopping-the-usurpation-of-advise-and-consent-guest-essayist-scot-faulkner/; https://www.linkedin.com/pulse/stopping-obamas-usurpation-advice-consent-scot-faulkner?trk=mp-reader-card


June 28, 2014 is an historic day in thwarting Presidential over-reach. On that day the U.S. Supreme Court unanimously ruled President Obama’s recess appointments unconstitutional. NLRB versus Noel Canning, ET AL was a rare instance when the Judicial Branch acted as referee and reset the balance of power between the Executive and Legislative Branches.


The case centered on Noel Canning challenging a February 8, 2012 National Labor Relations Board (NLRB) decision on the grounds that its quorum only existed with the presence of invalid recess appointments. Noel Canning’s attorney argued that Obama’s ap­pointments were invalid because the 3-day adjournment between Congressional sessions was not long enough to trigger the Recess Ap­pointments Clause.


On January 25, 2013, a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit struck the first blow against President Obama’s over reach by unanimously agreeing with Canning and ruling that the three recess appointments to the NLRB on January 4, 2012 were unconstitutional.


The Appeals Court asserted that the circumstance that would allow a President to make “Recess Appointments” under Article II, Section 2 of the U.S. Constitution did not exist, because the Congress was in Pro Forma Session, not in a formal recess.


The Constitutional Convention of 1787 established two coequal chambers within the Legislative Branch.  One aspect of this balance is that:
Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting. [Article 1, Section 5, Clause 4]


The formal end of a Congress is when the Legislative Branch adjourns “Sine Die” (from the Latin “without day”) meaning “without assigning a day for a further meeting or hearing”.  The Twentieth Amendment to the Constitution also sets a formal start and end time for each Congress.


The most complex consequence of Clause 4 relates to when Congress takes a recess and when it adjourns. A recess is a temporary halt to activity on the floor. Everything stops, and when the recess ends, the chamber resumes from where it left off. A recess might last 10 minutes or it might last weeks. The length of time does not matter. An adjournment is a formal end to business in the chamber, and upon return the chamber does not resume from where it left off. Just like a recess an adjournment can be for one minute or for three weeks.


Any formal break in Legislative Branch activity opens the door for a President to take certain actions. This includes making appointments which require Senate confirmation. Congressional leaders of both parties have devised ways to avoid inadvertently unleashing Presidential activism.


The Congress can take a break from legislative activity, and still avoid a formal recess or adjournment, by meeting in a “pro forma” session. Pro forma means “for the sake of formality”. In recent years pro forma sessions have prevented Presidents from making recess appointments, and in the case of President George W. Bush in 2008, deprived him calling a special session to reauthorize the Protect America Act and the Foreign Intelligence Surveillance Act.


As long as a Member convenes either the House or Senate to formally open and close a session there is no recess or adjournment. Members sometimes compete to see how fast they can conduct a pro forma session. The record is currently held by Senator Jack Reed of Rhode Island who completed the task in 12 seconds.


Obama’s January 2012 appointments were designed to dramatically expand his appointment authority by asserting his recess-appointment power as a “safety valve” against Senatorial “intransigence.” [1]
The Supreme Court unanimously declared the President lacked the authority to make those appointments. [2]


Justice Breyer delivered the opinion of the Court and quoted from the Federal Papers,  ”the need to secure Senate approval provides “an excellent check upon a spirit of favoritism in the President, and would tend greatly to preventing the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity.” [3]


Breyer further wrote, “If a Sen­ate recess is so short that it does not require the consent of the House, it is too short to trigger the Recess Appoint­ments Clause. See Art. I, §5, cl. 4. And a recess lasting less than 10 days is presumptively too short as well”. [4] He dismissed the counter arguments of Obama’s Solicitor General as not, “either legally or practically appropriate”. [5]


Justice Scalia wrote a Concurrence that went further in assailing Obama’s attempt to nullify the Senate’s role in the appointment process [6].  Scalia exposed Obama’s “untenably broad interpretation” of Presidential power. [7] He also defined the Senate’s role in advice and consent on Presidential appointments “as a critical protection against “‘despotism,’ Freytag, 501 U. S., at 883”. [8]


The Concurrent Opinion was unprecedented in raising serious concerns over President Obama’s “aggrandizing the Presidency beyond its constitutional bounds and undermining respect for the separation of powers”. [9] It also challenged Obama’s rationale, “I can conceive of no sane constitutional theory…requiring us to defer to the views of the Executive Branch”. [10]


