The Gun Control Debate: Real Solutions

A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.

                              -  Second Amendment to the US Constitution, adopted December 15, 1791

Today I want to address a very controversial issue in the media and our country today: gun control. I want to reveal from the outset that I am a strong supporter of the 2^nd Amendment; I believe it should be read broadly, and any limitations should not be on the arms themselves, but rather access to them. I’ll explain as I continue.

Let’s start from the beginning. When analyzing any legislation, and don’t forget that the Bill of Rights was the first bit of Legislation approved by the new Congress; we must look at several factors. I undertake study in the same way a Court might, using statutory interpretation. A key concept I learned in law school was importance of punctuation and phraseology. This is how I construct the above legislation, whose wording and style was confirmed by Thomas Jefferson and adopted by the States.

First, we find which the key phrase is and which the modifier is. As I read the clauses, the main clause is “the right of the people to keep and bear arms shall not be infringed.” It is modified, meaning the main clause stands alone without it and it is merely an addition, by the phrase “A well regulated militia being necessary to the security of a free state”. Therefore, as I read and understand it, the right is absolute. The reasoning, at least partially, is the need for a well regulated militia and their impact on security. Now please, don’t misunderstand me, I do believe that the government is authorized to regulate that right, just as they are other rights.

Let me step aside and share another important aspect of my perspective. I am a private defense attorney by trade. Generally speaking, I read the Bill of Rights, and all laws and rights, broadly. For those amendments that apply directly to the people, I will always hold that principle to be true. Whether it’s the right to free speech, to be free from searches and seizures, to remain silent and not present evidence, to have an attorney, to have your case heard by a jury, to be free from excessive bail or punishment, or anything else- it should be read broadly.

Ok- back to the topic: another aspect of statutory interpretation is to look at legislative history. Unfortunately, there is no Congressional legislative history about the Second Amendment. There are some legislative histories from the States, but those who understand the process of ratification know that the State’s cannot change the wording of the Amendment. It becomes basically an up or down vote. Many say this was done purposefully, to hide the true history; but others point to the lack of ANY records- they just weren’t kept as well as they are now. No notes whatever were made of the Senate's debate in Congress, and the stenographer for the House of Representatives was a drunk. Stories tell of a man who often daydreamed and filled his journals with doodles and sketches, instead of the remarks of the members.

However, we can look at the history of the country and infer some legislative intent from that. American history is shared with English history. When William and Mary took the throne of England in 1688 after the Glorious Revolution, one of the first acts of Parliament was to restore the constitution with its provision that every man may arm for self-defense.  One hundred years later, the British had taken a more mercantilist policy with the colonies. It created a fall in prosperity and a return of hardships. Things got so bad that British troops had to be sent to suppress riots and collect taxes. Between 1768-1775, the British policy was to disarm the American colonists by whatever means possible. They used entrapment, false promises of safekeeping, banning imports, seizure, and eventually shooting persons bearing arms to accomplish this goal. In 1774, the British embargoed shipments of arms to America. It is said that the Revolutionary War began when militiamen met British troops at Lexington and Concord. The reason the British were marching on those towns to confiscate arms and powder. The colonists considered these actions a violation of their constitutionally guaranteed right, as Englishmen- see above, to have and use arms for self-preservation and defense. In 1777, William Knox, Under Secretary of State for Colonial Affairs, argued that: The Militia Laws should be repealed and none suffered to be re-enacted & the Arms of all the People should be taken away, & every piece of Ordnance removed into the King's Stores, nor should any Foundry or manufacture of Arms, Gun-powder, or Warlike Stores, be ever suffered in America, nor should any Gunpowder, Lead, Arms or Ordnance be imported into it without License; they will have but little need of such things for the future, as the King's Troops, Ships & Forts will be sufficient to protect them from danger. This is the sentiment that set the basis for the later amendment.

After the colonies won their freedoms, and the states organized to repair the Articles of Confederation, there were other concerns. The young nation was barely holding itself together. There were already differences arising between the Northern and Southern states regarding slavery. After being released from a tyrannical government which sought to change their way of life, the Southern states were concerned that the Northern states would seek to do the same. This was the source for the 3/5ths compromise and, some say, the second amendment. By assuring the Southern States that they could keep their arms, the Northern States were essentially saying that their freedom would be assured. On December 15, 1791, the second amendment was adopted.

