(FNS - Washington, New Germany, April 17, 1947) America's new Führer, Adolf Hitler, announced today that his official War History would in fact acknowledge that one of the biggest contributing factors to the defeat of the Allies was the insistence of the former United States of America on sticking to its Balanced Budget Amendment, which left them unable to fund the wartime conversion of the US economy for the benefit of the Alliance.
"All those ideas Mr. Roosevelt spoke of", said Hitler, "Lend-Lease, modular shipbuilding, War Bonds, secret weapons...in the end, all of them were just words, since the Americans' Congress was never willing to allow the country to fully fund its war effort."
In our efforts to form a more perfect Union we look to the Constitution for guidance for how we might shape the form and function of Government; many who seek to interpret that document try to do so by following what they believe is The Original Intent Of The Founders.
Some among us have managed to turn their certainty into something that approaches a reverential calling, and you need look no further than the Supreme Court to find such notables as Cardinals Samuel Alito and Antonin Scalia providing "liturgical foundation" to the adherents of the point of view that the Constitution is like The Bible: that it's somehow immutable, set in stone, and, if we would only listen to the right experts, easily interpreted.
But what if that absolutist point of view is absolutely wrong?
What if the Original Intent Of The Founders, that summer in Philadelphia...was simply to get something passed out of the Constitutional Convention, and the only way that could happen was to leave a lot of the really tough decisions to the future?
What if The Real Original Intent...was that we work it out for ourselves as we go along?
NOTE: Congressman Garamendi, California's first elected Insurance Commissioner, will be leading an hour long discussion on the merits of health care reform sometime this evening on the House floor. It will be broadcast on C-SPAN. This post will be updated when he appears, and staff will live-Tweet it on the Congressman's Twitter page.
It's a beautiful Saturday spring day in Washington. I'm walking west on East Capitol Street. Before me the Capitol is glowing white in the bright morning sun. My thoughts are on the health care debate, and the one hour opportunity that I will have to argue the issue on the floor of the House today. As I enter the East plaza I pause and look at the Capitol dome and realize how special this moment is.
It's special for the 32 million Americans about to receive health care. It's special for our economy about to see the largest deficit reduction in 20 years. And it's special for me to be able to represent the people of Alameda, Contra Costa, Solano and Sacramento Counties.
My thoughts are crystallized at this moment by an elderly couple who walk past me towards the Supreme Court building. They were holding a hand painted sign, "WE THE PEOPLE," one of the ever present signs around the Capitol.
In all of the back and forth over what should or shouldn't be discussed in reforming California's system of government, many ideas have been put forward. One suggestion that has stuck with me -- why not set up a Constitution wiki?
The idea seems straightforward, although I think the execution would be rather complex. Create a wiki with the current state constitution -- and perhaps the constitutions of other states -- as reference points. Then, just dive in and start writing. With several (dozens? hundreds? thousands?) exploring ideas, we might come to a consensus. However, I would like to suggest that we consider a wiki that offers multiple options, based on the choices people make.
For example, do we stick with the traditional American system or go for a more parliamentary system? Making that choice means very different outcomes in writing the articles for the executive and legislative branches, and both should be explored. Should we keep a bicameral legislature, or switch to a unicam? Should we keep single-member, plurality districts, or move to proportional representation? Each of these questions would need exploring, with the goal of crafting a complete, coherent Constitution no matter which choices are made along the design path. In the end, instead of one option, we might have 20, but each version having been reviewed for internal consistency.
So, what do you people think? Would this be a project worth trying?
We complain a lot about the national media not really understanding what's going on in California. Other than an occasional column by Paul Krugman, the national coverage of the California crisis has been almost universally off target. It's been either "post-partisan" drivel about Arnold Schwarzenegger or Gavin Newsom or some other governor past, present, or future, or it has been so blatantly wrong on the issues facing the state as to be laughable. For a good example of both, you can see the New York Times article from July.
But there is no reason it has to be that way, a journalist could take a few hours, do some research, and figure out a pretty good idea of what's going on here. While Hendrik Hertzberg misses some of the nuance of the issues facing our Golden State, he does grasp the big pitcture in the August 24 issue of the New Yorker.
California, it turns out, is ungovernable. Its public schools, once the nation's best, are now among the worst. Its transportation and water systems are deteriorating. Its prisons are so overcrowded that it has to turn tens of thousands of felons loose. And its legislature has spent most of the year in a farcical effort to pass the annual budget, leaving little or no time for other matters, such as-well, schools, transportation, water, and prisons. This is "normal": the same thing has happened in eighteen of the past twenty-two years. But the addition of economic disaster to legislative paralysis may have brought California to a tipping point.
... The nadir, some would say, came in 1978, when Proposition 13 essentially capped property taxes and made California the only state that requires a two-thirds vote of the legislature both to adopt a budget and to raise a tax. The decline in public services was one result. Another has been a distortion of the state's politics. Conservative Republican legislators have little incentive to compromise or even to broaden their appeal; to prevail on most of what is important to them, all they need is one-third plus one. (New Yorker 8/24/09)
He doesn't sugar coat it, or try to provide some sort of bipartisan spin on what's really happening. We have a cult that is masquerading as a political party that is dead set on pushing social services and all but the richest among us off the cliff. And for whatever criticisms you can levy at him, you have to give Hertzberg credit for recognizing the issue.
The article goes on to deal with the now prominent question of a Constitutional Convention. He's a fan. Big-time.
