Sunday, November 5, 2023

AI Understands The Importance Of Independent Congressional Rules

 

The Artificial Intelligence (AI) application ChatGPT understands the importance of independent reviews of Congressional Rules. ChatGPT says independent reviews are, "essential for various reasons."

Too bad "Real Intelligence (RI)" can't seem to recognize those essential reasons.

A simple inquiry, and AI reveals those reasons.

Research related to independent reviews of U.S. House & Senate operating rules
ChatGPT

I'm sorry, but as of my last knowledge update in January 2022, I don't have access to specific, up-to-date research papers or studies related to independent reviews of U.S. House and Senate operating rules. However, I can provide you with some general information on how these reviews might be conducted and why they are important.

Independent reviews of the operating rules of the U.S. House and Senate are essential for various reasons:

  1. 1. Transparency and Accountability: Such reviews can help ensure that the rules governing legislative bodies are transparent and accountable. They can help identify and address any potential biases or partisan favoritism in the rules.


  2. 2. Fairness and Equity: Independent reviews can assess whether the rules provide for a fair and equitable process for all members of Congress, regardless of their political affiliation or seniority.


  3. 3. Efficiency and Effectiveness: Evaluating the rules can lead to recommendations for making the legislative process more efficient and effective. This can include streamlining procedures and reducing unnecessary delays.


  4. 4. Modernization: Over time, the needs and expectations of the legislative process may change. An independent review can help identify areas where the rules need to be modernized to adapt to the evolving political landscape and technological advancements.


  5. 5. Bipartisanship: An independent review can promote bipartisanship and consensus-building, as it typically involves a diverse group of experts who are not aligned with any particular political party.

To find the most up-to-date research on this topic, you can search academic databases, such as JSTOR, Google Scholar, or your university's library resources, for recent studies, articles, or reports related to independent reviews of U.S. House and Senate operating rules. Additionally, you can look for research conducted by organizations or think tanks that focus on government and political processes. Be sure to use keywords like "Congress rules review," "House and Senate operating rules," and similar terms to narrow down your search.

Has there ever been a comprehensive, independent review of U.S. House & Senate operating rules?
ChatGPT

As of my last knowledge update in January 2022, there have been efforts to review and reform the rules and procedures of the U.S. House and Senate, but it's important to note that the extent of these reviews can vary. There have been instances where committees or commissions were established to examine specific aspects of congressional rules and procedures. However, a comprehensive, fully independent review of all rules and procedures governing the U.S. House and Senate at a single point in time is less common.

Here are a few notable examples of efforts to review and reform congressional rules:

  1. Legislative Reorganization Act of 1970: This act established the Commission on the Operation of the Senate and the Joint Committee on the Organization of Congress. These bodies were tasked with conducting comprehensive reviews of congressional operations and recommending reforms. Their work led to significant changes in committee structures and procedures in both the House and Senate.


  2. Bipartisan Policy Center (BPC): The BPC, a think tank, has conducted various studies and provided recommendations for congressional reform, including changes to Senate rules like the filibuster. While not a government entity, the BPC's reports and recommendations have had an impact on discussions about congressional rules.


  3. House and Senate Rules Committees: Both the House and Senate have committees responsible for overseeing their respective rules. These committees can consider changes to specific rules, but their reviews may not always be fully independent or comprehensive.

  4. Internal House and Senate Reforms: From time to time, individual members of Congress or party leadership may propose rule changes or reforms. These proposals are usually debated and voted on by the respective chambers.

It's important to keep in mind that the specific procedures for reviewing and changing congressional rules can be influenced by political dynamics, party control, and the will of the members. The depth and scope of these reviews can vary widely depending on the circumstances.

To determine whether there have been any recent comprehensive, independent reviews of congressional rules since my last update in January 2022, you would need to consult the latest news, government reports, or academic research on the subject, as well as any developments that have occurred since then.




"Select Committee on the Modernization of Congress," (this committee from the 117th Congress is no longer standing)


Tuesday, February 21, 2023

Rules of the “Game”

 Rules of the “Game”

The "Rules" are the rules of the House and Senate. The "Game" is the future of the United States of America. For all their greatness, the Founders made a huge mistake when they gave Congress the ability to make and change their own rules.

Imagine for a minute if workers were allowed to make their own rules or change them at will. There would be no need for unions to negotiate with management. Imagine the dysfunction and confusion for business and commerce. Or, imagine if the players on a sports team could establish their own rules or change them when things weren't going right. There would be no need for referees. You get the point; players and workers cannot be permitted to create and change the rules which they must follow. Is it any wonder that our ability to govern is out of control and we can no longer deal rationally with the critical issues of our time?

The House Speaker fiasco that played out in D.C. in January was completely the result of a ridiculous set of "House rules" that were created by Republican & Democrat members over many years. The problem is not really Kevin McCarthy, Donald Trump, MAGAs, or Republicans. It is a simple matter of rules that permit and allow chaos, gridlock, dysfunction, and encourage polarization that benefits party politics over what's best for the country and good government. How long are the American people going to put up with this insanity?

