Electoral vote: Our state has historic opportunity

Pennsylvania has the chance to join an initiative to establish the popular vote for the presidency. Why play games with the electoral vote?

Bruce Ticker testified to the Pennsylvania State Government Committees arguing against the Republican attempt to re-engineer Pennsylvania’s electoral vote in their favor. His solution for a fairer Presidential election?
The National Popular Vote.

Written testimony follows the jump.
The Hon. Members of the Pennsylvania Legislature:

I love the United States. I feel so very lucky to have been born in this country. The Constitution was signed on Sept. 17, 1787, and was subsequently ratified by the 13 states. Congress formally convened in March 1789 and George Washington was inaugurated as our first President on April 30, 1789.

The Constitution is a great document that has served as the foundation for our governing process. It nonetheless contains serious flaws.

I have long been concerned about the system for choosing a President as authorized by the Constitution. Why do I phrase it that way? Yes, it’s a mouthful. Wouldn’t it be simpler to call it the presidential election? This process is not an election.

Your proposal to seek an alternative to the winner-takes-all method has its merits and drawbacks. However, any process administered in the framework of the Electoral College is inequitable and insults the intelligence of the average voter.

There is only one fair and just means of selecting the people who run our government – the direct vote. Every time each of you runs for office, you trust the judgment of your constituents. You accept that. Otherwise, you would not remain part of the system.

The direct vote must also be the means for choosing our Presidents. Especially, successful presidential candidates have assumed the Presidency four times without winning the popular vote. The last time this occurred was only 11 years ago.

I respectfully request that you abandon this course and direct your energies and resources to replace the electoral college with the popular vote. I confess that until recently I thought we had only one avenue available – the amendment process. Any amendment approved by Congress must be ratified by three-fourths of the 50 states. Theoretically, 14 million citizens can block an amendment. That is the collective population of the 13 or 14 least populous states. Our current population is estimated at 308 million people.

The amendment process is an arduous obstacle course.

To my delight, I learned that Gov. Jerry Brown of California signed legislation on Aug. 8, 2011, to participate in an initiative which would effectively sideline the electoral vote without struggling through the amendment process.

This initiative, called the National Popular Vote, has been lobbying officials in the 50 states to agree to an interstate compact. Each state would agree to release its electoral votes to the presidential candidate who wins the vote nationwide.

To succeed, this system requires the participation of states with a combined 270 electoral votes, the majority currently required for a candidate to win.

Gov. Brown’s signature added 55 electoral votes to the initiative, the largest collection of votes from America’s most populous state. This step raised the total from 77 to 132 votes.

You now have an historic opportunity to build on the foundation of our system, the Constitution. You can contribute to providing the United States with the direct vote for President. You can start the process now to consider participating in this initiative.

Pennsylvania would add 20 electoral votes. The popular vote would provide all of us with a direct measure of power in selecting our president. It would expand upon our freedoms and enliven the political process.

The framers of our Constitution did not create the electoral system in a vacuum. Historians cite a number of interrelated factors. Among them, communications were sparse. No e-mails, no Action News, newspapers were just starting to evolve. The average citizen had no realistic means of being informed of the qualifications of the candidates.

Because of our technological advances and the range of today’s news media, voters today can readily access the qualifications of the presidential candidates. For that matter, we often get too much information about them.

It is hardly news to you that the majority party has been accused of proposing this plan to obtain political advantage. Practically speaking, the popular vote will likely benefit Democrats because Democratic-leaning voters are clustered more in metropolitan areas, and Republicans tend to be scattered more in the suburbs and rural areas. For the record, I am a registered Democrat.

My prime concern is good government in order to better serve the public. The popular vote can only facilitate good government. I can think of reforms that Democratic Party leaders may not be anxious to embrace.

Again, I ask you to abandon this proposal for awarding electoral votes. Forgive the cliché, but that plan accomplishes nothing more than rearranging the deck chairs. Please focus your attention on ending the impact of the electoral college.

Thank you for your attention.

Bruce S. Ticker


Taking the 14th

A lot of trouble could have been avoided had President Obama invoked the 14th Amendment to unilaterally raise the debt limit. Obviously, the president had his reasons for taking the Republicans head on.

Ironic that President Obama will openly violate the Constitution over Libya yet sidestep a chance to avoid a major uproar.

