November 2019 Newsletter

• Feds Should Study Example Set by the States
• A MAD Solution to America’s Problems
• Current Activity at the Convention of States Project
• Phoenix Correspondence Commission Adopts Charter
• Is the Importance of American Citizenship Dying
• Three Especially Good Reads on Federalism & Citizenship
• The Electoral College vs NPV Debate Goes On
  • A Digest of 18 Sources of Related Information
  • In-depth Information on the Electoral College

“We should decentralize American policymaking and restore federalism for many reasons, including fealty to our constitution,” says Mr. Hood. “… [I]t would simply produce better consequences. Different communities could pursue different approaches to solving public problems. Spending promises would bear more of a relationship to reality. Diverting so much of our political attention to Washington has done great damage. Let’s try something else.”

Hood says, “Among the selling points of a rejuvenated federalism is that, to be blunt, states and localities are on the whole better at the job of governance than Washington is or is likely ever to be. This is not a generalized indictment of federal politicians. Indeed, many start out as state or local politicians. It’s the rules of the game, not the qualities of the players that produce poorer results in Washington”.  Read his views HERE.

A MAD Solution to America’s Problems –
Matt Mayer, president of Opportunity Ohio (a state policy-making think tank based in Dublin, Ohio) has proposed a MAD idea for breaking America’s political log jam.

In a recent Columbus Dispatch (Ohio) opinion piece Mr. Mayer pointed out that between the late 1940s and 1991 a so-called “Cold War” existed between the US and the USSR (and their respective allies). A doctrine of mutually assured destruction (MAD) arose which held that because a nuclear war would devastate both sides, neither the United States nor the Soviet Union would use such weapons. MAD incentivized American and Soviet leaders to keep the fight between them a “cold” one.

Mr. Mayer suggests it is time that a bipartisan group of elder statesmen come together and use the MAD doctrine to forge a deal that apportions accountability equally so that unaddressed issues like national fiscal responsibility and immigration reform can be resolved (before the mutually assured destruction of America’s government) without either party being blamed by voters at the next election.

Mayer says, “Whether it is a balanced budget amendment, truth in budgeting or finally forcing the federal government to make tough choices about what it funds and what can be properly returned to the states to fund, something must be done to put America’s federal credit card away.”  Read his thoughtful views HERE.

Current Activity at the Convention of States Project –
On October 22 the Pennsylvania House and Senate State Government Committees held a joint hearing for HR 206, the Convention of States Project (CoSP) bill.  Andy Schlafly of the Eagle Forum testified against the bill. The bill, introduced in June, has 30 sponsors.  A companion bill in the Senate (SR234) was introduced on October 15 and currently has 7 sponsors.  It has been assigned to the Senate State Government Committee.

In Wisconsin the CoSP proposal (SJR57), was introduced on August 6.  It has 33 sponsors.  A five-hour hearing on the bill was held on October 22 before the Senate Insurance, Financial Services, Government Oversight and Courts Committee.  A companion House bill (AJR77), introduced on August 14, also has 33 sponsors.  It is pending in the Committee on Federalism and Interstate Relations.

Ohio Senator Matt Huffman and 5 cosponsors introduced the CoSP proposal (SJR2) in early October.  The bill has been assigned to the Senate General Government and Agency Review Committee.

The Massachusetts Joint Committee on Veterans and Foreign Affairs is considering the CoSP proposal (H3213).  A hearing was held on September 24 but has yet to take a vote.

Phoenix Correspondence Commission Meets, Adopts Charter –
During September 2017, 72 delegates representing 19 states (plus 4 states with official observers) met in Phoenix, called by the state of Arizona for the purpose of adopting rules for the conduct of a future Balanced Budget Amendment (BBA)-focused Article V convention of states.

That historic September 2017 convention was the first convention of states called by a state legislature to which all states were invited since 1861.  The 1861 Peace Conference, called by the state of Virginia and chaired by former President John Tyler, was an attempt to head off the civil war.  The Phoenix Convention was called as a step toward an Article V convention to propose a Constitutional amendment aimed at restoring federal fiscal restraint.  It took place just days after America’s national debt surpassed $20 trillion.  Today that debt approaches $23 trillion.

Over a period of 4 days in 2017 the delegates debated and unanimously agreed on a detailed set of rules and procedures that would be recommended to such a BBA convention once it convened.  That resolution can be read HERE.

They also established what they referred to as the “Phoenix Correspondence Commission” (PCC), to be ultimately composed of two delegates from each state for the primary purposes of:

• Being a single point of contact in tracking applications for a BBA convention;
• Monitoring Article V efforts;
• And working with Congress to suggest a time and place for the BBA convention.