Initially, states tried to enact gun control laws, but a pervasive sense of individual right spread. The first relevant state court decision was Bliss v. Commonwealth (1822, KY). The Kentucky court held that "the right of citizens to bear arms in defense of themselves and the State must be preserved entire,..." This holding was unique because it stated that the right to bear arms is absolute and unqualified.

Gun control didn’t arise as a national issue again until the mid-19^th century. Once again, it involved slavery. In Dred Scott v. Sanford, Chief Justice Roger Taney wrote for the majority: "It would give to persons of the negro race, who were recognized as citizens in any one State of the Union ... the full liberty ... to keep and carry arms wherever they went." While this was in the dicta of the case, it can be read to mean any citizen has that right. They continued to arise in response to Jim Crow laws in the Reconstruction South. A careful and treacherous path was walked by the Supreme Court in the application of the 14^th Amendment. As we know now, it would be 100 years before those issues would be settled.

In the 20^th century, the rise of organized crime, and the guns they used, during Prohibition led to the first National Gun control law: the 1934 National Firearms Act. This legislation served to tax and regulate automatic firearms as well as certain firearms components that were commonly used by organized crime at the time. Since 1934, fully automatic weapons fall under the regulation and jurisdiction of the Bureau of Alcohol, Tobacco and Firearms (ATF) (Now the Bureau of Alcohol, Tobacco, Firearms, and Explosives). The Supreme Court upheld the National Firearms Act of 1934 in US v. Miller, but clarified that the Second Amendment applies to the right to bear military arms as well as arms that the military may use. The NFA of 1934 was amended in 1986. The Hughes amendment to existing law made it illegal to sell automatic firearms made after May 19, 1986 to civilians. Any automatic firearms already in civilian hands could still be transferred, but would continue to fall under the regulation of the National Firearms Act of 1934.

The next milestone was the Gun Control Act of 1968. The initial act was a response to the assassination of John F. Kennedy. The legislation expanded licensing of dealers, made it illegal to mail order long guns, and it also established that convicted felons, drug users, and the mentally ill can be prohibited from possessing firearms. The Crime Control Act of 1990, among other things, established gun-free school zones and penalties for those carrying or discharging firearms in these zones. This was followed by the Brady Handgun Violence Prevention Act in 1993. Named after James Brady, President Reagan's Press Secretary, who was paralyzed by an assassin’s bullet, meant for the President; the Act established a five day waiting period and mandatory background check for handgun purchases as well as setting up the National Instant Background Check System (NICS) that is used today for every purchase performed through an FFL dealer. A year later, the Violent Crime Control and Law Enforcement Act, also known as the Assault Weapons Ban, was signed into law. The Act specifically banned certain automatic firearms and other firearms based on outward appearance rather than functional characteristics. This legislation expired in 2004 and studies are mixed about its effectiveness.

In response to the Virginia Tech shootings, in 2007 Congress passed the NICS Improvement Act. The purpose was to expand funding for NICS and to encourage states to submit mental health records to the NICS index. So far, NICS has been underfunded, receiving less than 6% of the allotted funding in the past few years, and a vast majority of the states have not been sufficiently providing mental health records. The final two major moments in the history of gun control occurred in 2008 and 2010, and both are Supreme Court cases. In DC v. Heller, the Supreme Court struck down D.C.'s handgun ban, and upheld the individual right to bear arms, and clarified that it extends to arms that are in "common use at the time" but did not cover "dangerous and unusual weapons." In McDonald v. Chicago, the Supreme Court struck down Chicago's handgun ban as unconstitutional, further building off of the Heller decision and extended the Second Amendment to individual states.

 That is the landscape of gun control historically and where it stands now. But where do we go from here. After the Theater shootings in Colorado and the Newtown shootings in Connecticut, there has been a renewed call for more gun control laws. This is not uncommon throughout the history of the country; neither is the result. More gun control laws have not been proven to lower crime rates significantly. In fact, I have not seen any confirmed correlation between these laws and crime rates.

Gun laws focus on responsible citizen gun owners. Those that commit crimes with guns don't use legally registered guns to do so; certainly not their own guns. I will certainly agree that changes need to be made, but I don't think the new plans address them. So what's in the President's new plan? These are the broad strokes, they fit into two categories. First, actions by Congress and second, actions by the Executive Agencies:

Proposed Congressional Actions

•              Requiring criminal background checks for all gun sales, including those by private sellers that currently are exempt.

