Congress has Failed America

Why Has Congress Failed Americans?

- Joel S. Hirschhorn

The Founders of our nation and the Framers of our Constitution surely did not foresee the day when, of the federal government’s three branches, the public would have the least confidence in Congress. In fact, the public has a little less confidence in Congress than it has in HMOs. At 14 percent, the fraction of Americans with a "great deal" or "quite a lot" of confidence in Congress is the lowest in Gallup's history of this measure -- and the lowest of any of the 16 institutions tested in this year's Confidence in Institutions survey. The Supreme Court received 34 percent confidence and the awful presidency of George W. Bush received 25 percent – nothing to be proud of.

The 2006 congressional elections show that switching power between the two major political parties is an act of utter futility. We have a bipartisan failure of Congress to fulfill its constitutional responsibilities and serve the public. In the end, Democrats may have a different style, but like Republicans are also corrupt, arrogant, and incompetent. Things have gotten so bad institutionally and culturally that we cannot vote our way out of a dysfunctional and destructive Congress as long as the two-party duopoly maintains its grip on our political system.

We no longer have a significant number of members of Congress that rise above partisan political priorities to put the good of the nation and the integrity of our Constitution first.

For our constitutional republic to really work Congress must have the courage and integrity to use its constitutional powers to safeguard Americans’ freedom, security, health, safety and welfare. Even the most distracted and cynical Americans now see Congress has done next to nothing to fulfill its constitutional responsibilities.

Worst of all, Congress has allowed the Bush presidency to accumulate far more power than our Constitution permits. Even after years of arrogant disrespect by Bush and Cheney for our Constitution and Congress itself, Congress is too cowardly to do what they are supposed to do to maintain the structure of our federal government. It has not used the constitutional remedy of impeachment – not to punish Bush – but to preserve the constitutional limits on the presidency.

Add to this: the failure to protect the rule of law; the failure to control spending and reduce our debt; the failure to control our borders and protect our national sovereignty; the failure to stop the insane Iraq war; the failure to stop the many forms of corruption of Congress itself; the failure to restore public confidence in our elections; the failure to stop the excesses of globalization that is destroying our middle class; the failure to address rising economic inequality; the failure to fix our broken health care system; and so much more.

All this has resulted from repugnant runaway politics. Getting elected, grabbing power and enjoying the benefits of office trump governing. Hundreds of members of Congress – in the House and Senate – are mental midgets, embarrassing blowhards, chronic liars, outright crooks, corporate lackeys, and elderly buffoons. They are plutocracy protectors more than democracy defenders. And too many that think they should be president.

So what can the 86 percent of Americans without confidence in Congress do?

Put aside partisan views and stop re-electing members of Congress. Only a handful of incumbents deserve to be re-elected. A very few that never supported the Iraq war, do not use pork spending to reward their supporters, and have worked to impeach Bush, for example.

Now is the time to elect independents and third party candidates to Congress. When one objectively sees the utterly low quality of both Democratic and Republican members of Congress it becomes clear that even a random selection of ordinary Americans would probably do better. But we have thousands of independents and third party members with considerable civic and elective office experience that deserve the opportunity to restore our representative democracy. How could we do any worse? Let’s throw the bums out and give real change a chance.

We also need much greater public awareness that Congress for a very long time has failed to obey the part of Article V of our Constitution that gives us the right to a convention to propose amendments to the Constitution. Such an Article V Convention was created by the Framers as an alternative to Congress proposing amendments. They created this convention option – a temporary fourth branch of government giving us some direct democracy – in case Americans some day lost confidence in the federal government. That day has arrived!

Even Congressman Ron Paul, self-proclaimed champion of the Constitution, has not supported an Article V Convention.

There are many constitutional amendments that deserve public discussion, especially ones to make our government work they way our Constitution intended it to work. We need to strengthen our Constitution to prevent power-hungry presidents, useless Congresses, and Supreme Courts that create new public policy.

