U.S. House of Representatives – Page 3

This Week’s U.S.-Cuba Meetings in Havana

The U.S. and Cuba are holding two sets of meetings in Havana this week. One involves U.S. Senators and Representatives. The other is a conference of diplomats of the two counties.

Meetings of U.S. Legislators

U.S. Senator Patrick Leahy (Dem., VT) [1] has organized a trip to Havana, January 17-19, with Democratic colleagues from the Senate–Richard Durbin (IL) [2], Debbie Stabenow (MI) [3] and Sheldon Whitehouse (RI) [4]—and the House of Representatives, Chris Van Hollen (MD) [5] and Peter Welch (VT). [6]

This trip is designed to seek clarity from Cubans on what they envision normalization to look like, to develop a sense of what Cuba and the U.S. are prepared to do to make a constructive relationship possible, to impress upon Cuban leaders the importance of concrete results and positive momentum and to convey a sense of Americans’ expectations and congressional perceptions.

They intend to meet with Cuban government officials, Roman Catholic Cardinal Jaime Ortega Alamino, representatives of Cuba’s civil society, personnel at the U.S. Interests Section and ambassadors to Cuba from Mexico, Spain, Norway and Colombia.

Diplomatic Meeting

Diplomats of the two countries will hold talks in Havana’s Convention Palace on January 21 and 22, 2015.

Migration Issues

Under the countries’ Migration Accords of 1995, they have migration talks every six months, and this will be the focus of the first day’s session. They will assess progress under this Accord and other agreements and actions taken by both parties to tackle illegal migration and trafficking in migrants. The head of the U.S. delegation will be Alex Lee, Deputy Assistant Secretary of State for South America and Cuba. The Cuban delegation will be led by the Director General of the North American Division of Cuba’s Foreign Ministry, Josefina Vidal Ferreiro.

Restoration of Diplomatic Relations

The January 22 session will be devoted to the process of restoration of diplomatic relations between the two countries, including opening of embassies. The head of the U.S. delegation will be Roberta Jacobson, the Assistant Secretary of State for Western Hemisphere Affairs, while Josefina Vidal Ferreiro again will be in charge of the Cuban delegation.

Jacobson has said that this “process of restoring diplomatic relations is relatively straightforward from a legal perspective, but the parties have to agree on the process for such restoration. This can be done via an exchange of letters or of notes; it does not require a formal treaty or agreement. The U.S. also will need to terminate its 53-year agreement with the Swiss Government as our protecting power [in Cuba], and the same for the Cubans [in the U.S.]; that will be done as soon as possible, whereupon the U.S. would post a new sign “Embassy of the United States of America” on the building currently housing its mission.[7] A list of all of the U.S. diplomatic officers would be declared directly to the Cuban Government.

What the current U.S. Interests Section does, and what the Embassy will do, Jacobson said, “is critically important for Americans and Cubans alike. It includes providing uncensored internet access for many people who visit those internet terminals and processing requests for visas for thousands of Cubans every year (nonimmigrant visas for many thousands and immigrant visas for 20,000 Cubans a year). U.S. diplomats also check on whether people who are returned to Cuba under our migration accords are harassed by the Cuban government.

Having led the migration talks in 2011, when Jacobson was the principal deputy assistant secretary, she said human rights are always part of the migration-talks agenda and will be again. One issue is whether Cuba is harassing people who apply for refugee status at our Interests Section. Another issue is how people are treated when they return to Cuba after they’ve attempted to leave. We often will talk about freedom to leave Cuba; that is different since Cuba now permits most of its citizens to leave without exit visas.

Conclusion

I expect and pray that these meetings will advance the further reconciliation of the two countries. We await the reported results of the meetings.

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[1] On December 17, 2014 Senator Leahy was on the U.S. plane that went to Cuba to bring Alan Gross home. Afterwards, the Senator said, “By taking further steps to change a policy that is a relic of the Cold War, that has achieved none of its goals, and that has isolated the United States, President [Obama] has wisely charted a new course that serves our national interests in this hemisphere and the world. Our policies, frozen in time, have disserved the nation and have failed utterly and abysmally in achieving their original goals.” On January 8, 2015, Senator Leahy and seven other senators offered a Senate resolution commending Pope Francis for his leadership in helping to secure the release of Alan Gross and for working with the governments of the [U.S.] and Cuba to achieve a more positive relationship.

[2] On December 17, 2014, Senator Durbin also was on the U.S. plant that went to Cuba to bring Alan Gross home. His subsequent statement expressed support for President Obama’s moves towards reconciliation with Cuba. Senator Durbin was a co-sponsor of the previously mentioned Senate resolution commending Pope Francis.

[3] On December 17^th Senator Stabenow announced her support of President Obama’s changes of policies regarding Cuba.

[4] On December 17^th Senator Whitehouse issued a statement applauding the changes in U.S. policies regarding Cuba.

[5] On December 17^th Congressman Van Hollen also was on the U.S. plane bringing Alan Gross home and gave thanks for his release and for the “vision of a new day in the relationship between the [U.S.] and Cuba.”

[6] Representative Welch on December 17^th applauded President Obama’s “bold leadership” and the “new era of openness and cooperation” with Cuba.