•              Reinstating and strengthening the ban on assault weapons that was in place from 1994 to 2004.

•              Limiting ammunition magazines to 10 rounds.

•              Banning the possession of armor-piercing bullets by anyone other than members of the military and law enforcement.

•              Increasing criminal penalties for "straw purchasers," people who pass the required background check to buy a gun on behalf of someone else.

•              Acting on a $4 billion administration proposal to help keep 15,000 police officers on the street.

•              Confirming President Obama's nominee for director of the Bureau of Alcohol, Tobacco, Firearms and Explosives.

•              Eliminating a restriction that requires the Bureau of Alcohol, Tobacco, Firearms and Explosives to allow the importation of weapons that are more than 50 years old.

•              Financing programs to train more police officers, first responders and school officials on how to respond to active armed attacks.

•              Provide additional $20 million to help expand the a system that tracks violent deaths across the nation from 18 states to 50 states.

•              Providing $30 million in grants to states to help schools develop emergency response plans.

•              Providing financing to expand mental health programs for young people.

Executive actions

•              Issuing a presidential memorandum to require federal agencies to make relevant data available to the federal background check system.

•              Addressing unnecessary legal barriers, particularly relating to the Health Insurance Portability and Accountability Act, that may prevent states from making information available to the background check system.

•              Improving incentives for states to share information with the background check system.

•              Directing the attorney general to review categories of individuals prohibited from having a gun to make sure dangerous people are not slipping through the cracks.

•              Proposing a rule making to give law enforcement authorities the ability to run a full background check on an individual before returning a seized gun.

•              Publishing a letter from the A.T.F. to federally licensed gun dealers providing guidance on how to run background checks for private sellers.

•              Starting a national safe and responsible gun ownership campaign.

•              Reviewing safety standards for gun locks and gun safes (Consumer Product Safety Commission).

•              Issuing a presidential memorandum to require federal law enforcement to trace guns recovered in criminal investigations.

•              Releasing a report analyzing information on lost and stolen guns and making it widely available to law enforcement authorities.

•              Nominating an A.T.F. director.

•              Providing law enforcement authorities, first responders and school officials with proper training for armed attacks situations.

•              Maximizing enforcement efforts to prevent gun violence and prosecute gun crime.

•              Issuing a presidential memorandum directing the Centers for Disease Control and Prevention to research gun violence.

•              Directing the attorney general to issue a report on the availability and most effective use of new gun safety technologies and challenging the private sector to develop innovative technologies.

•              Clarify that the Affordable Care Act does not prohibit doctors asking their patients about guns in their homes.

•              Releasing a letter to health care providers clarifying that no federal law prohibits them from reporting threats of violence to law enforcement authorities.

•              Providing incentives for schools to hire school resource officers.

•              Developing model emergency response plans for schools, houses of worship and institutions of higher education.

•              Releasing a letter to state health officials clarifying the scope of mental health services that Medicaid plans must cover.

•              Finalizing regulations clarifying essential health benefits and parity requirements within insurance exchanges.

•              Committing to finalizing mental health parity regulations.

•              Starting a national dialogue on mental health led by Kathleen Sebelius, the secretary of health and human services, and Arne Duncan, the secretary of education.

Some of these I agree with. I support requiring criminal and mental health background checks for ALL gun purchases (as do 74% of NRA members) and closing the gun-show and private sale loopholes. Tied to this are the expansion of access to information for those background checks, incentives for states to comply, and training on proper procedures for background checks. I also support criminal penalties for “straw purchasers,” another loophole in a way. This is the way that many guns used in gun crimes are acquired. Of course, I also support keeping first responders on the street, training new first responders, developing first response plans for schools and other groups, and most importantly, additional financing to expand mental health programs for young people and adults. Most of these are supported in large numbers by the American public AND even NRA members. The commonality, you will see, is addressing the true problems our country has; NOT limiting access to a certain kind of weapon, number of weapons, number of ammunition, or other policies that I think infringe on the basic, absolute right contained in the Constitution.

I want to address some fallacies out there. There is a line I love from Fight Club to describe this problem. Tyler, after examining the safety card on an airplane comments, “An exit-door procedure at 30,000 feet. Mm-hmm. The illusion of safety.” Let's talk about the “assault weapons” ban. The picture below is a perfect example of the lack of logic in the assault weapon ban: the fallacy of it.