Justices Scalia, Thomas, Roberts, and Alito stood firm against Obama’s power grab by embracing the founding principles of America, “the limitation upon the President’s appointment power is there not for the benefit of the Senate, but for the protection of the people”. [11]


Scot Faulkner served as Chief Administrative Officer of the U.S. House of Representatives and as a Member of the Reagan White House Staff.  He earned a Master’s Degree in Public Administration from American University, and a Bachelor’s Degree in Government from Lawrence University


NOTES:
[1] Tr. of Oral Arg. 21; page 74. http://www.supremecourt.gov/opinions/13pdf/12-1281_mc8p.pdf
[2] NLRB versus Noel Canning, ET AL; No. 12–1281. Argued January 13, 2014—Decided June 26, 2014; 573 U. S. ____ (2014); 705 F. 3d 490, affirmed; Page 41.
[3] Alexander Hamilton, The Federalist No. 76, p. 513 (J. Cooke ed. 1961).
[4] NLRB versus Noel Canning, ET AL; No. 12–1281. 573 U. S. ____ (2014); page 26.
[5] Ibid; page 43.
[6] Ibid; page 60. Scalia jointed by Justices Thomas, Roberts, and Alito.
[7] Ibid; page 61.
[8] Ibid; page 70.
[9] Ibid; page 108.
[10] Ibid; page 106.
[11] Ibid; page 107.

Monday, May 18, 2015

Why Iraq Matters

Also published in https://www.linkedin.com/pulse/why-iraq-matters-scot-faulkner?trk=prof-post




Why is Iraq relevant? Specifically, why is the decision to fight the second Iraq War relevant to the 2016 Presidential election?


It is about more than just having another Bush running for President.  Ramadi falls, Iraqi military units flee before ISIS, and Iran extends its reach in the region. What a Republican President did back in 2003 has become a crucible on which the next generation of Republican leaders and their advisors must be tested.


The Second Iraq War is relevant because the senior policy advisors who embraced pre-emptive war and led America and the Middle East over a cliff are still around and serving in the inner circles of Jeb Bush and most other Republican Presidential candidates.


This generation of inept, incompetent, policy players did everything except slink away in shame.  They landed high paying and prestigious jobs in think tanks, lobby firms, and corporate boards.  They are the talking heads who kibitz on cable news and write columns second guessing everyone but themselves.  It is the old Washington game of unaccountable power – as long as you make the right friends and go to the right cocktail parties your actual track record is irrelevant.


For America to move forward in the Middle East it must demand that Republican candidates rid themselves of those who ignored intelligence, cherry-picked facts, were oblivious to a millennia of history & culture, bungled the war, bungled the occupation, were complicit in crony capitalist scams that steered nearly a trillion dollars through questionable sole source contracts, dismissed blatant corruption, embraced the wrong factions, and refused to make amends or apologize for what they did.


In early 2003, Bush advisors met with foreign policy experts who served Ronald Reagan.  The strategists who brought down the Soviet Empire unanimously opposed Bush’s plan to invade Iraq.  They listed dozens of reasons.  They correctly reminded the Bush team that Iraq had served as the counter-balance to Iranian aspirations since the 1979 Iranian Revolution.  Taking out Saddam Hussein, especially without a clear alternative, would leave chaos and a vacuum.  This would open the door for Iran to challenge Sunni hegemony in the region and lead to a sectarian conflict that would devastate the region.  The Bush team scoffed.


Why was the Bush team so fixated on going back into Iraq no matter the facts or the consequences? The story lies deep within a sequence of largely unreported events that put America and the region on a path to our current predicament.


At 4:00 a.m. “Saudi time” on Sunday, February 24, 1991 the U.S. launched a brilliantly designed and executed ground war into Iraq as part of “Desert Storm”. This end run around Iraqi forces in Kuwait (Operation Deep Strike) stands along side Austerlitz and Chancellorsville as one of the great battle maneuvers in history.


Only a handful of military and intelligence officials admit to what happened next. Several of them have confirmed these details to me and they are verified on a few websites.


Desert Storm’s original plan was to completely encircle and destroy the Iraqi Republican Guard units defending Basra [ http://www.hoskinson.net/gulfwar/dstorm13.html ].


On Tuesday, February 26, at 7:00 p.m. “Saudi time” the final armored units required for this encirclement entered Iraq and sped toward Basra. At that same time U.S. air strikes were obliterating retreating Iraqi forces along Route 80 near the town Al Jahra. These strikes destroyed 1,400 vehicles and killed thousands of Iraqi soldiers [http://en.wikipedia.org/wiki/Highway_of_Death ].


