Revised 12.6.13

1. Why is Congress the way it is?&What can we do about it?Educating for Citizenship ConferenceCenter for Education in Law and DemocracyDecember 6, 2013 Revised 12.6.13

3. A new poll …Congress has again slipped …now polling lower than painful medical procedures …. The survey...showed Congress with a mere 9 percent favorability rating… 85 percent…negative.... Asked for their preference between Congress and lice, the microscopic insects prevail 67-19%. Ditto colonoscopies (58-31%), root canals (65-32%), and being stuck in traffic (56-34%). The Hill, Jan. 2013

7. Some context • A nation, ever growing in size and complexity • What do we expect of government and politics?: nonviolent resolution of society’s public needs and problems • the Preamble: “. . . in Order to form a more perfect Union, establish Justice, insure domestic Tranquility . . .” • And what from Congress? • Perils of [my] over-simplification, exaggeration

8. “[Rep. Zach] Space [D-OH] said one man left a message on his office's answering machine saying: ‘You'd better get your flak jacket because I'm coming to blow you away.’ The Dover Democrat said open hostility has increased during just the 40 months he has spent in Congress.” “A cloud over the Capitol?” The Columbus Dispatch Sunday,  April 25, 2010

9. Republicans say and Democrats privately acknowledge, Reid will have to play the “populist card” and paint the GOP as the defender of special interests while the majority leader and his Democratic colleagues are protecting average Americans. . . .“I think everyone thinks he is just gaming this thing politically and is a lot more interested in having issues right now rather than having solutions,” South Dakota Sen. John Thune . . . Politico, April 29, 2010

10. Core Principles As stated by Jefferson in the Declaration: all created equal; governments instituted to protect inalienable rights; government legitimacy from the consent of the governed. The Constitution elaborated: the consent of the governed was to be exercised through representative institutions (Federalist 10) and (in part to protect rights) those institutions were to be constrained by a system of checks and balances (Federalist 51).

11. Political Demographics Add to the mix, the political demography of the US in 2013 – split pretty much down the middle. A prescription for gridlock and dysfunction?

12. The Civility Moral The only way our representative institutions can keep faith with the founding documents is by acting out of the mutual respect that flows from our principle of equality. As a practical matter, given the constitutional architecture that of our national government, the only way anything can get done is with a view to the necessity of compromise. With the political complexion of the country, that requires somebipartisan cooperation.

13. Civility 2 Out of this flows an imperative for civility and comity.  If compromise is a political and constitutional necessity, and if mutual respect is a moral requirement, then developing a politics of civility is essential. Not just a nicety – but a necessity! How do we get there?

14. The business of legislatures • Recognizing what requires public attention • Resolving differences – compromises and deals • “Currency” of compromise? minimum level of trust • Prerequisites to trust? Sufficient personal relationships, socialization • Basic human relations

15. Elements of the problem interconnectedness • Congress as community – not • Political geography • Media segmentation • Campaign finance, elections • Ethics, integrity, polling • The citizenry & civic literacy

16. Elements of the problem • But, what about the Constitution? • Separation of powers • Balance [conflict] of powers • Bicameralism: filibusterism • Founders’ skepticism of national power vs. need for national power (ref: Articles of Confederation)

17. House = Senate ? • Not exactly • But relevant • Spreading infection • As Sam Rayburn counseled Lyndon Johnson • My bias as a House alum

18. Congress as community – not • The old days: 1974 election; moving to DC • The Hill as a community • Socialization – literal, figurative • Benefits: time together trust • Nowadays: 2012 election night • Change in US society & Cong’l families – Bowling Alone, self-isolation, social capital, less courteous society • Costs: H/R schedule – no time together

19. “It used to be that we'd disagree on substance, then you'd go out and have a beer and say, ‘You're still a great guy,’” he [Rep. John Boccieri (D-OH)] said. “There’s very little of that.” [Rep. Steve] Austria [R-OH] and Boccieri have participated in bipartisan meetings of freshmen members, but those now might be falling apart. “There were some comments made to me by some senior people on our side of the aisle: ‘Ah, that'll last a year, and then you're gonna be as partisan as we are,’” Austria said, noting that signs indicate the prediction could come true. “A cloud over the Capitol?” The Columbus Dispatch Sunday,  April 25, 2010

20. Political geography • Reapportionment & Redistricting – census • Effects of computing power & data bases • Political predictability, irresistible temptations • Who votes in primaries – what’s left for November – turnout, vicious cycle • Consequences: aggravated partisanship – Congressional leaders reflect their more ardent Members