[7] The U.S. building, which was completed in 1953, was designed in the Modernist-Brutalist style by the architectural firm of Harrison & Abramovitz, which also designed the United Nations headquarters building in New York City. The former is a long, six-story concrete and glass building located directly on the Malecon overlooking the Bay of Havana. The building was not used by U.S. personnel between 1961 and 1977. U.S. diplomats returned to Havana in 1977, and the building was transformed into the United States Interests Section in Havana. Renovations were subsequently completed on the complex in 1997.

Evaluations of President Obama

Maureen Dowd of the New York Times on April 21st criticized President Barack Obama. She said “he still has not learned how to govern” and “doesn’t know how to work the system.” The next day a similar critique was made in the Times by two “reporters”–Michael Shear and Peter Baker–that used the bullying President Lyndon Johnson as a model of what a president should do in these circumstances.

I disagree with these criticisms, and my letter to that effect was published in the Times on April 24th. I said,

“Maureen Dowd asserts that President Obama ‘still has not learned how to govern.’ I disagree.
Last week the Senate, by a good majority, voted in favor of expanded background checks and making straw purchases and gun trafficking a federal crime. Those votes were attributable, in part, to strong advocacy by Mr. Obama and Vice President Joseph R. Biden Jr.
The true outrage lies in two places.
First is the Senate’s filibuster rule, which is being used by the Republicans to require a supermajority vote of 60.
Second is the Republican senators’ determination to prevent Mr. Obama from accomplishing anything. Remember Mitch McConnell’s statement in the last Congress that his top priority was to stop Mr. Obama’s re-election.”

This letter was a synopsis of my post, The Outrageous, Dysfunctional U.S. Senate, and my previous blog posts criticizing the Senate’s filibuster rule and the Republican Senators’ obstructionism.

Two columnists for the Washington Post–Greg Sargent and Jonathan Bernstein–also have taken vigorous exception to the opinions of Maureen Dowd and Messrs. Shear and Baker.

Sargent sees this recent criticism of Obama as focusing on his alleged failure “to put enough pressure on red-state Democratic Senators like Mark Begich.” However, says Sargent, even if all four of the red-state Democrats [who voted against the measure instead] had voted for the measure, it still would not have passed because of the 60-vote requirement of the Senate’s filibuster rule. Moreover, if these four Democrats “were basing their vote in the calculation that they need to achieve distance from the president and signal cultural affinity with their red state constituents, as many have speculated, any open pressure [by Obama] would only make the vote harder for them.”

The plain conclusion for Sargent was “the Republican Party — and the 60 vote Senate — are the prime culprits in the killing of [the bi-partisan background-check bill].”

Bernstein has had enough of others comparing Obama to President Lyndon Johnson. Bernstein pointed out the following reasons why such a comparison is inappropriate:

The situation for Johnson was very different. He had huge majorities in both chambers of Congress, and in the aftermath of a presidential assassination, there was a strong national desire for unity and action.
In the mid-1960s, political parties were much weaker and not as polarized as today.
Although Johnson faced filibusters on key civil rights legislation, he did not face filibusters on every single thing he proposed. Nor did he have to fight a dedicated partisan opposition over every judicial and executive branch nomination.
Obama, on the other hand, to get anything through the Senate needs the votes of Republicans, every one of whom has strong partisan incentives to oppose him. Johnson really never faced anything like that.
“Generally, the political science literature on presidential persuasion emphasizes how little presidents are able to accomplish when it comes to swaying votes in Congress.
“Johnson wasn’t just any president; he was a president who had been a very effective Senate Majority Leader. He came to the White House with years of relationships with many senators; to the extent he was successful, it’s probably not something that’s easy for anyone else to duplicate.”
“Johnson’s bullying style was successful … for a while. By the end of his presidency, it wasn’t working any more. Getting a reputation as an effective negotiator has a lot of advantages, but getting a reputation as a bully who can’t be trusted creates a lot of problems — even if bullying can be effective in the short run.”

I, therefore, continue to be a strong supporter of our President and a severe critic of the dysfunctional U.S. Senate (and the House of Representatives too).

Congress Passes Violence Against Women Act of 2013

On February 28th the U.S. House of Representatives passed the Senate version of the reauthorization of the Violence Against Women Act. The vote was 286 to 138. The majority was comprised of 199 Democrats and 87 Republicans. All of the 138 negative votes were Republicans while 7 other Republicans, including Speaker John Boehner, did not vote.

This House action came immediately after the House had rejected a weaker version offered by Minority Leader Eric Cantor, 166-257. The prevailing negative votes came from 197 Democrats and 60 Republicans.

This action is significant in several respects.

First, the Act includes for the first time protection of gay, bisexual or transgender female victims of domestic abuse and of Native American women who are victims of certain kinds of violence by non-Indian men.

As discussed in a prior post, I have been most concerned about the jurisdictional “black hole” that has prevented investigation and prosecution of abuse of Native women by non-Indian men, and the bill now passed by Congress remedies that defect.

Novelist and Native-American Louise Erdrich highlighted this jurisdictional problem in her novel The Round House, and she recently penned an op-ed article in the New York Times that countered criticisms of the tribal courts jurisdictional provision in this bill.

Erdrich said the “Justice Department reports that one in three Native women is raped over her lifetime, while other sources report that many Native women are too demoralized to report rape. Perhaps this is because federal prosecutors decline to prosecute 67 percent of sexual abuse cases, according to the Government Accountability Office. [In addition’] . . . a Native woman battered by her non-Native husband has no recourse for justice in tribal courts, even if both live on reservation ground. More than 80 percent of sex crimes on reservations are committed by non-Indian men, who are immune from prosecution by tribal courts.”