As Wednesday February 27 dawned, CNN and other news organizations ran extensive video of the Route 80 carnage, now christened the “Highway of Death”. Some reporters and commentators began to question whether the “Highway of Death” was a gratuitous killing spree. Colin Powell, Chairman of the Joint Chiefs of Staff, was disturbed by the “shooting gallery” scenes and by the negative turn of news coverage. He shared his concern with President Bush and key White House advisors.


Debates raged in the White House about finishing the job of encircling the Republican Guard at Basra or “cutting losses” regarding negative media coverage. One staffer suggested that a compromise might be to end the ground war the next day (Thursday, February 28) at noon “Saudi time” as that would be exactly the 100-hour mark. This was immediately embraced as a “great number for the history books”. At 9:00 EST that evening a cease fire was announced to take effect nine hours later (4:00 a.m. EST or noon “Saudi time”).


Ground commanders, including Desert Storm commander General Norman Schwarzkopf, were shocked at the news. Lead armor units were less than 20 miles from completing their encirclement of the Republic Guards near Basra. The cease fire halted their advance leaving a strategic gap through which the Guard units resupplied and reformed under the U.S guns. A provisional ceasefire was formally signed three days later on March 3, 1991.


Unfortunately, this provisional ceasefire allowed the Iraqi military immediate use of their airspace and required U.S. forces to begin their withdrawal from Iraqi territory. [http://iraqimojo.blogspot.com/2006/11/ghosts-of-1991.html ]


Then matters got worse. On February 15, 1991, President George H. W. Bush issued statements calling on the Iraqi people to overthrow President Saddam Hussein. It was hoped that Iraqi generals and key Sunni leaders would use the war as their opportunity for an uprising.


On March 3, 1991, the same day as a provisional ceasefire was signed, uprisings did occur, but among the Kurds in the north of Iraq, and the Shiites in the south. Bush officials were concerned that the Kurdish uprising might ignite Turkish fears of a greater Kurdistan and the Shiite uprising might trigger Iranian intervention. U.S. officials decided the best policy was to stand by and watch as Iraq brutally suppressed both revolts, killing over 100,000 civilians. Iraqi armored units and supply convoys moved with impunity while Iraqi helicopters flew by U.S. forces on their way to strafe rebelling Shiites.


Bush officials were concerned that the Kurdish uprising might ignite Turkish fears of a greater Kurdistan and the Shiite uprising might trigger Iranian intervention. U.S. officials decided the best policy was to stand by and watch as Iraq brutally suppressed both revolts, killing over 100,000 civilians. Iraqi armored units and supply convoys moved with impunity while Iraqi helicopters flew by U.S. forces on their way to strafe rebelling Shiites.


Many myths arose from the 1991 war including the “big lie” that we considered taking Baghdad. This masks the disastrous decision to arbitrarily end the war and allow the Republican Guard units to be resupplied and reform under U.S. guns. It masks the inane provisional ceasefire that prematurely reopened Iraqi airspace for military operations. And it masks the miscues of the Bush administration encouraging revolt only to watch thousands of civilians get slaughtered


When George W. Bush, entered the White House, many in his inner circle, including Vice President Cheney, wanted a “do over”. Their priority was to find an excuse, any excuse, to finish off Saddam. The attacks on 9-11 gave them the pretext for a return to Iraq.


Americans need to remember these events as Republican candidates grapple with questions about the second Iraq War.


We must remember history and vow to learn from

Wednesday, May 6, 2015

Home Alone

This also appears at http://www.constitutingamerica.org/blog/congress-communication-breakdown-guest-essayist-scot-faulkner/


The world where House and Senate Chambers are packed with Members attentively listening to their colleagues ended long before films like “Mr. Smith Goes to Washington” and “Advise and Consent” paid it homage.


The Legislative Branch was intended to be the shining ideal of ordered debate and civil discourse. 


Thomas Jefferson eloquently spoke of this noble mission, “Congress is the great commanding theater of this nation. It is the place where laws are made.” [1]


Originally, the Chambers themselves were designed to foster the exchange of ideas and the forging of national policy through intellectual inquiry. [2]


Today both Houses of the Legislative Branch are pale reflections of these ideals.  Members of the House of Representatives and Senate trade prepackaged partisan barbs to empty chambers. 


“Congress is changing as an institution, and what you see is more and more members gearing their speeches as sound bites or YouTube clips,” said Lee Drutman, a senior fellow at the nonpartisan Sunlight Foundation.  [3]


What happened to the institution where, “members quoted Shakespeare on the floor and really engaged in debate and talked to each other and tried to reason back and forth?” [4]


Blame the size and complexity of the Federal Government.