Moreover, the one and only requirement to have an Article V Convention specified has already been satisfied, because way more than two-thirds of state legislatures have requested such a convention. Learn more about this congressional disobedience of the Constitution at www.foavc.org, the website of the new national, nonpartisan group Friends of the Article V Convention.

Why has Congress failed Americans? Because Americans have allowed it to fail them. Now is the time for Americans to assert their sovereign constitutional power and take back their country. That means YOU!

[Joel S. Hirschhorn was a senior staffer for the U.S. Congress for 12 years, is a co-founder of Friends of the Article V Convention, and the author of l Delusional Democracy – Fixing the Republic Without Overthrowing the Government.]

QuestionItNow Blogs

Are Bush's Signing Statements Unconstitutional?

Senator Specter Fights for Constitution
by: Joel S. Hirschhorn

On the Friday before July 4 Republican Senator Arlen Specter (R – PA) showed his respect for the U.S. Constitution and his anger about President Bush’s repeated pissing on it by introducing the Presidential Signing Statements Act of 2007. What happens to this crucial bill will test both congressional integrity and courage.

Specter had the honesty to call President Bush's abuse of signing statements an "unconstitutional attempt to usurp legislative authority." "The president cannot use a signing statement to rewrite the words of a statute nor can he use a signing statement to selectively nullify those provisions he does not like," said Specter.

"Presidential signing statements can render the legislative process a virtual nullity, making it completely unpredictable how certain laws will be enforced. This legislation reinforces the system of checks and balances and separation of powers set out in our Constitution," said Specter.

Commenting on the legislative process, Specter noted: "This is a finely structured constitutional procedure that goes straight to the heart of our system of check and balances. Any action by the president that circumvents this finely structured procedure is an unconstitutional attempt to usurp legislative authority. If the president is permitted to rewrite the bills that Congress passes and cherry-pick which provisions he likes and does not like, he subverts the constitutional process designed by our framers." Subversion of our Constitution – pissing on it: that’s what Bush has gotten away with. Bush-the-ruler has made a mockery of our sacred rule of law.

This bill would prevent the president from issuing a signing statement that alters a statute's meaning by "instructing federal and state courts not to rely on presidential signing statements in interpreting a statute."

This is Specter’s second attempt at preventing Bush and any future president from disrespecting the Constitution. His similar bill in 2006 went nowhere. But he had some support. Senator Patrick Leahy said: "I have long objected to this President’s broad use of signing statements to try to rewrite the laws crafted and passed by the Congress, because I firmly believe that this practice poses a grave threat to our constitutional system of checks and balances. … These signing statements are a diabolical device and the President will continue to use and abuse them, if Congress lets him."

From a historical perspective, Specter noted that "while signing statements have been commonplace since our country's founding, we must make sure that they are not being used in an unconstitutional manner; a manner that seeks to rewrite legislation, and exercise line item vetoes." An unconstitutional manner is exactly what Bush is guilty of.

In 2006 the Congressional Research Service came up with these summary statistics on constitutional objections in signing statements: Reagan 26 percent, Bush I 68 percent, Clinton 27 percent, and George W. Bush the winner at 86 percent. But the way the current president has used signing statements to nullify laws is unique.

Many people have said that Bush's use of signing statements allows him and federal agencies to blatantly ignore provisions of laws and congressional intent. The Government Accountability Office found in mid-June that in several cases the administration did not execute laws as Congress intended when Bush attached a signing statement to them. GAO found that the statements have the effect of nullifying the law in question in about 30 percent of cases. In July 2006, a bipartisan task force of the American Bar Association described the use of signing statements to modify the meaning of duly enacted laws as "contrary to the rule of law and our constitutional system of separation of powers." And still Congress has not acted to stop this behavior!

The New York Times in 2006 editorialized about Bush’s use of signing statements: And none have used it so clearly to make the president the interpreter of a law's intent, instead of Congress, and the arbiter of constitutionality, instead of the courts. Indeed, what Bush has done (and gotten away with) is unprecedented in American history.

