Monday, October 30, 2006

My Democratic Congress Wish List (Part II)

(The second of a two part series. Part I covered impeachments, the War Powers Resolution of 1973 and the Patriot Act. Part II addresses FISA, Iraq, and more.)

6. Legislate treaty abrogation.

Article II of the Constitution requires two thirds of the Senate to ratify all treaties, but nothing in the Constitution or U.S. Code addresses treaty abrogation. This administration has unitarily abrogated at least three ratified treaties--the Geneva Convention, The UN Convention Against Torture and the Anti-ballistic Missile Treaty. One can also reasonably argue that the 2005 U.S.-India nuclear agreement was a violation of the Nuclear Non-proliferation Treaty.

The treaty ratification process is meaningless if the executive can single-handedly reverse it with a snap of the fingers, and treaties themselves are completely hollow if the other parties know we're not at all serious about keeping them.

The Senate must play a role in any treaty abrogation. Abrogation by a simple majority is not sufficient. We've seen how a Senate ruled by the sitting president's party becomes a rubber stamp. I propose that the same two thirds supermajority necessary to ratify a treaty be required to abrogate it.

I'm not sure if simple legislation would be sufficient to impose abrogation guidelines. It might be, since the Constitution doesn't allows the two legislative houses to make their own rules. But if Congress itself decides a formal constitutional amendment is the way to go, then I say go for it. Pursuing a treaty abrogation amendment beats the living spit out of pushing for one that bans gay marriage or allows Arnold Schwarzenegger to run for president.

7. Bring the hammer down on FISA.

Let's leave the matter of data mining aside for a moment. I have yet to hear a single coherent argument that says the requirement to get a 72 hour retroactive warrant to spy on the phone calls of U.S citizens and permanent residents hampers the president's ability to protect America from terrorism. I don't care how long or cumbersome the FISA applications may be. They're mostly boilerplate, and they're on a word processing template. If the Justice Department needs more lawyers to fill the things out, they can hire more. There's no shortage of lawyers in Washington D.C. who know how to fill in the blanks of a Microsoft Word document.

What's the point of a retroactive warrant? It's all about keeping Big Brother honest. If he never has to answer to anybody about which Americans he's spying on and why, then he can spy on any American he wants for any reason he wants. And once he has the power to do that, you can bet a life's worth of phone bills that he'll abuse it.

8. Enact real federal election reform.

Nobody in Congress is likely to go for this, but these steps could truly reform the congressional campaign contribution process:

-- No more corporate contributions.

-- No private contributions from outside the state or district in which the election is being held.

-- Strict limits on PAC and Political Party spending in any state or Congressional district.

A change to the nature of the Electoral College could profoundly change presidential campaign spending strategies. If we trash the state-by-state "winner take all" electoral rules and make each state's electoral votes proportional to its popular vote, then individual states turn from red or blue to lighter and darker shades of purple. Party and PAC budgeters could no longer target "battleground states" because every state would be a battleground.

Please note that my Electoral College reform plan does not shift presidential elections to a purely "popular vote." The state-by-state proportion of electors would remain the same as it is now, so the vote of an individual in a small northeastern state would still count for three or four times the vote of an individual in a heavily populated western state. Still, though individual votes wouldn't all carry the same weight, they'd all count. Hopefully, that would bring more people to the polls who otherwise would have stayed home because they figured their minority vote wouldn't have mattered.

9. Enact real energy policy reform.

Yeah, we're addicted to foreign oil all right, Mister Bush. But as long as your Uncle Dick's big oil cronies dictate U.S. energy policy, we'll stay addicted for as long as those big oil cronies can make big money on foreign oil. This administration isn't going to do much about energy reform except talk about it to fool the proles into thinking they actually want to do something about it. Energy is the coin of power in the Next World Order. As long as we need foreign oil to run our country, we will to go to war to control the flow of it.

If there were ever a good reason to justify using the Constitution's commerce clause to dictate conditions to private enterprise, forcing the U.S. energy industry to rehabilitate our oil Jones is it.

10. Oh, yeah. Iraq.

General George Casey, U.S. commander in Iraq, recently said Iraqi forces will be ready to take over security responsibilities in 12 to 18 months. That sounds remarkably similar to what he was saying 12 to 18 months ago. In fact, the whole Iraq fiasco is starting to sound like a kid at bedtime saying, "Five more minutes, Dad," over and over and over and over…

We turn one corner after another; we stumble from one final throe to the next. Malarky Maliki tells our troops what they can or can't do in his country, and if his troops don't want to participate in a "joint" operation he approves of, he let's them stay behind while our guys get killed and maimed doing his dirty work for him. He insists we can't impose any deadlines on his government and that mouth breathing president of ours goes along and says, Yeah, that's right, we can't push deadlines on no sovereign nation like Iraq.