The conflict between legislative business occurring at center stage versus behind the scenes started in the Continental Congress.  Even during the formative stages of America, there were committees that met away from the Chamber to prepare legislation for consideration.


These committees were temporary in nature.  Ad hoc committees were established within the House and Senate for a particular purpose and ended when they completed their task.  Selecting committee membership was a function of the entire body.  Committee members were usually the sponsors of specific bills and resolutions. These temporary committees were formed with one week deadlines for reporting back to the parent chamber.  Members of the House and Senate actually spent the majority of their time collectively in the “committee of the whole” to conduct legislative business. [5]


The first permanent, or “standing committee”, was the House’s Committee on Ways and Means in 1801. It took until 1816 before the Senate created its first standing committees.  Even with standing committees; committee chairs and members acted as limited adjuncts to the full House and Senate. [6]


The rise of Andrew Jackson and “Jacksonian Democrats” ushered in modern political parties. 


Partisan alignments seeped into the workings of the Legislative Branch.  By 1846 Members began to sit together in the Senate chamber according to party affiliation.  That same year saw the shift to committee assignments based upon recommendations of political party caucuses. [7]


Even with the rise of partisanship and standing committees, legislation was primarily handled by Members conducting learned debate in Chambers packed with colleagues and the public.


Congressional debates mattered and the future of America was being discussed and shaped every day the House and Senate were in session. The leaders of Washington society eagerly attended these sessions. The public filled the Senate’s “Ladies’ Gallery” and even sat on couches along the walls of the Senate Floor. [8]


America was growing and the strategic issue of slavery expanding westward dominated legislative debate. The issues were large and larger than life political leaders rose to voice concerns on behalf of the various regions of the United States.


The years 1810 through 1859, were a period known as the “Golden Age” of the Senate.  During this time three of the greatest senators and orators in American history served there: Henry Clay (Kentucky) articulating the views and concerns of the West, Daniel Webster (Massachusetts) representing the North, and John C. Calhoun (South Carolina) representing the South.


During these years America’s political leaders debated and resolved major issues on the Floors of the House and Senate.  These included the Missouri Compromise of 1820, the nullification debate of 1830 (Haynes-Webster debates), and the Compromise of1850. “Washington's elite gathered to watch the impassioned oratory and the great compromises that took place in this Chamber.” [9]


”On any given day, you’d find most of the senators at their desks in the chamber … writing, listening, debating, laughing, sleeping, franking mail. They were all present. No doubt, this was conducive to debate and resulted in some great discussions and arguments. The crowded Chamber also provided a great show for the visitors in the gallery.” [10]


There was power in oratory. The debates among Clay, Webster, Calhoun, and others mattered. These debates over America’s future became touch stones of our nation’s civic culture. For example, Daniel Webster’s speeches were so famous, “that his reply “Liberty and Union, now and forever, one and inseparable!” to Senator Robert Hayne in a debate in 1830 was memorized by schoolboys and was on the lips of Northern soldiers as they charged forward in the Civil War.” [11]


The “Golden Age” made the House and Senate Chambers center stage in the Legislative Branch and in the nation. However, other forces were at work to pull power and attention away from this national forum.


Government was growing slowly, but incessantly. By 1856 the complexities of government, and its legislation, required major committees to hire clerical staff. For another fifty years House and Senate Members made do with cramped quarters in the ever expanding Capitol Building. The House of Representatives met in its new chamber on December 16, 1857, and the Senate first met in its new chamber on January 4, 1859. [12] During this time Members attended full sessions of the House and Senate in part because there was no other place for them to work. [13]


This fundamentally changed in the 20th Century. The Russell Senate Office Building opened in 1909.


The Cannon House Office Building opened in 1908. Members began to spend more time in their offices or attending committee meetings. The role of the House and Senate Chambers diminished to a place for voting instead of debating. Eventually, six office buildings would be filled with Members and their staffs.


Another blow to the stature of Chamber debate was the surge in executive branch activism under the Progressives (Roosevelt, Taft, Wilson), Democrats (Roosevelt, Truman, Kennedy, Johnson), and ultimately Presidents of both parties.


Big government forever changed the role of the Legislative Branch. Members had to confront more than legislation. Their offices became “mini-embassies” representing and advising their constituents on navigating the ever growing morass of government programs and agencies.


Members soon realized that power resided in minutiae rather than big issues. By specializing in niche issues and becoming experts on micro-matters they became brokers for legislative processes.


