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The Coming Reform Era

The presidency of Donald John Trump has shown particular vulnerabilities in the separation of powers, and those will need to be addressed. Here are some areas needing consideration.

Appointments

The abuse of acting officials instead of confirmed ones is a high abuse of office. There needs to be statutory language (which will be challenged, but should be upheld) setting strict limits on how much the executive can delay nominating for any given position. Any changes should also codify a timeframe for senatorial response or a dead-by limitation for non-response.

DOJ

The crimes of the Attorney General notwithstanding, the main reform needed in the Department of Justice is avoiding the appearance of bias by investigators. One option would be mandatory duty rotation to undermine the system where one or more investigators “owns” a particular investigation. The in-rotated agents would review the casework and would be less tolerant of any mistakes or malfeasance, given they would be responsible for moving the investigation forward.

Another option would be to have some agents conduct preliminary audits of investigations while they’re ongoing, to catch any problems sooner.

Financial Disclosures and Divestment

Primarily, rather than relying on disclosures by candidates and officeholders, the government should require publishing by the Treasury or other offices holding documents. (In general, where the law can avoid an opportunity for criminality, it should be taken; there’s no reason to let a candidate be delinquint in matters of disclosure. Indeed, this principle would also avoid many honest mistakes that are made, which makes it doubly effective.)

In terms of divestitures, perhaps some options may be offered, including one whereby all profits are forfeited during tenure of office and for some period after, for cases where an official really wants to hold onto some property or business for personal (non-profit) motives. By pushing the profit timeframe far enough away from official business, it may dull the appeal of trying to profit off of official acts.

Judicial reforms

Given the fervor with which the Republicans have sought to pack the courts, one suspects that some reforms will be necessary. These should include continuing legal educational requirements for judges, so that they may be apprised of the fast-changing legal landscape.

There will also need to be some reorganization of the various courts and circuits. That’s a long-standing problem that’s been needed almost as badly as increasing the number of seats in the House.

Causes of Action for Congress

Often thwarted by questions of standing, specific causes of action to bring suit for enforcement of Constitutional law should be codified. Congress itself should revise its rules to be prepared to again exercise its inherent contempt authorities for the enforcement of its subpoenas.

It should also create and maintain its own store of the more necessary government documents, separate from the executive, as there is zero cause but obvious and illegal action by the executive to withold important documents. Congress should be furnished all necessary documents as a matter of course. It ought not have to ask the executive for copies later.


There are many more issues that will need to be scrutinized and reformed. Many of the issues will only come to light in the coming decade, as we shall never in our lives see the end of the drip, drip, drip of corruption that this administration has gotten up to.

But, like Love Canal and other environmental disasters in the past, the toxic sludge will bring a reform era to American law and politics.

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A Member-Oriented Legislature

One of the big problems with how both chambers operate is the heavy reliance on the leaders to set the agenda for the majority. Things like McConnell’s decision to block an election-year recess so that Democratic senators can’t campaign for reelection, or McConnell’s decision to block a constitutionally mandated duty of the Senate to advise on a judicial nomination. Or Paul Ryan pulling a fast one on Republicans in the House who wanted a vote on DACA.

You have a situation where, by virtue of not wanting to cooperate with the other party, members are forced to adhere to leaders that do not serve their interests or their states’ or districts’ interests. Members of both houses subordinate themselves to the leaders and the leaders’ priorities. The chief priority is to retain power, which is not something anybody outside of those relying on power for political patronage cares about. Down here at sea level, far below the peak of Mount Congress, we just want good governance.

In a better world, the leadership’s chief goal would not be retaining power, but in increasing the liquidity of legislation and making it easier for members to accomplish the work of their constituents. This kind of member-oriented legislature would put work ahead of elections. It would devolve leadership power to members.

Ah, but we have this pesky Nash equilibrium to deal with. The Republicans won’t lend the Democrats a cup of sugar, and the Democrats have been burned too many times by trusting the Republicans. If the party in power relinquishes the stranglehold, and still loses the next election, they will have squandered their fleeting chance to do anything to further their agenda. And even if they retain power, the other side will use the increased power to obstruct!

