Brady & Sharf: More electoral mischief

Editor: Thwarted repeatedly in the past, progressive zealots in Colorado continue their push for a plebiscitary presidency in defiance of the Founders' wisdom. Here's part of the case for honoring the Constitution with continuing reliance on the Electoral College, from contributors Peg Brady and Joshua Sharf. Why even have elections? By Peg Brady gpbrady2@earthlink.net

House Bill 1299’s massive illogic dumbfounds me. As described in the 10 March 2009 Post (Bill “popular” enough to get first panel’s OK), this proposal would require Colorado’s Electoral representatives to ignore Colorado voters’ presidential choice.

Currently, our Electors cast Colorado’s votes for the presidential candidate chosen by the majority of Colorado voters. Thus, in 2012, if most Colorado voters chose candidate A, our state’s Electoral votes would be cast for candidate A. That makes sense.

However, if HB 1299 becomes law, our Electoral votes would be cast for the candidate preferred by voters in other states. Large-population states would control future presidential elections. That may be desirable for them, but it would be disastrous for us.

Reading the arguments debated as the Founding Fathers crafted our superb Constitution reveals their wisdom in establishing the Electoral College. They wanted to ensure that the voters in small-population states would be respected. Because of uneven population distribution, a few states could dominate presidential elections if the Constitution had not protected small-state voters.

To propose throwing away our Electoral safeguard undermines our Constitutional protection.

State Representative Claire Levy supports this dangerous proposal, stating illogically that “…everyone in the state who votes for the candidate who loses Colorado essentially has their vote wiped out.” Conversely, were HB 1299 passed, all Colorado voters would have their votes discarded.

If our Electors were required to ignore our choice and cast our Electoral votes with the national majority, we wouldn’t need to vote at all. The president would be chosen by the large-population East Coast and West Coast states. All the rest of us could just stay home.

I suppose that Colorado could save money by not bothering to hold elections. What would be the point? But I, for one, want my vote counted.

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Amendment by minority, compact by whim By Joshua Sharf jsharf@jsharf.com

Ross Kaminsky, Amy Oliver, and others have blogged locally about about the end-run around the Constitution that is HB1299. I won't bother to repeat their efforts to defend the Electoral College.

What strikes me is the irony of using the Electoral College and the Constitution to undermine them. HB1299 provides that the bill won't take effect until states with a combined Electoral College vote of 270 - enough to elect a President - approve it. The eleven largest states could decide that they want to change how a President is elected, without input from the other states. (In practice, Georgia and Texas, are unlikely to go along with this scheme, so the number of states needed would rise to 14 under current electoral count. Upcoming reapportionment might change it down to 13.) This reverses the Constitutional formula for amending the Constitution, with barely 1/4 of the states able to change things on their own.

When I pointed this out to the last political hack to try this stunt, Ken Gordon, on the air a couple of years ago, he retorted that this was only true because of the Electoral College itself, as those same states could elect a President. Of course, electing a President, who serves for four years, is a far less critical task than changing the Constitution, which changes will likely be with us forever.

The whole maneuver may not even be Constitutional. Article I, Section 10 reads, in part:

No State shall, without the Consent of Congress, ... enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.

There are numerous interstate compacts, dealing with law enforcement, sexual predators, water rights, and other topics. The Supreme Court has ruled that the State needn't get Congressional approval unless the compact would impinge on Federal jurisdiction, which is why it's located in Article I, legislative powers.

However, the Court also ruled that term limits were an additional requirement for office, and that since Congressmen were Federal officers, the states had no power to impose those eligibility requirements. I wonder if one could make a similar argument about electors. I also wonder if a state has the right to apportion its own electors as it chooses, but cannot sign away that right of selection to other states.

All the arguments about this being an urban power grab are true. What's also true is that it's an unholy mess, which because its effects take place catastrophically, rather than as the states adopt it, is likely to sneak up on us and be settled in court, where so many of our issues are decided, rather than in the legislatures, where they ought to be.

Lincoln as exemplar for GOP today

If Republicans are serious about recovering constitutional government, it's hard to imagine how they would be successful without Lincoln. Editor: So writes Prof. Tom Krannawitter of Hillsdale College in an IBD opinion piece today. Amid a news cycle now measured in minutes, we need the perspective of the centuries to realize Lincoln's relevance for the momentous decisions of 2009. Here is the article in full:

Lincoln's Defense Of Constitution Is Moral For Today's Republicans By THOMAS KRANNAWITTER

This is the 200th birthday of the first Republican to win a national election, Abraham Lincoln. It is good for Republicans today to remember Lincoln, not to be antiquarians, but to learn from his principled defense of the Constitution.

By becoming students of Lincoln, Republicans can win elections and would deserve to win by helping America recover its constitutional source of strength and vitality.