Unblocking choke points meant cutting deals with their colleagues and special interests. Members helping district and special interests to navigate the increasingly complex government labyrinth were rewarded with votes and donations. The road to power and riches ceased to be in front of the scenes, and settled into the dark recesses behind the scenes.


Efforts were made to reverse this undemocratic trend. In 1946, Congress tried to winnow down and streamline the hundreds of committees that blossomed during the New Deal and World War II. [14] Instead, The Legislative Reorganization Act of 1946 expanded staffs and institutionalized Member focus away from Floor debate. [15]


The number of committee meetings grew as government grew. During the 85th Congress (1957-1958) there were 3,750 House meetings and 2,748 Senate meetings.  By the 95th Congress (1977-1978) it was 7,896 House meetings and 3,960 Senate meetings. [16] Members had to pick and choose which meetings to attend, trading time for their staff, constituents, lobbyists, and donors.  Hearing rooms became just as empty as their parent Chamber.


Social media and fundraising have joined the competition for Members’ over stretched attention.  Lost in this cacophony is Jefferson’s ideal of civil discourse.  The towering figures of the Golden Age are now just names on statues that Members pass on their way to Chambers where they quickly vote and leave.


[Scot Faulkner served as the first Chief Administrative Officer of the U.S. House of Representatives.]


FOOTNOTES
[1] http://www.pbs.org/kenburns/congress/educators/
[2] Richard Chenowerth, “The Most Beautiful Room in the World; Latrobe, Jefferson, and the First Capitol”; The Capitol Dome, Fall 2014; p. 24-39.
[3] http://articles.latimes.com/2012/may/22/news/la-pn-study-congress-sounding-increasingly-like-teenagers-20120521
[4] Ibid
[5] http://www.senate.gov/artandhistory/history/common/briefing/Committees.htm
[6] “The Committee System.” Boundless Political Science. Boundless, 25 Jan. 2015. https://www.boundless.com/political-science/textbooks/boundless-political-science-textbook/congress-11/organization-of-congress-77/the-committee-system-426-4995/ 
[7] http://www.senate.gov/artandhistory/history/common/generic/VP_John_Calhoun.htm
[8] http://www.senate.gov/artandhistory/history/common/generic/VP_Daniel_Tompkins.htm
[9] http://www.clotureclub.com/2012/10/old-senate-chamber-history-and-facts/
[10] Betty K. Koed; “The Ten Most Important Things to Know About the U.S. Senate”; United States Senate Historical Office. http://www.dirksencenter.org/print_expert_tenthingssenate.htm
[11] Craig R. Smith, “Daniel Webster and the Oratory of Civil Religion”; January 30, 2005; University of Missouri Press.
[12] http://www.aoc.gov/history-us-capitol-building
[13] Joanna Hallac; “Old Senate Chamber” https://uschs.wordpress.com/tag/dr-william-thornton/
[14] The Legislative Reorganization Act of 1946 (PL 601 79th Congress); https://bulk.resource.org/gao.gov/79-601/00001E13.pdf
[15] George B. Galloway; “The Operation of the Legislative Reorganization Act of 1946”; The American Political Science Review, Vol. 45, No. 1, (Mar., 1951), pp. 41-68 American Political Science Association; page 56; http://people.brandeis.edu/~woll/gallowaylegreorgact46.pdf
[16] Norman J. Ornstein, Thomas E. Mann, Michael J. Malbin, Andrew Rugg and Raffaela Wakeman Vital Statistics on Congress Data on the U.S. Congress – A Joint Effort from Brookings and the American Enterprise Institute ; July 2013 http://www.brookings.edu/research/reports/2013/07/vital-statistics-congress-mann-ornstein

Tuesday, May 5, 2015

Going Postal

Senator Tom Carper (D-Del) has just launched his perennial effort to save the U.S. Postal Service (USPS) from itself.  http://m.govexec.com/oversight/2015/05/congress-once-again-tries-save-postal-service/111976/?oref=govexec_today_nl


Senator Carper has a daunting task.  The USPS is still living in a parallel world.  Their latest idea for confronting reality is to “augment reality” http://www.washingtonpost.com/blogs/federal-eye/wp/2015/04/08/5-ways-the-postal-service-could-save-money-with-google-glass-type-eyewear/ .


What to do with the U.S. Postal Service?


A few years ago the USPS blinked in the wake of Congressional outrage and backed away from closing 600 rural post offices. This will probably be the first of many “blinks” over their strategy to close 252 mail-processing centers and 3,700 post offices in order to save $6.5 billion a year.
Rural interests and Members of Congress continue to howl about erasing pieces of Americana.