I have written extensively about this "Congressional rules" subject before in a blog post entitled, "New Rules To 'Discourage and Restrain' (October 2020). The title relates to a warning espoused by President George Washington in his 1796 farewell address when he said, "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. . ." Before that, I posted, "SLP: The Only Hope For "Country Over Part" in 2018 which also referenced a number of posts before that. Back then the polarization and dysfunction in Congress were considered to be undermining the basic foundation of our democracy. Since then they have become tragically worse.

The prophetic President Washington put the burden on the public to watch over the then-new, democratic republic and not let the "mischiefs of the spirit of party... [and] the spirit of revenge... [lead to] more formal and permanent despotism." He said it is the "duty of a wise people to discourage and restrain it. . ." As a free country with a huge, historic investment in our democracy we have to accept the burden of our duty to protect it from what Washington would call, "the spirit of party." Should we chose not to accept the burden of interest and duty, we should not complain about our eventual transition to despotism. We should also accept the fact that if we don't accept the duty, we are not "a wise people."

As said, the "game" the Members of Congress are playing is the future of the United States. The future which involves dealing with serious, game-changing issues of voting rights, climate change, gun control, abortion, race relations, immigration, artificial intelligence, world peace, trade relations, social media, Social Security, Medicare, healthcare, pandemic management, and so much more.

The nonsensical rules of the game which Congress has established were not created by the Founders or mandated by the Constitution. It's paradoxical that the Framers of the Constitution, who were deeply concerned about the disruptive nature of factions or political parties, did not envision the dysfunctional nature of allowing the "workers for the people" to create their own operating rules. In almost an aside to the otherwise brilliance of the Constitution, they simply said, "Each House may determine the Rules of its Proceedings..." (Article 1, Section 5). Apparently, at the time, they could not imagine how critically important these rules would be in carrying out their vision of a democratic republic and how they could be politically manipulated (Washington's, "mischiefs of the spirit of party") to completely destroy the concept of democracy.

Thus, over the years, the rules of the game have been created by power-hungry, full-time politicos that accommodate their individual self interest and bolster the interest of their Party first & foremost, not necessarily the interest of the public or the country as a whole. For Congressional members who indicate over and over that they "work for the people," we must ask the question, under what other game or business do the players or the employees develop their own rules?

Only under that kind of system could you have rules where one person could negotiate changes, additions, or deletions in any rule as a ploy to get elected as the leader. Only under that kind of system could you have a situation where a few renegade Members could hold the entire membership of the House of Representatives or Senate hostage until they got the concessions they wanted. Only under that kind of system could you make it nearly impossible for a large majority of Members to bring an item to the Floor of the House or Senate for a vote of the full body. The House and Senate established rules make all that possible and completely frustrate the ability to govern for the good or will of the country at large.

If we want a functioning government, we must have House & Senate rules, created or overseen by some respected, independent body. Rules that apply equally and consistently to all, and can only be changed by some formal, fair process – not at the whims of the party in control. The existing Congressional rules and the processes by which they are created are far too politically entangled and volatile. Developing Congressional rules that make sense and encourage good government must be Step #1 in getting at the heart of the out-of-control political polarization in the United States. Without such an effort the country will not be able to address the critical issues of the day or preserve the democratic republic for which we have spent enormous blood and treasure to maintain for nearly a quarter of a millennium.

One of the problems as a country in trying to deal with the issue of political polarization is that we are too easily distracted by various individual issues and personalities and fail to focus on the root cause of the problem. To make lasting changes in the faulty decision-making process that currently exists in addressing all major issues, there must be a dedicated focus on the root causes.

If the "good forces" of America were to unite and focus their staff and financial resources on the issue of changing Congressional Rules, I truly believe it would go a long way toward addressing the political polarization in our country. Among the "good forces," there are literally hundreds of organizations, university centers, and thousands of staffers and retired politicos that are involved in advancing specific issues related to good government and government reform that could be focused on such an effort.

Congressional rules have consistently been identified as a main cause of the dysfunction and widespread low approval ratings among the public. In response, Congressional Select and Joint Committees have attempted to identify and propose changes. Laws like the The Legislative Reorganization Act of 1946 and another act in 1970, the Joint Committee on Budget and Appropriations Process Reforms, and the recent Select Committee on the Modernization of Congress have all analyzed, proposed, and adopted some reforms. However, these efforts all suffer the same defect; a sitting Congress investigating and seeking reforms to its own actions in an active political environment, i.e. making its own rules. Additionally, most efforts have been carried out in the underbelly of Congress without widespread public exposure and input and overshadowed by the hotly contested issues of the time. A high visibility, focused, unbiased, independent, professional review with a goal of good government is needed.

As mentioned above, the Constitution, Article 1, Section 5, simply says that "Each House may determine the Rules of its Proceedings..." The important word is "may" as opposed to "shall." While this wording implies that the House and Senate can, themselves, develop their own rules of proceeding, it does not in any way prohibit the development of rules of proceeding by some independent, outside source which would then be adopted by the House and Senate.

At a minimum, there is absolutely nothing to prevent some outside respected source from conducting a deep dive review of Congressional rules and recommending changes that would minimize political polarization and advance rational, governmental decision-making. Such an initiative could be the rallying point for a a massive public campaign to address the current, widely accepted, public agreement on the dysfunction of Congress. It will not be easy to change Congressional rules, either voluntarily with Congressional support or by some kind of external public initiative.

