Chapter Five -- Part C Application and Implications of this Constitutional Theory |
U.S. Foreign Intervention, Free Trade, and Globalism
As the House of Representatives was debating President Clinton’s impeachment, President Clinton launched air strikes against Iraq. This was based on long standing non-cooperation by Iraq with U.N. weapons inspectors. Shortly after his impeachment acquittal, President Clinton led the U.S. and NATO into military action against Yugoslavia — a bombing campaign to put an end to what was reported as widespread ethnic cleansing in Kosovo. The action was commenced by Clinton without obtaining prior approval of Congress. According to the War Powers Resolution, passed in 1973 over President Nixon’s veto, Congress is required either to "authorize the use of U.S. forces or to declare war within 60 days of an overseas deployment. Without such approval, the president would have to withdraw troops within 30 more days." [21] On Wednesday, April 28, 1999, "the House voted...to require President Clinton to get prior approval from Congress to pay for sending ground troops to Kosovo." The vote was 249 yes and 180 no. [22] "At the end of nearly 10 hours of conflicting debate on Kosovo, the House took a fourth vote Wednesday night. On a tie vote of 213 to 213, the House failed to adopt a resolution that would have authorized the air strikes already taking place in Kosovo." [23] Subsequently, on June 10th, 1999, the House "approved a peacekeeping operation in Kosovo after Republicans extracted a written promise from President Clinton that it could be performed "without harming military readiness." [24]
When President Bush organized the coalition that fought the Gulf war, the action was debated and approved by Congress before the war started. The Clinton action in Kosovo is a direct challenge to the Constitutional power to declare war. In effect, the Clinton administration is establishing the precedent that a President can personally commit U.S. military forces to intervene anywhere in the world, under the authority of multi-national organizations such as NATO or the United Nations, without any prior specific grant of authority by Congress. Once such a military operation is commenced, the ability of Congress to consider whether intervention is in the U.S. national interest is seriously compromised. The time to consider whether military action is appropriate, justified, or necessary, is before the military action starts.
The potentially large political benefit to a President from using the U.S. military in a dramatic way to appear to accomplish some great cause may lead the U.S. into a continuing series of international military interventions. This is a serious enough danger even with the ability of Congress to restrain such intervention. If the Presidency and Congress are treated as nothing more than competing power centers, and Presidents continue to seize this authority for themselves, the structural tendency is overwhelmingly towards continuing U.S. foreign intervention.
President Clinton has been an active proponent of free trade, and specifically of the power and authority of the World Trade Organization (WTO). The history of Free Trade is traced in an excellent article called "One Government, with free trade for all", by David Morris. [25] Morris writes: "From 1848 — the year Britain adopted a free trade policy — to 1980, free traders conceded the right of countries to manage their own affairs. That included defending small businesses and family farms, enacting stringent environmental standards, banning foreign ownership of key resources, and requiring outside investors to meet the needs of their host communities." [26] Morris claims that beginning in 1980, the policy changed, to an ability of the WTO to dictate on many of these issues. Morris writes: "The WTO specifically prohibits any government from discriminating against a product on the basis of how it is made. A shirt is a shirt is a shirt, whether it is made from genetically engineered cotton or by prison labor." [27] Morris notes the WTO operates in secret, and can effectively overturn national laws. Morris also notes the beneficial effect achieved by various economic sanctions directed against South Africa to end apartheid.
Clinton has promoted "value free" free trade — a policy that effectively prohibits nations from basing trade decisions on any moral consideration, or even on a country’s insistence that imported goods meet domestic product quality laws and regulations. Both President Clinton’s trade policy, and his effort to seize the authority to commit U.S. military forces without Congressional approval, must be viewed in the context of what appears to be the gathering strength of a world wide movement towards one world government. Proponents of global government argue that the world is so dangerous, and some human rights violations are so horrible, that there must be a global acceptance of the idea that at least in some areas, national sovereignty must be surrendered to a global authority. Please pardon me while I interject a few comments here on the issue of globalism and world government. If you want to omit this editorial, you can skip to the next heading. I think the globalism advocates are well-intentioned, but their analysis is flawed. The best way for America to stand up for human rights is first to preserve them in this country, and second to advocate for them internationally, including linking our trade policy to the issue of human rights. There can be a role for multi-national military intervention in extreme cases -- but we should always be looking for alternative ways to make this unnecessary. There should be an infrastructure of multi-lateral organizations like NATO, ready to support intervention when it is essential. Regional organizations are preferable to the United Nations. However, the U.S. should participate in any such multilateral intervention only after a national public debate, and only after Constitutionally required Congressional debate and approval. We always need to consider whether multilateral intervention including U.S. forces will threaten a vital U.S. interest, both in the short term and in the long term. Congress does have a Federal law on the books preventing the President from using military force in other countries for more than 60 days without obtaining Congressional approval. Impeachment and removal is an appropriate remedy for a President who violates both the Constitution and the law by usurping the power of Congress to declare war in the absence of any immediate threat to the United States. Make no mistake about it — the use of military force is an effective declaration of war. It is a well recognized principle of law that actions can speak, as well as words.