So our sovereign nation can't tell that sovereign nation when to get its sovereignty together, but that sovereign nation can tell ours what we can or can't do with our troops and when they can or can't leave that sovereign nation? Malaki's done nothing but screw up, yet we're letting him call all the shots and Bush is kissing his keyster.

I don't want timelines, or benchmarks, or even deadlines. I want ultimatums. We need to tell Malaki we're leaving in six months and if he doesn't like that, we'll leave right now.

Bush won't do that. Congress can and must.

Honorable Mention

My priorities are for a Democratic Congress to restore the legislature's checks and balances over the executive branch and turn our Barbecue Republic back into a real one. But I would also like to see a number of other legislations enacted early in a Democratic "contract with America."

-- Raise the minimum wage. If we allow American citizens to work for slave wages, we're making them slaves. Hasn't that been illegal for over a century now? Didn't we fight a civil war over that issue?

-- Repeal Bush's tax cuts for the wealthy. If one percent of the population owns 38 percent of the wealth and 100 percent of the politicians, does it not seem fair that they should bear the brunt of the tax burden?

-- Slash and burn defense acquisition. The U.S. presently spends as much on defense as the rest of the world combined. Where's the payoff on the investment? Our military didn't defend us against the 9/11 attacks and it isn't accomplishing our national aims overseas. The major Mobil/Exxon stockholders wouldn't put up with that kind of return, and their patron saint Dick Cheney wouldn't expect them to.

-- Slash and burn Homeland Security. They're doing a heck of a lousy job, aren't they? We'd be safer without them.

-- Expand AmericaCorps to fill the gaps in Social Security care of disabled Americans. Take the money needed to support the project out of the defense budget. Put the money to a use that actually helps Americans.

-- Trash the school voucher program and fix public education. We can fluff school financing the same way we can solve darn near all of our other problems. Lose a B-2 bomber. Lose an aircraft carrier. Lose a wing of F-22s. We'll never miss them. They don't make a dinar's worth of never mind to Ahmed the car bomber.

These are my thoughts on the subject of federal government change at the moment. I look forward to hearing yours.


Commander Jeff Huber, U.S. Navy (Retired) writes from Virginia Beach, Virginia. Read his commentaries at ePluribus Media and Pen and Sword.


  1. My thoughts? I'm standing and applauding yours, first.

    Kid at bedtime is a good analogy, but the kid isn't trying to fleece you like a politician running for re-election. I think of it more like a street-hustler 3-card monte or shell game scenario: "C'mon, one more hand, you know you'll pick the winner THIS time...!"

  2. Jeff,

    Shell game is a good analogy. My old attitutude of "Oh, well, that's politics" doesn't work for me any more. The neocons haven't really done anything new, but they've taken it to new heights.

  3. Anonymous9:55 AM

    Your #8 (no corporate contributions, no out of district contributions, and maybe no voting by the utterly ignorant such as the rapture fixated (my idea)) is key; your other common sense ideas would more or less automatically result from its enactment.

    Unfortunately, the costs of the transition to it - corporations that are actually regulated for the public good - is so high that I very much doubt that the system can reform itself. I just do not perceive the necessary forces of self renewal in the United States at this point.

    It's like with drunks. They have to be doing so terribly badly that the pain of going cold turkey is actually the lesser pain. With great sadness, I type that for now you are wasting your breath

  4. I'd like to hear more of your thoughts on transition costs. If you're saying that regulation and political contributions are joined at the hip, I'm not sure I understand why you say that.

    If you get a chance, please do give us more on this issue.



  5. "the kid isn't trying to fleece you"

    (Other) Jeff, either you don't have kids, or yours are exceptionally well behaved. My four year old would take me for everything he could, if I didn't fight him the whole way.

    Jeff, You are concentrating a lot on the pResidency. Gerrymandering is equally responsible for the mess we're in, by allowing one party to take over by suppressing the other. Let's add a fair districting procedure to that amendment, if possible, and let's rig it so it doesn't reinforce two-or-less party rule.

  6. I'm on board with the fair districting.

  7. Anonymous10:42 AM

    To be somewhat vague, America's legal structure and its implementation / enforcement - are, in today's world, the product of a legislative that is very sensitive to corporate concerns. Any changes to the parameters that drive the legislative - however timely they may be - would in the short-term gut a tremenous portion of America's infrastructure.