The greatest political crisis America faces today is neither the recession nor Islamic terrorism; it's not health care, education, immigration or abortion. It is that the United States Constitution has become largely irrelevant to our politics and policies.

All three branches of government routinely ignore or twist the meaning of the Constitution, while many of our problems today are symptoms of policies that have no constitutional foundation.

If we are to recover the authority of the Constitution and the many ways it restrains and channels government power, someone or some party must offer a principled defense of the cause of constitutional government.

They must understand not only the Constitution, but also the principles that informed its original purposes and aspirations, principles found in the Declaration of Independence among other places.

No one understood that better than Lincoln.

Employing a biblical metaphor, Lincoln once described the leading principle of the Declaration of Independence — equal natural rights — as "the word fitly spoken which has proved an apple of gold to us," while the Constitution stands as "the picture of silver, subsequently framed around it.

"The picture," Lincoln argued, "was made not to conceal or destroy the apple, but to adorn and preserve it."

Lincoln's right. The declaration's assertion that legitimate governments derive "their just powers from the consent of the governed" because "all men are created equal" is precisely why "We the people" are authorized to "ordain and establish this Constitution."

Further, the Constitution limits the power of government because, as the declaration makes clear, the purpose of government is limited to securing the God-given, not government-granted, rights of life, liberty and the pursuit of happiness. And a government of limited purpose should be one of limited power.

The Constitution, however, has suffered two nearly fatal criticisms: It's old and it's racist.

The former was launched by "progressive" thinkers more than a century ago and backed up by sophisticated theories of social and political evolution. Woodrow Wilson, for example, once compared the Constitution to "political witchcraft."

The charge of racism, mainly due to the Constitution's accommodations for slavery, found its loudest voice during the civil rights movement in the 1960s and following decades. Justice Thurgood Marshall voiced this critique in a 1987 Bicentennial essay when he refused to celebrate the original Constitution of 1787 because, he alleged, it was racist and therefore immoral.

The progressive and civil rights critiques have given us a century of New Freedom politics, New Deal politics, Great Society politics, Third Way politics, Compassionate Conservatism politics and now Responsible politics.

What we need, however, is a revival of constitutional politics. But the Constitution cannot be defended against these powerful criticisms unless someone can demonstrate that the Constitution incorporates principles that are both timeless and good.

And any such defense must confront two stubborn facts: The Constitution was indeed written long ago, and it did offer certain protections for slavery.

It was Lincoln's purpose to remind all Americans, white and black, that political freedom rests on an "abstract truth applicable to all men and all times."

That "abstract truth" is the principle of equal natural rights, a principle that cuts across time and space and is, contrary to progressive opinion, valid always and everywhere.

Regarding slavery, Lincoln explained that a constitutional regime dedicated to the declaration's principle of equality is a regime where slavery must be "placed in the course of ultimate extinction."

"If we do this," Lincoln said rightly, "we shall not only have saved the (constitutional) Union. . . . We shall have so saved it as to make and keep it forever worthy of the saving."

At Gettysburg's cemetery, as he struggled mightily to save the Constitution, Lincoln rededicated America to its original noble purpose in one of the most beautiful speeches of all time.

Lincoln understood that slavery did not make America unique. America's uniqueness is being the first constitutional government built on a foundation of equality and the terrible price America paid for ridding itself of slavery.

Lincoln's constitutionalism, I believe, is the only effective rebuttal to progressive and civil rights criticisms. Thus if Republicans are serious about recovering constitutional government, it's hard to imagine how they would be successful without Lincoln.

With Lincoln, it's hard to imagine how they would fail.

Krannawitter teaches political science at Hillsdale College in Michigan and is author of "Vindicating Lincoln: Defending the Politics of Our Greatest President." This article appeared in the Investor's Business Daily on 2/12/09.

What 'stimulates' American commerce?

If Republicans can modify or delay the “stimulus” package, we might be in the midst of a debate over whether our economic woes can be overcome with government policies that encourage production or consumption. That is not likely for, as “post-partisan” President Barack Obama let slip, “We [meaning Democrats] won.” There has been a major divide between parties over this question at least since the Great Depression, and especially since President Reagan led a successful charge for cuts in income tax rates that gave rise to a 25-year boom.

The two opposing views are supply-side and demand-side political economy. The first holds that prosperity is driven by business enterprise, facilitated when income and other tax rates are low. The second maintains that the cause is consumers with spending power, boosted when federal spending “primes the pump” with new government programs.

Let us admit that supply and demand are as inseparable as the concave and convex sides of a curved line. No one can buy what is not for sale and nothing can be sold when there are no customers. But bearing in mind that commercial republics like the United States are vastly more prosperous than primitive societies largely dependent upon agriculture, we must consider that something accounts for the difference.

