The Many Headed Beast

The people are a many headed beast.
Horace 287 AD

The nomination of Lani Guinier to be Assistant Secretary of Justice for Civil Rights was withdrawn by President Clinton because it fostered a maelstrom of criticism in the press and the electronic media. The barrage of criticism and innuendo was so intense that it was not possible for a while to determine what the root cause of the fuss was. Talk shows had paired speakers one for and one against the nomination. The antis were usually men and the pros usually women. The men were emotional and dogmatic, the women reasoned and well tempered. On the one side was the "conservative" right and on the other side was everyone else.

There do not seem to be public liberals any more and the conservatives seem to be authoritarian religionists or law and order types. Which raises the question as to whether there are any genuine conservatives any more either. At least not after the 4.4 trillion dollar "conservative" debt. There may be a few Tories at the highest economic levels of the society.

What finally broke through the Lani Guinier melee was that she seemed to be challenging the status quo. That was the impression I got from the guy who called her the "quota queen," and from remarks from the members of the Senate's Judiciary Committee. The "quota queen" guy was using, out and out, propaganda. The members of the Judiciary Committee, the very men who would have heard her testimony had she been given the opportunity to appear before them and testify, were exercising prior restraint of free speech. Senator Joseph Biden, (D, DL) seems to be a consummate looser when it comes to protecting or promoting the rights, sensibilities, let alone the sensitivities of black women. He was a decided loser in the Anita Hill incident and he did not come across as that "distinguished gentleman" from Delaware in the Lani Guinier case.

The question is what spooked everybody and what stampeded President Clinton to withdraw the nomination? For a man who reads every thing and knows everyone, the President's excuse that he had just that moment read the stuff and found he didn't agree with it was pretty lame. His lawyers who read it during the course of selecting her were not upset. Lani Guinier's thesis has to do with the sharing of power. She and most civil rights lawyers pose the problem in that light, sharing power, making the nation more democratic, devising strategies where the governments local, State and Federal are more representative and more responsive to constituents. After all the definition of a republic—and that's the form of government we are supposed to have—is a government where the supreme power is held by the people and their elected representatives. Now who are those people? They are the "We the People" of the Constitution—the citizens' sovereign, that's who.

The two aspects of Lani Guinier's recommendations that were mentioned most were: cumulative voting and super majorities. These were the recommendations that, apparently, were going to overthrow the status quo.

Cumulative voting has been around for a long time. Probably its most widespread use is voting stock in stock corporations, which I am sure would not bother the conservatives who object to Ms. Guinier. Cumulative voting gives the voters in multi-candidate elections the option to cast all their votes (each voter gets one vote per candidate, in a seven candidate field each voter has seven votes), for one candidate or spread their votes among several candidates. This method of election assures that all votes count, unlike the winner take all elections where large numbers of voters cast votes which have no effect. Cumulative voting is certainly not a threat to the republic, in fact in some instances it might serve a useful purpose in promoting democracy. For instance if we had at-large-members of the Congress that were elected by cumulative voting, by the nation as a whole, we could change the character of the House of Representatives from a collection of local politicians, to a House which could count among its members politicians with national stature and who might serve the Federal purpose. Cumulative voting has its place and where it would serve to bring democracy to a non-democratic voting situation we should use it.

How one gets the "quota queen" out of super majorities I don't know, but then when a discussion moves immediately into high gear emotion (the people as a beast) with name calling and character definition (read assassination), its difficult to follow the logic, except the logic of the kill. Commentators immediately shifted to calling this racial quotas, as if calling super majorities, where otherwise the minority would forever be foreclosed from the governing procedure, racial quotas is a miss reading of what it means to have republican government. A republic is where the people, all the people have the supreme power, not just some of them all the time, and its all the people and their elected respresentatives, not just some of the elected representatives. On councils and governing boards where a majority even a slim majority can forever foreclose the options of the minority and where there is no inclination to share power, super majorities are in order, so that all the people and their elected representatives share the ultimate power to govern.

If we look at the case of super majorities we see that they are not rare. Now for most procedure, decisions are made by a majority of a quorum. Most governing bodies have specifications for how many members must be present to do business, that's what a quorum is. A unanimous attendance is never a quorum requirement, so that quorum is always less than unanimous attendance. A decision of the body is legal and binding if it is arrived at by the majority of the quorum. In many cases that will be less than fifty per cent of the totals membership of the voting body. But in grave matters, the requirement is for a super majority. Our Constitution for instance specifies super majorities to: impeach the president or other officer; override a presidential veto; approve treaties; initiate and ratify amendments to the Constitution. In addition, by design or error, Thomas Jefferson left the call for the previous question out of his Parliamentary Manual, thereby creating the situation where a super majority is needed to terminate debate in the United States Senate. This is the famous filibuster, named for the Caribbean pirates (fillibusteros) who were active at the time this parliamentary procedure began to be used.

On the whole, cumulative voting and super majorities are not, new or innovative, although their use in certain circumstances such as the filibuster may hinder rather than promote democracy. The critics who called her recommendation for super majorities, racial quotas, did not mention the filibuster and how it was used to deny power sharing to any except white citizens.