The genius of Repair California's approach is twofold. First, it steers clear of "social issues": no gay marriage, no abortion, no affirmative action. Second, the delegates would be chosen randomly from the adult population. (Appointed delegates, Repair California reasons, would be beholden to whoever appointed them; and if the delegates were elected, the elections would inevitably be low-turnout affairs dominated by money and the organized clout of special interests.) The convention itself would be an exercise in what is called "deliberative democracy." The delegates would spend months studying the issues, consulting experts, debating among themselves, and forging a consensus. The result would be put to a vote of the people, yes or no, in November of 2012.
To have faith in such a process requires a faith in the good sense and sincerity of ordinary people-a faith that just about everybody professes. The beauty part is that no one can know what the delegates would come up with-which is why the idea has won such broad support. ... If California has the courage and imagination to become a true laboratory of democracy, the experiment will be something to see.
You can't blame Hertzberg for his optimism, the whole thing does sound very exciting. And, truth be told, it is very exciting. Of course, the problem here is that when the lab is your home, it is easy to get cold feet about the whole thing. But, when you talk about fundamentally changing California's governance, you really can't help but be excited. Think of all the cool directions you could go - a unicameral legislature, some sort of proportionate representation, heck, we could even look at a parlimentary system. The world is our oyster in that we could pick and choose good aspects of governments from around the world.
But there is a down side, namely that we could very well end up with something crazy in the Constitution. As Jean Ross pointed out during the Netroots Nation panel, the last time we had a Constitutional Convention we ended up with the Chinese Exclusion Laws.
The suggestion so far is to create a random selection in order to decide the delegates. It is an intriguing suggestion, as perhaps the people would come without the preconceived biases of current legislators. We would avoid the campaign finance issues and all the issues of special interest money. But biases can be built back up quickly enough, and getting a completely clean slate would be difficult if not impossible. Depending on the process, we could easily end up with a similar problem to that which we have now: a minority holding up the whole system.
I suppose that after writing about California politics, the cynicism and pessimism can't help but be strong. But that cynicism is there for a reason. The Republican Party in California has blossomed into a full-on Zombie Death Cult, and that has spread from some of the grassroots base of the party to a general mistrust of the system. We are now in a period of vast mistrust of the government, and to expect citizens to simply re-empower a functional government is to be almost foolishly optimistic.
That all being said, the process does slightly work in the favor of experimentation. If we do get a constitutional convention called, we can play with the house's money to an extent. If we get something solid out of the convention, great we have a working system. If we don't get anything, well, all we've wasted is a bit of time and some money to pull the convention together. And if we get a document that isn't an improvement, well, it has to be put up for a vote once again. While it may seem odd for organizers and supporters of the convention movement to then oppose its output, the option of defeating the thing is still there.
Is the whole thing risky? Of course. But it just might be worth doing. After all, it's not like the status quo is really anything worth holding on to.
The federal ruling to reduce the prison population by over 40,000 is the result of a years-long, if not decades-long process, where the failed leaders run amok in Sacramento have let the corrections system grow completely out of control, preferring to warehouse prisoners into modified Public Storage units instead of embarking on same, smart policies that would save us money and make us safer. In response to this damaging comment on the state's failure, the political leadership has... signed up for more failure:
Attorney General Jerry Brown said in an interview that the order is probably not appealable, but eventually the state will have to consider going directly to the U.S. Supreme Court, marking the first time the high court would face such a case.
"I think the Supreme Court would see it differently," Brown said.
State officials said the proper solution is for the governor and legislators to work out a reduction plan as funding becomes available. The state should not be forced to function under the hammer of a federal court order, they said.
"We just don't agree that the federal courts should be ordering us to take these steps," said Matthew Cate, secretary of the state Department of Corrections and Rehabilitation.
How dare the federal courts order anyone around to respect Constitutional rights against cruel and unusual punishment! Who the hell do they think they are, a co-equal branch of government?
What's so interesting about this is how abnormal it is. Federal courts grant a significant amount of leeway to the states to manage affairs. But when a state consistently and deliberately violates Constitutional rights without letup, they must act. And that's been true for a long time.
California's archipelago of 33 prisons houses more than 170,000 inmates, nearly twice the number it was designed to safely hold. Almost all of its facilities are bursting at the seams: More than 16,000 prisoners sleep on what are known as "ugly beds" - extra bunks stuffed into cells, gyms, dayrooms, and hallways. [Governor Arnold] Schwarzenegger has referred to the system as a "powder keg."
....Even as Schwarzenegger has promised reform, the corrections budget has exploded during his term, from $4.7 billion in fiscal 2004 to nearly $10 billion in fiscal 2007, or about $49,000 for each adult inmate.
....For more than three decades, California has been trapped in a self-perpetuating cycle where putting more people in prison for longer periods of time has become the answer to every new crime to capture the public's attention - from drug dealing and gangbanging to tragic child abductions. Spurred on by a powerful prison guards' union and politicians afraid of looking soft on crime, corrections has become a bottomless pit, where countless lives and dollars disappear year after year. And now that it has metastasized to the point where even a tough-guy governor and the guards agree that the prisons must be downsized or else (see "When Prison Guards Go Soft"), every attempt at change seems stymied by inertia. The sheer size of the system has become the biggest obstacle to finding alternatives to warehousing criminals without preparing them for anything more than another cycle of incarceration. "The public believes the prison population reflects the crime rate," says James Austin, a corrections consultant who has served on several prison-reform panels in California. "That's just not true. It's because of California's policies and the way it runs the system."