Georgia attorney David Guldenschuh, who served as secretary for the 2017 Phoenix convention, was charged with drafting a proposed charter and set of bylaws for the PCC.   On August 29, 2019 PCC delegates convened and adopted the PCC organizational documents.

According to Arizona State Rep. Kelly Townsend, chair of the 2017 conference, “The goal is to have official delegates appointed by each state leadership body and to conduct ongoing collaboration to prepare for an eventual Article V convention”.  After the recent meeting Rep. Townsend said “Those interested in joining the PCC should contact me at ktownsend@azleg.gov and I will work with you to see what is possible in getting you appointed”.

The PCC established W. Bruce Lee of Sacramento, California to be its Executive Director and serve as the central office for the organization.  He can be contacted for any information about the business or implementation of the purposes of the PCC.  His contact information is Bruce.Lee.PCC@gmail.com or PO Box 1862, Loomis, California, 95650 or 916-624-6476.

Lee commented that, “I’m honored to be working in this capacity with all of the states.  This is an important and exciting step in our nation’s history to restore fiscal balance to our country!  The PCC is currently in the process of identifying the two delegates from every state across the nation”.

Is the Importance of American Citizenship Dying? –
Victor Davis Hanson, a historian at the Hoover Institution at Stanford University, recently wrote a provocative article published by National Review entitled “Death of American Citizenship”.

Hanson believes “[T]he concept of citizenship is being assaulted … by the legal blending of mere residency with citizenship”.  Hanson says, “It is eerie how such current American retribalization resembles the collapse of Rome, as Goths, Huns, and Vandals all squabbled among one another for what was left of 1,200 years of Roman citizenship—eager to destroy what they could neither create nor emulate”.

Hanson suggests: “We are unwinding at both ends. Tribalism, the erosion of the middle class, and de facto open borders are turning Americans into mere residents of a particular North American region between Mexico and Canada”.  Read his thoughts HERE.

Meanwhile, on October 20, Jarrett Stepman of the Daily Signal (Heritage Foundation) wrote “California’s War on Citizenship”.  Stepman says “Now, even the basic concept of citizenship is under full-blown assault as the state has moved on from being a ‘sanctuary state’ for illegal immigrants to outright insisting that noncitizens have the same access to the levers of power as citizens”.

He reports that “California Gov. Gavin Newsom recently signed legislation that would allow illegal immigrants to serve on government boards and commissions.  He also signed another bill that would make it illegal to make immigration-related arrests at courthouses”.  Read Stepman’s article HERE.

Three Especially Good Reads on Federalism & Citizenship –
“Is Congress Valid?” is a new paper written by former Utah State Representative Ken Ivory and published by the American Legislative Exchange Council (ALEC).  The title came from a question by a young student in the American Federalism class at the Utah Valley University.

One student remarked that two-thirds of all adults in this country cannot pass the citizenship test (which another of their classmates had just passed on her way to becoming a United States citizen).

Then another student asked, “Well then, is Congress valid?” She noted that “Congress is made up of representatives chosen by this same people.  If we don’t believe representatives from the states can gather and discuss and propose solutions, is Congress valid?”

Having pointed out that a dictionary definition of a congress (lower case “c”) is “a formal meeting of delegates for discussion and usually action on some question”, and that “the Congress” has for years had a job approval rating in or near single digits, Ivory says, “[P]erhaps it’s time for ‘a congress’ of states to convene ‘a formal meeting of delegates for discussion and … action on [the] question’ of restoring the constitutional divisions in the roles and responsibilities of the national government and the states, in order to render our government more efficient, effective and accountable once again to the American people”.  Read his article HERE.

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“Clarence Thomas and the Lost Constitution” is an excellent paper written by Myron Magnet and published in Imprimis, a Hillsdale College publication.  Magnet is editor-at-large of City Journal (New York), where he served as editor from 1994 to 2007.  He earned an MA from Cambridge University and a PhD from Columbia University, where he also taught for several years.

Mr. Magnet goes into detail on why he believes “Clarence Thomas is our era’s most consequential jurist, as radical as he is brave”.

He concludes his paper with Justice Thomas’ view that “Regardless of race, everybody faces adversity and must choose whether to buckle down and surmount it, shaping his own fate, or to blame the outcome on powerful forces that make him ineluctably a victim—forces that only a mighty government can master.  The Framers’ Constitution presupposes citizens of the first kind. Without them, and a culture that nurtures them, no free nation can long endure”.  Read the paper HERE.