The president may well have constitutional authority to direct the Department of Treasury to pay its bills, He could have averted the current spectacle that seems to rival biblical proportions.

Prior to the debt-limit situation, Obama continued military operations in Libya without receiving congressional authorization after 60 days, as required by the War Powers Act in lieu of a declaration of war by Congress.

Republicans exploited the deadline to raise the $14.3 trillion debt limit to sever $2 trillion in programs that serve ordinary Americans without raising taxes on the wealthy or even eliminating corporate tax breaks.

More after the jump.
The president may well have had the power all along to act on his own – since 1868, when the 14th Amendment was ratified.

Section 4 of the 14th Amendment is plainly written: “The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned.”

Obama no doubt had other concerns on his mind with the debt-limit debate. It was a chance to bring the entire conflict to a head, or at least expose Republican stubbornness for all to see. It is obvious that he does not want to act on his own, anyway, because he would be vulnerable to sole political blame.

That aside, he might have avoided this hassle by invoking the 14th Amendment. Like other clauses in the 14th Amendment, Section 4 directly results from a Civil War issue – the large debt that grew after the North borrowed heavily to finance the Civil War, according to The Washington Post. Sponsors of the bill wanted to ensure that Southern states paid their fair share of the nation’s debt.

Yale Law School constitutional law school professor Jack Balkin told the Post, “The purpose of that clause was to prevent the political branches from using default or repudiation as a political threat. It was designed to prevent this kind of gamesmanship.”

Which presents another irony: A heavy proportion of these members of Congress represent states and districts in the South. In fact, House Majority Leader Eric Cantor represents part of Richmond, Va., the capital of the Confederacy.

Two columnists have tried to toss cold water on use of the 14th Amendment, and they make some valid points. Constitutional law professor Laurence H. Tribe points out that a unilateral increase in the debt limit differs from the existing debt limit already authorized by Congress.

Maintaining the debt limit as is will affect all other expenses and any pressing needs that arise. To continue paying the debt, the White House will be forced to ignore spending in other crucial areas. It may not be social security, but it will need to be some important programs.

Tribe also reminds us that “the Constitution grants only Congress – not the president – the power ‘to borrow money on the credit of the United States.’ Nothing in the 14th Amendment or in any other constitutional provision suggests tht the president may usurp legislative power to prevent a violation of the Constitution.”

True, but aren’t amendments intended to amend? It states clearly that the debt “shall not be questioned.” Not only are some members of Congress questioning the debt, but they have threatened to ignore it.

Boston Globe columnist Juliette Kayyem writes, “It will not solve the credit crisis, only delay it.”

I heartily concur that we should lower the deficit and pay off our debts, but not under circumstances in which one group of politicians can blackmail the president and other members of Congress.

Besides, Republicans were not worried about debts and deficits when President Bush steered us into the invasion of Iraq and initiated legislation to cut taxes for the wealthy.

Kayyem also warns that unilateral action on Obama’s part will trigger a legal challenge. Anyone has a right to resort to legal action.

They tried everything else. Maybe they figure that the majority of the Supreme Court will be on their side.

More Court Ethics, Less Clarence Thomas

–by Bruce Ticker

Clarence Thomas’s close relationship with a wealthy conservative activist points up why the Supreme Court’s appointment process must be reconsidered.

‘There’s no difference between a white snake and a black snake. They’ll both bite’

– the late Justice Thurgood Marshall, 1991

U.S. Supreme Court Justice Clarence Thomas’s shameless, in-your-face, violation of judicial ethics cries out for a better way to choose justices and keep them accountable.

Literally, he is above the law that spells out ethics rules for federal judges who serve on the lower courts, but he should have known better than to get so cozy with Harlan Crow, a major donor to conservative causes and real-estate magnate from Dallas.

When he announced his retirement in 1991, the legendary Supreme Court Justice Thurgood Marshall accurately predicted that President Bush (the elder one) might replace him with another African-American nominee who would betray the primary aspirations of the black community. I even recall observing Marshall on television he offered this prediction during his retirement announcement.

More after the jump.
After Marshall called his then-generic successor a “black snake” then, Thomas’s subsequent tenure openly mocked Marshall’s lifelong struggle to advocate for the concerns of the black community, not to mention concerns that affect all Americans.

Thomas is the product of a system that protects Supreme Court justices from any reasonable accountability and was selected through a literally undemocratic process.