Let’s be clear. There is no constitutional provision, federal statute, or common-law principle that explicitly permits or prohibits signing statements. But two constitutional provisions are pertinent. Article I, Section 7 (in the Presentment Clause) empowers the president to veto a law in its entirety, or to sign it. And many aspects of Bush’s signing statements amount to line item vetoes. The Supreme Court has held that line item vetoes are unconstitutional. In 1988, in Clinton v. New York, the Court said a president must veto an entire law. And Article II, Section 3 requires that the executive "take care that the laws be faithfully executed." Thus, the Bush style of signing statement has no constitutional support.

Interestingly, Supreme Court Justice Samuel A. Alito, when a staff attorney in the Justice Department's Office of Legal Counsel, wrote a 1986 memorandum making the case for "interpretive signing statements" as a tool to "increase the power of the Executive to shape the law." Alito warned that "Congress is likely to resent the fact that the President will get in the last word on questions of interpretation."

Here is another dimension to Bush’s scummy behavior: ''He agrees to a compromise with members of Congress, and all of them are there for a public bill-signing ceremony, but then he takes back those compromises -- and more often than not, without the Congress or the press or the public knowing what has happened," noted Christopher Kelley, a Miami University of Ohio professor who studies executive power. Phillip Cooper, a leading expert on signing statements, has called Bush’s signing statements "excessive, unhelpful, and needlessly confrontational." Legal scholar Lawrence Tribe wrote that what is objectionable is “the president’s failure to face the political music by issuing a veto and subjecting that veto to the possibility of an override in Congress.”

Famed attorney John W. Dean has added yet another reason to question Bush’s behavior: "The frequency and the audacity of Bush's use of signing statements are troubling. Enactments by Congress are presumed to be constitutional - as the Justice Department has often reiterated. For example, take what is close to boilerplate language from a government brief (selected at random): ‘It is well-established that Congressional legislation is entitled to a strong presumption of constitutionality. See United States v. Morrison ('Every possible presumption is in favor of the validity of a statute, and this continues until the contrary is shown beyond a rational doubt.').’" But Bush puts himself above the Constitution, Supreme Court and the law.

Will Specter’s second attempt succeed in a Democratic controlled Congress? And if so, will Bush sign it into law – without using a signing statement to refute its meaning and intent? Though it should be a no-brainer for every American that respects our Constitution, I bet that neither Congress nor Bush will come through and quickly make Specter’s bill law of the land.

If it does not become law, common sense says it should be considered as a possible constitutional amendment. In fact, it is a perfect illustration of why more politically engaged Americans should support the national campaign to obtain the nation’s first Article V convention for proposing amendments. When good and necessary laws cannot be obtained through the normal but untrustworthy legislative process, then lawmaking through constitutional amendments is absolutely necessary and appropriate. Our Framers knew what they were doing when they created the Article V convention option. Learn more about it at www.foavc.org.

[Joel S. Hirschhorn is a founder of Friends of the Article V Convention and the author of Delusional Democracy.]

QuestionItNow Blogs

A Progressive Gives Thanks for Dick Cheney

Thanks for Dick Cheney

Joel S. Hirschhorn

When someone in high elected office shows the nation how vulnerable our Constitution is, we should be thankful for the wakeup call. Like many ruthless dictators, evil kings, and monster generals, Dick Cheney is the leading practitioner of the ends-justify-the-means mentality, where only his vision of the desired ends counts. And if this means disregarding and disobeying the Constitution, torturing prisoners, killing thousands of American soldiers, disrespecting Congress, destroying our environment, embracing the invasion of illegal immigrants, increasing out national debt, and disregarding the will of the vast majority of Americans, so be it. Serving corporate interests rather than serving the people is Cheney’s brand of patriotism.

Cheney’s self-righteous ego is bigger than George W. Bush’s, and what makes Cheney more striking is that he is enormously smarter and more competent than Bush, his token boss. He is so dangerous and frightening that no impeachment of Bush effort ever stood a chance. Not as long as "President Cheney" enters your consciousness. Cheney became Bush’s shield.