As a starting point, a rules review could examine strengthening the legislative committee process to a more "Regular Order" process. The Congressional Research Services (CRS) indicates that "Many Members and commentators view this sequential pattern (regular order) as the ideal or 'best practices' way to craft the nation’s laws. Regular order is a lawmaking process that promotes transparency, deliberation, and the wide participation of Members in policy formulation." If regular order is considered by experts to be a "best practice" method to develop legislation, why have we let it slip away to an extremely untenable politically dominated process.

Additionally, the House and Senate Ethics Committees operate completely differently from all of the other 200-plus Committees and Subcommittees in Congress. The Ethics Committees' rules require "Professional, Nonpartisan Staff" & Equal Party Representation "to provide a fair procedural framework." Why shouldn't we be providing "a fair procedural framework" for all of the legislative committees?

As it stands now, Committee staff are being paid to implement one-sided solutions, gotchas & revenge actions on opposing party Members and positions. To make it even worse, and to further fuel the political polarization, existing rules provide two-thirds of available funding to the majority party and one-third to the minority party. Equally funded "professional, non-partisan" legislative committee staff and equal party representation with co-chairs on committees could actually work on developing real solutions & employ dispute resolution & mediation techniques to resolve political differences. This structure would also eliminate the creation of non-productive, distracting, political revenge investigations, and strengthen Executive oversight.

Universities might even start to offer new associate and undergrad degrees in PoliMed (political science + mediation & dispute resolution) and advanced degrees in PoliDep (domestic relations & political diplomacy) to fill the many new job positions of "professional, non-partisan" legislative committee staff in state and federal government.

Additionally, the rules that that control how legislative matters are brought up for a Floor Vote are critical to the dysfunction and polarization issues in Congress. In the Senate, the filibuster and reconciliation rules are major obstacles to effective legislating. Similarly, the fact that any, one Senator can derail or delay action with Senatorial "Hold" procedures is outdated and disruptive. In the House, the informal Hastert Rule used by Republicans requires that the Speaker will not schedule a floor vote on any bill that does not have majority support within their party (majority of the majority) even if the majority of the all members of the House would vote to pass it. Even more frustrating, changes in the House Rules over that last three decades have given more and more power to the Speaker to basically control whether a bill ever receives a Floor Vote, even if the “majority of the majority” agrees.

These are just a few examples of rules and procedures that are being followed in the House and Senate that impede effective governing and increase polarization and dysfunction in Congress. An effective, functioning government, that must make decisions, critical to the future of the country, cannot be burdened by these politically, self-imposed restrictions that allow the Congress to conduct its operations contrary to the will of the public and voting electorate.

As said previously, it will not be easy to implement Congressional Rule Reform. But, considering the dire strait of our current government, on the verge of a collapse of fundamental democratic principles of rule of law, and individual rights, the difficulty cannot be a deterrent. As our very first President said, it is the "duty of a wise people to discourage and restrain it. . ."

An initial step must be to focus on this major root cause of polarization – Congressional Rules. Short of a Constitutional Convention, a massive coordinated public campaign must harness the vast economic resources and human energy of the "good forces" to educate the public and call for the in-depth investigation and analysis of the existing rules. That effort must be followed by specific recommendations for improvement and an acceleration of the campaign at the state and federal level to effectuate changes through lobbying, to obtain individual legislator commitments and commitments from candidates at the ballot box in future elections to make the changes.

There is a glimmer of hope, even within the now GOP-controlled House. The House Committee on Administration has voted to establish a Subcommittee on Modernization. The Subcommittee will attempt to pick up the work of the House Select Committee on the Modernization of Congress, or ModCom, or the “fix Congress” panel, organized in 2019 under Democrat leadership. The Select Committee was disbanded for the 118th Congress; however, this new Subcommittee could be a focal point for lobbying efforts of the public initiative to change Congressional rules.

Many observers, including the President himself, have said, “Something must change.” One change, that is within our grasp and could make a huge difference in the decisions we make as a country, is Congressional Rules. Now is the time to make the change.

###


1. CRS Report: The “Regular Order”: A Perspective November 6, 2020

2. CRS Report: The Legislative Process on the House Floor: An Introduction, Updated December 14, 2022

3. CRS Report: Administration of the House of Representatives: Actions Taken During a New Congress and Following a Majority Change, Updated December 5, 2022

4. CRS Report: Eight Mechanisms to Enact Procedural Change in the U.S. Senate, Updated December 2, 2020

5. American Academy of Arts and Sciences, Our Common Purpose: Reinventing American Democracy for the 21st Century, American Academy of Arts and Sciences, 2020

6. Negotiating Agreement in Politics, American Political Science Association, 2013

7. Analysis of House Rules Changes for the 118th Congress

9. If We Want Congress to Work Differently, We Have to Do Things Differently, Derek Kilmer (D-WA) & William Timmons (R-SC), Newsweek, January 4, 2023

10. The Congressional Institute efforts on Congressional Reform

11. State of the Congress 2022, The Congressional Management Foundation and the Partnership for Public Service first annual assessment, July 2022

Tuesday, December 28, 2021

The Big Unconstitutional Lie​

 The Big Unconstitutional Lie


The First Amendment is not a license to undermine the foundation of the U.S. government, just as it is not a right to undermine our system of jurisprudence. Creative legal thinking can stop Trump's Big Unconstitutional Lie. Innovative legal action and amendments to the Electoral Count Act could put an end to Trump's relentless disinformation campaign on the "Big Lie."

