On July 21, 2010, a few months after adopting Obamacare, Congress passed the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank). It was more than 2,300 pages long. During Congress’s final negotiations, provisions were added to the bill with little debate and in many cases no hearings. Dodd-Frank requires four hundred separate rulemakings by eleven separate federal agencies.9 It establishes the Consumer Financial Protection Bureau, which has unparalleled powers. It regulates credit and debit cards, mortgages, student loans, savings and checking accounts, and virtually every other consumer financial product and service. And the law actually attempts to immunize the bureau from oversight by future Congresses.10 Two years after its passage, more than eight thousand pages of regulations had been issued, and regulators were only about 30 percent finished. Complying with the law is estimated to take about 24 million labor hours a year and require businesses to hire more than twenty-six thousand personnel just to comply with those already-finalized regulations.11
As of this writing, Congress is pursuing the same irresponsible and reckless course respecting so-called comprehensive immigration reform.
Moreover, when Congress is not violating its own budgetary law by passing continuing resolutions as emergency appropriation measures without public committee hearings, it is doing the opposite—that is, adopting massive spending bills that neither its members nor the public have had an opportunity to read. For example, in 2005, Congress passed the Deficit Reduction Omnibus Reconciliation Act, which was a combination of House and Senate bills that actually contained different and separate language. Its constitutionality was challenged in court, but the lawsuits were dismissed under the Enrollment Bill Rule, a practice whereby the courts concluded that the signed authentications by the president, Speaker of the House, and president of the Senate, and the formal printing of the bill, are incontrovertible proof that the law was passed validly.12 Of course, this is a complete fiction. Each house of Congress is required to approve exactly the same legislation. Furthermore, omnibus bills are so extensive—thousands of pages in length involving scores of issues—that few know what is contained in them.
Recently, Congress passed the Violence Against Women Reauthorization Act of 2013 (VAWA).13 Congress is in the habit of titling bills in such a way as to make difficult legitimate opposition to their adoption. The VAWA is such a bill. This law was passed in the Republican-controlled House with virtually no debate, and without the ability of a member to offer an amendment. Despite its title, the law is deeply flawed, as numerous commentators have noted, and raises serious doubts about its constitutionality in several respects, including the fundamental right to free speech and due process.14 It also expands the definition of domestic violence to include “emotional distress” or the use of “unpleasant speech.” It also grants more visas to illegal aliens who claim to be victims of domestic abuse.15 In addition, this is a subject that both historically and constitutionally has been addressed at the state level. Even a cursory review of publicly available databases discloses that the states have passed numerous criminal statutes and instituted social service programs to help protect and care for abused individuals, and have done so for some time. This is not to say that a federal role, in certain circumstances, is illegitimate or unnecessary. But with the VAWA, Congress attempts to preempt and federalize most of the field and policy in this area. Back in 2000, in United States v. Morrison, the Supreme Court concluded that parts of the first Violence Against Women Act were unconstitutional, holding that the act exceeded congressional authority under the Commerce Clause and Fourteenth Amendment.16 Opposition to the law is not opposition to protecting victims of violence, but opposition to Congress’s heavy hand in violating the Constitution.
These examples barely scratch the surface yet suffice in demonstrating the debacle of federal domineering, social engineering, and “expert” planning. When Congress passes immense and complex bills that virtually no one can comprehend, and often without constitutional power, and further delegates independent authority to the executive branch in violation of the separation-of-powers doctrine to pile regulations on top of laws—resulting in thousands of additional pages of rules—is this not the “Despotism, or unlimited Sovereignty, or absolute Power . . . [of] a Majority of a popular Assembly” of which John Adams warned?17
For all the talk by the governing masterminds about the commitment of more federal resources for education and the import of a well-informed people, the fact is that in their own legislative and regulatory quests and actions, opacity and obscurity are vital. The more distant from and less informed the public is about lawmaking and policy determinations, and their likely consequences on the individual and society generally, the less resistance and outright opposition can build against them. Enlightened public debate is to be avoided. Moreover, the will of the people can be said, albeit disingenuously, to be reflected in the actions of those for whom they voted—“the people get the government they deserve”—although the truth is otherwise, for the people know little of the actions taken by their members of Congress and still less of the regulatory maze engineered by the administrative state.