To be clear, Thomas and his eight colleagues on the Supreme Court are not bound by the code of conduct for federal judges on grounds that a panel of judges who rank below the justices is charged with enforcing said code.

Maybe that’s why Thomas felt free to flout the code’s provision requiring that judges “should not personally participate” in raising funds for charitable initiatives. Authors of the code were concerned that contributors might feel pressured to donate or entitled to favored treatment by the judge, and judges are not supposed to be aware of who contributes to projects which honor them.

The New York Times’s Mike McIntire chronicled a series of instances which has or might have compromised Thomas’s performance on the court.

Thomas violated the code for federal judges by seeking Crow’s help in financing the multi-million-dollar purchase and restoration of a former seafood cannery in Pin Point, Ga., where his mother was employed. Thomas has made it a pet project to establish a museum about the culture and history of Pin Point.

According to the Times, this venture began a few years before when Thomas encountered Algernon Varn, whose grandfather operated the cannery, during a visit to Pin Point, the justice’s birthplace near Savannah. Thomas asked about plans for the property and Varn said he wanted to preserve it. The justice then informed Varn of a friend he would “put you in touch with.” That friend is Crow, who consented to provide financial support.

Deborah L. Rhode, a Stanford University law professor, told the Times that Thomas “should not be directly involved in fund-raising activities, no matter how worthy they are whether he’s being centrally honored by the museum.”

At Common Cause, attorney Arn Pearson said, “The code of conduct is quite clear that judges are not supposed to be soliciting money for their pet projects or charities, period. If any other federal judge was doing that, he could face disciplinary action.”

    The plot thickens:

  • Thomas was the lone dissenter in 2006 when the Project on Fair Representation challenged federal voting rights laws. The project is sponsored by the American Enterprise Institute, and Crow is an AEI trustee.
  • In 2001, AEI presented Thomas with a bust of Abraham Lincoln valued at $15,000 and praised his judicial performance at an awards gala. The suit was litigated – pro bono – by a former clerk for Thomas.

    Such a cozy circle.

  • MSNBC TV host Rachel Maddow – expanding on the Times piece – listed eight cases in which Thomas voted in favor of positions taken by organizations tied to Crow.
  • According to the Times, Crow has hosted Thomas aboard his 161-foot yacht and his private jet, at his California retreat and at his 105-acre summer estate in the Adirondacks.
  • Crow also reportedly contributed $500,000 to the founding of Liberty Central, a tea party-affiliated group launched by Virginia Thomas, wife of the justice.

Justices Anthony M. Kennedy and Stephen G. Breyer testified before Congress in April 2011 that they follow the code of conduct. Is that good enough?

More than 100 law professors urged Congress last February 2011 to impose the ethics code on Supreme Court justices. Legislation to address this concern was introduced.

Deeper systemic issues fuel the potential for abuse. Two clauses in the Constitution align to allow the possibility for justices to be appointed by a minority of voters.

Because a president is not subject to the popular vote, s/he can be elected by a minority. A majority of senators must confirm judicial nominees, but such a majority vote does not necessarily represent the majority of the people because each state – no matter how low their population — is represented by the same number of senators. A justice can be confirmed by senators representing the 26 least populous states.

President Bush did not win the popular election in 2000, but he won the majority in 2004 before nominating Roberts and Justice Samuel A. Alito Jr. President Clinton never won a majority in either election because of third-party candidates; he nominated Breyer and Justice Ruth Bader Ginsburg.

The framers of the Constitution invited trouble by creating lifetime tenure for the justices’ positions. Of course, this provision should preclude the justices from ruling on cases in which they might later have ties to some of the parties involved.

The framers might have expected that only honorable people would reach such a lofty position after struggling through law school, practicing law for many years and earning the trust of the president and the majority of the Senate.

Thomas would hardly be the first to blow this theory apart. Justice Abe Fortas resigned in 1969 because he accepted money from a convicted financier while on the court. Justice James Clark McReynolds – a racist, sexist and anti-Semite – snubbed Justice Louis Brandeis, the first Jew to join the court.

Besides, plenty of judges retire while still in their professional prime and use their past connections to return to the practice of law or find other jobs.

The system must be reconsidered. The American people, through our political leaders, must ensure that only the best people are elevated to the court and keep them honest.

Bruce S. Ticker blogs at www.constitutioncon.blogspot.com.