    An example: what would happen if the Congress were to implement no-brainer fuel efficiency laws? 2 of the Big 3 would be unable to avoid filing for Chapter 11 in short order. This would then spill over onto 401ks, city budgets and the like.

    Now imagine the results of Congress rewriting the laws that apply to every industry in the country. Do you honestly believe other industries don't have problems to which chickendung legislators haven't turned blind eyes and open palms?

    This state of affairs is, by the way, one of the less fortunate effects of a parley in an Appomatox courthouse that one of the finest Americans of all time was forced to endure long ago...

  8. So you're saying that corporate donations serve as a check on excessive legislative regulation? Yeah, I can see that.

    But coming back from the other angle--

    Would the chapter 11 filings and pension fund scandals and the rest be any worse than they are now? And could corporations not seek protection through the courts?

    I look forward to your further thoughts on the subject.



  9. Anonymous11:28 AM

    Without government reform, all else is futile. This is because the current incentive system does not really reward actually solving problems.

    Congress now is nothing more than a publically funded consulting firm. These guys do a bunch of crap for private interests, then if/when they leave, they're hired by some company for huge money to lobby.

    How about allowing contributions only from entities that can physically and legally vote in an election. Can a corporation go into a polling booth? No? Oh, too bad. Also ban bundling contributions, and have strict fines for companies that attempt to engage in that behaviour. They key to reforming congress is 1) make it wildly popular with the people, 2) make it equally miserable for both parties.

    As for CAFE standards and its ilk, I'm of the opinion that incentives are a better way to go than regulation. How about if you can write off 50% or 75% of the purchase price of your new car if it gets X miles per gallon? Think that won't encourage people to buy more fuel efficient vehicles? Americans are lazy. Make it easy for them (intellectually and financially) to pick something, and they'll do it.

  10. Great point about only being able to contribute to to someone you can vote for.

    I also agree with the incentives. Any policy would almost certainly have to be a combination of stick and carrot.

    Funny how policies work out that way.

  11. Anonymous1:41 PM

    While I agree with your wishlist I think you may have overlooked one item that I believe will also need to be addressed forthwith.

    Public Law 109-364, or the "John Warner Defense Authorization Act of 2007" (H.R.5122) (2), which was signed by the commander in chief on October 17th, 2006, in a private Oval Office ceremony, allows the President to declare a "public emergency" and station troops anywhere in America and take control of state-based National Guard units without the consent of the governor or local authorities, in order to "suppress public disorder."
    These subtle changes that were hidden the authorization act clearly mean to negate the Insurrection and Posse Comitatus Acts and vest some very frightening powers in the President's hands.
    I am hoping that the Dems, if they do manage to gain some control don't immediately set their eyes on 2008 and return to politics as usual in Washington. There are still a lot of lobbyists with deep pockets and two more years of Bush and company.

  12. Anonymous2:10 PM

    I used to think that massive gun ownership was crazy. But I do not think that way anymore. Gun ownership is an insurance policy against government tyranny. I never thought it could get even get close to that here, but it obviously has (i.e. see above).

    You guys think Iraqi insurgents are bad, just wait till you get a load of American insurgents fighting for their freedom. Our army wouldn't stand a chance.

  13. Monk,

    I say we add the JWDAB to the list of laws that need repealing. Good call.


    Like you, my attitude about gun control has turned 180 degrees lately. Not because I think we need to rise up (although keeping that possibility alive might be an effective power check), but because I've come to the conclusion that the second amendment doesn't allow restrictions on the citizen's right to bear arms.

    That's what I think now, anyway.


  14. The issue of Treaty termination came up in the 1970s, when Carter announced he was going to terminated the mutual defense treaty with Taiwan.

    A group of Senators brought suit and basically argued what you're arguing, which is that if the Senate has to ratify the treaty then the President can't unilaterally terminate it. The Supreme Court dismissed the case, letting the President proceed as he wished. It wasn't a unanimous decision, but the Court basically said the case wasn't justiciable by the Court because it involved the authority of the President to conduct the country's foreign relations.

    In essence, the Court rejected the claim that a 2/3 vote of the Senate was required to terminate a treaty.

    The case was Goldwater v. Carter.

  15. One note to the above:

    If the Senate actually did pass a law affecting the Presidents authority (or lack thereof) to abrogate a treaty, then the issue might well move out of the realm of a political question (i.e. a nonjusticiable case) to one that the court could decide.

    With the current make-up of the Supreme Court, I think you'd get a ruling that upholds the President's authority to do this, but who knows. There is no "authority" in the case law for the court to defer to.

  16. Anonymous4:53 PM

    Here's a diabolic thought. Would this right wing court uphold the presidential style (i.e. unitary executive) of Bush if a Democrat was president?