The First Amendment to the United States Constitution provides that, “Congress shall make no law ... abridging the freedom of speech, or of the press.” Despite First Amendment Constitutional protections there are legally established limits to free speech in the United States. My premise is that Donald Trump, a powerful and influential man, has violated those limits and is guilty of sedition as well as other Federal crimes as are now being identified by the House Select Committee on January 6, 2021. Since the 2020 election and continuing to this day, Trump has been on a relentless rampage at rallies, interviews, speeches and any venue available, to spread lies and misinformation on how the elections were rigged and stolen from him by various corrupt means. He still claims he actually won the election. He has been steadfast in his refusal to concede. Until Trump; concession by the losing Presidential candidate had become the traditionalistic symbol of American democracy and the customary prerequisite to the peaceful transition of political power. 

For this discussion it is also important to draw some differentiation between two distinct time frames. One, from pre-election 2020 until the official transfer of power on January 20, 2021; and two, from January 20, 2021 until now. The major distinction is that there are legal differences and different prosecutorial options regarding crimes and malfeasance that occured while Trump was still the official President of the United States. The investigations of the House Select Committee are specifically focused on the time period when Trump was President. 

The January 6th House Select Committee is zeroing in on the facts surrounding the 187 minutes (3 hours, 7 minutes) while Donald Trump watched the attack on the U.S. Capitol which was intended to violently overturn the results of the election of the President of the United States of America. It is becoming very clear by the numbers of persons who contacted Trump and requested him to call off the attack that Donald Trump had the ability to stop the brutal and deadly assault -- but he did not. His involvement in the planning and carrying out of the insurrection and his refusal to stop the onslaught and the crimes he is guilty of will become clear in time. However, it is critically important that we do not lose sight of the fact that this same man who participated and oversaw this heinous crime against the United States is still on the loose. Now, as a private citizen he is freely peddling his lies and propaganda with the same intent -- to gain control of the country through illegal means.

This article deals primarily with Trump as an ex-President; the time period after Joe Biden became the official President. It is the period following all of the 2020 election drama, confusion, uncertainty and the many Trump-instigated legal and rhetorical challenges to the election. Following the January 6th insurrection​, ​​the January 20 transfer of power​ and the emergence ​credible facts and evidence​ Trump ​simply doubled down on his Big Lie.

I draw this distinction because I am concerned about Trump's activity as a private citizen. This is when he began his official refusal to honor the traditional symbol of American democracy in the peaceful concession and transfer of power. Following the inauguration and swearing in of the new President he continued his tyrannical, unfounded claims designed to spread groundless, fallacious lies and misinformation about the 2020 election. His actions as a private citizen incited significant unrest among the electorate causing doubt and uncertainty in the integrity of the American system of elections -- the very foundation of democracy.

The actions of the twice impeached ex-President while he was in office were odious in their own right, ​however, ​his persistent and relentless actions as a private citizen have undermined the foundation of American democracy. He is not an insignificant individual -- he is an assumed billionaire with extensive resources; an ex-President; an individual who received 74 million popular votes; an individual who incited an insurrection on the U.S. government; the de facto leader of the Republican party; and an individual with considerable influence, connections and oratory skills. It is not an overstatement to say that this man who has mesmerized, captivated, riveted and altered the behavior of an entire political generation has the wherewithal to threaten the ​underpinnings of the democracy.

At this point, it is important to reflect on the incredible, prophetic wisdom and warning of the very first President of the United States, George Washington in his farewell address to the country following eight years in the leadership of a new nation in 1796, 225 years ago:

Let me now take a more comprehensive view, and warn you in the most solemn manner against the baneful effects of the spirit of party generally. . . This spirit, unfortunately, is inseparable from our nature, having its root in the strongest passions of the human mind. . . The alternate domination of one faction over another, sharpened by the spirit of revenge. . .  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. [emphasis added]

What Is Trump's Intent?

It may be good to reflect for a minute about what Trump was doing and saying following the election and up to his speech from the Ellipse, near the White House  on January 6, 2021, that incited the assault on the U.S. Capitol. I say this because it is important to establish his intent. What did Donald Trump intend to happen by all of his actions? His actions, including telephone calls, planning, speeches and directed legal activities and involvements were designed to invalidate and alter the results of what nearly all objective observers agreed was a free and fair election. The intent of the rally speech by Trump and his compatriots at the Ellipse was to convince the thousands of protesters, beyond a doubt, that the election was rigged. The mantra of lies, the drumbeat of malicious false statements of material facts were intended to mislead and incite them into actions which predictably turned violent and resulted in an insurrection. Trump's words are not obscure or concealed:

"All of us here today do not want to see our election victory stolen by emboldened radical-left Democrats, which is what they're doing. And stolen by the fake news media. That's what they've done and what they're doing. We will never give up, we will never concede. It doesn't happen. You don't concede when there's theft involved.

