New Rules To "Discourage and Restrain"

 New Rules To "Discourage and Restrain" 

If you have followed this blog you know that my focus has been on the dysfunctionality of the United States Congress; a critical element in the three-pronged governance structure of American democracy as established in the Constitution. It has been my contention that Congress sets and controls the tone for our political discourse. ​O​f course the President is a key contributor, however, a rationally functioning Congress has the power through its "checks & balances" and oversight responsibilities to correct or override a bad acting President.

No matter who's President, little if anything good gets accomplished as long as Congressional gridlock and dysfunction persist. T​he survival of the Trump Party ​will be tested in November, but we must remember the gridlock and dysfunction that was present before Trump will not magically disappear. The country will still be divided after Trump and it will take many years for our political system to evolve with the ever changing demographics of the country.

Congress receives extensive media attention and the general public is constantly exposed to the various characters that represent the public and their behaviors. In fact, a recent poll confirms that, "Most Americans think divisiveness is driven from the top down, by leaders, and not driven by the public itself" [https://tinyurl.com/y4kehpea]. In a deeply divided nation, with the political power oscillating narrowly between the parties and chambers, the extreme ends of both parties have had the loudest voice and perpetuated rhetoric that has become increasingly contentious, disrespectful and polarizing. 

Congress is the mechanism that is supposed to provide a “check and balance” on our political direction. Congress -- the House of Representatives and the United States Senate; both Democrats and Republicans -- have so misused and distorted their responsibilities that the nation is now left without the ability to make even basic decisions or provide the oversight necessary for the survival of our country and the democracy itself [https://tinyurl.com/wsmq55o].

The Founders warned us some 240 years ago [https://tinyurl.com/y27gaj3g], and were seriously worried whether the democracy could withstand the relentless influence and power of political parties. They used terms such as "evil" and indicated that the instincts, the "spirit of party" were "inseparable from our nature, having its root in the strongest passions of the human mind." They said the turbulence of those passions in party disputes were so strong that party victory would be more important than truth or right itself. Their predictions have now become the new reality of American government.

Somehow, despite the overwhelming passions for party and political power the nation has survived over the years. But like a slow motion train wreck it has degenerated to its current state of near total dysfunction.  While the Founders were prophetic in their warnings and vision of possible failure of the democracy they were crafting, they ultimately granted too much power and authority to the very political parties that they feared.

In what maybe one of the most insightful visions into the future ever, George Washington warned in this farewell address in 1796: 

"The alternate domination of one faction over another, sharpened by the spirit of revenge, natural to party dissension, which in different ages and countries has perpetrated the most horrid enormities, is itself a frightful despotism. But this leads at length to a more formal and permanent despotism. The disorders and miseries which result gradually incline the minds of men to seek security and repose in the absolute power of an individual; and sooner or later the chief of some prevailing faction, more able or more fortunate than his competitors, turns this disposition to the purposes of his own elevation, on the ruins of public liberty.

"Without looking forward to an extremity of this kind (which nevertheless ought not to be entirely out of sight), the common and continual mischiefs of the spirit of party are sufficient to make it the interest and duty of a wise people to discourage and restrain it. . ."

​Unfortunately​, the Founders did not include in the Constitution a mechanism that would "discourage and restrain" the behaviors​ and practices of political parties which they feared the most.​ Instead, in a serious error of judgement, counter to their own inclinations, they made the faulty assumption that Congress would act in the best interest of the country and citizens. They simply said in Article I, Section 5 of the Constitution that, "Each House may determine the Rules of its Proceedings.”  

[See, Constitution Annotated for Article I, Section 5, Clause 2: Rule of Proceedings for legal interpretations and citations https://tinyurl.com/y6jnqt7q] ​

So the dysfunctional, tribalistic gridlock that we find ourselves in today is really self-imposed and is the product of years of political maneuvering, manipulation and tweaking of the rules of operation. ​As citizens we want, need and deserve better. Congress, in general, is not responsive to the wishes of large majorities of the population (e.g. gun control, health care, witnesses in the impeachment trial​, policing reforms, mail voting, additional economic stimulus, wearing masks, child care, restrictions on lobbying,​ etc.). 

​"Nearly 75 percent of Americans, regardless of political affiliation, think there is more common ground among the public than the media and politicians portray, according to a Public Agenda report​, Divisiveness and Collaboration in American Public Life [https://tinyurl.com/y4kehpea​].​​ The report on polling conducted one year ago indicates that, "Americans also view political leadership as a central factor that exacerbates divisiveness — and that could help to reduce it.​ [and express]  ​. . .​a powerful yearning from Americans across all party lines for a more collaborative brand of politics that moves the country forward.​"​

​Interestingly, the report also indicates that, "Both Republicans and Democrats indicate that they could imagine finding common ground with about half of people who identify with the opposing party. Republicans and Democrats also see about a quarter of those in their own parties as so extreme they could not imagine finding common ground with them.​"​

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Congress has proven time and again that it is not capable of determining its ​own ​"Rules of Proceedings" for the good of the country​.​ ​Instead the rules are twisted and designed to benefit ​the party in power​, preserve the party structure and discourage alternatives. ​A new Constitutional Amendment offers a great opportunity to correct this serious oversight of the Founders which is the cause of much of the gridlock and dysfunction of the Congressional system. A new Amendment MUST include some basic ground rules of operation that ​could only be amended with​,​ for example​,​ a ​three quarters (​3/4 ​) ​vote​ of the House or Senate or both, depending on the specific rule​.

