Crazy Idea: Actually Voting! (Part 2 of 2)
Congress wastes so much time and resources doing nothing. How can we force them to do their jobs?
- Legislation must be clean and single clause in order to avoid pork and allow each element to be reviewed and approved on its own.
- All Congresspeople must vote and cannot avoid their duty to do so. Each bill would require 61% of the vote in order to move along the process.
- Attempting to circumvent the legislative process as laid out by the Constitution should be considered treason.
Last time, we began the process of creating Article 1, Section 11 of the Constitution in order to force voting to happen within Congress.
One of the tools that Congress uses to stop legislation both as it moves between chambers and even within its own chamber is the process of adding amendments to make it undesirable. This is the next procedural move that must be stopped.
Clause 6 shall read:
All legislation must consist of single clauses directly related to the same subject at hand. Each clause and amendment must be passed separately in its own approval process.
Much as this section has been written in individual clauses, so, too, must Congress write their bills. Then, it is not voting on a bill in totality if there is just one part that is objectionable. Instead, each part would be open for debate, voting, and sending to the President for signature or veto. As written, this would also give the President line-item veto power since each clause would be presented individually and therefore would require sign-off on each.
At the same time, if there are differences between the House and the Senate, the differences will come through Amendments that would move through their own process so as not to stop the individual clause if there are no threshold objections. More important than all of that, though, is the end of pork packages. It is a common practice for Congress to attach some unrelated spending to a bill as a matter of compromise in order to get a particular person’s or group’s vote. More often than not these add-ons have nothing to do with the legislation at hand and everything to do with securing funding for the Representative’s or Senator’s home area and score brownie points with the voters.
If we eliminate the ability to just attach anything as a package deal and make it be voted on individually, then it will simply be on the merits of the item alone. True, the legislators could just make the same type of deals and agree to vote for each other’s items, but at least this way it would be clean and there would be as many checks as possible between the two chambers and the President. Since each clause would be voted on individually, all members could be held accountable for their vote to that single line item. However, in order to do that requires getting every vote on the record.
Clause 7 shall read:
All Representatives and Senators, save for vacancies or physical inability, are required to cast a vote on all legislation presented before that chamber of Congress.
This may seem an odd item, but theoretically a Representative or Senator could just walk out of the room (or never show up to the room in the first place) and not vote on an item. Abstaining (voting “present”) is a tool commonly used to avoid the appearance of taking a stand or getting on the record of exactly where a person or organization aligns. Often this is done in arenas like the United Nations in which a nation does not support some specific resolution but will not vote against it in order to not appear to be taking sides or to appease some opposing party. The standards of the U.N., though, are outside the purview of what is needed for the United States of America.
Within the confines of the United States, our elected officials must be held accountable, and the only way to do that is to have them on the record. This is how the voters in the country get to check on those representing them because there is a definitive record of not just where they stand on a bill in total, but on each clause and adjustment of that bill. It is the official record that can be used for or against an individual that is supposed to be the will of the people they were elected to represent.
The exceptions for not voting should be few and far in between. In the prior section, we have tried to eliminate times of vacancy as much as possible, even if it is with a temporary person. However, it is always possible that among nearly 400 people that a vacancy can happen at any time and that is understandable. That said, the idea of “physical inability” is speaking not of absence but of being in a hospitalized situation. As we will get to shortly, we will need to make sure Congress is always able to vote when necessary. Before that, it is time to severely limit what legislation can even move forward.
Clause 8 shall read:
All legislation must have at minimum sixty-one percent of the vote of all legislators in the chamber in order to pass to the next phase of the bill’s process.
Here is the biggest rub of all. Today, legislation can pass from one chamber to the next and up to president with a simple majority. As the last twenty years have shown, this means the majority of legislation was passed on party lines. When one party had control of all chambers of Congress and the President, they were able to get their special interest items through. This includes recent massive items like the Affordable Care Act of 2010 and Tax Cuts and Jobs Act of 2017.