But the reality is that we’re approaching a breaking point with partisan greed. The Republicans took up where the Democrats left off in torching the filibuster on appointments. The president has openly blathered about abolishing the filibuster full stop. With the Senate so narrowly divided, there’s a maximal tendency for McConnell to try to change the rules so that instead of saying “Nay” to vote against a bill, Democrats will have to say, “Trump MAGA Wall” to vote against a bill.

One option to fix the logjam is to require committee-driven quotas for legislation. That each major committee shall produce and shall have voted on no fewer than five major proposals per session, or whatever works. A force-flow of legislation, functioning much like a writer setting a daily goal even if they have to write “Al lwor kan dnopl aymak esjacka dul lboy” over and over to make the nut.

Another quota system would require at least one minority piece of legislation per five majority pieces.

Yes, the majority would invariably vote the legislation down. But making the votes mandatory at least puts them on the record against expanding Medicaid to cover tofu baths or against requiring firearms to be referred to as, example, “The Honorable AK-47.”

Another important option would be to either term-limit leadership terms, so that different members would have to become leaders, impose limits based on poor performance, or simply require mandatory votes to continue leadership.

Leadership is one of the big problems, so changes that increase turnover or at least put more pressure on leaders to get things done in a bipartisan manner would be welcome. The main criticism here would be that it could force good leaders out prematurely. At this point in America’s political decline, that criticism would be much like panning ice cream for its propensity to melt.


There has to be some way to entice cooperation and better legislative flow. The decision not to do anything about infrastructure, for example, is approaching the threshold of gross negligence on the part of congress. There are other major priorities that keep taking a back seat to silly things like charging a trillion dollar tax cut onto Uncle Sam’s credit card.

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Congress Should Pass the Laws We Know are Needed

As the US Senate appears close to a compromise on DACA and border security, we are once again reminded that the major challenges of our day are not black boxes that deny any solution. They are clear roadmaps to the changes that need to be made. The lack of action, the lack of deals, stems entirely from the recalcitrance, more often than not by Republicans.

CHIP

Children need healthcare. Kids get sick a lot. Colds and strep and chicken pox. Some have asthma or other chronic conditions. Everybody knows that kids need to go to the doctor. The US Congress knows. But they don’t act. States have to start planning to deny new applicants and pare back services.

It’s a no-brainer. Pass it.

TPS

The president has rescinded temporary protected status for Haitians, Sudanese, Nicaraguans, and now for Salvadorans. The law was being stupid, but in hold-my-Diet-Coke fashion the president has made it stupider (and went on to add insult to injury).

An updated TPS law would set forth a clearer understanding of the stakes when admitting peoples’ affected by disaster of whatever kind. Either they come for a strict and limited time, without the sort of extension can-kicking that created the current masses under threat, or they come with a pathway to permanent status.

There should be no more of this nonsense where the law basically designs a trap for hundreds of thousands who left a tough break, only to be haunted by its ghost ten years later in the form of a cruel presidency.

The Wall

Don’t build it. If you’re going to build it anyway, it should only be in concert with DACA and full immigration reform besides.

Other Issues

There are plenty of regulatory changes needed, with Congress empowered to force them through new legislation. To hear Republicans tell it so often, there’s not a business in America that can open for the day without submitting forms first. But rather than turn those alleged instance of misregulation or overregulation into changes to the law, they simply let them continue unabated. They should fix ill-fitting regulation. Democrats may quibble over whether a given law protects enough, and that’s where compromise is needed, but generally they should welcome streamlining regulations because it strengthens the argument that sensible regulation is possible.


And so on. The problem is not that we don’t know the right moves. It’s that these Republicans have chosen to Norquist themselves up the river by pledging fealty to idiocy. They can’t compromise, they can’t do what needs to be done. They have no business being there. Work requirements for Medicaid? How about some work requirements for Republican legislators.