Obviously a new Amendment cannot include all of the details of a system of new "rules of proceeding" but it can mandate a process for creating such rules and defining how they relate to the Constitutional requirements of Article I, Section 5. To translate this concept into proposed Constitutional amendment language I would offer as a starting point something like the following:

Proposed Amendment to the U.S. Constitution

 "Section __. There is established in the legislative branch an independent, National Commission On Congressional Rules, whose purpose shall be to review, revise, amend and establish baseline rules of proceedings for the U.S. House and Senate to fulfill the requirements of Article I, Section 5. The Commission shall establish rules of proceedings designed to establish rational, unbiased decision making and to encourage true bipartisanship in fulfilling the Congressional responsibilities in developing legislation, conducting Executive branch oversight and exercising its review and approval functions. Congress shall enact enabling legislation for the establishment of the Commission."

[Note: As a possible model for new enabling legislation for establishment of the Commission I would suggest similar language as the 9-11 Commission legislation, a 10-member bipartisan commission of prominent US citizens, with national recognition and significant depth of experience in such pertinent professions. 
[Title VI i.e. https://tinyurl.com/y6nooym4]

Because it is doubtful that a sitting Congress would propose such an amendment, it may be necessary to pursue a strategy authorized by the Constitution involving a convention where two-thirds (2/3) or 34 of the 50 states make an application for Congress to establish a constitutional convention in order to propose amendments. Amendments would then need to be ratified by either individual state conventions or by individual state legislatures with a three-quarters (3/4) vote. This method has never been utilized and it is noted that the convention method of amendment is surrounded by a lengthy list of questions [https://tinyurl.com/yxl7wbs5].

Whether it would be proposed by the Congress or by at least 34 states, such an amendment would require a nationwide movement similar to the Amendment 28 movement being conducted by the organization American Promise to restore a democracy in which we the people — not big money, not corporations, not unions, not special interests — govern ourselves [https://tinyurl.com/y27ygahj]. In a previous post I have provided a list of organizations and groups that would be capable of organizing and conducting such a movement [https://tinyurl.com/y5qb35ge].

If such a National Commission On Congressional Rules could be established with Constitutional authority it would be able to establish any number of new and revised rules to achieve more rational Congressional operations designed to reflect the best interest of the country as a  whole. In many previous posting I have advocated and provided details on a system of Shared Legislative Power (SLP), however, in this posting I am not strictly advocating SLP but merely suggesting a few specific rule revisions that I believe would force Congress to act in a truly bipartisan manner that would lead to much improved decision making.

Also as an inspiration and validation that Congress can function in a more civil, professional and responsible manner I offer the testimonials from Democratic and Republican representatives in Michigan that actually experienced participation in a Shared Power Arrangement. Their comments give us hope and a vision for a better future for our country. [See: https://tinyurl.com/ycq4xz22]

Starter List of basic ground rules for a more balanced and functional Congress: (Yes, there would be deadlock at times, but there would also be incentives to reach a real compromise. Compare it to the system we have now that simply cannot make a rational decision.)

1. "Regular Order" - Strict compliance with Regular Order all legislative measures must be assigned to a committee and go through the committee process before a Floor vote can be considered.  Debate and amendments may be considered with all amendments and final passage requiring Two-Thirds (66.7%) approval. 

2. Nonpartisan Staff - All Committees shall include combined, unbiased politically neutral staff similar to existing requirements of the House and Senate Ethics Committees, e.g. "a professional, nonpartisan staff...  perform all official duties in a nonpartisan manner...  shall [not] engage in any partisan political activity..."   

3. Proportional Membership - Committee membership makeup proportioned to overall chamber majority v. minority

Example: assume Senate split 53-47 so 53/100 = 0.53 so a 20 member committee divided 20 x .53 = 10.6 round to 11. Committee makeup would 11-9. If Senate majority was 60-40; Makeup would be: 12-8. If Senate majority was 51-49; Makeup would be: 10-10

4. Approval Votes -All subcommittee and committee votes require 75% approval. e.g. 20 member committee requires 15 votes to approve.

5. Co-Chairmanships - All Oversight committees, Special Committees, Approval Committees (Advise & Consent, Treaties, etc.) require Co-Chairmanship with equal powers and combined, unbiased, politically neutral staff. Committee membership remains proportioned, but Co-Chairmanship and neutral staff will prevent political grandstanding and political theater with regard to critically important oversight responsibilities

6. Conflicting Rules - Eliminate extraneous rules that would interfere with this process.. e.g. filibuster, holds, Hastert, etc.

7. Petition For Action - To avoid leadership simply refusing to act as a means to delay or avoid critical issues (e.g. refusing to act on SCOTUS approval, stimulus, etc.) a Petition for Action may be submitted by 10% of the total chamber membership and which must be brought to the Floor for a vote and requiring a simple majority for approval. This would require members to be on record with a vote and combined with other changes (e.g. #5 & #1 above) will provide a transparent process to force action on critical issues and put members on the record.

8. Elevate Importance of Bill Cosponsorship - Devise a system that recognizes the total numbers of members and the degree of bipartisanship for each legislative proposal that will be used to determine the priorities for legislative action. This will put more responsibility on individual members to seek support for their ideas and reward individual and cosponsoring members that can develop priority legislation for action.  

9. Eliminate or Revise The Electoral College Process - As an added consideration to the effort to amend Congressional rules, the National Commission should also seriously debate the Electoral College process and consider elimination or revisions similar to the National Popular Vote (NPV) initiative which makes the national popular vote relevant.