However, even with emergency measures that temporarily ran a surplus, the future is all about deepening deficits.  
http://www.dailynews.com/business/20140127/united-states-postal-service-rate-increase-largest-in-11-years


Congress and the USPS are starting from the wrong premise. It is not about preserving where Post Offices exist, it is about serving where their customers exist. Post Offices built even 20 years ago at best reflect rear view mirror thinking, and at worst political favoritism and Congressional earmarks.  None of this reflects market realities.  No one asks if there are any "best practice" solutions among the other 200 countries that have postal operations.


Two real world solutions already exist in America.


One has existed since the mid-1990s. The USPS actually experimented with 24-7 automated Postal Service. It was so successful that one of these automated kiosks was installed in the Longworth House Office Building when I was Chief Administrative Officer. On October 19, 1995, Postmaster General Marvin Runyon and I cut the ribbon on this facility. Its equipment allowed customers to weigh and mail letters and parcels, as well as process registered & certified mail. This was not your parents’ stamp vending machine.


So why not install these automated kiosks in the 600 rural post offices and others as well? I am sure this 18-year-old technology is even more efficient and cost-effective today. Postal employees could “ride circuit” and be available for that “human touch” on designated days and hours. At all other times, rural customers could do everything they need 24-7 in the local post offices they love.


Another solution is one that allowed Western Union to survive and thrive into the 21st Century. No one sends telegrams, but people still need to wire funds outside of the banking system. Western Union quickly realized its market niche while also realizing it did not need its own facilities. Enter the world of strategic partnering. Western Union partners with Walmart, Winn Dixie, Weis, and countless pharmacies and stores to provide their services – eliminating staffing and other fixed costs.


Why isn’t the USPS co-locating their 24-7 service kiosks in a similar network of partner locations? Why couldn’t there be mailboxes at Walmart and other large stores? Why couldn’t Walmart Service Centers handle certified mail?


This simple solution would allow the USPS to expand service into new population areas without building new facilities. The reason these “back to the future” options are not pursued is that few in government are creative or have the guts to fight the Postal Unions and other special interests to change with the times.


Until there is a will, the way forward will be ignored.

Saturday, May 2, 2015

Order out of Chaos

Today, please take a moment to remember one of the most important unknown people in American history.


On this date in 1837, Henry Martyn Robert was born.


His distinguished career included overseeing construction of the extensive fortifications around Washington, DC and Philadelphia during the Civil War. He later co-chaired the 1901 commission that made recommendations for improving coastal barriers and breakwaters after a hurricane destroyed Galveston, Texas.


But it is his contribution between these two endeavors why we pay him homage.


In 1876, Brigadier General Robert was stationed in San Francisco.  During his posting, Robert wanted to bring some order to the various San Francisco civic meetings he attended or presided over.


He also wanted to develop processes that fostered dialogue, not just debate.  He compiled “Robert’s Rules of Order” to help his colleagues manage their meetings.


Initially, publishers were not interested in such a compilation. Robert’s used his own money to publish the first 4,000 copies. It is now one of the most read and referenced texts on meeting management in the world.


Robert passed away on May 11, 1923, but his role in bringing order to countless meetings lives on.
In September 2001, the National Association of Parliamentarians commemorated the 125th anniversary of Robert’s Rules by placing a brass plaque in front of his former home at 1812 N Street, NW in Washington, DC.


For the rest of us, we should honor Robert’s memory by making sure all our meetings run well.

Friday, April 17, 2015

BUDGET BATTLES

Published in http://www.constitutingamerica.org/blog/to-rein-in-spending-congress-must-act/


Expanding Presidential power usually erodes democracy, expands government, and facilitates the rise of an increasingly unaccountable “Imperial Presidency”.  Ironically, giving Presidents more power to control spending does just the opposite.


The struggle over government spending has been a fundamental point of contention since the earliest days of our Federal Government. In the last twenty years, this issue has split the Democrats in Congress, frustrated Republican and Democratic Presidents, and generated numerous Supreme Court cases. The 1974 effort to resolve the matter, once and for all, substantively contributed to the current explosion in federal spending.


Article I of the U.S. Constitution outlines the power of Congress to create laws [Sections 1 & 8] and the prevailing nature of those laws once signed by the President or passed over a Presidential Veto [Section 7].
Article II of the U.S. Constitution vests all executive power in the President of the United States [Section 1].