This is a policy failure driven by a political failure, a cowardly series of actions that arises from a broken system of government. Dan Walters happens to be spot-on today - politicians have played on people's fears for 30 years and, faced with the tragedy they created, delayed and procrastinated until it became so torturous that the courts had to step in. From the three-strikes law to the 1,000 sentencing laws passed by the Legislature, all increasing sentences, nobody comes out looking good in this failure of leadership. Even the Attorney General of the United States recognizes that we cannot jail our way out of crime problems.
"We will not focus exclusively on incarceration as the most effective means of protecting public safety," Holder told the American Bar Association delegates meeting here for their annual convention. "Since 2003, spending on incarceration has continued to rise, but crime rates have flattened."
"Today, one out of every 100 adults in America is incarcerated - the highest incarceration rate in the world," he said. But the country has reached a point of diminishing returns at which putting even greater percentages of America's citizens behind bars won't cut the crime rate.
A ruling by the three-judge panel who have effectively taken control of the California prison system has ordered the state to reduce the prison population by as much as 40,000 44,000 inmates within the next two years, finding the system in violation of Constitutional mandates. The Tough On Crime balloon has just popped.
The judges said that reducing prison crowding in California was the only way to change what they called an unconstitutional prison health care system that causes one unnecessary death a week. In a scathing 184-page order, the judges criticized state officials, saying they had failed to comply with previous orders to fix the health care system in the prisons and reduce crowding, and recommended remedies, including reform of the parole system.
The special three-judge panel also described a chaotic prison system where prisoners were stacked in triple bunk beds in gymnasiums, hallways and day rooms; where single guards were often forced to monitor scores of inmates at a time; and where ill inmates died for lack of treatment.
"In these overcrowded conditions, inmate-on-inmate violence is almost impossible to prevent, infectious diseases spread more easily, and lockdowns are sometimes the only means by which to maintain control," the panel wrote. "In short, California's prisons are bursting at the seams and are impossible to manage."
This started as a series of lawsuits claiming that the overcrowded prisons violated inmates' Constitutional right to medical care through the 8th Amendment, which prohibits cruel and unusual punishment while under confinement. The judges concluded that massive reductions were the only way to get the balance right and restore Constitutional order to the process.
It's nothing less than an epic failure at all levels of leadership over the last thirty years which has brought us to the point where judges must mandate reductions in the prisons. A state that is unable to manage its finances can also clearly not manage its plainly illegal corrections system.
This now hangs over the head of lawmakers as they come back from recess in August and determine how to achieve $1.2 billion dollars in savings to the prison system. The Governor and Democrats in the legislature have proscribed various reform programs that would reduce the prison population, change mandatory prison sentences for technical parole violation, and create an independent sentencing commission to look at reforming our draconian sentencing policies. Many of these reforms are desperately needed, would save money for the state and also comprise a smarter, more sensible way to deal with prisons that actually makes Californians safer. Today's ruling makes this not only a good set of ideas, but a mandatory set, given that the state is now under court order to reduce the population.
The Governor's Prisons Secretary Matthew Cate is not ruling out appealing the ruling to the US Supreme Court. He also claims that the state has a plan to reduce overcrowding that would lower the number of prisoners by 35,000 in two years. That's less than required by the ruling. But this is no longer an option; unless they appeal, and it's no guarantee they can, the state must submit a plan to meet the judges' dictates within 45 days. End of story.
Just returned from the August 3rd Town Hall meeting on a State Constitutional Convention held at California Lutheran University in Thousand Oaks. There were about 200 people in attendance; a lot of retired upscale suburban folks with some elected officials, party activists, and Chamber of Commerce types mixed in.
The speaker's panel consisted of Timm Herdt, Sacramento correspondent for the Ventura County Star, Jim Wundeman of the Bay Area Council, poli-sci professor Dr. Herb Gooch of CLU, and Superior Court Judge James Cloninger.
In any conversation about or process for reforming our state's government, it's all too easy to get hasty and become hung up on policy outcomes that one wants or even that the state needs. One may even feel the urge to oppose the movement to convene a constitutional convention out of trepidation about one's priorities possibly being neglected or harmed. But, as David pointed out:
Jim Wunderman of the Bay Area Council has said that everything within government should be on the table, which worries some that a Pandora's box will be open, an opportunity to mess with fundamental rights. First of all, that's the case right now, as last November proved.
Beyond that, there's a process for doing a constitution "right," if we can popularize the main principle behind it and cement it in any forthcoming convention charter. The process can assuage the fears of those who stand to lose something that they have in the current Constitution, while still ensuring we can address those issues under the new constitution in a manner representative of the citizens' views. That is:
Confine the scope of any new constitution to matters of rights, of structure and mechanics of government, and of powers both granted and limited.
Set apart everything in the existing Constitution that falls outside this scope, everything that pertains to policy rather than what is foundationally structural, and include in the ratification of the new constitution enactment of all of that policy as regular law.
That way we can focus on the structure-of-government issues, majority rule, provisions to thwart tyranny of the majority where merited, and so forth at the constitutional convention. Then we can address policy matters such as taxes, budgetary allocation, administration policies, and the like in the regular legislative process, as it should be under a republican form of government, all the while minimizing the disruption of governance as we citizens reassert our rightful power. Specifically, don't repeal Proposition 13 property tax policy, Proposition 98 education funding policy, et cetera at the convention — keep them as ordinary law, and in so doing, make them subject to majority rule in the regular legislative process.