 
I call the “assault weapons ban” the ban on scary guns. If you make it out of or add plastic, a gun gets a little scarier. If you use a pistol grip, scarier still. But it doesn't change the action of the weapon. IT CHANGES NOTHING.

What about limiting clip size to less than 10? Again, what does this do? To someone who knows how to use the weapon, like the person in the video below, the size of the clip won't matter.

 

In this video, the person fires more than 30 rounds, from 6 round clips, in less than 15 seconds (and according to the claim, gets a perfect score) If they had a thirty round clip, what difference would that really make? I can't see the logic in limiting the size of magazines. Again, that's coming from the perspective that the government doesn't have the authority to take my rights away unless there is a reason to do so.

I would be remiss without including, and here is my tangent down the rabbit hole, my further perspective on history and the future. I have been a student of history. When I look back, I see that governments of nations that seek to remove their citizens rights to own and possess weapons, are the types of governments that the citizens needed weapons to protect themselves from. I am certainly not advocating violent overthrow of the government, although I have been accused of that before. Again, I am coming from the perspective that the government does not have the authority to remove what I consider an absolute right without a justification. I have no criminal background and no history of mental health issues. I am not a risk to myself or society. I seek the means to protect myself from any harm brought from any actor- whether a criminal, an individual, or anyone else who has no right of authority over me.  That's the end of my conspiracy rant.

My solution comes down to this: the REAL solution is not to limit a responsible citizenry from embracing an absolute right, one that is no different from the absolute right to be free from search and seizure, to not be limited by the government, to be represented by counsel, or to not testify against themselves- all subject to limitation when justified by the government. The solution is to address the real problems: address the mental healthcare deficit in this country, limit access to guns for dangerous people, and make punishments for those who break the law. That is the only “gun control” that I will support. What you will find is that there is a strong correlation between countries which make mental healthcare a priority and those that have low numbers of gun deaths. Similarly, countries which make criminal and mental healthcare background checks mandatory for all weapons and focus on training gun owners also have lower numbers of gun deaths. Finally, those which raise the penalty for illegally transferring a gun, illegally selling a gun, or having a gun when the owner/holder isn’t allowed to posses one ALSO have lower gun death rates. What you won’t find, even in countries with the strictest gun possession laws, is a 0% death rate by firearms. Gun ownership is an ABSOLUTE right in this country, so let’s focus on fixing the real problem rather than paying lip service and offering “solutions” that won’t make a difference.

Please comment below- I want to hear your opinions. Then like and share this post so your friends and peers can join the conversation. 

© Robert Cheek, 2013

The Social Contract: A brief history and my perspective

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness. That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed. That whenever any form of government becomes destructive to these ends, it is the right of the people to alter or to abolish it, and to institute new government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to affect their safety and happiness. Prudence, indeed, will dictate that governments long established should not be changed for light and transient causes; and accordingly all experience hath shown that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same object evinces a design to reduce them under absolute despotism, it is their right, it is their duty, to throw off such government, and to provide new guards for their future security.

And for the support of this declaration, with a firm reliance on the protection of Divine Providence, we mutually pledge to each other our lives, our fortunes and our sacred honor.

- Declaration of Independence

           

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

             - Preamble to the US Constitution

            I want to talk briefly now, but I’m certain it will arise later as well; about the social contract we have implicitly agreed too. Americans have always reached for the loftiest of goals. The words above show just that. The Founders said, “all men are created equal,” and these men are endowed with the unalienable rights of “life, liberty, and the pursuit of happiness.” In order to secure these rights, we form government to protect us from others and from ourselves. BUT this government “deriv[es] their just powers from the consent of the governed.” (emphasis added) What level of dedication was required to meet this pressing demand? Their “lives, [their] fortunes, and [their] sacred honor.” With this high burden, the social contract was created.

            So what is the social contract? The social concept is a political theory that arose out of the Age of Enlightenment, although it had its foundations in classical Greek and Roman thought. It addresses the origins of society as we know it and the legitimacy of the government’s authority. There have been several incarnations of perspective of the theory. All the perspectives follow the same general thesis. Without the social contract, men are in what Thomas Hobbes called “the state of nature” and described as “solitary, poor, nasty, brutish and short.” With an absence of law and order, everyone could embrace their natural freedoms and have a right to all things including freedom to plunder, rape and murder. Life would consist of a constant war of all against all. 