Our Constitutional imbalance - A bi-polar Federal system
Based on all that we have just looked at, it seems to me that for now and in our immediate future, we face the danger of a kind of Constitutional civil war between Presidential and Congressional power. Specifically, under Clinton a kind of bi-polar Federal system has been emerging. Clinton has treated the Presidency not as one of three independent branches of a Constitutional government, but as a power center, a base for launching operations in support of an agenda. This power center can be won and occupied, and used to carry out a national agenda in a way that has become increasingly independent of the laws and priorities set by Congress. The power to write regulations, to issue executive orders, and to administer an agenda, can be pushed so far that the executive administration becomes in many ways a de facto legislative body. When the executive branch acts in this way, the idea of Legislative intent is diminished and marginalized. Ongoing communication between the American people and Congress, based on trust and respect, is at the heart of the power and authority of the Federal government. When Congress becomes dominated by Corporate special interests, and loses the trust and respect of the American people, an authority vacuum is created in our Federal government. This is an open invitation for the President to usurp the role and power of Congress in the Federal system. This is what has been happening in the Clinton administration.
If this kind of a bi-polar Federal system continues into the next administration, there will be a great risk of the loss of both the stability of the judiciary branch and the rule of law. In America there has been an effort on everyone’s part to treat Federal Judicial appointments as essentially non-political. Particularly at the Federal District Court level, both Congress and the President have looked for judges who will act fairly, impartially, and predictably based on statutes and precedent. The Senate has traditionally not given Federal Judicial appointees below the Supreme Court close scrutiny. [28] However, recently the process of Judicial nomination and confirmation has broken down. From U.S. News and World Report, May 26th 1997: "Now, the Republican Senate is demanding — and often getting — a voice in whom Clinton appoints to the district courts... ‘It’s a scandalous and stunningly irresponsible misuse of the Senate’s authority,’ says law professor Geoffrey Stone, the provost at the University of Chicago. ‘In all of American history there has never been a situation where a newly elected president has faced this kind of challenge to his judicial nominations,’ says Sheldon Goldman, author of the upcoming book Picking Federal Judges: Lower Court Selections From Roosevelt to Reagan... Last week, Chief Justice William Rehnquist, a conservative, chastised the White House and the Senate for leaving so many vacancies. ‘Unless the executive and the legislative branches change their ways,’ Rehnquist told the Federal Judges Association, ‘the future for judicial appointments is bleak.’" [29] In the first two years of the Clinton Administration, a Democratic controlled Senate confirmed 128 Clinton Judicial nominees — an average of 64 per year. In the following four and three-fourths years, a Republican controlled Senate has confirmed an additional 193 Judges, an average of 40 per year. In the first nine months of 1999, the Senate confirmed only 17 Federal Judges. [30] As of September 25, 1999: "[t]hirty-eight nominations are pending in committee, and seven others are awaiting floor votes." [31] The Reagan administration was perceived by Democrats as politicizing judicial nominations: "Reagan created the Federal Judicial Selection Committee, which sought judges willing to reject affirmative action, give police more authority, allow restrictions on abortions, and permit voluntary school prayer." [32]
If future administrations continue to treat the Presidency as simply a power base, and not part of a larger Constitutional structure, it seems inevitable that the Judiciary will eventually also decline to the level of just another power base for competing political agendas. There has been criticism of so-called "activist judges" for decades. However, the Federal judiciary has remained a consistent body of law in the sense that for most cases precedents are well understood, and outcomes are predictable. If a bi-polar Federal system takes root in this country, where Federal judges come to be treated simply as appointees with the special property that they can’t be fired, the whole idea of a fair and impartial Judiciary will be lost.
An outline of possible Campaign Finance reform
If the thesis of this book is correct, the threat to a President of impeachment and removal based on violations of a Federal criminal statute can act as a safeguard to ensure that the Presidency is used to "take Care that the Laws be faithfully executed." But the idea of the Presidency functioning in this way must be both widely accepted and in practice for our Constitutional institutions of government to function as they were intended. If a bi-polar Constitutional battle between the President and Congress becomes the accepted status quo, application of the Constitutional theory advanced in this book will only further destabilize an already unstable Federal government. We are moving towards the brink of this serious danger. The public debate needed to move us away from the brink of accepting a bi-polar Constitutional battle as the status quo must include a discussion of how the dominance of Corporate and special interests can be ended. We have already examined the problems posed by our current campaign finance system for Federal office holders. That is only half of the story. A reasonable plan for campaign finance reform is the other half of the story.