Courts ‘stand in the way” of Christie, Walker agendas

The gavel has dropped on Chris and the two Scotts. They responded with their typical civility and graciousness.

“You don’t elect the Supreme Court; you don’t expect them to be making law,” said New Jersey Gov. Chris Christie. “But today, they made law. Because today, they sent an appropriations bill for $500 million that was not passed by the legislature, that was not signed by the governor. Go to the Constitution and tell me, how the hell did they get away with that?”

“There’s still a much larger separation-of-powers issue,” said Wisconsin Senate Majority Leader Scott Fitzgerald, “whether one Madison judge can stand in the way of the other two democratically elected branches of government. The Supreme Court is going to have the ultimate ruling.”

Wisconsin Gov. Scott Walker was quiet.

Judges in New Jersey and Wisconsin told Christie and Walker that their respective administrations violated state law and must compensate for it.

As Christie, Walker and other new governors – mostly Republicans, but one Democrat – applied an aggressive, confrontational style of governance, I wondered if their initiatives might conflict with the law, to put it mildly. Looks like some of that is coming about.

New Jersey’s Supreme Court on Tuesday, May 24, directed the state to raise $500 million more to aid 31 poor and primarily urban school districts including Newark, Camden and Trenton, according to The New York Times. The 3-2 majority claimed the state deliberately violated past Supreme Court orders in Abbott v. Burke, the decades-old case under review.

“Like anyone else, the state is not free to walk away from judicial orders enforcing constitutional obligations,” wrote Justice Jaynee LaVecchia. She added that “the state made a conscious and calculated decision” to retract its commitment from two years earlier when the Abbott case last came before the court.

State Sen. President Stephen M. Sweeney said Christie “was well aware that his draconian cuts to education were illegal” and recounted that the governor pledged to maintain school funding during his 2009 campaign.

Christie slashed $1 billion in aid to the state’s 591 school districts from an overall budget of $10 billion.

Christie on May 24 called on the legislature to find the money itself – without raising taxes. “All of my work is done on this,” he said.

He further castigated the court as “unelected” during a town meeting in Cherry Hill, according to The Philadelphia Inquirer.

Christie conveniently forgets that members of the state Supreme Court are appointed by elected officials.

The New Jersey order inspired Philadelphia Councilman Darrell Clarke to suing the state of Pennsylvania over the legality of funding cuts leaving the city’s schools up to $110 million in the lurch, according to The Philadelphia Daily News.

“It’s just not fair for us to have to ask the citizens to continue to pay in the city of Philadelphia, and we’re sitting on potentially a $700 million surplus from the state,” Clarke told the News. “Under the state’s statute (it is the state’s) primary responsibility to fund the school district.”

The city’s Law Department will consider City Council’s request to represent Council in such a suit, City Solicitor Shelley Smith said.

However, a spokesman for Mayor Michael Nutter cast doubt on the prospects for success because the laws and politics differ between the two neighboring states.

Clarke’s plan prompted Kevin Harley, a spokesman for Gov. Tom Corbett, to say, “This is a political stunt by City Council. To file a frivolous and meaningless lawsuit…maybe City Council should also sue President Obama because there’s no more stimulus funding.”

In Florida, Gov. Rick Scott faces two lawsuits so far over his actions.

Though Wisconsin Senate Majority Leader Scott Fitzgerald wonders how “one Madison judge can stand in the way of the other two democratically elected branches of government,” one Madison judge in fact stood in the way.

“This case is the exemplar of values protected by the open meetings law: transparency in the government, the right of citizens to participate in their government and respect for the rule of law,” wrote Judge Maryann Sumi of Dane County Court.

The judge on May 26 granted a permanent injunction to void a law impeding collective bargaining rights for many state and local employees, The New York Times reported. She said that the March 9 Senate vote violates the open meetings law mandating at least two hours’ notice to the public.

The decision is being appealed to the Wisconsin Supreme Court as arguments were scheduled for today (Monday, June 6).

Gov. Walker proposed the law and signed it in the midst of massive protests in Madison, the state capital. With the exception of police officers and firefighters, the law prohibits public-sector unions from bargaining over health benefits and pensions. Negotiations over wages are permitted, but they must be approved in a public referendum if they exceed the inflation rate, the Times reported.