Moreover, according to Erdrich, the “Minnesota Indian Women’s Resource Center says this gap in the law has attracted non-Indian habitual sexual predators to tribal areas . . . [and another source] has found that rapes on upstate reservations increase during hunting season.”

Erdrich also defends the abilities and fairness of tribal courts against the charge that they would be unfair to non-Indian defendants. She says,“Most reservations have substantial non-Indian populations, and Native families are often mixed. The Senate version guarantees non-Indians the right to effective counsel and trial by an impartial jury.” In addition, “[t]ribal judges know they must make impeccable decisions . . . that they are being watched closely and must defend their hard-won jurisdiction. Our courts and lawyers cherish every tool given by Congress. Nobody wants to blow it by convicting a non-Indian without overwhelming, unshakable evidence.”

Erdrich’s comments are echoed in a New York Times editorial that stated, “Violence and crime rage unchecked in Indian country, yet the federal government, the primary law enforcer on reservations, is investigating and prosecuting fewer violent felonies, and reducing financing for tribal courts and public-safety programs. That is a scandal . . . . [and] a moral atrocity.”

Second, the House Republican leadership permitted the Senate version to come to the floor even though it did not have the support of a majority of the Republican members. This was a “violation” of the so-called unofficial Hastert Rule established by a previous Republican Speaker of the House, Dennis Hastert, whereby the Republican majority would only bring to the floor for a vote measures that were supported by a “majority of the majority.” Moreover, this was the third time this year that the Hastert Rule has not been followed. The other occasions were a bill to avert automatic tax increases and a bill providing relief for states hit by Hurricane Sandy.

Although this three-time refusal to follow the Hastert Rule upsets at least some of the more conservative Republican Representatives, I applaud Speaker Boehner’s acting as a Speaker of the entire House of Representatives, not just the Republican caucus. I hope that he continues to do so or that a truly bipartisan Speaker replaces him.

It must also be noted that allowing the VAWA bill to come to the floor for a vote and to be passed is a reversal of longstanding House Republican opposition to the bill. This change is seen as a recognition by at least some of the House GOP leadership that the party needed to try to repair its standing among women, who gave the Democrats a substantial margin of victory in the 2012 election. Apparently 13 Republican Representatives who are announced or likely candidates for the Senate in 2014 disagree with this political judgment as they voted against VAWA on Thursday.

Immediately after the House action President Obama expressed his approval of the House action:“Today’s vote will go even further by continuing to reduce domestic violence, improving how we treat victims of rape, and extending protections to Native American women and members of the LGBT community. I want to thank leaders from both parties . . . for everything they’ve done to make this happen. Renewing this bill is an important step towards making sure no one in America is forced to live in fear, and I look forward to signing it into law as soon as it hits my desk.”

Vice President Biden also applauded the House and thanked “the leaders from both parties . . . and the bipartisan majorities in both the House and the Senate” for passage of the bill.

Jurisdictional Black Hole for Certain Violent Crimes by Non-Indian Men Against Indian Women on Indian Reservations

Louis Erdrich in her prize-winning novel, The Round House, tells the story of the violent rape of a Native woman by a white man on an Indian reservation in North Dakota in 1988, and the resulting legal problem as to whether the federal or Native American courts had jurisdiction to investigate and prosecute the crime. This was discussed in a prior post.

This jurisdictional conundrum is not just a subject for fiction. It is a real problem in the U.S. today that would be addressed by a law now being debated in the U.S. Congress.

Introduction

In recent years a Southern Ute Indian woman married a white man, and they lived on the tribe’s reservation in southern Colorado. There she was subjected to frequent beatings and threats. Because her husband was white, the Southern Ute Tribal Police could not investigate and prosecute him. Because she was a Native American on tribal land, state authorities were powerless as well. Federal law enforcement did have jurisdiction, but they declined to do anything.

Later the husband came with a gun to the Southern Ute woman’s office at the federal Bureau of Land Management and opened fire and wounded a co-worker. The state officials arrested him, but only after a tape measure was used to determine the distance between the barrel of the gun and the point of the bullet’s impact in order to establish state jurisdiction.

This jurisdictional problem is addressed in a Senate bill (S.47), the Violence Against Women Reauthorization Act 2013 (VAWA 2013). This legislation would, for the first time, allow Native American police and courts to investigate and prosecute non-Indians who commit certain violent crimes against Native women on tribal land. The details are in section 904 [204(b)] of the bill.

The bill, in section 904 [204 (d)], also provides protections for the rights of those non-Indians who are accused of such crimes.

U.S. Senate Proceedings Regarding S.47

Last Thursday, February 7th, the Senate defeated, 65 to 34, an amendment to this bill offered by Senator Charles Grassley of Iowa. It would have placed more federal prosecutors and magistrates in Indian country for domestic violence and sexual assault cases and would have allowed tribes to petition a federal court for protective orders to exclude an abuser from Indian land. This was S.Amendt.14 to the bill.

On February 11th, the Senate rejected, 59-31, an amendment to the bill offered by Senator Tom Coburn of Oklahoma to delete the bill’s provisions granting additional powers to Indian courts. This was S.Amendt.13 to the bill.

Finally yesterday (February 12th) the Senate passed, 78-22, the bill with the support of 23 Republicans. Now it will be sent it to the House of Representatives.