This approach presupposes the extinction of the two-thirds rule as well as reform of the initiative and referendum processes, though those matters will be topics the convention must address in any case. This approach may thwart anti-democratic blank slate-ism that shock doctrinarian opportunists could seize upon.
I've seen a bit of confusion in traditional media accounts of California's budget situation, and whether or not the state should receive a federal bailout. This seems to go toward the idea that without federal aid, California will default on its creditors and go bankrupt, and the federal government has a compelling interest in keeping that from happening. You can argue whether or not it would actually make sense for the state to default - it certainly worked pretty well for Argentina, despite neoliberal fuming to the contrary. And as noted by Peter Schrag in the above-linked entry, the Governor has never asked for any help of this kind, and given his status as a born-again Friedmanite, would probably reject it. But Paul Kedrosky, who has read the relevant law, explains in a piece supporting default that California really cannot do so.
The root issue, of course, is that California is insolvent, and irritating people like S&P analysts keep noticing. The state -- let's call it Latvia by the Pacific -- has a $24-billion budget gap that must be closed for it to continue operating (and I use that word advisedly). Without a clear sense of how that will happen rational creditors are going to be increasingly skittish about filling the hole. Now, does that mean California can't sell enough bonds to backfill the gap this time? You bet it can, and it will. This is part Schwarzenegger/Lockyer Financial Theater, and partly a laughably transparent attempt to demonstrate budgetary semi-competency in hopes of a few basis-points of relief on the inevitable bond sale. That's all.
Because California has $5.7-billion in debt servicing obligations. And while that will grow, debt occupies pride of place in California's constitution -- only education must be paid off before the next slug of cash goes to creditors. Get that? Healthcare, prisons, and other frivolities can all go to rack and ruin, but creditors must be paid, constitutionally speaking. That means, if you're looking at this through the gimlet eyes of muni-bond ghouls, that California has something like $50-billion in budgetary space to make its $5.7-billion in payments. It's pretty easy to calculate that California can make the payment nut, even if it has to close hospitals, release prisoners and stop patrolling the highways to do it.
Now, Kedrosky thinks this is theatrical and should not be rewarded. I say it's the perfect reason for California, and actually all states with this kind of constitutional arrangement, to receive those federal loan guarantees to stop gouging from Wall Street for short-term bonds. Not only do Schwarzenegger and Lockyer know we have to pay back all out debt, so do the bondholders and the rating agencies. It's almost literally impossible for us to default on those bonds, short of the entire state's residents spontaneously getting fired at once. If those loans will obviously get paid back, the interest shouldn't be set at payday-loan rates. And the federal government could very easily remedy that situation, at no cost and probably at a profit, as they reaped from the loans to New York City in the 1970s.
Is it a problem that California operates at the mercy of its creditors? In a sense. Is there a remedy? At the least, there's a way to get some equitability into the process so that we aren't blowing money on Wall Street firms who have been bailed out by those same Feds ten times over. In addition, this kind of thing weakens the municipal bond market, and the federal government has an interest in keeping credit flowing through that.
...H/t to John Myers for tracking down the obviously dubious story about Washington rejecting California officials clamoring for a "bailout". Nobody was doing any such thing. They were asking for loan guarantees, which they've been doing for months and months. Horrible reporting from WaPo.
dday, writing in Giving Away The Tax Argument at Digby's Hullabaloo blog, asks why so many California newspapers have "tax increase calculators" but no calculators that show people how much the budget cuts affect them.
In my life, I have never seen a "spending cut calculator," where someone could plug in, say, how many school-age children they have, or how many roads they take to work, or how many police officers and firefighters serve their community, or what social services they or their families rely on, and discover how much they stand to lose in THAT equation. Tax calculators show bias toward the gated community screamers on the right who see their money being "taken away" for nothing. A spending cut calculator would actually show the impact to a much larger cross-section of society, putting far more people at risk than a below 1% hit to their bottom line.
[. . . The media already highlights the tax side of the equation over spending, dramatically portraying tax increases while relegating spending cuts to paragraph 27. It feeds the tax revolt and distorts the debate. And it's completely irresponsible.
I'm here in Sacramento this morning for the Constitutional Convention Summit organized by the Bay Area Council. You can see the agenda here. It's unfortunate that the BAC chose to maintain an $89 registration fee, but there will be other events much more open and accessible to the public in the coming weeks and months.
I'll be liveblogging here and twittering at @cruickshank throughout the day.
The main purpose of this Summit is to gauge interest in calling a convention, bringing people together to think through the process of calling one, what issues a convention might consider, and ultimately start to generate support for the idea.
I really have no idea what's going to be said or what will happen here today, although Lt. Gov. John Garamendi is going to speak in favor of replacing the 2/3 budget rule with a 55% vote, and is also apparently going to call for the abolition of the State Senate and the creation of a 120-member unicameral legislature. Looks like the damage Senate Republicans inflicted on the chamber with their four-day hostage crisis may be terminal.
California hasn't seen a genuine constitutional convention since 1879, although our state's voters have not been shy about amending the constitution since then. A convention opens up a lot of possibilities and brings with it certain risks. All of that has to be discussed by Californians and this is but the start of that effort.