The colonists in pre–Revolutionary War America, having been taxed by the British without representation in the Parliament, used the slogan “No taxation without representation” to protest their lot. Today the rallying cry could be “No representation with representation.” The point is that even though citizens vote for their members of Congress, members legislate in a manner that denies the people access to a transparent, orderly, and predictable lawmaking system, thereby avoiding true public scrutiny and input. Therefore, government decision-making becomes more centralized and power more concentrated. An insular ruling class intervenes arrogantly and boundlessly in the daily life of the individual, calibrating all nature of behavior. By no measure is such a contrivance representative republicanism. Edmund Burke explained it this way: “To them, the will, the wish, the want, the liberty, the toil, the blood of individuals is nothing. Individuality is left out of their scheme of government. The state is all in all. Everything is referred to the production of force; afterwards, everything is trusted to the use of it. It is military in its principle, in its maxims, in its spirit, and in all its movements. The state has dominion and conquest for its sole objects; dominion over minds by proselytism, over body by arms.”18
This is a long way from the limits imposed on Congress by the Constitution, and its grant of specific and enumerated powers. The objective of the proposed amendment is, as I explained, to restore our founding prerogatives and discourage arbitrary and perplexing legislation and regulations, instituted by a growing, centralized decision-making regime hostile to constitutional constraints. It will encourage the expansion of actual republicanism and reverse federalism’s steady dissolution. It will institute a truly deliberative and rational process within the federal government, between the federal government and the states, and among the states. And at all levels of deliberation, the citizen will have a genuine opportunity to participate in the governmental process, and hold his federal and state representatives politically accountable for their actions.
• • •
The proposed amendment requires a minimum of thirty days between the engrossing of a bill or resolution, including amendments, and its final passage by both houses of Congress. The purpose is to ensure that members of Congress, state officials, and the citizenry are aware of legislative actions before they become law. It also provides for speedier legislative action if agreed to by two-thirds of the members of each house of Congress.
In addition, the proposed amendment empowers the states, by a three-fifths supermajority vote, to override a federal statute or regulation (which regulation imposes an economic burden of $100 million or more), within a two-year period from the date of its legal implementation. The states cannot substitute their own alternative legislation for federal laws and regulations. Nor can they modify federal laws or regulations. The sole power of the states is to collectively overr
ide a law or regulation by three-fifths vote. Moreover, although the three-fifths vote is obviously a lesser threshold than the two-thirds requirement for amending the Constitution proposed in the previous amendment, it is still a challenging supermajority hurdle. For example, as demonstrated in the Obamacare litigation, at no time did the states suing to overturn the law reach thirty in number.
Clearly there is much political, social, and economic diversity among the states. Some states respect the individual more than others. Some are downright oppressive in their imposition of regulatory and tax schemes. But people can move from state to state, and often do, to escape one state’s burdens for another state’s opportunities. Federalism is not about any single state or small faction of states imposing their will on the nation. It is about states serving, in the aggregate, as an essential buffer between the central government and the people, safeguarding the citizen from authoritarianism’s consolidated rule, thereby preserving and promoting self-government. After all, self-government is the fundamental feature of a constitutional republic. As Thomas Jefferson wrote, “It was by the sober sense of our citizens that we were safely and steadily conducted from monarchy to republicanism, and it is by the same agency alone we can be kept from falling back.”19
CHAPTER ELEVEN
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AN AMENDMENT TO PROTECT THE VOTE
SECTION 1: Citizens in every state, territory, and the District of Columbia shall produce valid photographic identification documents demonstrating evidence of their citizenship, issued by the state government for the state in which the voter resides, as a requirement for registering to vote and voting in any primary or general election for President, Vice President, and members of Congress.
SECTION 2: Provisions shall be made by the state legislatures to provide such citizenship-designated photographic identification documents at no cost to individuals unable to afford fees associated with acquiring such documents.
SECTION 3: Early voting in any general election for President, Vice President, and members of Congress shall not be held more than thirty calendar days prior to the national day of election except for active-duty military personnel, for whom early voting shall not commence more than forty-five calendar days prior to the national day of election.
SECTION 4: Where registration and/or voting is not in person but by mail, citizens must submit an approved citizen-designated photo identification and other reliable information to state election officials to register to vote and request ballots for voting, no later than forty-five calendar days before the primary or general elections for President, Vice President, or members of Congress. Registration forms and ballots must be returned and signed by the voter and must either be mailed or hand-delivered by the voter to state election officials. If delivered by a third party, the voter must provide written authorization for the person making the delivery and the third party must sign a statement certifying that he did not unduly influence the voter’s decisions.
SECTION 5: Electronic or other technology-based voting systems, for purposes of registering and voting in national elections, are proscribed unless a reliable identification and secure voting regimen is established by the state legislature.
ALTHOUGH THIS PROPOSED AMENDMENT does not involve systemic constitutional reform, as do the other proposed amendments, it addresses the sanctity of the voting franchise in federal elections, which has become increasingly confusing and unreliable. And like the other proposed amendments, this one is intended to enhance self-government.
The one mantra recited reflexively whenever the topic of voter fraud comes up is that there is no such thing as voter fraud in the United States. It just does not exist, so there is simply no need for “draconian” measures like requiring voters to present a state-issued photo identification—a valid driver’s license, passport, or equivalent form of ID—in order to vote. Beyond a few “isolated” examples of individuals misbehaving, it is said that voter fraud does not occur.