The next two sections present what I see as one reasonable plan for campaign finance reform. The key requirement of any such reform is to ensure that the financing is so broadly based that Corporate and special interests can’t use it as a lever on Federal office holders. If you want to operate on the general assumption that this can be accomplished, you can skip the next two sections and go to the heading "How would this Constitutional Theory work..." on page 170.
Campaign Finance Problem Analysis
The problem is the dominance of Corporate and special interest money, in all its forms. The key point to keep in mind is that because the names of individual donors are publicly reported, Corporations and trade associations can monitor who is contributing to what campaigns, and how much is being contributed. As we have already seen, it is easy for Corporations to pay higher compensation to "politico" employees who are expected as part of their position to contribute in ways that benefit the interests of the Corporation. At the risk of overstating the case, a system originally intended to limit the impact of individual contributions to ensure there was no undue influence, has become a system where Corporations use employees as fronts to channel money into Congressional and Presidential campaigns. As a result, our Federal political system, including both Presidential and Congressional elections, is now dominated by Corporations and special interests. If we’re not there already, we aren’t far from a situation where elite Corporate management can simply decide which two people will be the nominees for President each election. This decision making process can and will filter out anyone with a message the major Corporations don’t want people to hear.
A potential Campaign Finance solution
In this section I outline one example of a way to potentially reduce excessive Corporate influence in the Federal political process. Although I think this system would be workable, there are many other possible approaches.
The example I am offering would be an either-or alternative to how personal contributions are made to campaigns. Each Federal candidate would be required to choose whether they will accept individual contributions either 1) under rules similar or identical to the current system, or 2) under the rules of a new system that I call We the People (WTP) financing. This reform would work as follows:
First, the current system would be left to work essentially as it does now, with the exception that the prohibition of the de facto merging of political campaigns and soft money advertising would be enforced. Minor modifications to the current system could be considered, but because even with its serious flaws it is still functioning, it would be allowed to continue. One option available to each Federal candidate would be to simply continue with their campaign’s financing under the present system.
Second, for individual contributions only, an alternative We The People (WTP) Campaign Finance system would be established. This alternative system would work as follows: 1) A limit of $50 per person per two year election cycle would be established for all federal campaigns, with contributions in minimum increments of $10. 2) All contributions would be 100% reimbursable. 3) The program would be promoted and publicized. Americans would be told: "Part of our civic obligation is to decide who we want to support for Federal office, Congress and President. Here’s how the WTP Campaign Finance System works. If you want to contribute to a Federal campaign, you send in a check, pay over the phone, by credit card, over the internet. The WTP system verifies, by a signature or a tape recorded statement, that you are making the contribution personally, and not on behalf of anyone else. You provide your Social Security number for each contribution, and your mailing address. When the campaign you contributed to reports your contribution, the Federal government sends you a check for the exact amount of the contribution, up to $50 per person per Federal election cycle."
Third, the WTP financing system would include a national direct mail Presidential Campaign Finance Primary (PFP). This would be a mailing sent the first week of January in Presidential election years, by either the Federal Government or a designated non-profit corporation formed to run the program. The mailing would go to all eligible voters in the country. The mailing would include a booklet, with one page made available to each major party and minor party Presidential candidate. Each major party would be able to designate up to a maximum of ten candidates as eligible - and to use whatever internal process they decide on to determine their list of candidates. A recognized minor party might be able to designate up to five candidates as eligible. Each candidate’s page would be divided into two sections, an upper section of 3/4 of the page, and a bottom 1/4 page reserved for a rebuttal statement. The process of producing the candidate pages would work like this: First, all candidates would be required to submit the final copy of the top three fourths of their page two weeks before printing. Each candidate would then immediately receive a copy of every other candidate’s page. The candidates would have one week to prepare the rebuttal section of their page, based on what the other candidates say. The candidate information booklet would then go to press. Every U.S. voter would be able to designate up to $20 of their $50 election cycle limit through this direct mail primary. The process would be simple - you verify your address, write your social security number on a post card sized form, mark your contribution amount or amounts for your candidate(s), put the form in the postage paid envelope and mail it. Each voter could designate the remaining $30 of their limit in any way and at any time they chose, but not through the PFP return mailing.
