Controlling the Effects of Factionalism cont'd...

In continuing the discussion of factionalism, by Madison’s definition, the American citizen can find numerous examples of why the current form of government doesn’t nearly control those effects enough to the detriment of the country. Once again, Madison’s definition of factionalism states, “a number of citizens, whether amounting to a majority or a minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adversed to the rights of other citizens, or to the permanent and aggregate interests of the community”. Madison believed that factionalism was inherently linked to liberty and thus, a necessary part of the governing process. Citizens expressed their opinions and created legislation based on those opinions. What needed control was the adverse effect of group-think that would lead to legislation that impeded or trampled a class of citizen’s rights; or was not in the best interest of the community. One other concern that should be of note to the American citizen is the role factionalism has in impeding legislation or preventing the will of the American people on any particular topic.

One example can be found in the current debate of health-care reform. While there are many competing voices, many if not all can agree that reform is necessary and has been necessary for a number of election cycles over the last fifty years. But in all this time, very little has been done. While only two parties make up the entire congress, both of which agree reform is necessary. The two political parties disagree on methods but what is interesting to note is the entire lack of compromise which is inherent and necessary to resolve political disagreements. And in the background, the minority special interest of the American Medical Association through its use of lobbyists and campaign contributions seem to successfully block any attempt at reform. Thus, the minority faction of those who provide healthcare to the country are thwarting the best interests of the community by denying badly needed reform and healthcare coverage to those who have either too little or no healthcare at all.

In the previously stated example, factionalism can be found in two ways. The first way is the normal and healthy discourse of the self-governing process, the two parties that don’t compromise. While this can be a detriment and somewhat of an obstacle to the governing process, it is in fact a normal event and part of the decision making processes of government. The second is the adverse effect of factionalism warned and needing controlling as seen by Madison; a small group citizens somehow banding together to deny other citizens rights or having an adverse effect on the community. A group, who though political contributions affect legislator’s decisions and reasoning because of the effects of contributions to campaigns for elections or re-elections.

It is because of the ill effects of the second effect of factionalism, that construction or design of the elected offices of both the House of Representatives and the Senate must be remodeled under the American citizen’s right to formulate a working government. A redesign of the offices with more appropriate checks and balances are needed to mitigate the effects of adverse factionalism. Both houses of the legislature should be remodeled.

There are several options to mitigate the adverse effects of factionalism. One would be to have term limits. If legislators knew they were only going to be in the House or Senate for only one term, this would stop the ill effects of needing to raise monies for a re-election campaign and lessen the influence of lobbyists. If the American citizen felt that having statesmen with tenure and experience was needed, longer terms could be enacted. If a senator could only be elected once and the term being 10 years, it is possible this could reduce the influence of lobbying efforts for re-election. Another way would be to have a ‘recall’ or removal process for citizens to remove a sitting senator or representative other than the election process. The former would be of better construction than the ladder as the ladder would require additional action be taken by the electorate.

However, reform of this nature is unlikely as the interested parties exist in a symbiotic nature to the detriment of the citizens of the United States. Until the American citizen exercises his and her right to construct or reconstruct a working government to address the needs of the country, problem may only be addressed at the point of collapse or in dire consequence as now seen by the current economic crisis. Again this scenario was a result of a smaller faction (Wall Street financial institutions) having adverse effects on the country through their lobbying efforts to strip away safeguards within the banking industry to suit their own interests. Elected officials gave way to the banking interests in order to raise funds for future elections or for fear of reprisal of the banking industry.

Vox Vocis res Publica


http://www.alternet.org/healthwellness/140628/obama_must_take_on_the_giant_lobbyists_blocking_health_care_reform/

http://www.pnhp.org/blog/2008/08/29/posturing-coalitions-the-latest-attempt-to-block-health-care-reform/

Controlling the Effects of Factionalism

Madison in writing Federalist paper number ten devoted the topic to the mischief of faction. Faction for this essay will subscribe to his definition of being “a number of citizens, whether amounting to a majority or a minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adversed to the rights of other citizens, or to the permanent and aggregate interests of the community”. Madison stated that the only cure for factions were by either removing its causes, or controlling its effects. He concluded, rightfully so, that removing the causes were impracticable as groups of people forming differences of opinions was the basis of liberty to citizens. It is the second cure of controlling the effects of factions that will be of consequence and review of the American citizen after two hundred years of observation of the current form of republican government can be accounted.