The Affordable Care Act was pushed through by Democrats with 51% of the House of Representatives, 60% of the Senate, and 53% of Congress in total. The Tax Cuts and Job Act was pushed through by Republicans with 54% of the House of Representatives, 51% of the Senate, and 53% of Congress in total. In other words, both were equally forced through by one side or another simply because of their majority at the time and their control over the White House at that moment. More so, in both cases no member of the other party voted in favor of the other’s legislation. In reality, several Democrats voted against the Affordable Care Act and several Republicans voted against the Tax Cuts and Jobs Act.
Going back to the prior section of trying to limit the powers of one party and setting procedures that will hopefully limit one party from majority control, this clause is the next step in that process. Based upon voting patterns, bare majority should not be enough to move a piece of legislation ahead, especially in a country so evenly split. As has been seen with the Affordable Care Act, once the other party gets enough control, they work to dismantle that legislation. It is not a stable environment for people, municipalities, companies, the economy, or any other metric.
Poignantly, Congress used to believe they should have certain items that reached a higher level of acceptance. This was especially true in appointments to the Supreme Court where Senate Rules required a “super majority” of 60 votes. However, with stonewalling and no discussions between parties, this requirement was removed in favor of a simple majority. Lest this be considered an attack on Republicans, Democrats have done or attempted similar measures, so both major parties have equal blame.
We need to take that choice out of their hands and make sure legislation that has passed already has at least a “super majority” so that it is not just a constant batter-up position. Engraving in the Constitution a 61% requirement for any bill to pass will be closer to getting real legislation into law and limit individual party power.
Further, the threshold is below the veto override. That remains at 2/3rd (66.66…7%) of the House of Representatives and the Senate, so there is a gap between passing and guaranteeing it become law. Even if the vote was with 67% of the vote, there is no guarantee that those who voted for it will override a veto as they may respect the President’s wishes or have reservations to begin with. Either way, it would give a tool to make bills more worthy of consideration.
Finally, this shows why the Vice President no longer needs his tie breaking power. Only legislation with 61% is going to pass through to the next part of the process, so if the vote is tied at 50/50, then it has effectively failed.
With all of these clauses in place, all that matters is enforcing them in the strongest terms.
Clause 9 shall read:
Congress shall make no rules or exceptions to circumvent the process of scheduling and conducting a vote.
This one sentence expresses this thought: do not try to create loopholes! The bureaucracy in Congress is self-inflicted, but that does not mean that all of it is without value. These rules were created to bring order to what can be a chaotic process within a large body of people. The problem has been that over time these rules have mutated from helpful elements to weapons of war to make Congress not function in order to push (or suppress) a specific agenda. Here we have a Clause that is ambiguous as well as wide, making all of those rules reviewable under a single criterion: does it stop legislation from flowing naturally? If a rule does not, then there is no worry. If it does, then there must be consequences.
Clause 10 shall read:
Failure to follow the guidelines of Article One, Section Eleven of the Constitution and any future amendments shall be considered Treason of the United States of America. The Vice President of the United States is responsible for enforcement of this clause and bringing forth charges of Treason against individual members of Congress.
Does treason seem a bit harsh? Well, let us look at Article 3, Section 3, Clause 1 of the Constitution which is the only point in which Treason is defined:
Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.
The next Clause gives Congress the ability to define the punishment for treason, but as you can see treason is very tightly tied to just one thing. By the Constitution, treason is about supporting enemies of the country and… that is it.
At the time the Constitution was written, there was great concern about foreign powers attempting to take over the fledgling nation. These were well grounded fears and during the revolution they experienced such betrayals. Modern estimates put that only about a third of the nation supported separation from England and the creation of a new country, so there were plenty of leftover questions on loyalty. Others were not sure that anything in the Articles of Confederation allowed the founders to even throw that out and start anew (hint: there was not). Meanwhile, as covered when we started this journey, the States were not exactly sold on what the Constitution offered. In other words, there were lots of chances for someone to turn to the other side for support.
Over time, the United States has become a super-power and a beacon for how other nations can function in a representative democracy. Foreign powers do try to influence and impact what happens within the borders of the United States of America and people do fall under the spell of those powers for a variety of reasons. That definition of Treason should remain in place and prosecuted as normal.
What about the enemies within, though? What about putting oneself before the country? What about betraying the principles of the nation and pledges made when accepting office for personal or party gain?
