An illegitimate Congress? You betcha

Part 2 of American Vision by Bruce Ticker

The Republican leadership is asking its members to make a silly vote. — House Minority Leader Nancy Pelosi, April 1, 2011

Blame Congress.

Even more, blame the rules of the game that enable the Congress we have.

More after the jump.
Congress is hardly the only culprit responsible for bad government, but Capitol Hill is the starting point. The majority in Congress can declare war, or shift this power to the president; raise or cut taxes, especially for the rich; send troops…not to mention the National Guard…to fight Muslims in two unstable countries; and provide or deny our most vulnerable citizens housing, food, health care and quality education.

Congress can also violate the U.S. Constitution, as did 221 members of the House of Representatives via some bizarre legislation on April 1, 2011.

All 221 members ignored Article 1, Section 7, of the Constitution which was recited on the House floor on Jan. 6, 2011. All supporters of the bill in question were Republicans, the very ones who insisted that the Constitution and its 27 amendments be recited when Congress opened its 2011-12 session.

All Democrats and 15 Republicans voted against H.R. 1255. Rep. Louie Gohmert, a Texas Republican, said the bill “violates my conscience and the Constitution, and I cannot vote for it.”

Our system is not perfect, but the 221 representatives who voted for the bill cheapened our way of doing the people’s business.

H.R. 1255 required that a fiscal year 2011 spending bill, already passed by the House, would become law if the Senate would not pass a spending law by April 6.

There is a reason the bill never became law after that date – the Constitution, which requires that a bill can only become law after both houses pass a law and the president signs it, or the president refuses to sign and both houses override his veto by a two-thirds vote.

The provision reads, “Every bill which shall have passed The House of Representatives and the Senate, shall, before it becomes a Law, be presented to the President of the United States: If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such reconsideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a law.”

In the less than genteel debates over the April 1 budget bill, The Hill newspaper quoted House Majority Leader Eric Cantor saying,

Funding the government at the levels passed by House Republicans might be what Senator Reid wants, but surely even he would agree that it’s a better alternative than shutting down the government.

Cantor, a Republican from the Richmond, Va., area, was referring to Senate Majority Leader Harry Reid of Nevada.

Some Democratic representatives recommended that Cantor and his flock read children’s books on the Constitution such as House Mouse, Senate Mouse, according to The Hill. Then-Rep. Anthony Weiner of Queens quipped, “It’s a much thinner book and it rhymes.”

House Minority Leader Nancy Pelosi of San Francisco invoked the most mature comment when she declared, “What you see on the floor today is no example of democracy in action. It’s silly. The Republican leadership is asking its members to make a silly vote.”


On the surface, Congress is representative government. After all, each of us can claim representation by one member of the House of Representatives and two members of the Senate, with the exception of those living in Washington and the U.S. territories.

Some Americans are represented better than others. In reality, Congress neither represents the majority of Americans nor adequately protects the rights of minorities. Congress is mainly hobbled by two inherent mechanisms and one of its own making.

First is the constitutional mandate for disproportionate representation in the Senate allowing each state equal clout – whether a senator represents 544,000 citizens or 36.9 million. Second is the stifling two-party system which thwarts meaningful participation of third parties and independent candidates in the political process. If more independents could get elected, is it possible that neither party could claim a majority in either chamber? The Senate’s composition is aggravated by the filibuster rule, which the Senate majority can revise or eliminate.

On May 30, 1787, the Virginia Plan was introduced to the Constitutional Convention in Philadelphia proposing a national government consisting of a legislature, executive and judiciary. The concept for a legislature subsequently materialized as two houses of Congress – each to represent American citizens on a proportionate basis. On June 9, New Jersey delegate William Paterson declared, “New Jersey will never confederate on the plan before the Committee. She would be swallowed up.”

Virginia was the most populous state at that time, followed by Pennsylvania. New Jersey was among the small states, yet now New Jersey outranks Virginia, respectively 11th and 12th in population. New Jersey was joined in opposition by delegates from Delaware, Maryland, Connecticut and New York, the latter of which is now our third most populous state. Despite Delaware’s current ranking of 45th, all five states are part of the northeastern bloc that traditionally adheres to moderate and liberal policies. Each is represented by centrist or liberal Democrats in the Senate.