    It would make for an interesting strategy for Dems if they get it in '08, to challenge some of these notions and let a conservative court rule in favor of a Democratic president. Haha, that would rule!

  17. Anonymous:

    Actually, in the case I mentioned previously, it was Justice Rehnquist who wrote an opinion concurring in the judgment of the court and favoring President Carter.

  18. Mus,

    Does this look like an accurate summary of the decision?

    If they simply said the case wasn't tryable because Congress hadn't challenged Carter's abrogation, then it seems there's plenty of wiggle room in the issue.

  19. Jeff:

    That's a pretty good summary. You'll note that Justice Powell is the only one who thought it wasn't triable because Congress hadn't challenged Carter's authority. Rehnquist and those who agreed with him (he had the biggest block of like minds on the case, a total of 5 justices including himself) argued that it was a political question and that's why they couldn't address it.

    It's an important distinction, because Powell basically argued the case wasn't ripe - that means it could become ripe later and the court could address the issue. On the other hand, if it is a political question then the Court is saying that it is something that the Supreme Court doesn't have the power to adjudicate in the first place.

    If the political question view that prevailed in the Carter case were to prevail in any case brought by the current admin against a Democratic Senate (or vice versa), then it would likely take a constitutional amendment to make the change you want. The reason is this:

    Suppose the Senate passes the legislation. Let's even suppose Bush vetoes it and they override his veto. What happens if Bush or the next President ignores it entirely, abrogates a treaty whenever he or she feels like it and instructs others in the executive that the treaty is over? In that case, the Senate could bring a lawsuit and try to force the President to respect the Senate's law in this area.

    Such a lawsuit would go to the Supreme Court. If the Justices believe like Powell did in the Carter case, then the Supreme Court would actually hear the case and decide it (it would certainly be ripe at that point). On the other hand if the current Court believed like Rehnquist and others that it remained a political question, they still wouldn't decide the case and would leave it to the Executive and Legislative to wrangle over. The only thing left for the Senate to do at that point would be to try and get a constitutional amendment.

    Does that explanation make sense?

  20. Anonymous11:19 AM

    Great lists, Jeff.

    Hey, I lost all my mail data in a computer crash so I don't have your email address. I've started up a new site, if you're interested in updating the old link in your sidebar.

    Let's see if you can figure out which link is in need of an update. ;)

    Hint: Staying anonymous to avoid the wrath of needle carrying women who send their military men after me.

  21. Mus,

    Yeah, that makes sense. I've never read anything about why the Framers left the abrogation question so open, I wonder what they were think about. I suspect they had a decent reason for not addressing the issue, but can't imagine just now what it might have been.

    Anynymous woman,

    I'll update the link shortly.


  22. Anonymous11:57 AM

    Cmdr Huber,

    I'm the anon whose further opinions you solicited.

    I've encountered other cases where campaign contributions have gone hand in hand with legislation and regulatory rulings that are every bit as ghastly as the mess in Iraq. John Le Carre, a well-informed Etonian, has written plaintive books in the last few years heavily hinting at such a state of affairs.

    When you think about it, it's pretty much common sense. Any government capable of sustaining the mess in Iraq AND THE COMPLETE LACK OF INTERFACE WITH REALITY for years - on both sides of the aisle - is capable of a whole lot more. People of the ilk of a Cheney or a Rumself who at the very least can't be bothered to seriously punish torture at the hands of the USG - stuff happens! - are hardly likely to care too much about less privileged Americans.

    The United States have Augean Stables and not a Hercules in sight; the system - not least through its enormous size and the consequent unimportance of each individual - demands such conformity that I don't know of any American politician willing to touch them.

    American politics is all too often not from the bottom up, but a matter of choosing your racket - be it the military industrial complex or unions and the like - and swearing your undying fealty. It's so much easier to pretend that all is well... And it's this culture of blind, unthinking and unwavering allegiance that is so harmful to the country.

  23. Jeff:

    I'm not sure why they left it open. It may be that they meant abrogation to be subject to the same standard, but maybe it was obvious to them during their deliberations. Or maybe the silence was a compromise between differing factions. The document has a few places where they could have been more clear (or, like with the 2nd amendmend) where the intent would have been pretty clear at the time but is subject to argument later).

    I may have some resources on Constitutional history laying around - I'll see if they shed any light.

  24. Jeff & Anon, further to the question of government for sale, my hometown paper did an excellent piece of reporting on Kentucky's senior senator. Lou Dobbs' column today at continues the theme.
    Jeff, once again you've outdone your self with this series. Congrats. Mike