Ultimately it has to be remembered that in American political theory, the people are sovereign. They hold power, not a king or a president or a Zombie Death Cult. If a convention is to be a success it must involve, engage, and empower the people at every way. This Summit is a start in that effort - and only a start. Where we go from here should be and must be up to Californians.
160 years ago a group of newly arrived Anglos and Spanish-speaking Californios met at Colton Hall here in Monterey (pictured at right in a flickr photo by fritzliess) and held California's first Constitutional Convention. The document they produced was literally copied from the Iowa state constitution but had some elements of the Mexican system of government and justice grafted onto it, and included full protection of Spanish speakers' rights in what was officially a bilingual state.
California's constitution has undergone significant change since then. In 1878 the Workingmen's Party rode an anti-Chinese backlash and the Long Depression to power, and rewrote the Constitution in an effort to undermine the power of wealthy interests. (Unfortunately they also ended the 1849 bilingual policy.) In 1911 the Constitution was essentially rewritten when Progressive Republican Hiram Johnson pushed through the initiative, referendum and recall. And in 1978 another dramatic set of Constitutional revisions was initiated by Prop 13.
Americans think of their constitutions as static and unchanging, but this has never been the case. Both the US and the California constitution have undergone frequent revision. Sometimes this comes in the form of actual amendments, but it can also take the form of significant changes in Constitutional interpretation. The only amendments that came out of the New Deal were the 20th and 21st (moving Inauguration Day to January 20 and ending Prohibition) but as most historians and political scientists agree, FDR nevertheless initiated major changes to the way the American government operated.
California's constitution has been amended frequently - over 500 times by some accounts - and included an effort in the late 1960s to modernize the document. Still, it has become clear that California's government is broken and unable to meet the needs of one of the worst crises our state has ever faced. The economic crisis, drought, an energy and environmental crisis that seem to have faded a bit from the public mind but are still very much here - all of these problems are dumped into the lap of a government hamstrung by a conservative veto and a series of rules, many of which date from the last 30 years, designed specifically to prevent government from meeting the people's needs.
The spectacle of Abel Maldonado blackmailing the Legislature to accede to his demands as the price of passing a budget last week showed the need to eliminate the 2/3 rule. It is the first change, the tree that blocks the tracks, the door that opens that path to all other changes. But it has become clear that California needs even deeper reform to solve the present crisis and meet the needs of a 21st century state. Periods of major economic change usually are accompanied by constitutional change - hell, even the US Constitution itself owes its existence to the severe economic crisis of the 1780s, one of the worst in American history.
That's why the Courage Campaign, where I work as Public Policy Director, is joining the Bay Area Council and a diverse coalition of organizations to sponsor a Constitutional Convention Summit on Tuesday in Sacramento (you can register at Repair California).
It's my own personal belief, and one shared by the Courage Campaign, that a Constitutional Convention can successfully fix California's broken government. In a poll of our members last September over 90% said they supported a convention. And in December we launched CPR for California - a Citizens Plan to Reform California that included some major structural fixes for the state, including fixing the budget process and producing long-overdue initiative reform as well as empowerment solutions such as public financing of elections and universal voter registration.
But the key to success is that a convention must truly be "of the people." A convention will fail - and may not even be approved by voters - if it is seen as a top-down effort. Remember of course that a Constitution is a social compact, the product of a sovereign people, a recognition that we must have government to survive but that it must also be accountable to the people. For a Constitutional Convention to have legitimacy it must include the people of California at every step of the journey - especially in setting the Convention's priorities. Additionally, the delegates who attend the Convention must be representative of the state's population, and not be selected from a small group.
It's also worth noting some of the limits of a Constitutional Convention. The Courage Campaign believes that all social issues should be off-limits at a convention, such as marriage equality (that is best dealt with by the California Supreme Court, or by the voters if the Court upholds Prop 8). The Convention alone won't solve our state's financial woes.
But it's time that California's government once again adapted to the times. We need a constitution and a government responsive to the people and able to address the broad 21st century crisis, instead of a government that was deliberately broken and subject to a conservative veto. A Constitutional Convention won't solve all our problems, but it's a necessary step forward for California.
It doesn't come without risks, of course. But the time has come for progressives to assert a new set of ideas and a new agenda for California's future.
Over the flip I explain the process of calling, holding, and approving the proposals produced out of a Constitutional Convention.
Nota Bene: This is an open letter to Charlie Brown, Democratic candidate for CA-04's open seat. I have notified the Brown campaign of this diary by email. It is also crossposted at Daily Kos.
***
Dear Charlie,
I supported you in your race against John Doolittle back in 2006. This year I would like to support you again in your open seat race against Tom McClintock. While I would never under any circumstances vote for Tom McClintock, as things stand right now I cannot in good conscience vote for you. I do not currently intend to cast a vote in the CA-04 House race.
Almost one year ago I decided to write to you because I wanted assurance from you on a matter that became very important to me after the 2006 elections. After a few brief formalities, I wrote the following:
Disclosure: I work for the Courage Campaign. Take the poll - it closes at noon today!
This year's budget crisis produced more than frustration, agony, and suffering for Californians. It has also produced a growing consensus that our basic governmental processes are broken. The 2/3 rule is the most commonly criticized aspect of California's broken government, but there are other factors that get cited, from ballot box budgeting to term limits to redistricting. Even good progressive leaders like Karen Bass are having difficulty given these structural problems. Eliminating the 2/3 rule alone would go a long way in helping fix this state, as would electing enough Democrats to give us a 2/3 majority. But as Californians look at Sacramento, there's growing agreement that a broad range of fixes are necessary to get our state moving again.