When reality hits the fan we use the-lessons-learned approach to stay sane. With his finger-in-the-eye disdain for what anybody else (or history) thinks of him, Cheney offers a far better lesson learned benefit than the stumbles and fumbles of Bush-the-smirker. Bush is a joke. Cheney is a monster.

Take Cheney’s current view that he is a part of the legislative branch, not the executive, so he does not have to comply with an Executive Order on reporting use of secret materials. It is wildly inconsistent with his prior claims of executive privilege. But Cheney has no use for logical consistency. Only what Cheney wants matters. (The only law that Cheney regularly obeys is gravity.)

When we witness the brazen acts of Cheney and Bush we should envision these types of constitutional amendments.

An amendment could explicitly state that the Vice President is a member of the Executive Branch, and the Office of the Vice President must comply with Executive Orders. And perhaps we should consider a statement of the criteria that the President can invoke for firing the Vice President with the consent of Congress.

And why not consider a different method of breaking ties in the Senate. If someone from the Executive Branch can do it, then why not someone from the Judicial Branch? Why not the Chief Justice of the Supreme Court? Or, better yet, why not make the constitutional solution what is the House uses. A tie vote means that the question fails. We could eliminate the position of President of the Senate.

As another example, consider the frequent assertion of executive privilege by Cheney and Bush to withhold information that Congress believes it needs. The Constitution does not provide for executive privilege. Considering how strong the presidency has become and the predilection to invoke executive privilege, we need an amendment that explicitly says there is no such thing as automatic executive privilege. Any assertion of it should be presented to the Supreme Court and only it should rule that it is appropriate in a particular case to protect the national interest.

As the final example, consider the clear need for an amendment that prohibits the President from using any kind of signing statement to announce and justify not obeying part of a newly signed law.

We can give thanks for Dick Cheney just like we give thanks eventually that a catastrophe or disaster makes us stronger in the future. He has exposed constitutional weaknesses. The principles that define the best of our nation must be protected through amendments that learn from history. In particular, how the ingenuity and boldness of people has allowed them to disobey and dishonor those principles. Dick Cheney sought and achieved power sufficient to make a mockery of our nation’s finest principles and he was enabled by George W. Bush who apparently sought more guidance from his God than from our Constitution.

One thing is clear. History provides little confidence that Congress will propose constitutional amendments that deserve full public discussion. Now is the time to use what our Constitution offers us: an Article V convention for proposing amendments. If we are to make our federal government work for the good of we the people, then we require the nation’s first Article V convention – the goal of Friends of the Article V Convention at www.foavc.org. Why is it now so appropriate? Because Americans now have so little confidence in Congress, the President, and the Vice President, and because the corruption of politicians by money has reached unprecedented heights.

As much as politicians deserve our mistrust, we the people deserve to have an Article V convention. Politicians fear it because they know the public will support amendments that make the government subservient to us – the sovereign American citizens. Politicians are not supposed to rule us. They are so supposed to justly represent us. But they do not. They represent the moneyed interests that control them. As Thomas Jefferson said, "An elected tyranny is not what we fought for."

Our Constitution should not allow the government to make us victims and our nation hated by so much of the world. That’s what Cheney should teach us. Now, it’s up to us.

Pray that a petulant Bush does not learn from Cheney, exploit the Constitution by resigning, and create President Cheney.

[Joel S. Hirschhorn is the author of Delusional Democracy and a founder of Friends of the Article V Convention.]

Will America Lead?

Joel S. Hirschorn on the "Evils of Lesser Evil Voting"

The Evils of Lesser Evil Voting

by: Joel S. Hirschhorn

Condemn progressives for voting enthusiastically for Democrats and the inevitable response is something like "just imagine how much worse voting for Republicans would be." Similarly, many true conservatives and Libertarians see voting for Republicans as a necessary evil. With many progressives regretting giving Democrats a majority in Congress and many conservatives regretting putting George W. Bush in the White House, it is timely to refute lesser evil logic.