            In 1625, Grotius postulated the modern idea of natural rights of individuals; these rights enable self-preservation. Even absent government (and in his argument religion), this natural order would remain. This idea was considered blasphemous because it held that if the government organized to preserve the individual failed, that power could return to the individuals and the order would remain. This established the concept of personal sovereignty, and held that in society, one must limit the means of self-preservation in order to not conflict with another’s means of self-preservation. He also held that any violation of these rights should be punished.

            Grotius was followed in 1651 by Thomas Hobbes. In Leviathan, he created a detailed social contract theory. Out of the “state of nature”, men would  form a social contract where they would come together and cede some of their individual rights in exchange for others ceding theirs as well. This established a state which was a sovereign entity, much like the individuals under its rule, which created laws to regulate the social interactions of the individuals.

            John Locke followed in 1689 with theory. It differed in many ways from Locke’s. Most notably, Locke believed that the individuals would be bound by the Law of Nature not to harm each other, thus the “state of nature” was not so brutish; but without a government to defend them, from harm, they would live in fear. Hobbes argued for near absolute authority, while Locke limited the government to the rights the citizens gave it, those of self-defense (or self-preservation). The government became an impartial, objective agent. This established the idea that the government derives its powers from the consent of the governed. The American Founding Father’s looked strongly to Locke for their own ideas.

            Locke set the basis for later work on the social contract, and in many ways, later work derived from this idea of the social contract. Rousseau’s The Social Contract in 1762 is a good example. Rousseau based his theory on the idea that the social contract is based on unlimited popular sovereignty and that is the foundation of political rights. He postulated that liberty was only possible where there was direct rule by the people as a whole: where popular sovereignty was indivisible and inalienable. Rousseau believed that man must be forced to be free, by which he meant, because popular sovereignty decides what is good for the whole, if the individual lapses back into the egoism and disobeys the leadership, he will be forced into conduct because as a member of the collective society, those laws are not a limit of individual freedom, but its expression. By joining society, we are implicitly consenting to punishment for breaking the law of the collective.

            Finally for this examination, we look at Proudhon’s social contract, which is the basis for modern libertarian thought. That is, the social contract is not between individuals and the government; but rather, individuals and each other. The individual did not cede sovereignty, but rather merely agreeing not to coerce or govern each other. His ideas create a limited state which only has takes the role that cannot be held by individuals. This is the source of the libertarian’s belief that government should be limited to the six roles outlined by the Preamble to the US Constitution: “form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity;” all roles which the individual cannot take on themselves.

            Let’s fast-forward to today. Where does the social contract stand? Perhaps more apt is the question, does it remain?

            Slowly, it seems were are transforming from the United States of America which our Founding fathers laid down their blood and treasure, to America, Inc. where a year without economic gain is sacrifice enough. I will touch on many of these issues in depth, but as an overview: the top 1% of Americans control 25% of the income and 40% of the wealth. For this privileged few- the social contract is better than ever. They have the best land, educations, healthcare, property, etc. However, this leaves 99% of the country with 60% of the wealth. If we expand this to the top 10%, then they control 33% of the incomes in the US and 60% of the wealth. (As a reference, the ‘Banana Republics” of Central America typically have a wealth distribution along the lines of 20% control 80%. Striking isn’t it.) This leaves a paltry 64% of incomes and 40% of the wealth for the bottom 90% of Americans. This bottom 90%, especially the bottom 50% has little to no healthcare, no property, and a lower-grade education, amongst others. Privilege in America has its advantages. If those numbers astound you, I think they should.

            This is not a rant about wealth redistribution. I am not a communist and I do not think that redistributing the wealth would fix anything. I believe, as the old saying goes, that if the wealth were to be equally distributed, it would return to the same few within a generation. BUT I do believe that no wealth is made in a vacuum, and those who are wealthy now can base that wealth on the society which was created with public funds. If you made your money in oil, steel, television, hotels, anything- that wealth is based on natural resources we all have a right to, a public transportation system, a public education system, and many other publicly created and funded programs. As such, they should pay their share of maintaining it, and passing the ‘blessings of liberty’ on to the next generation. Not just their own descendants but for the entire nation.