This argument was addressed directly by Judge Richard Posner of the U.S. Court of Appeals for the Seventh Circuit in the 2008 Crawford v. Marion County Election Board decision, later upheld by the Supreme Court. Posner explained that we are dealing with “. . . the form of voting fraud in which a person shows up at the polls claiming to be someone else—someone who has left the district, or died, too recently to have been removed from the list of registered voters, or someone who has not voted yet on election day. Without requiring a photo ID, there is little if any chance of preventing this kind of fraud because busy poll workers are unlikely to scrutinize signatures carefully and argue with people who deny having forged someone else’s signature.”1
Posner added, “. . . the absence of prosecutions is explained by the endemic underenforcement of minor criminal laws (minor as they appear to the public and prosecutors, at all events) and by the extreme difficulty of apprehending a voter impersonator. He enters the polling place, gives a name that is not his own, votes, and leaves. If later it is discovered that the name he gave is that of a dead person, no one at the polling place will remember the face of the person who gave that name, and if someone did remember it, what would he do with the information?” He concluded, “One response [to voting fraud], which has a parallel to littering, another crime the perpetrators of which are almost impossible to catch, would be to impose a very severe criminal penalty for voting fraud. Another, however, is to take preventive action . . . by requiring a photo ID.”2
And what of the limited number of news reports of voter fraud? Posner pointed out, “[T]hat lacuna may reflect nothing more than the vagaries of journalists’ and other investigators’ choice of scandals to investigate.”3
Incidents of in-person and other kinds of voter fraud also grow in complexity with each succeeding election cycle. Of course, there are conscientious citizens who try to ensure the integrity of our electoral infrastructure, but there are also self-interested political activists who are bent on adulterating the voting processes to the point where illicit activities like selling one’s vote to the highest bidder, encouraging illegal aliens to register and vote—often multiple times in a single election—and tampering with absentee ballots are all too easily accomplished.
Not surprisingly, the catalysts for growing opportunities for electoral abuse are recently enacted federal laws designed to “reform” the processes by which we elect our leaders:
• Early voting—sometimes several days, weeks, and even months before election day.
• Same-day voter registration.
• Online voter registration.
• “Motor voter” registration (where an applicant for a new or renewed driver’s license is automatically offered the opportunity to register to vote).
• Ballots published in non-English native and foreign languages.
• Provisional ballots.
While some of these measures have served to turn out new qualified voters, there have also been unadvertised consequences that are causing an increasing number of people to question the integrity of the voting process. And there is some talk of elections in the not-too-distant future taking place entirely online, with voters using smartphones, tablets, Internet-connected televisions, laptops, and desktop PCs to cast ballots.
This troubling electoral landscape has caused several states to enact, or consider enacting, statutes requiring voters to produce state-issued photo ID cards, primarily driver’s licenses, as proof of citizenship to register to vote and vote in primaries and general elections. These laws are both eminently reasonable and very important tools in protecting the institutional credibility of the representative parts of government. Undermine the public’s faith in the voting process, the single way in which the people can express directly their collective will, and you destabilize what is left of the republican enterprise.
And make no mistake, the public’s faith has been shaken. According to an April 2012 Rasmussen poll, two out of three American voters surveyed believed that voter fraud is a serious problem
. “Many think that people who should not be allowed to vote will actually be able to cast ballots,” Rasmussen explained. The survey also found that 82 percent of those questioned believed that requiring a photo ID as a condition of voting was a good idea. And 73 percent rejected the notion that requiring a photo ID would discriminate against minorities. Twenty-four percent of those surveyed also said that they were not confident that their own vote would be counted.4
The Supreme Court has already weighed in on voter ID requirements, concluding they are a reasonable solution to voter integrity concerns.5 Regulations imposing only ordinary burdens, such as those requiring a “nominal effort” by all voters, are not severe.
Several states are enacting laws requiring that voters present one of several acceptable photo IDs. These laws are patterned after an Indiana photo identification law that the Court has already upheld as a “generally applicable, nondiscriminatory voting regulation” with reasonable burdens.6
Requiring a photo ID to vote is neither an onerous nor a unique requirement in the twenty-first century. Identification is required to obtain a driver’s license and passport; buy alcohol or cigarettes; apply for food stamps, unemployment, and various forms of welfare; open a bank account; cash a check; purchase a firearm; lease an apartment; rent a car; secure a marriage license; clear airport security; enter most federal buildings—and even meet the president or vice president in person. Yet, when it comes to state efforts to ensure the integrity of the electoral process through modest voter identification laws, there are howls of protest from certain political activists and insincere public officials. Merely requiring an individual to establish eligibility for voting is portrayed as the resurrection of Jim Crow laws.7
For example, Jesse Jackson declared, “The voter ID is the new Civil War battle all over the nation.”8 Thus, for Jackson, identifying yourself as a citizen before voting is akin to the war that ended slavery. More troubling than Jackson’s demagoguery is the deceitfulness of the nation’s top law enforcement official. The attorney general of the United States, Eric Holder, used incendiary terms to critique the Texas voter ID law in a speech to the National Association for the Advancement of Colored People (NAACP): “Many of those without IDs would have to travel great distances to get them and some would struggle to pay for the documents they might need to obtain them. We call those poll taxes.”9