22. Media segmentation • Nation missing a common experience of public affairs • Walter Cronkite, come back? Or Jennings? • Newspapers, decline in readership • Cable TV and Internet news – suited to yourself! • Pander for ratings – exaggerate the differences – shouting sells • Now, let’s get those guys to cooperate

23. Campaign finance, elections • Campaigns: paid staff >> volunteers (♀) – stake in the district (not) • Raising money for self • Raising money for others (leadership PACs) • Citizens United • Does money follow votes, or vice versa? – perceptions; see integrity, below • Demonization – see media, above – and then let’s work together

25. Ethics, integrity, polling • The seductive lure of public opinion in the media age • The job description? Burke; Federalist 10 • I’m there to represent you – pandering to a susceptible electorate • Posturing; “tape is rolling” – alert to being recorded, or “being” authentic • Henry Hyde: “If there’s not an issue for which you’re willing to lose an election . . .”

26. The citizenry & civic literacy • Democracy is complex: learned behavior • What’s happened to K-12 education? • ABA survey: ±55% know 3 branches • Passivity – their fault • We’re all so busy • Prague March 1977 - E Berlin April 1990

27. Remedies? • Congress as community: stay in DC more; change the weekly schedule; renew Bipartisan Retreats; foreign congressional travel is good (not junkets) • Political geography: elevate competitiveness as goal of CDs; revise VRA re minority districts; perhaps a 10% shift • Media segmentation: tough problem; expose yourself to the other side; “fairness” doctrine?

28. Remedies? continued • Campaign finance, elections: public financing (but Citizens United); open/no primaries [California Prop 14 ends party primaries] automatic runoff if none>50% • Ethics, integrity, polling: understanding the role – Edmund Burke; OCE • The citizenry & civic literacy: it’s not just about them; educate for democracy; it’s not a spectator sport; YOUR GOOD WORK!

29. Prescriptions for comity in governmentby Tom Daschle and Trent Lott Washington Post, 11/26/13 [M]embers of Congress spend less and less time in [DC]….fewer opportunities to get to know one another. Less familiarity leads to less trust, which leads to less cooperation, which often leads to less consensus and, ultimately, fewer accomplishments…. First, Congress should return to a five-day workweek …. Second, joint caucuses … once a month…. Third,end the Senate practice of “holds”…. Fourth, initiate weekly meetings [between the president and leaders of Congress]…quarterly…at Camp David.

30. Experts Pan Lott-Daschle Gridlock Proposals Real Clear Politics, Adam O’Neal 11/29/13 “Most of the people on the ground in Congress right now are tired of … outsiders telling them what to do,” warned [Harvard government professor] Skocpol. “Daschle and Lott are still liked and respected by many of their former colleagues, but they must seem irrelevant to a lot of people.”

31. 1971 Earth Day poster written and illustrated by Walt Kelly

32. Bonus Round?: TABOR lawsuit • Legal theory of the case • Key issues • What the case is not about • Procedural history • What lies ahead – 4 years? • Clients and co-counsel • http://taborcase.org • http://video.rmpbs.org/video/2365105064/.

33. Republican Form of Government • Meaning of RFG is key Q “on the merits” • Where to look for legal authority – no court precedents • So, what did the Drafters say

34. Madison Fed. 10: RFG means government by elected representatives not direct or “pure” democracy • Madison Fed. 39: RFG includes two parts – power derived from the people and “administered . . . by persons holding office . . . for a limited period.” • Madison Fed. 51: “In republican government, the legislative authority necessarily predominates.” • Madison Fed. 57: the “elective mode of obtaining rulers” is characteristic of RFG

35. Madison Fed. 43: looks to then-existing forms of state government and, in defense of the Guarantee Clause [“GC”], observes, “who can say what experiments may be produced by the caprice of particular states….” • Hamilton Fed. 71: “ When…the interests of the people are at variance with their inclinations, it is the duty of the persons whom they have appointed to be the guardians of those interests, to withstand the temporary delusion, in order to give them time and opportunity for more … sedate reflection.”

36. Hamilton Fed. 30: “The conclusion is, that there must be interwoven, in the frame of the government, a general power of taxation….Money is … the vital principle of the body politic … which sustains its life and motion, and enables it to perform its most essential functions…. A complete power, therefore, to procure a regular and adequate supply of it, as far as the resources of the community will permit, may be regarded as an indispensable ingredient in every constitution.” [Emphasis added.]

37. Back to: Theory of the case Article IV sec. 4 (GC) and EA:     require Colorado to maintain RFG = legislature with tax power TABOR: strips legislature of tax power QED: TABOR violates GC and EA

38. Questions?Suggestions?

39. AllGoodWishesfor the Holidays &A Peaceful, Prosperous and Civic-MindedNew Year