"Our country has had enough. We will not take it anymore and that's what this is all about. And to use a favorite term that all of you people really came up with: We will stop the steal. Today I will lay out just some of the evidence proving that we won this election and we won it by a landslide. This was not a close election." [https://tinyurl.com/mry4w7sp]

The intent of the January 6th insurrection incited by leader Trump, was to stop the legally required counting and approval of the electoral votes and to retain Trump as the illegal President of the United States. Donald Trump's intent was to incite the protesters to take whatever actions necessary to retain him illegally as President. He may not have known exactly what the incited, angry mob of thousands of protestors might do, but mob mentality and mob violence are rarely predictable. His intent was clearly to incite the protestors to attempt to stop or alter a required legal governmental function. There could hardly be a more clear example of sedition -- the organization and incitement that tends toward rebellion or insurrection against the established order of lawful authority.

Now, over a year after the legal and official transfer of power on January 20, 2021, we must ask, "What is Donald Trump's Intention Now?" A year after the election results have been certified by the individual state Secretaries of State & Governors, voted by the Electors, certified by Vice President Pence, the Senate and the House of Representatives, subjected to numerous state audits and third-party audits, at least 63 lawsuits filed and lost by Trump and others (including three Supreme Court reviews), and even a review by the former U.S. Attorney General Bill Barr. It should also be emphasized that in the same 2020 elections that Trump is contesting 35 Senators, 435 House Members and 11 Governors were elected throughout the U.S., none of whom are claiming the elections were corrupt or rigged. 

With evidence and proof now compiled, "beyond a reasonable doubt" (the highest legal standard) that there was no widespread corruption or irregularities of the 2020 national election for President, it seems clear that Donald Trump is intent, obsessed even, with becoming an illegal President and disrupting the legal framework of the American democratic republic and our system of laws and government. By holding rallies around the country he continues to incite large numbers of the general voting public to take whatever actions necessary to have him proclaimed the illegal President of the United States. Just as he desired to be the illegal President on January 6, 2021, his desires have not changed. Despite the evidence and proof, Trump is insistent on instilling doubt in the validity of the 2020 Presidential election to undermine public confidence in its results.

With his continued insistence that the 2020 election was corrupt, rigged and stolen from him, we can only assume that he is well aware of the overwhelming preponderance of universally accepted evidence and yet he continues his reckless disregard for that truth. His absolute refusal to accept the reality of his loss and concede to Joe Biden reveals that he still wants to perpetuate the belief that he won the election. His intention is to convince the public of that falsehood and to continue to reject the Constitutionally and legally prescribed election processes of the states and country. His intention is to incite people (masses of people) to believe his Big Lie and rebel against the government or governing authority. That is why, after his solid defeat, he continues holding rallies around the country to spread his propaganda. No other President in the history of the United States has categorically refused to concede defeat to a duly elected and inaugurated President over one year following the election.

What Is Trump Saying?

Trump, a man with a peppered history of many, many, smaller lies, began spewing his public Bigger Lies when he claimed for years that Barack Obama was not an American. Then, after he actually won the 2016 election, he was not satisfied with the fact that he lost the popular vote by nearly 3 million votes. So he began his spiel that millions of illegal aliens had corrupted the vote count and the 2017 inauguration was the biggest ever (which it wasn't). Before the votes were even counted in 2020, Trump had declared he was the winner and then from election night through the January 6, 2021 insurrection and finally following the inauguration of President Joe Biden, he continued to perpetuate every lie that he or his followers could think of to declare a Trump victory. 

After refusing to concede, and unlike any ex-President before him, he has launched a denial campaign in venues around the country to continue his incessant, unrelenting lying about how the election was corrupt, rigged and stolen from him. Through all his lies there is a common thread -- there is never any proof of his allegations no matter how often they are repeated or how often they are investigated -- they are just lies and the important point is that he knows they are lies. 

According to the experts on sociopathic lying: 

A sociopath is someone who lacks empathy and does not think, live or behave following commonly-accepted social norms and morality. Someone who lies, cheats, and steals, for instance, might be indicted as a sociopath... The term "sociopath" is also often used to describe someone who is extremely manipulative, cunning, and charming, and is often associated with Narcissistic Personality Disorder (NPD), which is similarly characterized by being charming, manipulative, and self-focused... Both Antisocial Personality Disorder (APD) and NPD have been linked to sociopathic behavior, and it is easy to confuse the two. People with both disorders are prone to lying, cheating, and manipulating to get what they want. 

It seems clear that Trump falls within this realm of personality disorder. Seriously, can anyone believe Donald Trump does not know or understand the truth? Only the criminally insane could claim such a defense. So with that knowledge, Trump, a popular national figure, has with malice, purveyed known falsehoods with reckless disregard of the truth. Those utterances have serious consequences and do not enjoy constitutional protection under the First Amendment.

While we often hear media reports that Trump continues to say the election was stolen, we rarely get a feeling for the details and depth of the lies and misinformation and the passion by which he delivers it. No other ex-President has ever held numerous nationwide rallies to denigrate his opponent and denounce the election that elected him. Trump is continuing his rants to the public through rallies, interviews, right-wing reporting and TV coverage even now -- over a year following the election. There is no reason to believe that he will not continue this knowing and reckless disregard for the truth for the next three years. 