Immediately afterwards, President Obama released a statement saying, “This important step shows what we can do when we come together across party lines to take up a just cause.” He added, “The bill passed by the Senate will help reduce homicides that occur from domestic violence, improve the criminal justice response to rape and sexual assault, address the high rates of dating violence experienced by young women, and provide justice to the most vulnerable among us.”

I want to thank Senator Leahy and his colleagues from both sides of the aisle for the leadership they have shown on behalf of victims of abuse. It’s now time for the House to follow suit and send this bill to my desk so that I can sign it into law.”

Proceedings in the House of Representatives Regarding S.47

Many of the House Republicans are believed to be opponents of the bill’s provisions on Indian courts.

However, 17 House Republicans on February 11th sent a joint letter to Speaker John Boehner and Majority Leader Eric Cantor urging the House to “immediately” reauthorize the Violence Against Women Act. The letter also said, “Now is the time to seek bipartisan compromise on the reauthorization of these programs” and such a bill “must reach all victims and perpetrators of domestic violence, dating violence, sexual assault and stalking in every community in the country,”

In addition Republican Representatives Tom Cole of Oklahoma and Darrell Issa of California have proposed an amendment to the bill that would offer non-Indian defendants a right to remove their case to a federal court in certain circumstances.

We now await House action on the bill. Its supporters should urge their Representatives to support the bill.

Conclusion

In my opinion, the current jurisdictional “black hole” is outrageous and needs to be eliminated as soon as possible. I have not seen any indication that anyone believes otherwise.

Instead, the opposition to this proposed legislation regarding violent crimes against Indian women purportedly is based on concern for the due process rights for any non-Indian man who is accused of such crimes in a tribal court.

I share those due process concerns as I would for any defendants under any new criminal statute. However, I do not know enough about the procedures and practices of tribal courts and of the quality of their judges to come to a reasoned conclusion on whether and how the bill might be amended to address any legitimate concerns on this issue. For an outsider, this should be something that Congressmen and women of all persuasions should be able to agree upon.

The U.S. Congress Continues To Demonstrate Its Dysfunctionality

Both houses of Congress continue to demonstrate their disgusting dysfunctionality in failing to agree on measures to avoid the so-called “fiscal cliff” at midnight on December 31, 2012.

The U.S. Senate

Already I have commented extensively on what I believe is the absurd Senate’s filibuster rule. Once again it is affecting how the Senate can take action before the end of the year on extending the current federal income tax rates on those earning less than $250,000 per year.

Actually the obstacles presented by the Senate’s filibuster and other rules to the chamber’s actually accomplishing something are worse than what I previously have described.

The New York Times’ Jonathan Weissman starts his illustration of the current situation with the Senate Majority Leader, Senator Harry Reid’s, hypothetically moving this afternoon (December 27th) “to bring up legislation that would extend expiring Bush-era tax cuts on incomes under $250,000, set dividends and capital gains tax rates at 20 percent, ensure the alternative minimum tax does not expand dramatically to hit more of the middle class, extend expiring unemployment insurance and temporarily stop across-the-board cuts to military and domestic programs.”

If only one of the 100 Senators “objects to a request to move straight to voting [on the merits of the bill] by unanimous consent, the Senate would then vote [on Saturday morning] at 9 a.m. to cut off debate on that motion to proceed to the bill.”

Weissman continues, “If that [cloture] motion got 60 votes Saturday morning [to end debate], there would then have to be 30 hours of ‘post-cloture ripening’ before the Senate actually votes on the motion to proceed to the bill. That would take the Senate to 1 p.m. Sunday. If again that procedural motion received 60 votes, the Senate would be on the “fiscal cliff” bill itself. Mr. Reid would then immediately file to cut off debate on the bill itself.”

“At that point, under Senate rules, the earliest possible vote on final passage would be Tuesday, Jan. 1. By then, the 112th Congress would have disbanded and efforts to pass the bill would have to start all over again — this time on the other side of the ‘fiscal cliff.'”

The U.S. House of Representatives

The recent inability of John Boehner, the Republican Speaker of the U.S. House of Representatives, to obtain sufficient Republican votes to support his so-called “Plan B” for resolving the “fiscal cliff” problems is only the latest example of his ineffectiveness as the Speaker. This is due, in my opinion, to the inflexibility of Republican Representatives who are supported by the right-wing “Tea Party.”

The resulting inability of the House to participate in governing our country is yet another example of the dysfunctionality of the U.S. government.

One way out of this impasse would be for the House to elect a Speaker who has the support of the centrists in both political parties. Based upon his public appearances, John Boehner, in my opinion, does not have the intelligence or gravitas to be such a Speaker. Because the Republicans have a majority in the House, presumably someone else from that party would have to step forward or be called forward to take on the responsibilities of such a coalition-backed Speaker. I do not know who that could be.

There is nothing in the U.S. Constitution that prevents such a Speakership. Its Article I, § 2(5) merely says, “The House of Representatives shall chuse [sic] their Speaker and other Officers . . . .”

Norman Ornstein, a noted Washington political commentator who has written about many of the current woes of our government, agrees that John Boehner is not able to wield the typical power of the Speakership.