            While reading this blog in the future, I hope readers keep this in mind: This is my perspective and this is the angle from which I form opinion and write. I am a progressive. I believe individuals best advance when society as a whole advances. I look at the disenfranchised, the poor, the ill, and the abused and I see a failure of American society, a breach of the social contract, and a waste of national potential. I believe in true equality. I believe in merit advancement, not the hereditary advancement of a few wealthy families. I believe that we left that system in 1776, I don’t seek its return, and I will fight against it. As I said, I am not for redistribution of wealth, but I believe that everyone deserves to stand on their own merit, not that of their parents, grandparents, or others. I don’t believe that wealth at any cost is a mantra that will return America to greatness. I believe that we together are far stronger than any of us alone. As Benjamin Franklin is credited with saying as he signed the Declaration of Independence, “Gentlemen, we must hang together, or assuredly we shall all hang separately.” My neighbors’ advancement is my advancement. We’re in this together, and we must remember that. This is the true social contract: the one we make amongst ourselves and for which our government was created to honor. Without this progressive view of the social contract, its demise will go unnoticed and wasted.

© Robert Cheek, 2011

Campaign Finance Reform

“Once members of Congress and the President are responsible only to the electorate, they will begin looking out for the public’s interests- not corporate interests.” – Robert N. Cheek, 2011

            I want to point out, in no uncertain terms, that I first address Campaign Finance Reform first for a reason. Without true campaign finance reform, nothing will ever change. As long as those with the money have the power, we will continue to get the government that they want, not the government that we need. The first step in any American political reformation will be the rise of Campaign Finance Reform which limits hard AND soft money contributions, limits political involvement to real persons, not juridical persons (‘people’ who can be sued like corporations), and allows politicians to run for office without spending time fundraising.

            So what is the problem? Throughout the 20^th century, with the rise of instant communication (nation-wide newspapers, telegraph, radio, and television) political campaigns became very expensive. Especially in the 21^st century, even state races and Congressional races have become prohibitively expensive. Special Interests groups and Corporations saw an opportunity to buy favor with those in power. They began offering to fill the campaign war-chests, sometimes of both candidates, just to assure they have an ear when the election is over. In the end, that’s what happens. Campaign donations give the donator ‘access’ once they get elected. It has created a symbiotic relationship between the donators and the elected. Further, the elected leaders that the Founders envisioned was one of the citizen-leader. By getting businessmen, farmers, and workers of all types in government, we could be sure to retain the government by the people and for the people. However, today, the prohibitive expense of a campaign eliminates many with good ideas who would otherwise run from running for public office.

            Obviously, this is a problem. If the donators have access to the officials, and the elected are doing their bidding, where does that leave the electorate? People need government to work for them, and they no longer have access. Rather than voting for the benefit of the people, they vote for the benefit of their special interest group and corporate sponsors. Let’s test this idea. Call your Congressman or Senator, or for that matter your state representatives. Even better, I want you to call the white house. Ask for an appointment. Not to meet with an advisor or someone who works in the office, but for the elected official. What’s the likelihood you will get that appointment? Zero- not a chance. BUT, what if you gave 1 million dollars to the campaign? What’s the likelihood then? Probably much better, especially if you mention that you spoke with the official’s last opponent or likely next appointment. Lobbyists from these donators, in fact, walk the halls of Congress, in areas where the public is not allowed. They take Congressmen to dinner at $500 a plate restaurants where its impossible to get a table. They take them on golf outings to St. Andrews. And when the election ramps up, they make the promised donations. This is not a government by the people or for the people, it’s a government FOR SALE.

            So, what is the solution? We need a system where people are elected through public funds as opposed to private donations. This makes the elected officials responsible only to those who vote for them and not to those who donate the most to their campaigns. BUT I realize that is an impossibility in this era. What we need to focus on is what we can do in the mean time.

            How do we do this? It will not be easy. Such a movement will go against the grain of the entire system as it stands. First, what we can do is reform the campaign finance system that we have. The first step is to eliminate soft money donations to the parties and candidates. This will be the first step to getting the big money out of government. The public funding option, given to Presidents can be expanded to the Senate and eventually even the House. At the same time, we start on the state level, at least offering public funding options. I advocate the option, only because the Supreme Court of the United States (SCOTUS) has held that states can not eliminate private financing of campaigns. Maryland already has a public funding option for the gubernatorial election. It would be easy to expand this system for all state races in Maryland. Once this is accomplished, or maybe just as an alternative campaign, the issue is taken to the Federal level- first, offering the Congressional candidates the option and proving that it is a viable option. If candidates chose to remain in the private funding campaigns, they will be running against candidates who can make the claim ‘I owe my election to no one but you, the voters.’ Once a majority of the elected, or even all of the elected, owes their success to publicly funded campaigns, perhaps the country would be ready for a mandatory public funding system.