On June 11, Roger Sherman of Connecticut proposed “that the proportion of suffrage in the first branch should be according to the respective numbers of free inhabitants; and that in the second branch or Senate, each state should have one vote and no more…As the states would remain possessed of certain individual rights, each state ought to be able to protect itself; otherwise a few large states will rule the rest.” Sherman revised his proposal on June 20 and was joined by fellow Connecticut delegates Oliver Ellsworth and William Samuel Johnson on June 29 in proposing a comparable plan, later to become known as the Connecticut Compromise.

“Too many – both among the large- and small-state delegations – were simply not in a mood to embrace compromise,” Richard Beeman writes in “Plain, Honest Men: The Making of the American Constitution.” “One by one, they rose to defend their ideas and, more importantly, the interests of their particular states.” The delegates ignored all three versions of the Connecticut plan until July 16, when they decided to split the composition of the two chambers. Members of the House of Representatives would each represent the same amount of constituents (that number now averages 720,000) and each state would be represented by the same number of senators.

Madison and four other delegates gathered the next morning, July 17, to discuss the July 16 decision. They found no takers to reconsider the Connecticut Compromise, which was formalized in Article 1 of the Constitution. Most delegates, displeased with the final product for varying reasons, signed the Constitution on Sept. 17, 1787, because their choice was to persist with the status quo or formalize the governing mechanism produced by the convention.

In the Federalist Papers, Madison argued for Section 3 of Article 1, which authorizes creation of a Senate with equal representation. The Constitution was ratified by 11 of the 13 states, and Congress as we know it today convened on Wall Street in lower Manhattan on March 4, 1789. George Washington was inaugurated as our first president on April 30, 1789.

Nine states were required to ratify the Constitution, made official by New Hampshire on June 21, 1788. North Carolina and Rhode Island made it unanimous soon after the government was formed.

Washington strenuously warned against the formation of political parties in his 1796 farewell address in part because “it is the customary weapon by which free governments are destroyed.” Political parties indeed emerged. After the Civil War, the political process settled into a pattern dominated by the Democratic and Republican parties.

In 2006 and 2008, voters upset with Republicans mainly had Democrats as an alternative. In 2010, Republicans benefited. Independent or third-party candidates typically divert votes from the more preferred party candidate.

The filibuster was rooted in Vice President Aaron Burr’s verbal critique of Senate rules. He singled out a Senate rule requiring the majority to cut off debate, and the Senate scrapped the rule in 1806 without replacing it. More than a century later, political pressures produced the filibuster in 1917, requiring a so-called super-majority to end debate. The filibuster carried debate to the extreme in which debate could clog up Senate business indefinitely.


A tsunami warning buoy

The upshot of these events is a dysfunctional system that in 2011 produced a possibly illegitimate Congress; cuts to a tsunami-warning system; and the criminal conviction of an impeachment leader.

The swearing-in for 433 House members of the 112th Congress was held on Wednesday afternoon, Jan. 5, 2011, as two other members – Michael Fitzpatrick of Bucks County, a Philadelphia suburb, and Pete Sessions of Dallas – attended a reception a few hundred yards away, in the Capitol Visitor Center, for more than 500 of Fitzpatrick’s constituents.

As Speaker of the House John A. Boehner administered the oath of office on the House floor, Sessions and Fitzpatrick watched Boehner on live television and recited the oath without leaving the reception, at 2:15 p.m. Predictably, House parliamentarians told them they must be officially sworn in, and Boehner administered the oath of office on Thursday.

Fitzpatrick said he thought that the Jan. 5 swearing-in would be held at 2:45, not 2:15. Any situation could arise that might prevent a member of Congress from attending the swearing-in.

Their failure to show up for the oath does not by itself jeopardize the operations of Congress. The act of casting votes for six legislative measures – before taking their oath of office – could be problematic.

Because two illegitimate congressmen cast votes, can these measures be legitimate?

If Sessions and Fitzpatrick paid attention when the Constitution was recited on Thursday morning, they would have been aware of Article VI, Clause 3: “The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution.”