Fourth, the same kind of WTP procedure would be used later in the election year, say in April, in a Congressional Finance Primary (CFP) for Congressional races only. The same kinds of mailing would go out to every eligible voter. However, the information books would be specific to each State and Congressional District. Money from this mailing could only be designated to the Congressional candidates in each resident’s House district, and/or to the resident’s statewide Senate candidates.
Fifth, each Federal campaign would be required to decide, once and irrevocably per election cycle, which of these two alternative system they would use for all personal campaign finance contributions. Furthermore, any Congressional campaign that used WTP would be restricted regarding PAC contributions. Initially, each campaign could accept PAC money only up to the amount of the WTP contributions they received. The percentage of PAC contributions allowed could be either gradually decreased over time, or eliminated entirely.
What would be the likely effect of this system?
For Presidential campaigns, it is important to keep in mind that the current general election campaign is already fully paid for with public campaign financing for both major and minor parties who accept public financing. We are only considering the effect of this plan on the primary and nominating process. There is a good chance this kind of a system would in most years prevent a financial coronation the year before the election. Although an individual Presidential campaign could still operate under the old system, there would be tremendous pressure on all Presidential campaigns to forego the current financing system in favor of WTP financing. The system would be likely to result in large campaign funds for multiple candidates during the Presidential primaries. This fact alone would tilt Presidential elections away from a financial coronation. Any candidate attempting coronation would almost certainly face one or more strong challengers, each with a million or more individuals who had designated $10 or $20 to that person’s campaign. This system would promote a full discussion of issues by candidates representing major constituencies within each party, including left wing Democrats and right wing Republicans. The pressure to nominate a national candidate who could win would serve as a check against nominating a candidate who could not obtain broad public support. Most candidates would be able to raise enough the year before to be competitive in Iowa and New Hampshire. That’s all that would be needed before the money from the WTP "Financial Primary" starts coming in. Because this would be an unknown factor until early in the election year, coverage would be on the issues, not the horse race.
Regarding Congressional elections, in the short run, many "establishment" campaigns would probably stay with the current system, while insurgents and challengers would use WTP financing. The WTP financing primary would probably catch on more slowly at the Congressional level than at the Presidential level. However, over time it is quite likely that WTP financing would become the major campaign financing system. This is for two simple reasons — 1) campaigns and political parties that favored this system would develop stronger grass roots organizations, and 2) the internet. People can, and will, tell their friends about this kind of a campaign finance system through e-mail. Campaigns that didn’t make the switch to WTP would be strongly criticized for being dominated by special interests. More people would vote, because the financing of campaigns would be seen as more democratic. The fundamental effect of WTP financing would be to make Federal office holders depend on broad based public support to finance their campaigns.
Other ways of campaign finance reform are possible. It seems to me that whatever is done should accomplish four things. First, there must be a check on the current financial coronation for Presidential candidates. This process fundamentally disenfranchises everyone but the special interest contributors. Second, the Presidency must be both viewed and treated by everyone as within the Constitutional framework of three independent branches of government. In the long run, our Constitutional system cannot tolerate having the Presidency being treated simply as a base of operations against Congress and whatever opposing coalition the current occupants of the White House are battling. To promote a return to Presidencies rooted in the Constitution, the financing of Presidential campaigns simply cannot be allowed to result in a coalition government of a President and a large number of Corporate and special interest regents. Such a Regency Presidency will almost inevitably cause the Presidency to be treated as a base of operations — to be used for tactical advantage. When the Presidency becomes beholden to any narrow agenda, the American people will be strongly inclined to react by checking the Presidency with a Congress of the opposing party. As we have seen, this leads to a bi-polar Constitutional civil war between Congress and the Presidency. The primary Constitutional function of the Congress is to legislate. When voters conclude we have to vote in an opposition Congress to monitor a President, this just shows a fundamental breakdown of the Constitutional process — a breakdown in the kind of relationship that should exist between President and Congress. Third, there needs to be a debate each election cycle among various factions within the major political parties. Public participation in the political process cannot live on vague platitudes. If we don’t discuss and resolve political issues in our political process, rather than either ignoring issues or dumping everything into a remote Congress and a remote Court system, democracy will wither and die. This kind of national debate can best be undertaken by Presidential candidates with varying view points, championing their ideas in the primaries. Fourth, Members of Congress must become sufficiently independent of Corporate and other special interests so that they can act in the public interest. This simply isn’t the case today. Individual Members of Congress are constantly at risk of being marginalized within their own caucus and their own party if they don’t go along with the Corporate and special interests aligned with their party at the national level.
Copyright © 2000, Robert S. Carney Jr., 4232 Colfax Ave. So., Minneapolis, MN 55409. All rights reserved.