With all 14 Senate Democrats out of state, the remaining Republicans voted 18-1 to approve the measure within a half-hour sans any floor debate. Sumi cited evidence showing their failure to abide by even the two-hour notice permitted for good cause should a 24-hour notice be impossible or impractical.

While the Wisconsin case is still being adjudicated, both Walker and Christie made themselves vulnerable to legal action which finally turned around to bite them in the derriere. Their counterparts in other states could be dealt a similar blow.

We’ll find out. See you in court.  

Lost opportunity to revise filibuster rule

State Sen. Mike Stack of Philadelphia was attacking a new state law when he wrote, “The new law makes a second dangerous change. It requires a two-thirds vote by the Review and Advisory Committee to change the Pennsylvania Uniform Construction Code. This will create gridlock and prevent adoption of commonsense public-safety changes.”

Stack could just as well have been describing the U.S. Senate’s filibuster rule. Ironically, his words were carried in a Philadelphia Inquirer letter two days after the Republicans invoked the filibuster over oil subsidies – following a GOP pledge four months ago to limit its use.

Reid, the Senate majority leader, reached an accord last Jan. 27, 2011, with Minority Leader Mitch McConnell to retain the filibuster power that Republicans employed to block any kind of government-run health-care system and persist with tax cuts for the wealthy.

Reid and Mitchell’s pact allows Republican senators to submit nearly all the amendments they want to a given measure, and Republicans will limit their use of the filibuster.

Sen. Jeff Merkley of Oregon, quoted in The Oregonian at the time, said, “There is nothing that touches the impact of the filibuster on amendments and nothing that touches the impact on bills, so we still may see the same obstruction we’ve seen before.”

Merkley’s fears were realized on Tuesday, May 17, when Democrats proposed ending tax breaks for five major oil companies accused of unfairly padding industry profits, according to The New York Times. The measure would have passed if a majority vote was sufficient, but the 52-48 vote fell short of the 60 votes required to end debate.

In a fundraising e-mail distributed for the Democratic Senatorial Campaign Committee the next day, Reid whined: “It’s a no-brainer: Big Oil doesn’t need taxpayer subsidies. After all, the five largest oil companies raked in profits of $32 billion in the first quarter of 2011 – while Americans are paying four bucks a gallon at the pump. And yet, they continue to collect billions in tax dollar handouts at a time when we need to cut spending.

“It’s unfair, and MUST stop. But last night, Republicans derailed a Democratic bill that would end this double-fisted cash grab and save $21 billion.”

Another “no-brainer”: Big Senate doesn’t need a filibuster.  Four months ago, Reid “derailed a Democratic bill that would end this double-fisted” power grab and save us all lots of aggravation.

Merkley was joined in January by Tom Harkin of Iowa and Tom Udall of New Mexico in a bid to “to end this double-fisted” filibuster power.

Any senator can filibuster, or threaten to filibuster, proposed legislation without taking to the floor to make their case, as James Stewart did in the film “Mr. Smith Goes to Washington.” The Senate needs 60 votes to end a filibuster, not a plain majority of 51 votes. The process is called cloture.

The trio pressed for a resolution to require that all senators who invoke the filibuster must address the legislation on the floor.

Most Democrats voted for the measure, but it could neither get past the 67-vote barrier nor even a majority vote.

Reid has worked hard for various causes to benefit the public, but how does it help anyone to hand the Republicans a decisive weapon like the filibuster?

Reid in the past defended the filibuster when Republicans controlled the Senate, and Democratic senators feared losing this device if they return to the minority. Democrats also might have feared that they would be demonized if they curbed or ended the filibuster.

Democrats might have sustained some political damage in the short term, but they would have ensured themselves a level playing field if they took decisive action against the filibuster.


Senate Dems limit agenda to protect small-state senators

Whew! The American people need not worry that U.S. Senate leaders might do their job, as in taking command of the legislative agenda.

More after the jump.

We sure do not want to jeopardize the Democratic Senate seats in conservative-leaning states like Montana, Nebraska and North Dakota.

Under the headline “Senate Democrats’ minimalist agenda,” The Washington Post reports that the Democratic majority has intentionally restrained itself to save seats in states like these.

The May 21 Post account states: “Democrats have decided to try to shield those lawmakers from the usual weeks-long debates and instead await for compromises to be reached behind closed doors. Reid’s approach is a bet that doing nothing looks better for them, so long as their arguments resonate with voters in 2012.”