Inevitably, lesser evil voters face personal disappointment and some shame. Politicians that receive lesser evil votes do not perform according to the values and principles that the lesser evil voter holds dear. These voters must accept responsibility for putting ineffective, dishonest and corrupt politicians in office. Though they may be lesser evils, they remain evils.

All too often lesser evil voters avoid shame and regret and prevent painful cognitive dissonance by deluding themselves that the politician they helped put in office is really not so bad after all. Corrosive lesser evil voting erodes one’s principles as pragmatism replaces idealism. This makes the next cycle of lesser evil voting easier.

Lesser evil voting helps stabilize America’s two-party duopoly that greatly restricts true political competition. Third party and independent candidates – and minor Democratic and Republican candidates in primaries – are defeated by massive numbers of lesser evil voters. Despite authentically having the political goals that mesh with many voters on the left or right, these minor “best” candidates fall victim to lesser evil voting. Lesser evil voters are addicted to a self-fulfilling prophesy. They think “If I vote for a minor candidate they will lose anyway.” They ensure this outcome though their lesser evil voting. The truly wasted vote is the unprincipled lesser evil vote.

Effective representative democracy requires politically engaged citizens that vote. Lesser-evil voters support the current two-party system with its terribly low voter turnout and chronic dishonesty and corruption. Lesser evil voters help put into office disappointing politicians, not the best people that would restore American democracy and show more citizens that voting is valuable. Lesser evil voters demonstrate the validity of turned-off citizens’ view that it really does not matter which major party wins office.

Politicians knowingly market themselves to lesser evil voters by constructing phony sales pitches, especially to certain audiences outside of their more certain base constituents. Democrats make themselves look more progressive than they really are, and Republicans make themselves look more conservative than they really are. Lesser evil voters are phony, and they produce a phony political system. Lesser evil voters contribute mightily to the travesty of our political system that no sane person respects and has confidence in.

Lesser evil voting demonstrates the worst aspects of political compromise. This is the common cause of terrible laws. When citizens surrender so much of what they truly believe in, they enable compromise politicians to create bad public policy that, in the end, satisfies very few people and puts band-aids on severe problems. Lesser evil voters concede victory to the other side – the side they view as the worse alternative because the people they vote for will not stand up for what is right and necessary. Think Iraq war. Even when their lesser evil side wins, they do not have the principled positions that would prevent awful compromises, often in the name of bipartisanship that is a clever way to justify our corrupt two-party mafia.

Lesser evil voters deride the alternatives of not voting or voting for minor candidates. The outcome should the "other" side win is deemed unacceptable. There is worse and there is worst. The core problem with lesser evil voters is that they are short term thinkers. They fail to see the repeated long term consequence of their style of voting – a system over many election cycles that persists in delivering suboptimal results. The "good" outcome in the current election (from their perspective) is the enemy of the "better" solution in the longer term (from an objective perspective). The better solution is major reform that will never happen as long as lesser evil voting persists.

Understand this: Lesser evil voting is not courageous. It is cowardly surrender to the disappointing two-party status quo. Lesser evil voters should trade regret for pride by voting for candidates they really think are the best. Voters in this presidential primary season have some remarkable opportunities to transform fine minor candidates into competitive major candidates – more honest and trustworthy people like Ron Paul, Mike Gravel and Dennis Kucinich, for example.

Finally, the deadly decline of American democracy results in large measure from lesser evil voters electing lesser evil politicians. When virtually no elected public official is there because most voters have embraced his clear principled, trustworthy positions we get a government that is easily corrupted by corporate and other moneyed interests. We get what we have now. And if you are dissatisfied with that, then reconsider the wisdom of lesser evil voting. We will only get the best government by voting for the best candidates. Otherwise, we get what we deserve and what the power elites prefer.

[Joel S. Hirschhorn is the author of Delusional Democracy (www.delusionaldemocracy.com) and a founder of Friends of the Article V Convention (www.foavc.org).]

Will America Lead?