This division of power and responsibility was validated by Chief Justice John Marshall in 1825, "the difference between the departments undoubtedly is that the legislature makes, the executive executes, and the judiciary construes the law." [Wayman v. Southard, 23 U.S. 1, 44 (1825)]


Earlier, Chief Justice Marshall, in his famous Marbury v. Madison, defined the difference between political acts belonging to the executive branch alone as opposed to those executive acts governed by congressional enactments: “He acts, in this respect.., under the authority of the law, and not by instructions of the President.  It is a ministerial act which the law enjoins on a particular officer for a particular purpose...”
[Marbury v. Madison, 1 Cranch 137, 5 U.S. 137, 2 L.Ed. 60 (1803)]


However, what happens if Congress creates programs that eventually become unnecessary or obsolete? What happens if Congress continues to authorize and appropriate funds for those programs? What happens if Congress provides more funds than recommended by the Executive Branch or exceeds documented need?


President Thomas Jefferson was the first to test the boundaries of Executive authority to second guess Congressional spending. In the wake of the 1803 Louisiana Purchase, Jefferson reported that, "the sum of $50,000 appropriated by Congress for providing gunboats remains unexpended. The favorable and peaceful turn of affairs on the Mississippi rendered an immediate execution of that law unnecessary.... "[1]


Following Jefferson’s precedent, subsequent Presidents selectively withheld appropriated funds on programs that were no longer needed. They also asserted they were effectuating congressional intent not circumventing it.


The Depression and World War II provided opportunities for President Franklin Roosevelt to stretch budgetary discretion beyond Jefferson’s “economy” precedent. He moved funds away from what he deemed less important programs to more pressing programs. Post war demobilization gave President Harry S. Truman additional opportunities to hold back Congressional spending. Truman impounded $735 million in additional funds appropriated by Congress to increase to 58 from 48 the President's request for Air Force groups. [2]


This expanded justification for Presidential Impoundment of Congressional funds became bi-partisan when President Dwight D. Eisenhower, set aside $137 million appropriated for the initial procurement of Nike-Zeus anti-missile system hardware. John F. Kennedy impounded $180 million appropriated by Congress over the President's request for developing the B70 Bomber. Lyndon B. Johnson unilaterally decreased federal spending by $5.3 billion to mitigate the inflationary impact of the Vietnam War. [3]


Congress was initially supported the President’s role in managing public funds. The Anti-Deficiency Act of 1905 provided that appropriations may, “… be so apportioned by monthly or other allotments as to prevent expenditures in one portion of the year, which may necessitate deficiency or additional appropriations to complete the service of the fiscal year for which said appropriations are made." [4]


The Revised Anti-deficiency Act of 1906 stated: "Whenever it is determined...that
any amount so reserved will not be required to carry out the purposes of the appropriation concerned, he {President] shall recommend the rescission of such amount ...". [5]


President Warren Harding’s Budget Bureau Director, Charles E. Dawes, further asserted that an agency was not required to spend its total appropriation if it could fulfill its objectives by spending a lesser amount. [6]


Omnibus Appropriations Act of 1951, continued to expand Presidential flexibility on managing and controlling spending: “In apportioning any appropriations, reserves may be established to provide for contingencies or to affect savings whenever savings are made possible through changes in requirements, greater efficiency of operations, or other developments subsequent to the date on which such appropriation was made. [7]


A new breed of liberals began to signal a challenge to Presidential spending control.  Congressman George H. Mahon (D-TX) raised concerns regarding the passage of the 1951 Act: "I would not object, as I know other members would not object, to any reasonable economies in government. But economy is one thing and the abandonment of a policy and program of Congress is another thing." [8]


Recipients of federal funds began to challenge Presidential control of spending.  The Supreme Court, led by Chief Justice Earl Warren, began to constrict Presidential impoundment and other practices to control spending.  [9]


These new battle lines hardened when President Richard Nixon mounted a more aggressive and effective effort to rein-in federal spending.  The Supreme Court, even under Chief Justice Warren Burger, continued to build legal precedents against Presidential intervention. [10]


“Article I, Section 1, of the Constitution vests "[a]ll legislative powers" in the Congress. No budget message of the President can alter that power and force the Congress to act to preserve legislative programs from extinction prior to the time Congress has declared that they shall terminate, either by its action or inaction.... Thus, in absence of any contrary legislation, the defendant's plans to terminate the CAA functions and the OEO itself are unlawful as beyond his statutory authority.” [American Federation of Government Employees v. Phillips, 358 F. Supp. 60 (1973)]


Nixon continued to impound congressionally appropriated funds. During the 1973-1974 budget year, Nixon refused to spend $12 billion.[11] Congressional Democrats, sensing the decline in Presidential power in the wake of the mounting Watergate scandal, passed the Congressional Budget and Impoundment Control Act of 1974 (Public law 93-344) [12]. Nixon signed the law on July 12, 1974, one of his final major acts in office. [13]


The Budget Act created the current framework within which the Federal Budget is proposed, passed, and implemented.  It placed Congress firmly in the driver’s seat, and blocked future President’s from taking actions deemed constitutional and prudent for over 171 years.