In many respects much of the public has grown numb and desensitized to this repeated harsh rhetoric. It is important to not forget Donald Trump's intent and his unrelenting drive to achieve his fanatical, obsessive dream of ultimate control. As a reminder and just one example, I have included an extensive excerpted litany of the lies, falsehoods, and the inciting nature of his propaganda from a recent Trump rally held in Des Moines, Iowa on October 9, 2021, (An hour and 41 minutes rant). It is estimated that there were around 20,000 in attendance. I have edited the transcript for just the election and voting comments. The rest of the transcript is laced with lies and misinformation as well. Those comments, however distasteful, would almost certainly receive First Amendment freedom of speech exemptions because they would be considered as simply campaign rhetoric subject to opinion. The election and voting comments, however, because of their seditious nature and proven falsehood, should qualify as special, narrow exemptions to the sacred concept of freedom of speech. Trump said:

Trump Lies Never Stop

Rant: 11 months following the election


"The election was rigged. . . You have to fight. Bring our country back. . . It’s a corrupt elections bill. . . like the elections aren’t bad enough and corrupt enough. . . I never conceded. Never. Never conceded. No reason to concede. . . when you hear these numbers of swing states, there was no reason to concede. They shouldn’t have conceded. They did the honest thing, attacking our country. . .  

That’s because it’s fake news. They are the enemy of the people. . . I think this is going to be a communist country. We’re not letting it happen. . . They [the media] are sick people and they’re really hurting our country. . .  the media is corrupt. . . the elections are totally corrupt in our country. They have been for a long time. But never like they were this last time. . . 

All of these calamities are the direct, predictable and disastrous consequence of a totally corrupt election. It’s all because of the corrupt election. They rigged the election. And now based on the rigged election, they’re destroying our country. That’s not a mandate. That’s a destruction of our country. Remember this, it’s not about me being robbed of an election. This is about the American people, having their country taken away from them.  
That’s what it’s really about." 

(The audience shouts "Trump won, Trump won, Trump won, Trump won, Trump won." & Trump responds, "We did, We did.") 

"Arizona forensic audit. . .massive irregularities. . . 284,412 ballot images were... corrupt or missing. . . auditors discovered that millions of the election related files, the files were deleted during and after the election, in violation of federal law.

"DeKalb County, Georgia, that violated the chain of custody rules, 43,000 [votes]. . . I needed 11,779 votes, and they have 40,000 here and 20,000 here.  In Pennsylvania, they were reportedly hundreds of thousands of more votes than there were voters. . . "In Michigan, the legislature found that over 300,000 people were listed on the voter rolls, even though they hadn’t voted in over 20 years. Oh, and again, in Detroit, which is known as the single most corrupt election venue in the country. . .

This election was rigged. They said that. This election was rigged. 
. . .we must pass a complete overhaul of our entire election system to ensure it’s free, fair, honest, and able to be fully and quickly audited.

They’re destroying our country. As bad as that is, the single biggest issue. . . is talking about the election fraud of 2020 Presidential election. Nobody’s ever seen anything like it. . . we did far better in 2020 than we did in 2016. It was a rigged election. . . I got almost 75,000,000, probably I got 85,000,000 but who the hell knows?

But they called it the big lie. But the big lie turned out to be the corrupt election itself. . . there’s so much evidence, it’s pouring out of our ears. We’ve never had so much evidence. . . the people of this country, whether it’s Arizona or Georgia, or Wisconsin or Philadelphia, Pennsylvania, and if you look at all of Michigan and others, the people get it more so than the politicians. 

Links to other recent rally speeches including Arizona & Texas in 2022 (It actually gets much worse!)


Sedition & Freedom of Speech

Sedition means: words or speech that incite people to rebel against the government or governing authority. Words that inspire a revolution that overthrows the government are an example of sedition. Organized incitement of rebellion or civil disorder against authority or the state, usually by speech or writing.

Sedition is a concept that cannot be taken lightly. On one hand it can be a serious crime against the government. On the other hand it can easily be misused as a threat to those who think differently than the existing authorities or governing leaders. The principles of sedition, treason and freedom of speech are closely intertwined. 

As explained in a UCLA Law Review: 

"The roots of seditious libel lie in the English crime of treason, which punished overt acts 'against the person or government of the King,' such as plotting his death, declaring war on him, or aiding his enemies. . .

[In the United States] . . . the rationale for punishing sedi­tious libel in the early Republic was identical to that in England — that is, punishment was necessary to maintain the status and honor of lawmakers and the stability of the nation. Such reasoning turned the Act into a powerful political tool in the hands of Federalist officials who silenced speech critical of the incumbent administration. Many soon came to understand the Sedition Act as a misguided exercise of power. . . In 1964 [Supreme Court decision], New York Times v. Sullivan finally pronounced seditious libel 'incon­sistent with the First Amendment.' . . .The Court thus concluded that the combination of factual error and defamatory content alone was insufficient to 'remove the consti­tu­tional shield' from speech about public officials." See: Lies, Honor, and the Government’s Good Name: Seditious Libel and the Stolen Valor Act, March 2012, https://tinyurl.com/2p8bf4vy