Ornstein also notes that the just-quoted constitutional provision “does not say that the speaker of the House has to be a member of the House. In fact, the House can choose anybody a majority wants to fill the post.” Ornstein then goes on to suggest two centrist Republican who are not members of the House for this important position: Jon Huntsman, Jr., the former Governor of the State of Utah, U.S. Ambassador to Singapore and China and unsuccessful candidate for the Republican presidential nomination in 2012, and Mitch Daniels, the Governor of the State of Indiana.

This is an intriguing idea, but it would be difficult enough to elect someone from the House itself to be a centrist Speaker. To go outside the House membership for a Speaker in any circumstance, in my opinion, would make the task that much more difficult.

I invite suggestions for Republican Representatives to take on the role and responsibilities of a centrist Speakership. Also please add comments with any historical examples of Speakers who have had de facto coalition-backing.

Maximize U.S. Voting!

On November 6th the U.S. will have a very important national election.

This should remind us that a democratic republic like ours should have laws and procedures that simplify and maximize our citizens’ ability to vote. Unfortunately we do not meet this test. Here are my opinions on addressing this disparity.

Reforming the U.S. Voting System

First, the electorate should include every U.S. citizen.

That includes all citizens who have been convicted of felonies and who are still in prison and those who have served their sentences. They are human beings who have interests and opinions, and they have unique experiences of life inside our prisons, which are often neglected in the political debate about allocation of resources.

Now only two states (Maine and Vermont) impose no voting restrictions on felons or ex-felons. The other states impose various restrictions, with 11 states (six in the South) banning ex-felons from voting even after they have completed prison and probation or parole. As a result, an estimated 5.5 million people are disenfranchised on this basis, about one-fourth of whom are still in prison. Because 38.2% of these people are African-American, it is also a racial justice issue.

The electorate also should include all children. They too are human beings with interests that should be reflected in elections. This is especially true in an electorate in which older citizens tend to vote in higher percentages and naturally have an interest in programs and services that benefit them. I am a member of the older group and yet believe our political influence needs to be counterbalanced by the voices of the youngest. Creation of a voting system to allow all children to vote would require a lot of careful consideration of how this could be accomplished. It presumably would have parents or guardians voting for their children through a certain age such as 16 or 18.[1]

Second, every citizen should be required to vote at least in national elections.

I know that this is true in many countries so it can be done. Such a system, I believe, would have the beneficial effect of causing political parties and candidates to appeal to voters in the middle of the political spectrum and thereby combat the polarization of our political system. Again, creation of such a system would require careful consideration of how that could be done.

Noted political commentators, Thomas E. Mann and Norman J. Ornstein, have made such a proposal. One means of enforcing such a law, they say, would be a modest fine, say $15, for failure to vote with increased amounts for repeated failures. Another way would be to provide a small tax credit for voting.[2]

Third, we should simplify our voting laws and procedures to make it easier to vote. Mann and Ornstein offer the following suggestions in this regard:

Modernizing voter registration by allowing online registration and transfer of such records when the voter moves to a new home, by sharing data with private databases, by having national election-day registration.
Having more easily accessible polling places, such as in or near shopping centers or arenas.
Creating a uniform separate federal election ballot.
Changing election day from Tuesday to a more convenient time, like noon-Saturday to noon-Sunday.
Having a uniform national early voting period, such as Wednesday through Friday before election day.[3]

Fighting Efforts To Restrict Voting

Unfortunately too much effort is being spent these days to restrict voting. It includes restricting legitimate voter registration drives, purging voter rolls and limiting early voting. Even worse are reports in the New York Times and HuffingtonPost of voter registration drives that submitted false applications and destroyed legitimate ones.

In a recent New Yorker magazine Jane Mayer examines the well organized “True the Vote” effort that says it aims to fight and eliminate voter fraud. In my opinion, however, there are serious questions as to whether it really is an effort to suppress the votes of African-Americans, young people and others who tend to support Democratic Party candidates and causes.

One of the means by which “True the Vote” seeks to do this is promotion of state voter photo-ID laws which sound good on the surface, but often do not work that way. Even if such laws provide for free government-issued IDs, they sometimes do not provide without charge the documents (e.g., birth certificates) that are necessary to obtain such IDs. They also sometimes fail to provide reasonably accessible sites to obtain the ID’s or alternative ways to prove a voter’s identity.

This year in Minnesota, we will be voting on a proposed constitutional amendment to have a photo-ID requirement. The simple question on the ballot will be:

“Shall the Minnesota Constitution be amended to require all voters to present valid photo identification to vote and to require the state to provide free identification to eligible voters, effective July 1, 2013?”

The actual proposed constitutional amendment, however, is more complex. It is the underlined text in the following:

Article VII, Section 1. (a) Every person 18 years of age or more who has been a citizen of the
United States for three months and who has resided in the precinct for 30 days next
preceding an election shall be entitled to vote in that precinct. The place of voting by one
otherwise qualified who has changed his residence within 30 days preceding the election
shall be prescribed by law. The following persons shall not be entitled or permitted to
vote at any election in this state: A person not meeting the above requirements; a person
who has been convicted of treason or felony, unless restored to civil rights; a person under
guardianship, or a person who is insane or not mentally competent.(b) All voters voting in person must present valid government-issued photographic
identification before receiving a ballot. The state must issue photographic identification
at no charge to an eligible voter who does not have a form of identification meeting the
requirements of this section. A voter unable to present government-issued photographic
identification must be permitted to submit a provisional ballot. A provisional ballot must
only be counted if the voter certifies the provisional ballot in the manner provided by law.