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“A Republic – If You Can Keep It” is a new book by Justice Neil Gorsuch.  One reviewer said “Every ‘young’ person should read this book since they have been cheated out of understanding the way our government works.  This book explains how our country really runs.  After reading this book they will will be able to embrace the wonderment of America and why so many people have died to keep us ‘A REPUBLIC AND NOT A DEMOCRACY!’”

On page 29 of the book Justice Gorsuch lauds the work of citizen activist Gregory Watson, a man often referenced in this newsletter for his work relative to constitutional amendments.  The book is available from most booksellers including a discounted version from Barnes and Nobel HERE.

The Electoral College vs NPV Debate Goes On –
Writings by a wide variety of media and potential Supreme Court decisions keep the debate alive on whether (a) the Electoral College (EC) as set forth in the Constitution should be left alone; or (b) that institution should be replaced by a pure national popular vote (NPV); or (c) that the application of EC principles should be formally modified.  In other words: Retain, Abolish or Reform

Some advocates for reform want to totally overturn the entire EC system, replacing it with a National Popular Vote Interstate Compact (NPVIC).  Others have called for a proportional allocation of EC votes within each state.  In other words, eliminate states’ existing “winner-take-all” policies/laws.

The EC system of selecting America’s national executive was one of the Founders’ federalism-based power-balancing compromises between high-population and low-population states in the early days of the republic. The idea was to prevent the voices of sparsely populated states from being drowned out by the highly populated states.

One constitutional scholar reports that more than 100 constitutional amendments to change the system have been proposed by federal lawmakers over the past two centuries.  Another writer claims that there have been at least 700 proposed amendments to modify or abolish the EC.

Yet another writer claims that Los Angeles County alone has more people than the combined population of 41 states.  He says “I am not sure that those in Minnesota who are demanding the elimination of the Electoral College realize if that happened, there would be no reason for a president to consider what the people of Minnesota want”.

What follows is a digest of 18 sources of more information about the Electoral College (EC), national public vote idea (NPV), and the National Public Vote Interstate Compact (NPVIC).  State legislators and other citizens will want to use these sources to enhance their understanding of the issue.

Elite Daily, an American online news platform that describes its target audience as “millennials”, recently carried an article entitled “Is the Electoral College Constitutional?  It’s Pretty Literal”, by Yvonne Kim.

The article is interspersed with ads and emails that for the most part promote the desirability of the NPVIC.  For the audience addressed, the article gives a brief but decent overview of the EC, how it came into being, and why it is being questioned.  Read it HERE.

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The Post and Courier (Charleston, SC) carried a piece by Dr. Justin DePlato, an assistant professor of political science at Robert Morris University (RMU), and Matthew Markulin, a graduate of RMU, entitled “Founders warned of an ‘overbearing majority’ in choosing Electoral College”.

They provide an overview on why America’s Founders established the EC.  Read their piece HERE.

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Moapa Valley Progress (a newspaper serving Northeast Clark County, Nevada) carried a good EC-related article on October 16 by Dr. Harry Moses (a former Marine, Utah State University grad and a lifetime educator).

Dr. Moses notes that “There is presently a great hue and cry to get rid of the Electoral College and to turn America into a true democracy”.  Then he offers a brief overview of the reasoning behind creation of the EC, recounts the five instances popular vote and the EC differed, and posits an extension of popular vote theory to US Senate and House elections.  Read it HERE.

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A writer for the UK-based BBC has weighed-in on the way the US elects its chief executive vs. the way Canada does.  If the US were to emulate its northern neighbor, such a parliamentary system would scrap the EC.  He says the Canadian election process is over in 6 weeks vs. the stretched-out US process, thus a lot less money is involved.  Read that brief comparison HERE.

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On October 17 a blog site known as Law & Crime (which is self-described as “A Dan Abrams Production” – Abrams is [among other things] the chief legal affairs anchor for ABC News.  He is a graduate of Columbia University Law School) weighed-in on the current request by the State of Colorado that SCOTUS clarify limits on the actions of EC electors.

Typically the press refers to individuals who do not comply with state or party regulations as “faithless electors”, or sometimes by the less disparaging name of “Hamilton electors”.  The question revolves around whether or not the US Constitution anticipated electors would have the independence to make personal judgments.  The question is occasioned by situations which happened in Colorado and in the State of Washington during the 2016 election.

The issue is important in the EC vs. NPV debate because the proposed National Popular Vote Interstate Compact (NPVIC) would require electors to vote for the Presidential candidate who (by some yet-to-be-clarified tabulation) received the most popular votes.  Read this story HERE.