Over the years the courts have narrowed and further narrowed the types of speech and writings that do not receive First Amendment, freedom of speech protections. Although different scholars view unprotected speech in different ways, there are basically nine categories: Obscenity; Fighting words; Defamation (including libel and slander); Child pornography; Perjury; Blackmail; Incitement to imminent lawless action; True threats; Solicitations to commit crimes. Some experts also would add treason, if committed verbally, to that list. Plagiarism of copyrighted material is also not protected. See Freedom Forum Institute, https://tinyurl.com/5n6nrpks

In an interesting article in the Ohio State Law Journal, Rescuing Our Democracy by Rethinking New YorkTimes Co. v. Sullivan, David A. Logan explores the problems of lies and misinformation in our society in light of Court rulings to protect freedom of speech and honor the First Amendment. He indicates:

"Our democracy is in trouble, awash in an unprecedented number of lies— some spewed by foreign enemies targeting our electoral processes, others promoted by our leaders, and millions upon millions spread by shadowy sources on the internet and, especially, via social media. Chief Justice John Roberts recently warned that '[i]n our age . . . social media can instantly spread rumor and false information on a grand scale,' causing harm to our democracy. The internet has become our 'public square,' something beyond the imagination of the Supreme Court when it issued its groundbreaking 1964 decision in New York Times Co. v. Sullivan. . .
 "New York Times defanged defamation law, recognizing that our democracy needs to protect even speech that is false. But with more than half a century of perspective, it is now clear that the Court’s constraints on defamation law have facilitated a miasma of misinformation that harms democracy by making it more difficult for citizens to become informed voters. The time has come to ask a once heretical question: “What if New York Times got it wrong?” 

As Logan indicates, the Courts have gone to extremes to "protect even speech that is false." False statements, even deliberate lies, against the government may be protected (See  New York Times). While some "seditious libel" may be able to be punished, political statements are likely protected. 

While the Courts are extremely cautious in limiting freedom of speech (as they should be), as discussed above they have over the years carved out narrow exceptions where it makes sense to limit freedom of speech. Considering the unique nature of Donald Trump and his presence on the American political scene, I would like to suggest a new, specific exception to freedom of speech and suggest a legal rationale for that exception.

I would draw a similarity to the exception made for perjury. In the freedom of speech Supreme Court case of U.S. v. Alvarez, No. 11–210. Argued February 22, 2012—Decided June 28, 2012, Justice Kennedy in the plurality opinion discusses perjury as a First Amendment issue and indicates, "As for perjury statutes, perjured statements lack First Amendment protection not simply because they are false, but because perjury undermines the function and province of the law and threatens the integrity of judgments." He cites United States v. Dunnigan, 507 U. S. 87, 97 (1993), “To uphold the integrity of our trial system . . . the constitutionality of perjury statutes is unquestioned”. 

The Justices indicate that perjury statutes are at the foundation of our system of laws and thus take on extreme importance in relation to the concept of free speech. It is essential that witnesses under oath tell the truth, the whole truth and nothing but the truth or be appropriately punished for not doing so. Otherwise our legal and judicial system of laws and government would collapse.

Likewise one could argue that the act of voting and the results of that voting is the centerpiece of American democracy and government. False statements about the conduct and results of the nation's elections, made doggedly by an influential individual with reckless disregard of the truth, are likely to interfere with the public confidence in the electoral system and could undermine the function of government and threaten the integrity of elections. Therefore such statements should not enjoy First Amendment protection.

There should be a specific statute that prohibits the transmission, distribution and utterance of such false statements which are contrary to the finalized and legally approved results of the national electoral process of the United States. 

In the meantime, it seems that there is sufficient legal precedent within Supreme Court decisions and precedents for the Department of Justice or some other body to bring a First Amendment challenge to Donald Trump's persistent lying and reckless, malicious and seditious attacks on the government and his dissemination of knowingly false information of the results of the 2020 Presidential election (the so-called "Big Lie").

On one hand it seems there would be legal justification for a challenge to anyone who engaged in such activities or actions; while on the other hand, it would seem blatantly obvious if such activities or actions were carried out by a former candidate or defeated President of the United States or persons holding or previously holding Executive or Congressional office.

The January 6th Select Committee of the House of Representatives has already found...


The claims regarding the 2020 election results were advanced and amplified in the weeks leading up to the January 6 assault, even after courts across the country had resoundingly rejected Trump campaign lawsuits claiming election fraud and misconduct, and after all States had certified the election results. As part of this effort, Mr. Trump and his associates spread false information about, and cast doubts on, the elections in Arizona, Pennsylvania, Michigan, and Georgia, among other states, and pressed Federal, State, and local officials to use their authorities to challenge the election results.

As indicated previously, Trump has continued to this day in his efforts to spread false information and cast doubts on the election results in an attempt to undermine confidence in the election and the government of the United States.

#VotingRightsIsSolution


EPILOG

Electoral College Results for 2020 are finally deposited in the National Archives on January 6, 2022. Thereafter, lying with malice or reckless disregard for truth about the results should be considered criminal & subject to fines and penalties. Penalties should be extreme for Public Officials & Public Figures who must bear responsibility for peddling known lies that undermine the integrity and confidence of the American electoral system and the democracy itself.