Sessions and Fitzpatrick violated Clause 3 when they voted to establish the rules of the House and a 5 percent reduction in congressional office allowances, according to The Washington Post. Their votes were stricken from the Congressional Record on Friday, but was that sufficient?

This fact remains: The House passed six measures in which two illegal votes were cast for each. That could make the entire package of bills illegal. Any one of these bills which, if they need to be ratified by the Senate and signed by the president, could be illegitimate because illegal votes were cast in the first place.

Sessions even chaired a committee meeting on Thursday.

They should have arranged to be sworn in before casting any votes. It takes plenty of gall to cast votes without abiding by the constitutional requirement to be “bound by Oath or Affirmation.” They should have known better. Sessions spent the previous 14 years in Congress and Fitzpatrick was first elected in 2004, defeated two years later and elected again the preceding November.

Their allies might argue that these measures would have passed without their votes, so it is okay to maintain the results. However, the initial inclusion of these votes could taint the end result.

Congress disregarded our constitutional principles. The House took legislative action that was not legitimate. The only way to make it legitimate is to wipe the slate clean and hold the votes and the committee meeting again.

The House not only violated the Constitution when it took on those six votes. The House persists in violating the Constitution so long as it refuses to straighten out its self-inflicted mess.

This is not parsing. The law is the law is the law. If our own Congress cannot abide by the law that binds it, then our system is automatically violated.

Next excerpt – Profiles in absurdity

Ed Koch Likes Romney & Gingrich, But He Will Vote For Obama

— by Alan Oirich

In an exclusive interview on Shalom TV, one of the nation’s leading Democrats has some kind words for two of the candidates vying for the Republican party’s presidential nomination, Mitt Romney and Newt Gingrich.

When asked by Shalom TV President Mark S. Golub who among the current Republican candidates would be best for America and for Israel, the former New York City Mayor groups the two front runners together, saying:

I believe that both Romney and Gingrich–one of which will be the Republican candidate–are both able. I’m not voting for either of them; I am voting for Obama; but they’re both able; they are fine Americans (I mean, they have a philosophy which is not mine); but they will do what they think is in the best interest of America–and they are also both very supportive of Israel.

Mr. Koch also described how after the Turner victory, the President reached out to him. In a private meeting in New York City, after the President gave what Mr. Koch calls a “magnificent” pro-Israel speech at the United Nations, Mr. Obama told the former Mayor that he didn’t understand why the Jewish community is upset with him given how very supportive of Israel he is. Mr. Koch explained to the President that he would not have been so upset with Mr. Obama if, when the President had placed demands on Israel, he had also made demands of Hamas. Koch reports the President’s responding, “Didn’t I?”

After the half hour meeting, Mr. Koch was convinced that Mr. Obama believes he is a friend of Israel and now supports Mr. Obama’s re-election campaign because of the President’s strong stand in opposition to Palestinian statehood at the United Nations and because the President has been praised by Israeli Defense Minister, Ehud Barak, for being one of the most supportive of all U.S. presidents when it comes to supplying military aid.

Full interview follows the jump.

Republican Bob Turner Wins Weiner’s Former Seat 53%-47%

— by David A. Harris

Since the day seven-term House Democrat Anthony Weiner resigned in disgrace, keeping this seat in Democratic hands has been an uphill battle. The overwhelmingly unfavorable view of Mr. Weiner, the previous Democratic congressman in this district, has only hurt David Weprin’s efforts to win this election. Tonight, we saw some of the effects of that unpopularity.

One thing we know beyond the shadow of a doubt is that this election was about many things –but not Israel. As authoritative polling in the past four days demonstrated  Siena Poll, September 9, 2011, only a tiny fraction of constituents — seven percent — indicated that Middle East policy would drive their vote. Moreover, the two candidates agreed completely on Israel; both clearly supported a strong U.S.-Israel relationship, with not a bit of difference between them.

More after the jump.
In the end, in this difficult economy, Americans — including in New York’s Ninth District — are hurting. In this atypical district, they’ve reacted atypically. After many tremendous Democratic victories in special congressional elections in recent years, tonight we unfortunately have a loss. But we look forward to many, many more victories than losses in 2012.