(c) All voters, including those not voting in person, must be subject to substantially
equivalent identity and eligibility verification prior to a ballot being cast or counted.

Such a system would create havoc on election day. Election judges, who are volunteers, would have to decide on the spot the validity of photo-Ids from 50 states and the District of Columbia, the U.S. military, 565 federally recognized Indian tribes and U.S. passports. This would require intensive training of such judges in the laws of all those entities. For example, Minnesota law states that a valid Minnesota driver’s license is one that is “not expired, suspended, revoked or cancelled” and that has been issued within 30 days of the driver’s having moved to a new address. Each of the other states and entities may have different criteria for such validity.

In addition, Minnesota election judges also receive the absentee ballots and thus would be faced with the responsibility of determining validity of other ID’s and whether they were “substantially equivalent to” those required of voters voting in person.

The Minnesota Secretary of State and the local election officials in the state say that compliance with such an amendment would be very expensive in terms of training election judges and administering the system. In addition, I believe there probably would be many people who would not volunteer for these positions with the increased complexity of the job.

The major newspaper in the state, the StarTribune, has opposed this proposed constitutional amendment.

I will vote “NO” on this proposed amendment and urge my fellow Minnesotans to do the same!

Improving the Accountability of the Federal Government

There also are ways to improve the accountability of the federal government to the electorate. Here are some of those ways.

We should amend the U.S. Constitution to eliminate the electoral college for presidential elections and instead have direct, popular voting to choose our national leader.

We also should amend the Constitution to change the term of office for members of the U.S. House of Representatives from two years to four years and have their elections coincide with the presidential elections. Perhaps too the term of office of U.S. Senators should be changed from six to eight years, again with their elections coinciding with the presidential elections. This would eliminate midterm elections that often result in divided government, thereby making it more difficult to do anything at the national level.[4]

Another constitutional amendments would adopt weighted voting by U.S. Senators so that each Senator from the least populous state (Wyoming) has one vote while each Senator from the most populous state (California) has a vote that counts as 66 votes.

Eliminate the U.S. Senate’s filibuster rule by the Senate itself doing so or by a federal court’s determining that the rule is unconstitutional. [5]

Reform the system for creating new congressional districts after the decennial census by delegating the task to an independent commission that operates under explicit standards for fairness and political competition.[6]

Change political party primary elections to open primaries.[7]

Adopt proportional representation in multi-member districts.[8]

Conclusion

I recently have been volunteering for the Obama campaign and am astounded to see first-hand the immense logistical, managerial and financial requirements for a presidential candidate’s identifying his or her likely voters and urging them to vote early or go to the polls to vote on election day in a country with a population of nearly 312 million spread out over nearly 4 million square miles. This is even more difficult for candidates like Obama who count on the support of younger voters, who move more frequently and change from being students to working out in the larger world.

To my fellow U.S. citizens, please vote in this election!

[1] I made such a suggestion in 1996, and the idea also was recently endorsed by an op-ed article in the Washington Post.

[2] Thomas E. Mann & Norman J. Ornstein, It’s Even Worse Than It Looks: How the American Constitutional System Collides with the New Politics of Extremism at 140-43 (Basic Books; New York 2012).

[3] Id. at 133-40.

[4] Id. at 164.

[5] Id. at 166-72.

[6] Id. at 143-47.

[7] Id. at 147-49.

[8] Id. at 149-52.

Proposals for Changing the U.S. Constitution

The New York Times in its “Room for Debate” feature invites knowledgeable outside contributors to discuss news events and other timely issues. The feature also solicits comments on the topic from readers.

The feature’s July 9th topic is suggestions for amending the U.S. Constitution. Ten professors of history and law started the conversation with their suggested constitutional changes.

Contributors’ Comments

Direct Election of President. Article II, Section 2 provides for election of the president by an electoral college. Alexander Keyssar, the Stirling professor of history and social policy at Harvard’s Kennedy School, suggests abolishing the electoral college and having the president (and vice president) directly elected by the national popular vote.

He says the “concerns that prompted the Founding Fathers to adopt [the current] . . . system — a distrust of popular elections, worry that the people would be unfamiliar with national candidates, a desire to reinforce the great constitutional compromises between large states and small states, slave states and free states” are no longer valid.

In addition, Keyssar points out that we have learned about “shortcomings in the framers’ design: the person who wins the most votes doesn’t necessarily become president; the adoption of “winner take all” rules (permitted but not mandated by the Constitution) produces election campaigns that ignore most of the country and contribute to low turnout; the legislature of any state can decide to choose electors by itself and decline to hold an election at all; and the complex procedure for dealing with an election in which no candidate wins a clear majority of the electoral vote is fraught with peril.”

As indicated below, I support this proposal.

Qualifications for Office of President. The Constitution’s Article II, Section 4 establishes the following qualifications for the presidency: “a natural born citizen,” at least 35 years old and a resident of the U.S. for at least 14 years. Akhil Reed Amar, a professor of law and political science at Yale University, proposes this be changed to make eligible “those American citizens who happen to have been born abroad to non-American parents — and who later choose to become ‘naturalized’ American citizens.” This would be consistent with the overall historical trend of increasing equality and with the current practice in the 50 states.

I am indifferent on this proposal.