Today the San Francisco Chronicleechoes these arguments in an editorial, calling for a series of reforms from eliminating the 2/3 rule to biennial budgeting to Prop 13. But because there are so many reforms that are needed, and because it's difficult to get them through the Legislature and the ballot box one by one, some groups have concluded the only way to push through a bigger reform package is to call a constitutional convention.
The Bay Area Council has already made such a call, suggesting a convention that is limited to only structural governance issues and prevented from proposing changes to individual rights clauses or anything related to social issues. Their call is starting to get traction around the state. The BAC is made up of the heads of Bay Area corporations like Chevron and Yahoo! and have the resources to put this issue before legislators and voters. The question facing not just the Courage Campaign, but progressives in general, is do we agree with them that a convention is the best way to provide the reforms we need?
That's why the Courage Campaign is asking you to vote in our convention poll. Do you think we should advocate for a Constitutional Convention to fix our state's numerous problems?
The arguments for a convention are compelling. Voters choose the delegates, and must approve whatever amendments the convention proposes. A convention elected by and accountable to voters would have broad public support and its recommendations might be taken more seriously - and have a greater chance of passage - than individual reforms sometimes seen as partisan in nature, like Prop 93 or Prop 11. A convention also allows for numerous reforms to be proposed and adopted at once, instead of in a slow one by one process. And of course a convention may succeed at producing needed reforms where all other attempts to fix the state's process in recent years have failed.
There are good counterarguments to this. If Democrats achieved 2/3 majorities in both houses they could push through some of these reforms without needing to go through the lengthy process of holding a convention. It may not be possible to limit the authority of a convention to just process issues - we don't want to open pandora's box or give social conservatives an opportunity to limit basic rights. And surely there are other objections (put them in the comments if you've got 'em!).
So that's why we're asking you to take the poll. Let us know what you think. And certainly add your thoughts in the comments. If a convention does happen it will need broad support from the progressive community, and it's a discussion we need to have now, especially if the well-funded BAC is serious about calling one.
More details, including an explanation of how a convention would work, over the flip.
Our friends at Blue America note Senator Dianne Feinstein is hiding under the covers at an undisclosed location:
Christy has put in tons and I mean tons of hard work finding out where our elected officials are going to appear over the fourth of July holiday. It seems some of them (*cough Diane Feinstein cough*) are using the "terrorist threat" to refuse to let their constituents know where they will be.
National security is a convenient excuse for so very many things.
So you'll probably have a tough time seeing DiFi this Independence Day to ask her to honor her oath of office to defend the Constitution and filibuster retroactive immunity. But Blue America has a nifty tool for you to whip votes.
There is a great deal of disgust with Barack Obama's massive flip-flop on retroactive immunity, but let's remember that from day one it was Dianne Feinstein trying to undermine him and the Constitution. I feel sorry for Obama, Senators like DiFi put him in a lose/lose situation. And if you've seen much news today, you won't be surprised that after flip-flopping on defending the Constitution he's getting beat up all over by people concluding he'll also flip-flop on Iraq. So give DiFi a call and give her a piece of your mind. Celebrate Independence Day and then go have BBQ or such to enjoy the 4th of July.
UPDATE: Senator Feinstein turned off the answering machine in her DC office and suggests calling a California field office. Numbers after the jump.
UPDATE II: Both her DC and LA offices automatically hung up after the message and the mailboxes are full at all of her other field offices. The online form is the only way to contact DiFi this Independence Day to ask her to support the Constitution. Turning off answering machines and hiding from the public? I think she belies her realization that constituents are pissed.
Here is the text of my latest letter to Senator Feinstein on FISA and telecom immunity. It appears that we have been corresponding for so long that I now have a pretty good record to go by to understand her position. To see where she was, and where she's gone on this issue is not pretty.
Please note that I did take one last thing out of this letter before I faxed it, but I left it in for the readers here to understand just how I feel.
June 29, 2008
Senator Diane Feinstein
United States Senate
331 Hart Senate Office Building
Washington, DC 20510 Via Facsimile (202) 228-3954
Re: FISA Telecom Immunity
Dear Senator Feinstein:
For over two years, I have been writing to you about my outrage over the Bush administration's warrantless wiretapping of American citizens. You have somehow found it possible, given your busy schedule selling out our civil rights, to respond to my communications from time to time, and I thank you for it. I would like to both review your positions on the issue, and respond to them, now that the Senate is considering a bill that would give the telecommunications companies that colluded with the administration immunity for their undisputed wrongdoing.
I first wrote to you about my concerns in early 2006. On April 12, 2006, you responded via email as follows:
I have carefully reviewed the Constitution and the laws relating to this domestic intelligence activity, along with the President's statements and those of the Attorney General and other Administration officials. I believe that the electronic surveillance program was not conducted in accordance with U.S. law. The program, as described, violates the Foreign Intelligence Surveillance Act, which requires a court order for surveillance of Americans.
Congress has updated FISA many times since 9/11 in order to provide our nation with all the necessary tools to fight terrorism. The Administration has never asked for the authority to conduct this program.
I believe the Administration also violated the National Security Act, which requires all members of the Intelligence Committee to be fully and currently informed of all significant intelligence activities other than covert actions. I am a member of the Intelligence Committee, and yet I was not told about this program until it was made public.