Part of the problem with voting rights is that the Constitution gave the authority to regulate the election process to the States.

(Article I Section 4. The Times, Placers, and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof but the Congress may at any time by Law make or alter such regulation, except as to the Places of chusing Senators)

By and large, the voting authority held by the States was abused calling for voting rights acts after the Civil War, including Constitutional amendments, and recently with the new Voting Rights Act and Civil Rights Acts of 1964, 66, 68, 91. Voting rights are at the heart of Federalist Antifederalist politics. The Antifederalists States' Righters, the politicians who want a Federal government of opportunity, not one of spending for social issues, would have us return to those days of yesteryear where the States presided over citizen's rights, the Constitutional guarantees as well as the unalienable rights. Spend money on the military, build dams, and highways, but don't spend money empowering people. (People should empower themselves.) Amazing as it may seem, the one person, one vote court case also came in 1964. (Reynolds v. Sims 1964). There is a long history of abuse of the minority by the majority and a short history of redress of grievances, with each step no matter small grudgingly given. The conservatives keep pointing to the Constitution and saying what the minority wants is not in it. That's right. The Constitution was put together to establish order not grant rights. A big fight was necessary to get a Bill of Rights, more accurately a Bill of Limitations put in it. The rights we all want are in the Declaration of Independence. We want the unalienable rights.

Consider some aspects of our current system of elections, namely the two party system, Congressional representation, and the United States Senate. What is sacred about the two party system? When the nation was founded the idea of parties was anathema. Why did we change, why did we elect to go the route of partisanship identifying with party, instead of a homogenous electorate that would vote its conscious each. time?

Parties facilitate obtaining and retaining power. Laws, which inhibit additional parties, keep the political power channeled in the two parties. Question. Do the two parties adequately represent all the citizens sovereign? No they do not. If not, why not more parties?

The system is designed for two parties, an additional party is not easily accommodated. Ross Perot was accommodated because he had enough money to overcome all the obstacles, namely about 200,000,000 dollars.

Our system of Representatives and Senators with yet a separate election for the president gives rise to the fact that the two party system occurs in a different way in each level of government.

The presidential party is not related to the congressional parties, in each of the 50 States. Consequently, United States does not have a ruling party. Even with the Democrats in control of the Congress and the Whitehouse, they do not constitute a ruling party. A significant number of Democrats in Congress do not vote with the president because they represent their local, not the national interests in the Federal legislature. They are local Democrats because that's the way they are elected but they vote with the conservative Republicans because that is the mentality back home and they want to get re-elected. Many of these districts are traditional conservatives Southern Democratic districts have yet to shift to the Republican party. Such a system can not be disciplined because no elected member of Congress is dependent upon the system that might consider disciplining him/her. The two party system inherently, limits democratic participation because it can not represent or reward the full spectrum of political ideology in the electorate, but it makes for "clean, efficient," election system.

A parliamentary system, such as was considered by the Framers, would go further than the present system in representing the citizens sovereign. They gave us a modified parliamentary system with the electoral college instead. The ultimate concern with the two party system is that in the electoral college no candidate will get a majority of the vote and the vote for president will be made by the House of Representatives. That vote by the House would be an exercise of the parliamentary system. In a parliamentary system the electors, i.e. the party members who voted for the president could be held accountable for their actions, much more easily than the present system, where the elections are not related to each other and the electors are anonymous. The two party system is not the best but its all we got at the present time.

Consider the question of Congressional districts. We have made representation an article of faith in our form of government. No "taxation without representation" were the fighting words. We carried the point of representation to specific geographic representation within a State for each elected member of the House of Representatives. Since the State legislature gets to draw the lines for districting a State, the party in power naturally draws the lines to suit their party purposes: Gerrymandering is the term invented to describe the tortuous, contorted areas that became congressional districts. Lots of shenanigans most of it aimed at depriving the other party or minorities of their share of the power. Where the gerrymander was used to achieve a racial balance, it was struck down by the U.S. Supreme Court for not being an aesthetically drawn map.

Consider the election of electors for the election of the president. The electors are independent. They can vote for the party that elected them or for whomever they choose. In the 1946 presidential election; Strom Thurmond bolted the Democratic party and formed his Dixiecrat party. He got 46 electoral votes. When votes are cast for the electors, all the electors of a State are considered as one item, and the candidate whose electors receive the most votes get all the electors. If Maine goes 50.5% for electors for the Republican candidate and 49.5% for the Democrat, the electors are not split roughly fifty, fifty, they all go to the Republican. That is a winner take all election. It tends to keep the two party system two. Clinton won the presidential election with a plurality of the popular vote, about 43%, but he had a majority of the electoral college vote.

There have been calls for the direct election of the president. The Framers rejected it because it would be subject to a great deal of manipulation. They also rejected the parliamentary system and opted for the electoral college because they were unsure of the future. In spite of misgivings, the delegates went for the electoral college because they knew that George Washington was going to be the president.