That “something” is the entrepreneur, who neither commands wealth nor depends upon the beneficence of others. Unlike landed aristocrats or powerful oligarchs, those in business for themselves provide a good or service which a sufficiently profitable number of people need or want, and freely choose.

The supply-side approach demonstrated its capacity for fostering national prosperity when Congress in 1981 reduced the highest income tax rate from 70 to 50 percent, and decreased the number of brackets from 14 to five. Double digit inflation, unemployment and interest rates all fell to lower levels.

In the early 1960s President Kennedy effectively made the case that the existing top tax rate of 91 percent on incomes of $200,000 yielded little revenue to the government because wealthy persons legally shielded their income in ways Congress had made possible with tax breaks.

Why is this? The explanation lies in a combination of human nature and mathematics. High tax rates are, to say the very least, burdensome. So if they can avoid it, people will find ways around them. If someone earns a million dollars and is taxed at 91 percent, that only theoretically (but not actually) nets the government $910,000 . For if he reduces his taxable income through various tax shelters to, say, $500,000, the government gets only $455,000. And even this is fanciful.

On other hand, if the income tax rates are lowered, the enterprising businessman is more likely to invest more and earn more on his money. If he then makes two million dollars under a more favorable tax regime, at 50 percent that yields a million dollars, or more than twice as much as he actually paid under the higher tax rate.

Thus, not only did this policy revive stagnant commerce, it yielded more revenue for the government than ever. Indeed, even substantial federal deficits each year during the Reagan years put no drag on our growing prosperity. We had high defense spending to face down the Soviet military threat along with increases in social welfare spending, but lowered tax rates kept commerce humming.

The demand side approach was first implemented in the administration of Franklin Roosevelt. Income tax rates, which already had risen in the previous administration, went even higher, causing the recession inherited from Herbert Hoover to expand into a Great Depression as the government added agencies and bureaus on an unprecedented scale.

Deflation and high unemployment plagued us during FDR’s first two terms, and only World War II’s demands for armaments and supplies turned the corner. Then, for the first time, income tax was withheld from pay checks to ease the pain of taxing not just the wealthy (who can’t pay it all) but everybody else with any income.

Currently, Democrats are saying that the failures of the New Deal were due to the federal government not spending enough money fast enough. But that is just so much blowing of smoke, for even the government cannot spend money fast enough to stimulate anything except a passion for the political power made possible by enlargement of government beyond its constitutional functions.

The government cannot spend us into prosperity and certainly cannot pay for it with confiscatory tax rates which free people will always find ways to avoid, if they do not move their enterprises elsewhere. Real political economy consists in restraining the government, not unleashing it.

Whatever happened to political economy?

In a previous column I questioned the idea that there is something called "the economy" and suggested instead that we refer to our multiple transactions in the global marketplace with the term of the United States Constitution, viz., commerce. This is not just a matter of semantics. For if we choose our words with care, we accurately name the things to which the words refer. Before the term "economy" was applied to our domestic and foreign commerce, it referred to a virtue–of individuals, businesses and nations. The first dictionary definition of economy, after all, is "Careful, thrifty management of resources, such as money, materials, or labor."

Just as households and businesses must practice economy in order to make the most prudent use of their resources, so must governments. But with its powers of taxing, spending and borrowing, government has access to considerably more resources than any household or business. That means the temptations and opportunities for abuse are much greater.

As the purpose of our national government is to make laws for the common defense and general welfare, it is not, by definition, designed, like the household, to meet the daily recurrent needs of anyone; or, like a business, to make a profit. It exists to make households and businesses safe and secure.

For most of our history, American government has practiced political economy, out of conviction and necessity. That is, it is limited in its scope and its powers and not entitled to huge sums to conduct its functions, however greater those were than anyone else’s. And as long as the federal government in particular performed its constitutional functions, heavy taxation was both difficult to justify and hard to obtain against jealous state governments.

To appreciate the soundness of this limited view of economy, it is helpful also to be mindful of what commerce is and why it is so indispensable to modern republics. In ancient times, commerce referred to sea going trade, as commerce includes the root "mer," meaning sea. Hence, Athens, a naval power, supported commerce that its rival, Sparta, a land-based power, took little interest in.

Commerce contributed greatly to the decline of medieval feudalism, a system that combined perpetual armaments and subjugation by the lords of the peasants. Those aristocrats who aspired to national crowns found the nascent commercial classes a vital alternative to depending upon their rivals for financing their kingdoms, especially their wars.

The middle class, so called because its members were neither aristocrats nor peasants, made money in trade with cities and states other than their own. In return for protection or favored treatment, they would lend money to kings.