On October 20, 2007, I again wrote to you, via facsimile, when it became clear that you had backed away from your original position, as set forth above, because you were "undecided" as to whether to grant immunity to those telecommunications companies that had done what the administration wanted, in spite of the manifest illegality of doing so. I laid out a timeline of what I considered relevant events concerning warrantless wiretapping. I believe that timeline is as trenchant now as it was then, and I will again impart it to you:
1) On October 13, 2007, The Washington Post reported that based on documents released from the trial of Joseph Nacchio, former CEO of Qwest Communications, that the government had enlisted the telecommunications companies' assistance with its warrantless wiretapping program (the program) on February 27, 2001, fully six months prior to the attack on the World Trade Center (9/11);
2) While Quest refused, maintaining the program was illegal, other companies did participate;
3) At least one telecommunications company, Verizon, not only participated, but also demanded and received payment of $1,000 each time it provided information pursuant to the program;
4) Verizon was paid for its participation over 700 times;
5) The program, and telecommunications companies' illegal acts in support of it, failed to prevent 9/11;
6) According to fully corroborated testimony by James Comey before the Senate Judiciary Committee (upon which you sit), on March 11, 2004, although it had previously done so, the Department of Justice (DOJ) refused to affirm the legality of the program, but the President allowed the program to continue, despite DOJ's refusal;
7) The President, on April 20, 2004, publicly denied such warrantless wiretapping was taking place;
8) In December 2005, the existence of the program was disclosed by The New York Times;
9) In response to the disclosure, the President admitted to the existence of the program, but claimed that it (a) began after 9/11, and (b) prevented an attack on the Library Tower in Los Angeles (which the President called the "Liberty Tower");
10) Subsequent investigation revealed there was probably no imminent or even credible threat to the Library Tower;
11) In the ensuing months and years, the Administration has claimed that such warrantless wiretapping has been conducted very rarely, and only in extreme circumstances;
12) Subsequent investigation by the FBI's Inspector General revealed that such a claim is patently false; the FBI has abused its ability to issue National Security Letters and obtain private communications without warrants on hundreds of occasions, and many if not most of those letters were issued in connection with investigations wholly unrelated to terrorism;
13) On August 3, 2007, 60 Senators, including you, voted for the Protect America Act (PAA), which gives the Administration increased ability to engage in warrantless wiretapping;
14) After the PAA became law, several members of Congress indicated the Administration had warned them of an imminent threat of a terrorist attack upon Congress, which bore upon their votes;
15) Subsequent investigation reveals there was no such imminent threat;
16) In the ensuing weeks since the passage of the PAA, the President has claimed that the members of the "Gang of Eight" in Congress had been fully briefed on the warrantless wiretapping program;
17) At least three members of the "Gang of Eight" have indicated that they were not so briefed;
18) The President continues to claim that the warrantless wiretapping program was undertaken in response to 9/11.
Your response from January 22, 2008, via email, was remarkable, not only for the time it took to reach me (a mere six months), but for the amazing turnaround in your position on the matter:
I introduced an amendment on the Senate floor that would limit this grant of immunity. Under my amendment, cases against the telecommunications companies would go to the FISA Court for judicial review. The Court would only provide immunity if it finds that the alleged assistance was not provided, that assistance met legal requirements, or that a company had a good faith, reasonable belief that assistance was legal.
I believe that this approach strikes the correct balance: it maintains court review and a judicial determination of whether companies provided assistance that they should have known violated the law.
I have also filed an amendment to restore FISA's exclusivity, to ensure that no surveillance program can proceed outside the law in the way that the Terrorist Surveillance Program did for more than five years.
After reading your response, I responded the next day, with a facsimile that repeated the timeline, and included an additional point:
19) On January 10, 2008, it became publicly known that telecommunications companies had cut off FBI wiretaps because the bills had not been paid quickly enough to suit the companies.
I then received a letter via U.S. Mail that appeared to me to be a word-for-word repeat of your email. I am unsure whether you responded to my second facsimile at all, but suffice it to say that I was then clear about your position: you favored your judicial review that would grant immunity to telecommunications companies for a "good faith" belief in the legality something that they knew was illegal for over 30 years.
And so now the Senate is on the verge of voting on a bill that would go so much further than your pathetic "balanced" approach, in that the question of illegality of the wiretapping would never enter into the judicial review at all; rather, the review would be limited to deciding whether the companies were told they would somehow be protected by the Administration for breaking the law, and if they were, they become immune.
One has to wonder how we could have fallen so far into this Alice in Wonderland rabbit hole where "they told me I could" becomes the justification for excusing unlawful conduct. I think it is rather clear than when an important decision maker in the process moves from "I believe that the electronic surveillance program was not conducted in accordance with U.S. law" to "I introduced an amendment on the Senate floor that would limit this grant of immunity" that the responsibility lies, to a significant degree, with that decision maker, namely you.
From a negotiation standpoint, what you did makes no sense at all. Your amendment was a virtual capitulation from the beginning of the process that already gave the Administration more than it should have ever expected. There is no precedent in American law that would give intentional actors retroactive civil immunity for their acts, until you made such a notion possible. So, when Representative Hoyer began the negotiations that led to this bill, his side had already conceded a point that should not have been part of the calculus at all.