The Lawyers’ Committee for Civil Rights Under Law has addressed the First Amendment Freedom of Speech issue as it relates to lying, misinformation and disinformation relating to voting issues. They have said:

"Supreme Court jurisprudence has long established that certain categories of low-value speech are outside the realm of First Amendment protection. Obscenity, defamation, incitement, and fraud have historically been considered by the Court as unworthy of First Amendment protection. Deceptive election speech regarding voting is fraudulent and therefore unprotected. . . The distinguishing element between false statements which are protected and those which are unprotected is the existence of a malicious intent [citing US v. Alvarez (2012)]. The Court has steadfastly held that when an individual communicates a false statement of fact about a matter of public concern, the speaker can be held to account only upon a showing of intent; this avoids the risk of punishing innocent mistakes [citing New York Times Co. v. Sullivan (1964)]. . . To hold a person accountable under the model law [proposed by the Lawyers’ Committee], the complainant must show that the defendant made a false representation of a material fact knowing that the representation was false and demonstrate that the defendant made the representation with the intent to mislead the audience [citing Illinois ex rel. Madigan v. Telemarketing Assocs., 538 U.S. 600 (2003)].

As emphasized by Justice Alito in his dissent in the Alvarez case, ". . .  there are broad areas in which any attempt by the state to penalize purportedly false speech would present a grave and unacceptable danger of suppressing truthful speech. . .it is perilous to permit the state to be the arbiter of truth." To avoid the chilling effect on Freedom of Speech we must be extremely careful and assure that the government is not the sole arbiter of truth. To regulate the Big Lie and not offend the First Amendment case law, we must be able to define and articulate the real, hard truth and as well, disclose the arbiter of that truth.

1. The Truth: Logging results in the National Archives defines the final, hard truth. This act defines the end of the Electoral College process which is defined in the Constitution and law and is subjected to a year long public inspection opportunity following the January 6th Joint Session of Congress to officially and finally count the electoral votes. The process involves many individuals and is performed on a strict timeline that is set in law. No individual, agency or political entity controls the process.

2. The Arbiter: Likewise, the final, hard truth is not defined by any state or federal government, individual, agency or political entity. Instead, the final electoral vote count is established by an elaborate and complex United States electoral system and process that consists of the electoral population; multiple state agencies and officials; many private and legal counters, inspectors, reviewers and observers; and the Electoral College process (above) and further reviews by state government and private entity audits and public inspections and legal investigations and reviews of the results of over approximately a year and three-months time period. Collectively, this elaborate process and the many individuals and entities involved are the final arbiters of the hard truth of electoral voting results that is uncontestable and logged within the National Archives and Records Administration (NARA) as part of the permanent record of the United States of America.

As indicated above, the reason we must be insistent on regulating Donald Trump's Big Lie or other similar lies now or in the future, is to maintain and preserve the integrity and confidence of the American electoral system and the democracy itself.

"Without electoral integrity, leaders and officials lack accountability to the public, confidence in the election results is weak, and the government lacks necessary legitimacy. Electoral integrity allows for peaceful resolution of conflict, open dialogue, debate, and information sharing among leaders and the public. Integrity depends on public confidence in electoral and political processes. It is not enough to reform institutions; citizens need to be convinced that changes are real and deserve their confidence. To ensure that elections have integrity, other factors outside of the electoral institutions themselves need to be taken into account and strengthened. Election officials, judges and courts must have independence that is respected by politicians." ACE Electoral Knowledge Network

"Mis- and disinformation can undermine public confidence in the electoral process, as well as in our democracy. Elections are administered by state and local officials who implement numerous safeguards to protect the security of your vote pursuant to various state and federal laws and processes. This resource is designed to debunk common misinformation and disinformation narratives and themes that relate broadly to the security of election infrastructure and related processes. It is not intended to address jurisdiction-specific claims. Instead, this resource addresses election security rumors by describing common and generally applicable protective processes, security measures, and legal requirements designed to protect against or detect large-scale security issues related to election infrastructure and processes." The Cybersecurity and Infrastructure Security Agency (CISA)

We have election laws and an electoral process in the United States that results in the official and final selection of our President and Vice President. When the results are legally and finally approved it should be illegal to say they are not real. This would be a Big Seditious Unconstitutional Lie.

#VotingRightsIsSolution

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Added References

* Stop The Big Lie Act (very rough draft)

* The Conspiracy To Overthrow The 2020 Election 

* Links to other recent rally speeches including Arizona & Texas in 2022

RESOLVING THE FIRST AMENDMENT’S CIVIL WAR: POLITICAL FRAUD AND THE DEMOCRATIC GOALS OF FREE EXPRESSION Martin H. Redish & Julio Pereyra, December 2020


Second Thoughts: A Response to David A.Logan’s Rescuing Our Democracy by RethinkingNew York Times v. Sullivan, by David A. Anderson

Wikipedia: False statements of fact

Congressional Research Service: Freedom of Speech and Press:Exceptions to the First Amendment

Wikipedia: Freedom of speech

FALSEHOODS AND THE FIRST AMENDMENT, by Cass R. Sunstein, Harvard Journal of Law & Technology, Spring 2020