There were essentially two approaches that kings of the early modern nation states took toward the generation of national wealth. One supported acquisition of precious metals and hoarding them for national purposes. Spain, the first great nation at this time, was an exponent of that view. Another view, favored in Britain, was that it was better to encourage merchants to build their fortunes with limited regulation, as a growing commerce funded government with minimal taxation.

Adam Smith’s Wealth of Nations provided the most powerful argument for the second view of national wealth. The British government was no less tempted to commandeer the resources of the country than the Spanish, but Smith made a compelling case for laissez-faire (let them do as they please) as far more productive than national missions to exploit natural resources the world over to enrich the government’s coffers. Smith’s famous "invisible hand" was not blind to the avarice of businessmen (quite the contrary) but rather saw them as more efficient producers than any government could ever be.

As we stand on the brink of massive efforts to "rescue our economy" from its current credit crisis, it is helpful to remember these historical lessons on how to build up national wealth and, by implication, what diminishes it. The federal government tried to spend its way of the Great Depression and failed, just as its massive programs 30 years later failed to end poverty. Only individuals and businesses practicing economy, supported by a government practicing the same virtue, can accomplish that.

To the extent that our government embarks on a massive program of public works, business bailouts, unemployment compensation, forced unionism and uneconomical energy schemes, our current crisis will become much worse and we will imagine only that we didn’t do enough rather than far too much to "save" our commerce.

Lawyers & judges endangering elections

The world has marveled at the orderliness of America's "peaceful revolutions" ever since Jefferson's Democratic-Republicans first wrested power from the Federalist Party of Washington and Adams, But how long will voters remain peaceful when their will is cynically undermined by partisan lawyers and willful judges whose lust to see their interests prevail eviscerates any pretense of respect to fair elections?

In California in 2001, 61% of voters approved a state statute to preserve the historical and biological definition of marriage, only to see an activist supreme court rule that measure invalid based on a supposed conflict with the state constitution.

Backers of traditional marriage didn't protest or threaten violence against their political adversaries. Instead, they played by the rules, responding with a constitutional amendment to trump the courts. Attorney General Jerry "Moonbeam" Brown unethically rewrote the ballot summary to tip the scales against the amendment, but 52% of Californians nevertheless approved it.

Now, as supporters of same-sex marriage engage in sometimes violent protests in front of churches, gay activists and the ACLU are asking that same supreme court to invalidate yet another election.

In Washington state in 2004, voters elected Republican gubernatorial candidate Dino Rossi by a mere 261 votes, according to election day tallies. A second recount again showed Rossi the victor, this time by just 42 votes. Finally, a third count gave the lead to Democrat Christine Gregoire by 129 votes -- and the counting stopped.

In that election, numerous irregularities in Democrat counties aided Gregoire at each subsequent count. In King County (including Seattle), more than 700 ballots were "discovered" after election day. Some precincts showed more ballots cast than registered voters, while others tallied more votes than ballots. At least 129 felons were allowed to vote, and provisional ballots were mixed with regular ballots before anyone bothered to determine whether those provisional ballots were cast by legitimate voters.

Now we have the ongoing saga in Minnesota, where Sen. Norm Coleman, a Republican, led alleged comedian Al Franken, a Democrat, by 725 votes after the initial count. That lead slipped to 438 within two days as election officials announced "adjustments" ‹ like finding a box of uncounted ballots that unanimously favored Franken in the trunk of an election worker's car.

Minnesota law explicitly limits the recount to those ballots counted on election day. That means the validity of ballots is decided by citizen election judges who make those determinations at polling places before their judgment can be clouded by knowing who is ahead or by how much.

Not surprisingly, lawyers for Franken, aided by veterans of Gregoire's election heist, want election boards, courts -- anyone -- to allow previously rejected ballots to be scrutinized and selectively added to the count.

Elections can only be legitimate when conducted according to rules stipulated by both sides prior to voting. But Franken's legal beagles could care less about the rules. Their mission is to win even if that means renegotiating the rules in court to strike down laws that, in 20/20 hindsight, adversely impact Franken.

Another of those inconvenient laws, as John Fund reports in the Wall Street Journal, is the federal Help America Vote Act, which requires that provisional ballot votes remain anonymous.

In Washington, a judge allowed lawyers for Gregoire to obtain a list of uncounted provisional ballots. From that list, they gleaned the names of those who voted for the Democrat and engineered the counting of those votes -- but not those who voted for the Republican. By the time Republicans figured out the Democrats' game, it was too late.

Franken's attorneys are deploying a similar strategy in direct contravention of Minnesota's election law and of rules administered by the Democrat secretary of state. They just may succeed in using the courts to steal another election.

When Americans can no longer trust that their votes will be counted under rules established in advance or suspect that judges are all too willing to bend those rules, how much longer will our revolutions remain peaceful?

Mark Hillman served as Colorado senate majority leader and state treasurer. To read more or comment, go to www.MarkHillman.com.