Further, I see no reason at all why the right of the American people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, was ever a negotiable point in the first place. That such a notion would have occurred to you makes me doubt your commitment to the Constitution and the People of the State of California, whom, I would like to remind you, you were elected to serve. We value our personal rights, as set forth in the very first provision of our State's constitution:
All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.
Finally, any notion that these companies acted in anything that would approach "good faith" is completely undermined by their eagerness to shut off the wiretaps for slow payment (and there has never been any suggestion that the government would not pay eventually) even if these taps were of great importance to ongoing investigations. The companies were not concerned with any notions of patriotism; they were only in it for the money. For you or anyone to maintain that telecom immunity must be passed in order to keep us from "being attacked by terrorists," is simply an insult. As I noted above, the illegal program was instituted before September 11, 2001, and it did not protect us then. This was an illegal, ineffective program that has produced nothing good in the short term, and promises to produce nothing but bad for our civil liberties in the long term.
Fortunately for the People of California, we have at least one Senator who still respects us, the things that make us strong, and our Constitution. She and a dedicated group of her colleagues have managed to put the brakes on what has felt like a runaway train that would destroy our civil liberties. With what now seems like the luxury of time (a scant two weeks), perhaps you can reflect upon the fiasco that that you would create by supporting the FISA bill, and finally come to understand that it does no good and much harm.
Moreover, even if you were to decide that ultimately this compromise is somehow the right thing to do, there is simply no need to do it hastily. We still do not know exactly what the telecommunications companies did, upon whom it was done, and we have no idea whether it produced anything at all that would make anyone safer. I feel that as to the last point, it did not, or else this Administration, which has little or no regard for the protection of state secrets, except when it feels such secrecy is politically advantageous, would have already disclosed it publicly.
I know that there is a political calculation going on here, but I would like to suggest to you that what appears to be the conventional wisdom on national security is no longer reflective of how the American people (and certainly the people of California) truly feel. We are not ready to cower at the first sign of a threat on our soil, and we are ready to respond not in fear, but with the strength born of our principles of justice and liberty.
There is no doubt that a significant cadre of politicians will try to make an issue out of the failure to pass this bad bill, but their efforts will not succeed as they may have if this were 2003. This Administration is the most unpopular in history, and the political difficulties that would inure to you and those on the side of liberty is not worth avoiding when compared to the massive unearned benefit the Administration and its supporters in Congress would gain from the bill's passage.
Finally, if this is indeed such an important decision to make, there is no reason why it cannot be made by the next Congress, and a new President. There is every reason to believe that the next President will be someone who understands and appreciates the U.S. Constitution, rather than referring to it as a "g*******d piece of paper," and I would much prefer that he make the final decision before signing any bill of this importance. Any investigation that is in place has not been, and will not be affected by not enacting the bill, and if there is a need to collect new information, the Administration can do what it always could have done: GET A WARRANT.
You should be grateful to Senators Boxer, Feingold, Dodd, and the others who have held back this dangerous juggernaut of a bill that would help only a privileged few and cause irreparable harm to this country, its people, and its reason for existence. They have given you what you, for no good reason, have declined to get for yourself: time to come to the right decision, and the only decision you can make with a good conscience (assuming you have one). NOTE: I omitted the italicized parenthetical from the final letter, as I decided it might be a little "over the top."
I urge you to take a cue from your constituents and act from strength and not from fear. Please oppose any FISA legislation that includes telecommunications company immunity, and please support the Constitution and an American system of justice that does not reward those who break the law.
Even though Senator Dianne Feinstein never went to law school, somehow or other she managed to get a seat on the Judiciary Committee. The disasters of the Bush Administration in no small part were facilitated by her lack of understanding why Article I has primacy in the relationship to Article II. But let's look at the Bill of Rights, numerically.
2nd Amendment: Today, she is screaming in bold font against the 2nd Amendment. Not surprising, as she once famously told 60 minutes following the Brady Bill vote, "If I could have gotten 51 votes in the Senate of the United States for an outright ban, picking up every one of them -- Mr. and Mrs. America, turn them all in -- I would have done it."
3rd Amendment: To her credit, as far as I know she seems OK on the quartering of troops, but that may just be because it hasn't come up. If it did come up, there would probably need to be thousands of calls to her office as she vacillated on the issue since it centers on privacy rights.
4th Amendment: Just yesterday, she caved on the part about, "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." And she's been a cheerleader for the Patriot Act.
5th & 6th Amendments: Due process and right to a fair trial have not been her strong suit, either. On her support of the Graham-Levin Amendment, the ACLU writes, "by stripping detainees at Guantanamo Bay of the ability to file habeas petitions and other claims in federal court, it unconstitutionally removed the system of checks and balances for persons seeking protection against the government's use of torture and abuse and other denials of due process."
7th Amendment: She doesn't seem to have a problem with findings of fact to be decided by a jury.
8th Amendment: She totally shot to hell any credibility on "cruel and unusaul" during her disgraceful caving on Michael Mukasey
9th Amendment: If she refuses to support the rights that are specifically enumerated, not so much one to trust on all the rest. Which is how she ended up on the wrong side of history by attacking Mayor Gavin Newsom for supporting Marriage Equality.
10th Amendment: If she agrees with state's rights, she supports them. If not, she doesn't.
I'm sure I'm missing a number of additional references. Yet my question isn't so much why it is so difficult to keep track of all her attacks on civil liberties, but why she is on the Judiciary Committee.