The result was instant and dramatic.  In the six years prior to the 1974 Act, the federal budget increased on an average of $13.4 billion annually.  In the seven years after the Act, the federal increased by over $49 billion annually.


“From 1950-1974, federal deficits averaged 0.7% of GDP. After the Congressional Budget Act was adopted, from 1975-2007, deficits averaged 2.5% of GDP. And when the Congressional Budget Act was enacted in 1974, real (inflation-adjusted) U.S. government debt per person was $3,240. Today, that figure is $16,527.” [14]


Newt Gingrich resurrected the issue by proposing a new way to reassert Presidential budget management – the Line Item Veto.  This was a key part of his “Contract with America” [15] It became a rallying cry for fiscal “hawks” from across the political spectrum. [16] Former President Ronald Reagan added his voice to the renewed effort: “When I was governor of California, the governor had the line item veto, and so you could veto parts of the spending in a bill. The president can’t do that. I think, frankly—of course, I’m prejudiced—government would be far better off if the president had the right of line-item veto.” [17]


The bill was introduced by Senator Bob Dole (R-KS) on January 4, 1995, cosponsored by Senator John McCain (R-AZ) and 29 other senators. Related House Bills included H.R. 147, H.R. 391, H.R. 2, H.R. 27 and H.R. 3136. The bill was signed into law by President Bill Clinton on April 9, 1996. [18]


Budget “hawks” from both parties cheered, and President Clinton began using the line item veto.  Senator Robert Byrd (D-WV), and others protective of Congressional prerogatives, filed suit to void the law.  Their case was tossed out over lack of standing. [19] Another case succeeded in declaring the Line Item Veto unconstitutional. [20]


On January 31, 2006 President George W. Bush proposed the “Legislative Line Item Veto Act of 2006”.  Conservatives once again rallied to giving the President expanded budgetary powers. [21] It was introduced in the House by Rep. Paul Ryan (R-WI), passed the House Budget Committee on June 14, 2006 by a vote of 24-9, and approved by the House on June 22. A similar bill in the Senate failed. [22]


Republican control of the 114th Congress, the prospect of a Republican President in 2017, and the importance of controlling federal spending, may rekindle interest in revisiting this budgetary turf fight.


FOOTNOTES
 [1] “Presidential Impoundment of Funds: A Constitutional Crisis” Gerald A. Figurski; Akron Law Review, Fall 1973, Page 107 http://www.uakron.edu/dotAsset/a62fd478-04cc-4165-a101-3f19e314f3c1.pdf
[2] Ibid. Page 111.
[3] Ibid.
[4] Ibid. Page 109.
[5] Ibid.
[6] Ibid.
[7] 2331 U.S.C. 665(c)(2) (1970)
[8] Op.Cit. Figurski, Page 114.
[9] http://www.law.harvard.edu/faculty/hjackson/BudgetActRevisited_34.pdf Page 15
[10] Train v. Campaign Clean Water, 420 U.S. 136 (1975) 420 U.S. 136
[11] http://bancroft.berkeley.edu/ROHO/projects/debt/budgetcontrolact.html
[12] https://www.congress.gov/bill/93rd-congress/house-bill/7130
[13] Op.Cit. HJackson, Page 20.
[14] http://pgpf.org/issues/spending/2014/07/qa-congressional-budget-and-impoundment-control-act-of-1974
[15] http://www.gvpt.umd.edu/jgloekler/documents/contract.pdf
[16] Stephen Moore; Testimony: Line Item Veto for the President; Subcommittee on the Constitution; Committee on the Judiciary; United States Senate; January 24, 1995.
[17] Ibid.
[18] http://thomas.loc.gov/cgi-bin/bdquery/z?d104:SN00004
[19] Supreme Court of the United States; Raines. Director, Office of Management and Budget, et.al. v. Byrd, et.al. Appeal from the U.S. District Court for the District of Columbia; No. 96­1671.
[20] Clinton v. City of New York, 524 U.S. 417 (1998)
[21] http://www.heritage.org/research/reports/2006/03/the-presidents-proposed-line-item-veto-could-help-control-spending
[22] https://www.govtrack.us/congress/bills/109/hr4890