Recently there has been the suggestion that the electors be elected by congressional district not at large in the State. Electing presidential electors by congressional district would be much more democratic than the present system. Many more people's votes would count.

Consider the question of voter registration. This has to happen—even before any voting can take place. States have played heavy handedly with this process to keep "them" away from the polls in the first place never mind what the voting system was. The fight over voter registration goes on. Prince Georges County Maryland has a voter registration procedure designed to keep newcomers to the county from voting. The voter registration office is open some certain few hours upon quick notice and then closes. Protests were of no avail.

The Congress just passed the motor voter registration act which will allow people to register to vote when they get their drivers license. While this is better than it was it still does not address the notion that the voter is a citizens sovereign not just a person who wandered onto the scene. The Federal government is obligated to account for all the citizens sovereign, by name, and social security number. It's not enough to have a census for the purpose of apportioning the vote on some statistical basis. The Federal government if it is to realize its potential of serving We The People has to account for all the citizens sovereign not only to ensure that they vote but that they receive their unalienable rights. Voting must be compulsory, with a vote present if no candidate is suitable otherwise the delinquent voter should a $25.00 fine. The fines can be used for the public financing of campaigns. Ages of voting should be uniform throughout the land.

Will our election system ever be complete or perfect. Probably not. However, that is no reason not to try to improve it. Congress is also fooling around with campaign financing. Nothing could be more basic to anti-democratic government that the ability of the magnates, business and industry, and PACS to buy politicians. This mass of wealth poised over the political system is like a huge glacier. It grinds up what's beneath it and it makes it own weather. It should be a crime to privately finance a campaign for public office. The Supreme Court ruled that mandatory limits to campaign financing for Congressional elections violated the right to free speech. Is the presentation of a candidate for public office a right of free speech or is it rather a question of fairness? For instance several people are applying for a job, the successful applicant will be selected by the citizens sovereign in an election. Is the campaign a matter of free speech for the candidate or for the donor of money? Can the employer specify how the candidate will apply for a job or does the candidate have a legal right to apply anyway he/she wants to. It seems to me that rather being a matter of free speech a political campaign is a matter of fairness in applying for a job. (If you interview one candidate for a job you have to interview all of the them.) Should candidate "A" be ill considered simply because he/she did not have enough money to run the campaign against candidates "B"? Arlen Spector (R, PA) beat out a worthy challenger, Lynn Yeakle, for his Senate seat in Pennsylvania because he outspent her by about 2 million dollars: (Spector spent $4.42 per vote for 2,342,053 votes.) Was that a fair election? What would have been the outcome if they started out with equal amounts of money? Wouldn't it then come down to how each one managed what money they had, but more importantly what they had to say? If free speech and fairness are to be the criteria, then perhaps unlimited spending should be permitted if the donors of these vast sums gave equal amounts to all candidates in the field. Sound a little silly. Sure it is, so is giving unlimited amounts of money to one candidate and calling it a fair election. Elections should be publicly financed as a condition for applying for the job and the amount allotted for elections should be drastically reduced so that candidates would be forced to use their own voice to express their own ideas instead of those of the hired ad agency. Ad agencies who work on elections for public office ought to go broke. In 1964 we got one person one vote because of the Courts. Now we need $1.00 one vote, the dollar you check off on your income tax form and the fines that should levied for the failure to vote. (See above.)

The citizens' sovereign obligations to the nation is to become well informed and active in public affairs through the exercise of their unalienable rights. Voting is only one part of the exercise of the Constitutional guarantees of citizenship. It is a vitally important part because it is one of the mechanisms by which the citizens sovereign interact with and become part of the self-generating, self-replicating decision system we call the republic. We The People hold the sovereign power. Any inhibition of the legitimate use of that power is lese majesty.

Denying the citizens sovereign their unalienable rights results in structural poverty and a social welfare system that at best is ineffective in providing happiness, fulfillment and contentment in its recipients—the attributes the Declaration of Independence says is our creator given right. Denying the citizens sovereign their unalienable rights distributes much if not most of the income to the magnates and fosters chaos in the work place.

All the Civil Rights Acts and all the Voting Rights Acts have been passed with the idea of empowering people to learn and earn and take control of their own lives so that they can be self-supporting participants in the self-generating decision system that is the nation. The civil rights movement pressing for a more democratic society where ordinary people can share in the abundance of the nation, because they have earned the right to do so, speaks to the need for people—the citizens sovereign—to have access to their unalienable rights.

All the efforts of the Founders and the Framers, all the patriots and all the men and women who fought and those who died in the wars to secure freedom to this nation were part of this civil rights movement. All the citizens sovereign who voted in the innumerable elections also took part and every school kid who takes civics and learns that we are the land of the free and the home of the brave is also part of the civil rights movement.

At the least, Lani Guinier deserved a hearing before the Judiciary Committee of the United States Senate. The fact that she was shouted off the stage without a hearing and then withdrawn by the president speaks little for quality of life in the republic. She is another casualty in the fight for our basic civil rights, not the least of which is a fair hearing before the electronic lynching.

...Ted Sudia...

© Copyright 1993
Institute for domestic Tranquility