A related opinion piece in the October 18 edition of Colorado Politics entitled “What, Exactly, did the Founders have in mind for the Electoral College?” delves a bit deeper into the issue.  Read that piece HERE.

Another related piece in the October 14 New York Times by Adam Liptak quotes Harvard law professor Lawrence Lessig, who filed a SCOTUS petition on behalf of three EC electors from Washington State, as saying a SCOTUS ruling “that tipped an election to one or another candidate could not but look political … It would be disastrous for the institution if they had to decide it in the middle of a presidential election”.  Read the Times piece HERE.

Also related, this past session the Colorado legislature voted to join the NPVIC.  A large number of Colorado citizens oppose that decision and, through the state’s referendum process, have put repeal of that action on the November 2020 ballot.  A Heartland Institute article gives the details of that effort.  Read it HERE.

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The October 8 edition of the Black Hills Pioneer (Spearfish, SD) carried an article entitled “Dropping the Electoral College — we nearly did 50 years ago”.  It recounts the time when there was a brief bipartisan national consensus “that the Electoral College was a danger, an antiquated system that should be retired”.

The author writes: “But this time, there’s little chance of bipartisan efforts to remove it.  We just don’t work that way anymore”.  Read the piece HERE.

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In an October 1 piece published by The Heartland Institute, Trent England, executive VP of the Oklahoma Council of Public Affairs, wrote under the title “The Electoral College Matters and Has Benefited Us”.

Mr. England lists five reasons he believes America benefits from the EC system.  Read his views HERE.

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The October 15 edition of Complete Colorado (a Denver-based e-publication) carries an opinion piece by Constitutional scholar Rob Natelson under the heading “What critics of the Constitution get wrong”.

Natelson says, “One common charge against the Constitution is that it is ‘undemocratic’.  Certainly the Constitution sometimes denies temporary majorities their immediate wishes.  For example, the First Amendment prohibits most laws restricting speech, even when a majority favors enacting them.  And sometimes, though rarely, the presidential election system (of which one component is the Electoral College) produces a winner who did not garner a plurality of the national popular vote”.

Professor Natelson rhetorically asks: “Why does the Constitution restrict majorities that way?  Because the Founders recognized that for self-governance to work, it must respect certain rules, including rules that curb majority demands.  The Founders had learned from history that when democracies tyrannize minorities, they degenerate into dictatorships or civil war”.  Read his article HERE.

In a related piece carried in the October 10 edition of The Epoch Times, Natelson debunks the oft repeated belief that Founder James Wilson (one of the most influential of the Constitution’s framers) opposed the EC in favor of a national popular vote.  Read it HERE.

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Sanford Levinson,a professor of government at the University of Texas added his views on the EC vs. NPV controversy for The Atlantic in an October article entitled “The Constitution Is the Crisis”.

Underscoring his belief that America is “insufficiently democratic”, he says the US “Senate’s disproportion is, quite possibly, worse.  Just nine states—meaning 18 Senate votes—are home to roughly 52 percent of the American population. The remaining 41-state minority enjoys 82 votes”.  He also describes the amendment provisions in Article V of the Constitution, which is the logical way to alter the Constitution, as “practically speaking, nearly impossible”.  Read his views HERE.

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Mark Rush, a professor of Politics and Law, and Director of Center for International Education at Washington and Lee University, posted an October 1 piece at a blog called The Conversation entitled “The Electoral College will never make everyone happy”.

Rush reviews the various efforts in other basically-democratic nations at fairness in the weight of votes for national leaders.  He concludes: “I’ve studied elections and governmental systems around the world.  No matter how fairly one tries to allocate political power, some state or someone will have a special edge from time to time.  It’s unavoidable.  But it’s not undemocratic”.  Read his views HERE.

More In-depth Information on the Electoral College –
Rodney Dodsworth at his Article V Blog has produced a 14-part series of detailed articles on the Founders’ invention of the Electoral College and the evolution of the American presidency.  The series reflects a day-by-day account of behind-closed-doors debates by the Constitution drafters as they sought to deal with the best way of selecting America’s chief executive.  State legislators wanting to build their knowledge about the EC should take the time to review this series.  Find the complete series HERE.

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Professor Rob Natelson, author of The Original Constitution: What It Actually Said and Meant, has produced a series of articles that relate to the EC vs. NPV issue.  Click on any of the following titles for more in-depth information:

•    Ruling that presidential electors can make their own choice constitutionally correct
•    The Electoral College is still right for America
•    Why the ‘National Popular Vote’ scheme is unconstitutional

A Thought to Consider…