Welcome to governance in 2011. We are stuck with an immovable Senate because doing their jobs might cause some Democrats to lose their jobs in the November 2012 election. The Democratic leadership is worried that they will lose their 51-47 majority if they overplay their hand; two senators are independents who caucus with the Democrats.

What, then, is the point of having a Senate?

Senate gridlock is rooted in the Senate’s composition when delegates from smaller states at the Constitutional Convention feared that the larger states would dominate the government under a Congress with proportionate representation. They compromised by requiring equal representation for all states in the Senate while leaving the House of Representatives with proportionate representation.

The five states that opposed proportionate representation in 1787 would surely benefit by it today, either directly or indirectly. Though a small state, Delaware is part of the liberal Northeast bloc as is Connecticut, Maryland and New Jersey…almost forgot, New York was the fifth dissident state. Rhode Island did not participate in the convention, but all six states are currently represented by Democrats in the Senate.

Most low-population states are conservative or conservative-leaning. Most are represented by Republicans in the Senate or alternate between the two parties. If Tom Daschle represented New Jersey or New York rather than South Dakota, where he lost in a re-election bid, he would almost certainly be serving in the Senate today.

Daschle’s fellow Democrats do not want others like him defeated, so they adjust their agenda to protect their Senate seats in swing states. Three of those states, where two incumbents are up for re-election and a third is retiring, are home to 3.5 million people – Nebraska, 1.7 million; Montana, 975,00; and North Dakota, 646,000.

So, 1 percent of the nation’s citizenry can propel the Senate leadership to ignore or minimize the needs and concerns of millions upon millions of Americans. Democrats in the 112th Senate represent 190 million Americans. America’s latest population estimate is 308 million.

The four Democratic senators from New York and California collectively represent one-sixth of America’s population, 36.9 million in California and 19.5 million in New York.

That leaves 56.4 million Americans, and millions from other moderate or liberal states, in the lurch.

If the Senate represented the populace on a more proportionate basis, then far more attention would likely be paid to issues raised by the senators from high-population states such as New York and California.

It is necessary to point out how the Constitution’s requirements for Senate representation limits responsiveness to residents of the more  populous states. Clarifying the problem is the first step toward resolving it.

However, I am well aware of the obstacles under the amendment process to changing the rules. On the surface, accomplishing anything substantial appears to be impossible.

One never knows. Maybe it can be done. After nearly 10 years, who genuinely expected America to find Osama bin Laden? Perhaps the same will and determination can be applied to revising the rules.

Storm-tossed South rises… for more government

Sen. Lindsey Graham of South Carolina: “It should have some spending cuts as a down payment on controlling the size of our federal government.”

House Majority Leader Eric Cantor of Richmond, Virginia: “We’ve had to bring this president kicking and screaming to the table to cut spending.”

House Speaker John Boehner of Ohio: “It’s time for us to get serious about how we’re spending the nation’s money.”

These Republicans, along with others in Congress and statehouses like Trenton and Madison, demand smaller government and lower spending, yet they have not complained about the federal government’s aid to the Republican-dominated Southern states ravaged by storms and tornadoes that left 350 people dead.

More after the jump.
“They have been very proactive and very reactive to our requests,” Rep. Robert B. Aderholt, a northern Alabama Republican, told The New York Times.

Aderholt was praising the Obama administration’s response to the storms, mainly through the Federal Emergency Management Agency. When the president visited Tuscaloosa, Ala., the hardest hit area in the region, Obama said, “We’re going to make sure that you’re not forgotten and that we do everything we can make sure that we rebuild.”

Obama signed a disaster declaration for Alabama on Thursday, April 28, 2011, and subsequently signed disaster declarations for Georgia and Mississippi.

FEMA administrator W. Craig Fugate explained that the declarations sought by these states mean that the federal government will pay 75 percent of the uninsured costs to repair public buildings; that residents can qualify for modest recovery grants; and that businesses can apply for low-interest loans.

FEMA also assigned liaison officers to Alabama, Georgia, Kentucky, Mississippi and Tennessee, a spokesman said.

Aderholt, a veteran House member who seems more reasonable than extremist Republicans, is not resisting the government’s aid to Alabama and the other southern states. Most of them are represented by Republicans in the Senate, the House and their respective governor’s offices.