            Many will claim that this system cannot work. However, the system is already working in several states. I have written a paper, showing these success stories. Please take the time to read over the evidence here.

            What results will this have? This will work for the people because it will give them a true voice in the governing of the nation and their futures. Also, this will benefit the government. Imagine the pork and spending that could be saved when the elected have no reason to benefit. I have very little evidence to back this up, but some Congressional Accounting Office statistics suggest that by removing these special favors (like the ‘Bridge to Nowhere’) the public financing would pay for itself by removing these special spending projects. A side effect of this policy will be the elimination of lobbyists. I think that this is not necessarily a bad thing. Yes, some groups need to be represented by a lobbyist, and no, the elimination will not be total. However, it will be an opportunity to greatly limit the number and effect of lobbying groups on the government. I recognized that lobbyists are not the problem, and in many ways they are a solution. However, its an industry that needs to be regulated, and this will give us an opportunity to do it.

Please comment and share your thoughts- I’d love to hear some reactions. Be sure to like/share on Facebook and Twitter, and subscribe to get the latest updates.

© Robert Cheek, 2011

Sequestration: The What, Why, and How

A lot of people have asked me this weekend about the sequestration: what it is, what it means, and what's going to happen.

First, what is sequestration? A lot of terms have been thrown around regarding the fiscal health and viability of our economy. The term sequestration may not seem to make sense, and in ways, it’s a misnomer. However, the sequestration is actually the mechanism by which the results are accomplished, not a mechanism of Congress but a mechanism of the Treasury.

Let's start from the beginning. Sequestration originated in the 1980's, during Ronald Reagan's Administration. With skyrocketing expenditures on the military, and a goal of cutting taxes for Americans, the deficits were growing exponentially. In order to reign in these deficits, and the debt that they were created, Congress passed the Balanced Budget and Emergency Deficit Control Act of 1985 otherwise known as the Gramm–Rudman–Hollings Act. It created automatic spending cuts if the deficits exceeded targeted levels. The way that spending was cut is that the Treasury sequestered, that is retained or refused to release, part of the funds budgeted to the different agencies. Thus, the term ‘sequester’. The GRH Act was found unconstitutional in Bowsher v. Synar a year later. The Act was reworked by Congress the following session, but it never really reduced deficits.

In 1990, the Budget Enforcement Act and the Omnibus Budget Reconciliation Act supplanted the reworked GRH Act. From 1990 until 2002, the government operated under a PAYGO system. This meant that any new expenditure had to be matched with cuts elsewhere or new revenue gained. In 2002, the PAYGO statute expired and in 2003 Congress passed President Bush's tax cuts. PAYGO was later reinstituted as a standing rule of the house, which doesn't have the force of law but is considered a suggestion to law makers. The PAYGO policy lasted less than a year. However, in 2010, PAYGO was signed back into law, making it mandatory again.

The new round of sequestration arises out of the Budget Battle in 2011. If you can remember back to the summer of 2011, the US government was approaching another cliff. We were running out of credit and the debt ceiling had to be raised or the US would start defaulting on necessary expenditures. The Republicans in Congress refused to raise the debt ceiling without drastic cuts in spending to help reduce the deficit. Specifically, the cuts they wanted were to come from domestic spending. The Democrats refused to make those cuts. The agreement that was struck had long term consequences. First, the debt ceiling was raised immediately. Incremental increases were also allowed, with Congressional approval. Some cuts were made immediately, but a Joint Committee would also be formed to create a plan for the remaining spending cuts. The sequester was included as a motivation to come to an agreement.

via WashingtonPost.com

Then came December of 2012: the fiscal cliff. The Committee hadn't come up with an agreement and the time was coming. The sequester was on the horizon. A last minute deal, on New Year’s Eve, was struck. The Bush Tax cuts and some additional tax cuts were allowed to expire. The sequestration was put off until March 1, giving the Joint Committee additional time. That brings us to the present.