As presented in earlier essays, elected officials through a changing society and exhaustive needs of financing have in fact become what Madison defined as a faction. Their allegiances to party and self, in the way of seeking and obtaining elected office, have become their primary requisite and supplanting the will of the public good to which they were elected. If this conjecture holds true, then it is relatively simple to understand why election reforms will not come to fruition as an inherent bias in judgment exists. Madison confirms this through the following statement, “No man is allowed to be a judge in his own cause, because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity. With equal, nay with greater reason, a body of men are unfit to be both judges and parties at the same time”.

However, Madison’s conclusion is the following when dealing with controlling the effects of factions. He states, “The second expedient [controlling factions] is as impracticable as the first [removing the causes of factions] would be unwise”. His end determination is that a republican form of government is in fact the answer as a democracy, as a form of government, would give rise to the greater causes of factionalism. Madison doesn’t actually explore any other alternatives, such the effects of changing the nature or design of elected offices or elections themselves in an effort to control the effects of factions. Madison concludes that the will of the majority is the natural conclusion of the effects of factions and is justified as remedies and not of injustice upon the minority. He also concludes that sheer numbers of elected person would not allow oppression of the minority and disregard of the public interest. But how many times over the last two hundred years has the American citizens seen disregard for the public good by the majority of the congress? Too many examples can be found.

Several controls can be established to control or limit the effects of factions within the congress relating to the governing process. Redefining the congress would be one way of control. Establishing through the amendment process or by convention, a series of sub-houses of the House of Representatives or Senate would be one way. Establishing 3 sub-houses of congress each with defined core responsibilities or duties under an amended constitution could curtail internal factionalism. Thus, even if there were elected officials, it would be possible to create the need to build consensus amongst the factions in order to establish a majority.

Another control would be to change our method of representation in whole or part, the offices of the congress. If sub-houses were created in congress and a certain number of representatives were not elected, but rather selected as in a jury style approach, this would also limit the effects of factionalism in the case of political parties or career politicians. If some number less than the whole was selected rather than elected, and for a period as short as 1 year, the effects of political parties and need for raising monies from lobbyists and election pacs for future elections would be greatly diminished.

A secondary benefit to this approach is a greater guarantee that more of the population of the country’s different classes of people would make up the congress. Currently, the make up on congress is weighted towards lawyers. If the president is a lawyer, the congress made up of lawyers, and the Supreme Court made up of lawyers, then we have by Madision’s definition of faction, one faction and no diversity within the our government. It is strange that diversity in our government in this manner is never mentioned by our elected officials. But again, the American citizen is now referred back to Madison’s statement concerning individual bias.

Vox Vocis res Publica


http://www.constitution.org/fed/federa10.htm

Congressional design flaws

In the American system of government, the Congress and Judiciary are meant to act as a check and balance to presidential authority. The primary notion is that given powers of all three branches are meant to prevent or stop abuse by any one of the two other branches. However, as in any control environment, the exercise of controls is paramount to the effectiveness of the control. In other words, if the control is there but not exercised properly or willfully refused or loathes exercising it, it is useless. In this essay, the American citizen should pay close attention to the various reasons why the control cannot be exercised or unable to be exercised. Many examples exist over the last one hundred years for Americans to review and contemplate the effectiveness of Congress as a control or check against either of the other two branches of our government. In the last forty years, there are two comparative examples of how congress in the same realm of circumstances exercised their control yet in another example chose not to exercise their control.

In the first scenario, controls sometimes do not work because those responsible for exercising them do not wish to exercise the control, thus rendering it useless. Causes of this scenario are when the president and the congress are of the same political party. During the forty third president’s second term, the president and his office communicated to members of congress a wiretapping program designed to listen into conversations of American citizens. News articles were widely published, and members of congress publicly objected while others capitulated. Statements were made by members of congress that laws on the books allowed the president to engage in programs of this nature but it was clear that this was not being done. Congress did nothing. At this time, the president’s party was a majority in congress, which gives rise to the first concern. Why are matters of law not a concern when the president is of the same party as those in charge of congress? This is an inherent conflict of interest. Thus, those members of congress who are of the same political party place in higher esteem, the affairs and well-being of the party over the well-fair and matters of law of the American citizen.

This situation gives rise to two problems. One is that matters of law are put to second class status when the president is of the same party as the congress. Thus, the effectiveness at safe-guarding the affairs and civil liberties of Americans becomes diminished and ripe for abuse. It creates an atmosphere of false superiority where the president and the controlling party, whether democrat or republican, feel they can cannot be stopped. And this is in fact the case unless the American citizen redesigns the government with the proper checks and balances through a constitutional convention. When the president and congress are of the same party, members of the minority party have no recourse to stop a president unless his offenses are so unjust that members of his own party must object out of good conscious.