Federal Judges Tenure. The Constitution in Article III, Section 1 now provides that federal judges hold office during “good behavior,” which in practice has meant for life absent voluntary retirement. Jamal Greene, a professor of law at Columbia Law School and a former clerk for U.S. Supreme Court Associate Justice John Paul Stevens, says “In a democracy, no one person should wield so much power for so long.” To solve this problem, Greene endorses a proposal by Professors Steven Calabresi and James Lindgren for Supreme Court appointments with non-renewable 18-years terms, with one new justice every odd-numbered year.

As indicated below, I support this proposal.

Re-emphasize that Treaties Are Part of the Supreme Law of the Land. Under Article VI, Section 2 of the Constitution, “all treaties made, or which shall be made, under the authority of the United States, shall be [part of] the supreme law of the land, and the Judges in every State shall be bound thereby, anything in the Constitution of laws of any State to the contrary notwithstanding.” However, as pointed out by Jenny S. Martinez, the Warren Christopher professor in the practice of international law and diplomacy at Stanford Law School, the U.S. Supreme Court has held that certain treaties were not enforceable against the states. Therefore, she suggests that this provision be re-emphasized in some way.

I agree that treaties under the existing Constitution are part of the supreme law of the land and that they should bind states. There, however, is no specific proposed amendment to react to.

Changing the Process for Amending the Constitution. Article V of the Constitution provides two methods of amending the Constitution: (i) specific proposed amendments adopted by two-thirds of each chamber of Congress plus ratification by three-fourths or 38 of the states; or (ii) a call for a constitutional convention by two-thirds or 34 of the states, whose proposed amendments are ratified by three-fourths or 38 of the states. The latter method (constitutional convention), has never been used, and Michael Rappaport, the Darling Foundation professor of law at the University of San Diego and the director of its Center for the Study of Constitutional Originalism, believes that this non-use “means that Congress has a veto on all amendments and therefore no amendment that Congress opposes, including necessary reforms of Congress’s power, can be enacted.”

Therefore, Rappaport proposes that the Constitution be changed “to eliminate the possibility of a runaway convention.” The best way, he says is dispensing with “a constitutional convention and instead have the state legislatures agree to propose a specific amendment. But any method that allows for a working alternative to Congress’s amendment monopoly would be an enormous improvement.”

Rappaport has a valid objection to the present constitutional scheme, and I could accept a proposal that would allow three-fourths of the states to propose specific amendments, but would still require a two-thirds vote by each house of the Congress to adopt an amendment.

Emphasize the 10th Amendment’s Limits on Federal Government’s Powers. Under Article I, Section 8 of the Constitution, the federal government has certain specified powers, and the Tenth Amendment to the Constitution states, “The powers not delegated to the United States by the Constitution, nor prohibited to it by the States, are reserved to the States respectively, or to the people.”

According to Elizabeth Price Foley, the holder of the Institute for Justice Chair in constitutional litigation at Florida International University College of Law, these principles are important for liberty. As the Supreme Court unanimously stated in Bond v. United States (2011), “By denying any one government complete jurisdiction over all the concerns of public life, federalism protects the liberty of the individual from arbitrary power. When government acts in excess of its lawful powers, that liberty is at stake.”

She believes that the existing Constitution is sufficient on this point so long as it is followed by the courts, but is open to amendment to restore certain powers to the state and like Michael Rappaport endorses the suggestion that the states have the right to propose federal constitutional amendments.

Although as just stated, I support giving the states a right to propose specific amendments, I do not favor any amendments that seek to diminish the power of the federal government. In this age of globalization, it is unwise to emphasize states over the federal government.

Narrow Congress’ Power Over Interstate Commerce Power. As discussed in prior posts before and after the June 28, 2012, Supreme Court decision regarding the Affordable Care Act, the power of Congress under Article I, Section 8(3) to “regulate commerce . . . among the several States” has been interpreted by the Court to encompass intrastate commerce that has a substantial effect on interstate commerce.

Consistent with the views of Professor Foley, Randy E. Barnett, the Carmack Waterhouse professor of legal theory at Georgetown Law Center and one of the attorneys challenging the constitutionality of the Affordable Care Act in the Supreme Court, has proposed the following amendment that he says essentially returns the clause to its original meaning:

“The power of Congress to make all laws that are necessary and proper to regulate commerce among the several states, or with foreign nations, shall not be construed to include the power to regulate or prohibit any activity that is confined within a single state regardless of its effects outside the state, whether it employs instrumentalities therefrom, or whether its regulation or prohibition is part of a comprehensive regulatory scheme; but Congress shall have power to regulate harmful emissions between one state and another, and to define and provide for punishment of offenses constituting acts of war or violent insurrection against the United States.”

I oppose this suggestion for the reasons stated in my prior posts.

Revising the First Amendment. The First Amendment to the Constitution states, in part, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press . . . .” Pauline Maier, the William Rand Kenan Jr. professor of American history at M.I.T, says that this language was a revision of a more expansive version prepared by James Madison. She, therefore, suggests returning to the following Madisonian version:

“The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretext infringed. The people shall not be deprived of their right to speak, to write, or to publish their sentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable.”

This wording, like most of the first eight amendments, Msier believes, affirms basic rights in general terms, not as restrictions on the federal government. It also would undermine the Supreme Court’s decision about corporate speech in the Citizens United case.

I support this proposed amendment.

Delete the Second Amendment’s Right To Bear Arms. The Second Amendment to the Constitution provides that “the right of the people to keep and bear arms, shall not be infringed.” Melynda Price, an associate professor at the University of Kentucky College of Law, proposes the deletion of this right because of the amount of gun violence in the U.S.