The Joint Committee failed. The President and Democrats refused to budge on their demands: Tax breaks only for those under $250,000 matched with reduced cuts on domestic spending and greater cuts elsewhere. The Republicans wanted tax breaks for everyone and greater cuts to domestic spending. Since no agreement was reached, on March 1st the sequestration, which was originally offered as a “nuclear option” to encourage agreement, went into effect.

So what is the sequester? The sequester is an across the board cut in spending programs. $1.2 trillion in cuts over 10 years. In reality, there will be cuts of about $984 billion- the remainder will come from debt interest savings. We divide that total by nine, the number of years it is in effect to come to a total of $109 billion a year. Now the fiscal year begins in September, so for 2013 there need to be $12 billion in cuts per month. Since the deal was made delaying the sequester until March- the cuts for fiscal 2013 will need to be about $85 billion dollars.

These cuts will come evenly from discretionary spending (for the most part, non-discretionary spending will not be cut). Half of the cuts will come from defense spending and half from domestic spending. Domestic spending is divided into Medicare and everything else. Medicare will see cuts of 2% across the board. This means that providers will bill as usual but will be reimbursed at .98 cents on the dollar.

All other agencies/budget accounts will be cut evenly. This is a very stupid way to make budget cuts. Everyone can agree that some budget accounts are more important than others. In lean times, such as these, cuts can be made to non-essential budget items and leave funds for others. To me, there are some things that should be considered essential: programs which provide food and health care to low-to-no income households and the elderly, first responders, and air traffic controllers for example. These cuts will be drastic and in effect until the new fiscal year in September, once we’ve reached a new budgeting year, Congress will be able to play with the numbers and make the cuts less drastic, while retaining “flat” cuts across all spending.

To give you an example: If you were part of a group experiencing a food shortage, you wouldn’t necessarily decide to cut the rations for everyone equally. Sure, that may be the “fair” thing to do, but you have to realize the relative importance of different members of the group. Those who are scavenging, foraging, or tending crops- things which bring in additional food- need energy to continue working. Some tasks can be left undone and those people can conserve energy and be given smaller rations. Those programs that do much needed work, the difference between survival and non-survival to some, need to have limited cuts while others can be cut more and not feel it in the same way.

The important thing to remember is the same thing I have always stressed, will stress on this blog, and is a major focus of my book: we have to keep in mind that in a modern society- EVERYTHING is interconnected. Let’s take one example: The Norfolk Shipyards. The men and women who work there are all civilian employees of the Department of Defense. They are part of the 800,000 workers who could get furlough notices. Their paychecks and family budgets are obviously affected, but it doesn’t end there. Since they are not working, the businesses around the shipyard, set up to serve the workers are going to suffer and some will close. Those folks, now out of work too, will buy less goods and services and other businesses in Norfolk will close. We have seen this before and the result is completely predictable.

The BRAC Commission (Base Realignment and Closure Commission) has spent the two decades since the end of the Cold War closing bases and moving units to consolidate and save money. If you were to go to towns that lost their military base 2 years ago, you will find a community on the brink. If you go to towns that lost their base 5, 10 or 15 years ago- you will find ghost towns; communities that are a shell of their former selves. When the base; and the men, women, and families who served there; left, everything in the town closed down. We are going to start seeing this all over the country as a result of the sequestration.

More broadly, we have an economy on the brink. True, based on economic principles, we are no longer in a recession. We’ve had positive, but slow, growth over the last few quarters. But our economy has not restabilized. We felt a shudder when the tax cuts expired at New Years. Most of you probably noticed less money in your checks in January than there was in December. Now, another $85 billion is going to be taken out of the economy. With reductions in programs for the no-to-low income level people, there will be even less money spent on non-essentials. Inevitably, this will mean more economic shrinkage and destabilization.

On 1 March, my facebook status said “Happy Fiscal Cliff/Sequestration Day! Here's to the end of America as we know it.” We are on the brink of losing our country, possibly for good. And for what? To force the pending tax cuts to be applied to everyone, even those who make over $250,000 a year and to force spending cuts on domestic programs.

But it’s not too late. The Sequestration can be “undone” if Congress can strike a deal at any time, but that doesn’t seem likely.

I’m linking to a video below about other effects of the Sequestration, and a comment from Speaker Boehner from when this deal was first struck back in 2011- that he got “98% of what he wanted. Apparently, this is what he, and the Republicans, really wanted.

Please comment below, and let me know what you think. Also, like/share on facebook and twitter. Look for more updates in the coming weeks. © Robert Cheek, 2013