The second problem is that there is no other mechanism or check when political decisions are made and used to break US law or international laws. The Judiciary is powerless in these matters to enforce laws upon the president. In fact, the office of the executive is the office meant to execute the laws. This alone is a conflict of interest. However, there are several mechanisms that could be used or created or devised to help alleviate the false sense of superiority that embodies politicians who believe they are not subject to the law. One such mechanism would be to give the minority party in congress the power to call for a vote of no confidence and demand immediate elections upon either the congress or president. There are several pros and cons to this solution which will not be examined here but rather examined in the next essay. Another possible solution would be to have a variation of the no confidence vote by giving the minority party direct access to the Judiciary and giving the Judiciary power to make a direct ruling. Rather than waiting for legal cases to work their way through the courts in the normal sense, the minority party could call upon the Supreme Court to rule on questionable matters. The exact circumstances of this power will also not be examined here but rather in the next essay.

The second scenario is when the congress can act as it did in the case of Richard Nixon, the thirty-seventh president. In this case, the opposing party was in charge of congress. A key element in congress acting was the fact that the media had uncovered and made public the crimes of the president and other members of his staff. The president and his staff alone were responsible for their crimes and actions. Thus, congress had no objection and no reason not to exercise their constitutional authority. There was also wide spread media coverage about the crimes and media frenzy and focus on the story.

The second scenario is called to your attention for the following reason. In the case of the forty third president, and the illegal wiretappings of Americans, the opposing party of the president was in charge of the House of representatives and had close to a majority in the senate. While it is true that the Democratic party did not have a majority in the senate, why in fact was there so little media outrage and coverage and no congressional action taken? Congress did not act because Congress was also responsible for knowing of the violations and doing nothing. Congress also decided to allow the president to break US and international laws.

Failures of our government of this magnitude are extremely dangerous. When the opposition party refuses to exercise its constitutional power to protect the American citizen from both presidential or judicial authoritarianism and crimes, then the mainstay of our government is broken. The first and foremost role of government is to protect the citizens of the country, their property, and civil liberties. Without these protections, we are living under an authoritarian government who merely allows us liberties at their behest. If the federal government in its design and construction believes it has the all power it needs and needs not obey laws placed upon it, then it is truly a tyranny that all Americans are living under. The only difference from the American tyranny as opposed to any other tyranny is the government is taking its time at exercising it and being selective at exercising it.

Vox Vocis res Publica

The executive order is perhaps the president’s most powerful tool of the office. They come in several forms such as proclamations or directives, and are used both legislatively and to direct administrative authority over the departments underneath the office of the executive. If used properly, executive orders allow the president to execute the laws passed by congress, conduct military affairs in wartime, and administer agencies reporting to the president.

If used questionably, executive orders have been used to start illegal wars, imprison American citizens without habeas corpus or being accused of a crime, and to seize private property without purpose of law. Due to the increasing number and scope of executive orders over the last two hundred years, the American citizen should consider how this presidential tool has been used and determine if the necessary controls against abuse exists or do not exist and whether or not should be modified by amendment or by constitutional convention.

A quick analysis and history of this power will reveal many items of concern to the American citizen. The first real weakness regarding this part of our government is the lack of prevention regarding a general abuse of the power. There is no general power that allows any other body to review an executive order for legality prior to its issuance. Thus, the president can issue executive orders such as policy additions or enhancements that may not be legal. The forty third president has issued orders regarding wiretapping of US citizens and the use of torture against prisoner of the US government which is expressly against international law which the US has adopted. The inherent danger of lack of prevention is obvious. General abuses can and will occur and may or may not be later corrected or could take years to correct.

Historically, the Supreme Court has only over-ruled very few executive orders. And as it has been stated prior, the Supreme Court’s ability to reverse an executive order or action of the congress or president is a corrective action, not a preventive action. Thus, it is only applicable if a court action is taken up and the court under its own supervision decides to hear a case related to the action. And as history shows us, the Supreme Court has not always made the correct determination under the constitution. The best example of this is the executive order that led US citizens of Japanese descent to be imprisoned and their property confiscated without showing a direct threat to the United States during a time of war. Therefore, if the American citizen cannot rely on a corrective measure for security of liberty, then it become even more necessary to have a preventive measure to ensure only legal and valid orders is given.

An inherent danger exists when power is concentrated and unchecked or checked vary rarely as is the case with the office of the president and executive orders. In any control environment, the greater the risk and concentration of risk, the greater the need for effective controls becomes the requirement. Over the last two hundred years, the executive branches use of the executive order has grown into the thousands per administration. Thus, the risk of misuse of executive orders is increased. The American citizen should honestly consider adding additional controls in a preventative nature to secure this power from future abuses.

Vox Vocis res Publica