I like the spirit of this proposal, but would have to evaluate specific language for such a change.

Clarify the Eighth Amendment’s Ban on “Cruel and Unusual Punishment.” The Eighth Amendment to the Constitution states, “cruel and unusual punishments [shall not be] inflicted.” Rachel E. Barkow, the Segal Family professor of regulatory law and policy and the faculty director at the Center on the Administration of Criminal Law at New York University, suggests this be clarified to “specifically state that excessive terms of incarceration are prohibited, just as it bans excessive [bail and] fines.” In addition, she says , it “should expressly prohibit mandatory sentences so that every case gets the benefit of individualized attention by a judge” and “insist that legislatures create a record showing that they considered empirical evidence about the law’s likely impact.”

I support this proposal.

Readers’ Comments

Readers are invited to add their comments, and I made the following suggested constitutional changes.

1. Outlaw Senate Filibuster. To require 60% of the Senators to agree in order to do almost anything is outrageous. It should only be 51% for most issues. Earlier I called the filibuster part of the abominable rules of the Senate; another post discussed revisions to the rule; and yet another post talked about additional attacks on the filibuster.

2. Change Weight of Senate Votes. Based on population, each Senator from Wyoming would have 1 vote, for example, but each Senator from California would have 66 votes. This approach would produce a total Senate vote of 1,094 based on the total U.S. population in 2010. The weightings would be changed every 10 years with the new census.

3. Change Term of House Representatives. Change the term from two years to four years to coincide with the presidential election.

4. Direct Election of President and Vice President. I agree with Professor Keyssar that the U.S. should institute direct election of the U.S. President by the national popular vote and abolish the electoral college.

5. Eliminate Life Tenure for Federal Judges. Impose a term limit on all federal judges, including Supreme Court Justices. One solution, perhaps by statute, would be to amend the current statute on judicial retirement (28 U.S.C. § 371) to make such retirement mandatory on reaching the current age and service requirements. I essentially concur in the comments of Professor Greene.

Many years ago I made other suggestions for constitutional changes in a virtual constitutional convention. More recently I have discussed what I regard as our antiquated or imbecilic Constitution.

The Antiquated U.S. Constitution

With the U.S. Supreme Court arguments this week regarding the Affordable Health Care Act we are reading and hearing what seems like non-stop commentary on the constitutional arguments that are being made by the lawyers and questioned by the Justices.

As a retired lawyer who studied constitutional law in law school nearly 50 years ago and who was a lawyer in some constitutional cases, I should be enjoying this commentary. But I am not.

I increasingly am coming to the conclusion that the U.S. Constitution is antiquated and needs radical changes.

We in the U.S. have developed a cult of worshipping the Founding Fathers as if they were demigods. Yes, they were wise in many ways, especially on the need for checks and balances in any governmental system. But if they were as wise as we often think they were, then do we really think that these men of the late 18th century would want their descendants in the early 21st century to obsess over what we think they intended in the late 18th century? Especially over terms like “due process” and “cruel and unusual punishment” that appear on their face to invite evolving meaning as circumstances change?

The U.S., in my opinion, is one nation, and the national government needs to be able to address problems facing the nation, like the problem of providing affordable health care to its citizens. The so-called “individual mandate” is one way to address that problem and should be permissible.

There are so many other problems that the U.S. is not addressing today. Our governmental system–our Constitution–is not working, in my opinion.

I have no grand alternative constitutional schema in mind, but as previously noted, I think the U.S. Senate in particular needs radical reform if we are to retain a bicameral national legislature.

To require 60% of the Senators to agree in order to do almost anything for me is outrageous. It should only be 51% for most issues. This deficiency is exacerbated by the fact that each state has two and only two Senators regardless of the state’s population. Yes, this was part of the original grand and anti-democratic compromise in the late 18th century when there were 13 states. But the expansion of the union to 50 states has made the Senate even more anti-democratic.

Since I believe that it would not be wise to increase the size of the Senate to reflect the population of the states (like the allocation of seats in the U.S. House of Representatives) and that each state should continue to have two Senators in a bicameral upper house, I suggest for discussion that there be weighted voting in the Senate. Each Senator from Wyoming (the least populous state in 2010 with 564,000) would have 1 vote, for example, but each Senator from California (the most populous state in 2010 with 37,254,000) would have 66 votes (37254/564 = 66.05). This approach would produce a total Senate vote of 1,094 (total U.S. population in 2010 of 308,746,000 divided by 564,000 (population of Wyoming) = 547 x 2 = 1094). The weightings would be changed every 10 years with the new census population figures.

As I suggested in a 1996 virtual constitutional convention, I would also change the term of office of members of the House of Representatives from two years to four years to coincide with the presidential election. This should result in less divided and stalemated government.

I also recommend that we have direct election of the U.S. President by the national popular vote and abolish the electoral college. This would eliminate the possibility of a repeat of the outrageous Bush v. Gore decision of the U.S. Supreme Court in 2000.

This new constitutional framework would permit the national legislature to enact laws regulating guns and political contributions, now virtually forbidden by the Supreme Court’s interpretations of the existing Constitution.

The process of amending our current Constitution is appropriately difficult. Probably a new constitutional convention would be the most appropriate way to make the kind of changes I think should be considered and adopted. I despair, however, when I speculate of how such a convention could be held today.