Probably some people wish that Obama had rejected these disaster declarations in the spirit of shrinking government. If Republicans want less government, why would they accept federal aid for storm relief?

Back in Washington, the GOP House and Senate members from these states have been plotting to eliminate programs that help all Americans generally and big cities specifically.

Never did they express such urgent concern when they voted to invade two fragmented countries one after the other and cut taxes for the wealthy.

The hypocrisy is glaring, but the disasters plaguing the South show that even southern states need government. The only effective means of resolving America’s many problems is to involve government, directly or indirectly.

We all certainly recognize that there are many problems with government.

Ronald Reagan’s proclamation that “Government is the problem” distorts the situation. Government is “a” problem when it does not carry out its responsibilities properly. Did Reagan do his job or was he “the problem” for eight years?

The same question can posed to Boehner, Cantor and Graham.

Scalia, no class act(ion) for justice

Maybe Associate Justice Stephen G. Breyer was thinking of two or more of his Supreme Court colleagues when he wrote, “Only a lunatic or a fanatic sues for $30.”

The associate justice regarded by court critics as leading court fanatic, Antonin Scalia, wrote the majority opinion on Wednesday, April 27, 2011, depriving ordinary consumers of another avenue to contest possible injustice. Scalia’s opinion was supported by Chief Justice John G. Roberts Jr. and Justices Anthony M. Kennedy, Clarence Thomas and Samuel A. Alito Jr.

Breyer’s disdainful retort was part of his dissent that was joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan. It was the usual 5-4 line-up for a contentious issue.

The court ruled that businesses may use standard-form contracts to prohibit consumers who claim fraud from joining together in a single arbitration, according to The New York Times.

More after the jump.
Vanderbilt University Law Professor Brian T. Fitzpatrick explained, “The decision basically lets companies escape class actions, so long as they do so by means of arbitration agreements…It’s one of the most important and favorable cases for businesses in a very long time.”

Vincent and Liza Concepcion of California filed the lawsuit against ATT&T Mobility seeking class-action treatment after objecting to a $30 fee for what was said to be a free cellphone, the Times reported.

AT&T responded by relying on the contract requiring the couple to settle disputes through arbitration and prohibited them from joining with others to seek class-action treatment, whether in arbitration or in traditional litigation in court.

The company argued that the case could neither move forward in court nor as a class action in any forum, but lower federal courts would not enforce the arbitration agreement and permitted the case to proceed. The courts followed a 2005 California Supreme Court decision that prohibited class waivers as unconscionable, according to the Times.

Scalia wrote in the majority opinion that the lower courts did not properly apply the Federal Arbitration Act which overrides some state court rulings against arbitration. The California Supreme Court’s ruling prohibited class waivers in all standard-form contracts, whether applicable to arbitrations or court proceedings, as unconscionable if they gave rise to claims that the companies issuing them had set out “to deliberately cheat large numbers of consumers out of individually small amounts of money,” the Times reported.

Scalia wrote, “Requiring the availability of class wide arbitration interferes with fundamental attributes of arbitration.”

Breyer stated, “Where does the majority get its contrary idea – that individual, rather than class, arbitration is a fundamental attribute of arbitration?

He pointed out that class arbitrations are more efficient and, primarily important, minor frauds such as that claimed by the California couple will not be resolved.

He wrote, “What rational lawyer would have signed on to represent the Conceptions in litigation for the possibility of fees stemming from a $30.22 claim?” Quoting from another case, he added, “Only a lunatic or a fanatic sues for $30.”

Vulnerable people in this society have limited avenues to obtain justice. Wealthy people sometime file lawsuits over the most petty affronts. Attorneys turn down claims from people if they cannot see a cost-effective case in it or they cannot afford the legal fees.

Scalia and other conservatives embrace the “original intent” of the framers of the Constitution. Was it their “original intent” to leave ordinary people without legal recourse?  

A level playing field for independent candidates

— by Bruce Ticker

Pity the poor independent voter whose attitude toward the two major parties is simple:

A pox on both your houses.

That long-standing phrase could be taken literally given GOP control of the U.S. House of Representatives and Democratic control of the U.S. Senate.

Many independents voted for Republicans last November to send a message: If those in charge mess up, we will vote them out. At this rate, Republicans will be vulnerable to voter wrath in November 2012. The budget plan that effectively scraps Medicare is already a campaign issue that should terrify Republicans.