Are these not attacks on the nation? Does not hurting the nation constitute support to enemies by default?
The point of this last Clause is to remove the shield of invincibility that members of the government have. If they do not follow the rules or abuse their positions, what is the consequence? Most of the time it is nothing at all, and at worst it is loss of job when the voters get a chance. As covered previously, most members of Congress get re-elected so the same problems continue generation after generation. There needs to be a real and tangible consequence to trying to abuse the trusted position of a Representative or Senator.
Therefore, the recommendation is to make it treason to try to stop legislation using rules and procedures and underhanded methods. There are succinct responsibilities and functions that the leaders of each chamber and the members within have, and if they refuse to do their duty then they need to be punished. The impudence must end. There is no better example of this than with the current Supreme Court.
When Supreme Court Justice Anthony Scalia died in 2016, President Obama did his Constitutional duty by presenting a nominee to the Senate in Merrick Garland. The Senate’s job was simple: interview and vet the candidate then cast a yay or nay vote. That is all there is to it! Instead, Senate Majority Leader Mitch McConnell decided to block the candidate from even getting a chance to talk to Congress, never mind voting for or against him. Then, after President Donald Trump took office, he in turn nominated Neil Gorsuch and McConnell immediately took up the nomination. When it became apparent he was not going to have the minimal votes required to instate Gorsuch, McConnell then changed the rules to push the nominee through with a simple majority. Finally, in May 2019 McConnell told various groups he would completely ignore his own reasoning for not bringing Obama’s nominee to the floor (Supreme Court nominees should not be considered in a Presidential election year) if a Supreme Court position became available in the election year of President Trump.
This, of course, came to pass with the death of Justice Ruth Bader Ginsburg on September 18, 2020. At that point, not only was it truly within the election “season”, but millions of absentee ballots had already been cast.
Under this clause, that would all be Treason. Those actions were done with the malicious intent of personal party gain and had nothing to do with just doing the roles and responsibilities as laid out by the Constitution. Not taking up legislation within a required timeframe, ignoring the Executive Branch’s ability to bring an item to the Senate Floor, pushing items through below an acceptable threshold, and capriciously changing rules in order to create a loophole around the intent of the Constitution — this is the exact reason that the entire Section 11 is needed.
By the Constitution as written, though, McConnell has done no wrong. He has worked within the framework of the law and manipulated it to his favor. Those like McConnell — whether Republican, Democrat, or otherwise — would also be within their rights to do exactly the same thing or something similar. Many have promised to do so, and others already have done so in the past. For example, in the 2014 Senate the Democrats had 53 seats plus 2 caucusing Independents to the Republicans 45. Meanwhile, in the House of Representatives there were 234 Republicans to 201 Democrats. By July 2014, Republicans in the House of Representatives were complaining loudly to the press of the of the over 300 bills the House had passed but the Senate had not taken up under the tutelage of Majority Leader Harry Reid.
And they were exactly right! Sure, those bills stood almost no chance to pass the Senate and — even if they did — would surely have been vetoed by President Obama. But that is not the job of the leaders of these chambers; the job of congresspeople is to fashion and vote on bills only, not to use legislative tools to avoid doing what they are Constitutionally obligated to do. Most certainly, their job is not to create never ending gridlock.
Actions like these are not in benefit to the people of the United States; they are in benefit to a single Party’s power. Now, a Party may be doing what it thinks is best for all people, but as previously established Congress is not a representation of the will of the people. To bring it full circle, first Congress must become a more even distribution of the mix of views and peoples of the United States. Then, with that, Congress needs rules to function in benefit of the nation and not in benefit of themselves or their parties. And finally, when that fails, and they try to do something that is against the Constitution then a consequence needs to be available.
That consequence is the accusation of Treason. In a final check, only the Vice President would be able to accuse a Representative or Senator of Treason based upon breaking Section 11 of the Constitution, giving the Vice President oversight power that does not exist today, as well as someone outside of Congress to make sure they follow their own rules. Of course, being accused of treason is not the same as being convicted, and any person thus accused would have the ability to present their case to the courts. But should they be found guilty, then the repercussions become real.
TO BE CONTINUED…