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The Prospects for Federal Legalization of Marijuana

There are enough Republican senators from states where marijuana has been legalized: Alaska (2), Colorado (1), and Nevada (1) to tip the balance in the Senate on a bill to legalize Marijuana federally (or, if possible, at least some compromise that prevents federal law from being enforced in states that legalized).

The House? 26 Republican members hail from states with legal pot:

  • Alaska (1)
  • California (14)
  • Colorado (4)
  • Maine (1)
  • Massachusetts (0)
  • Nevada (1)
  • Oregon (1)
  • Washington (4)

With a split in the House of 239/193 (3 vacancies), the tipping point would be 24 members, which makes it close (and assumes that all Democratic members would vote aye while all non-legalization-state Republicans would vote nay).

Given that eight states have already legalized marijuana, 14 have decriminalized, and 29 have medical marijuana, it is inevitable that federal-level legalization will develop. The question is how close is the Congress from enacting that.

2018’s midterm elections could prove pivotal in the House for the election of a body with enough votes on the matter. You also can count at least four states considering legalization via ballot initiative (Arizona, Florida, Missouri, and Nebraska) plus three more medical initiatives (Missouri, Oklahoma, and South Dakota). Passage would add more representatives to the count.

But assuming it does not, the question becomes how much leverage the legal industries, both recreational and medical, have to get non-legalizing states’ members to cooperate.

For example, the banking industry would see benefits to a change in law allowing for the marijuana industry to participate in the regular financial system. Given that the industry is poised to be worth some $40 billion by the end of the decade, that’s a lot of transactions and contracts for various businesses to profit from.

These subsidiary businesses, which include those who are supply-chain for manufacture, distribution, and marketing of processed products, as well as out-of-state home-growing/horticulture suppliers, all have some level of sway over legislators.

It’s not clear what would happen today, much less in a year or two, if the Congress took up a bill on repealing federal sanction of marijuana. Which gets to the other hurdle: leadership. Speaker Ryan is unlikely to allow such a bill to come to a vote any time soon. The dysfunction in Washington means that there are a number of high-stakes issues currently under consideration, with deals to be made or not. That includes the basic question of funding the government.

Such an environment is not ripe for an issue like marijuana to come up, so it will likely take one of two things (or both): the midterms turning the House into an especially pro-legalization body that’s ready to act, or AG Sessions deciding to crack down in legal states.

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Paths to Tax Reform

The Republicans have two basic options. They can go for expediency, raising the deficit in the short-term for tax cuts, avoid stepping on any toes, or they can go for real reform that involves dealing with blowback from special interests and being fiscally responsible.

It’s a hard choice. The early signal is they will go for the coward’s cut, since they are seeking to use reconciliation and not starting from a place of bipartisanship. It’s the route used under President George W. Bush, which is why his tax cuts expired.

But let’s say they want to go the responsible route, instead. How do you deal with the real estate lobby that will count the sitting president among its members? Or the carbon fuel lobbies that will want to keep their own favorite tax toys? Or pharma?

One way, maybe the easiest, is to reduce all of their loopholes equally. If they all get a haircut, it’s hard for any one of them to claim they were singled out. And the stock reply to their wailing becomes, “We did it across the board, fellas. Suck it up. Walk it off.”

Now, some of those groups may find pressure points to lean on, but if they are all pushing at once, it’s possible that they create a keystone arch of pressure, all pushing against each other, and leaving a pocket that allows the thing to pass. The weak point, they keystone, would be the president, who would probably cave on real estate treatment, and the arch would collapse.

Another option would be a sort of parametric tax code. Basically, you would formulate a point system based on size of business (gross revenue, number of employees, etc.) among other factors. Then the business can spread their points among various tax strategies as they see fit. Some might have more points in capital investment, while others might have more points in employee perquisites. But the overall deductible income would be minimized, and the tax code could be modified not only to strengthen or weaken the areas of deduction, but to increase or decrease the points available.


We really do need tax reform, and if the Republicans would take it seriously they could do a lot of good. Nobody expects them to set the rates high enough, but that’s the beauty of the tax code: the Democrats or future generations can always increase the rates to a responsible level. Right now, it’s more important to see the code simplified, even if it means the rates aren’t right.