As television host Rachel Maddow correctly points out, Republican candidates pledged to focus on supplying jobs to the millions of Americans who are out of work. GOP House members insist that all their legislative initiatives since early January are tied to new jobs.

It is a stretch that their Jan. 19 repeal of the Affordable Care Act has anything to do with job creation. Or their new proposals on Tuesday, Feb. 8, to add restrictions on funding for abortions and eliminate federal financing for women’s health care clinics that provide abortions. Republican House members engaged in internal party squabbles over funding reductions.

An end to gridlock? Republicans can barely agree on a bad course of action, much less any course.

American voters will always be upset with this country’s direction so long as Democrats and Republicans are fighting one another. Why must we tolerate this?

More importantly, why must voters be forced to choose between candidates from the two major parties? Each Democrat voted out of Congress was replaced by a Republican. Did the dissidents specifically want Republicans in charge? Would voters consider electing a credible independent with a viable chance of winning?

Let’s suppose that in your Congressional District an independent candidate with a sensible platform entered the race against the Democratic incumbent and the Republican challenger. Voters are disappointed, justly or not, with the Democratic incumbent and are not enthused with the Republican. What would they do?

Under the present system, they might fear they will throw their vote away for the independent because most of their neighbors will vote Democrat or Republican. Or, the independent might draw votes from the lesser of the two partisan evils. Also, the party candidates no doubt are better financed and operate more efficient political organizations.

Suppose a system is created in which no one candidate draws votes away from another candidate. Instead, citizens can vote for their candidates and then list their next preferences. If no candidate wins a majority of votes, then a person’s vote can be transferred to a next-preference candidate with a larger share of the votes.

The Center for Voting and Democracy describes further how the system, called Instant Runoff Voting, operates:

“IRV allows voters to rank candidates in order of preference. Voters have the option to rank as many or as few as they wish, but can vote without fear that ranking less favored candidates will harm the chances of their most preferred candidates.

“First choices are then tabulated, and if a candidate receives a majority of first choices, he or she is elected. If nobody has a clear majority of votes on the first count, a series of runoffs are simulated, using each voter’s preferences indicated on the ballot. The weakest candidates are successively eliminated and their voters’ ballots are redistributed to next choices until a candidate earns a majority of votes.”

IRV has prompted criticisms, but at the very least it takes us in the right direction away from what we now have.

More after the jump.
An educated guess: If IRV was in place last November nationwide, the new crop of House members would have likely consisted of a healthy mix of independents and Republicans, along with incumbent Democrats who survived re-election because voters ranked them as their next preference. Maybe neither party would have the majority.

The infusion of a large number of independents in Congress would be the best move for America. The democratic process would be enlivened. Independents would inherently act on the basis of policy and the needs of their constituents. They will not be beholden to either major political party to any appreciable degree, even though they would form alliances with either party depending on the issue at hand.

A system allowing for expansion of candidates would also render conflicts over redistricting somewhat irrelevant. Every 10 years, each major party maneuvers to benefit their chances of winning the most congressional seats. What difference would redistricting make if a level playing field was created for independents?

There are good people with fine intentions in both parties, but they will always factor in the wider political needs of their parties. They need their parties for financial and organizational support in future elections, and they will consider how there votes will affect the political fortunes of other party members.

As it stands, it is nearly impossible to comprehend why the Republican Party exists now except to perpetuate their place in government. They back policies that are harmful to the poor and middle class, and only the greediest among the rich need their help. Democrats make a good-faith effort to serve the public, but they still tailor their positions to shore up re-election chances for the president and for senators and representatives from swing areas.

Democratic leaders would call this moving to the center, others would call it blatant pandering.

Two independents now serving in the Senate usually vote with the Democrats. Sen. Bernie Sanders, a self-acknowledged socialist, evolved as a highly respected mayor of Burlington, part of the largest metropolitan area in Vermont, and he subsequently served in the House before running for the Senate in 2006.

Sen. Joseph I. Lieberman represented Connecticut for three terms before losing the Democratic primary in 2006. He ran as an independent and beat the Democratic nominee in the general election.

The emergence of viable independent candidates is possible in communities with relatively small constituencies such as congressional districts and in small states for Senate and governor posts. It does not seem practical for an independent to get elected president or senator in a large state.

The latter thought may appear to be unrealistic, but it is certainly not impossible. After all, this is America.