Can Democracy Save The Republic?

The people have the power to stop the criminal class.

The backstory to this essay lies in its multiple rejections from websites across the political spectrum including those representing Marxist, libertarian and conservative thought. It is my hope that you, the reader, will find my argument persuasive and perhaps live in a state where you can turn thought into action. Since the system we have is not working out for many of us, is there any other choice?

Through their actions, it is apparent that many people enter public service solely in pursuit of money, power and control. Public service for them is akin to a legalized version of organized crime.

Checks and balances cannot effectively derive from a system that checks itself. Our expectation of voting people out of office and their replacements acting differently, rarely achieves the desired result.  Term limits as a solution only results in compressing the time that an individual has to fill their pockets. Finally, our society does not have social controls such as those where family or tribe or the use of shaming exert restrictive influences.

What is required to constrain bad behavior are impediments placed prior to beginning public service.  These will inhibit individuals once elected or selected from misusing their positions, at least for financial enrichment.  What obstacles should be placed to achieve this and on whom?

Those most visible when it comes to questionable behavior reside in the federal legislative branch because that is where unlimited opportunity for financial gain exists.  However, attempting to change that branch of government’s operation requires a methodical approach.

With that acknowledged, and in order to institute change at the federal level, correctives must begin at the state level, specifically in states that allow voter initiatives placed on election ballots.  This will bypass the state legislatures since government will not purposely tie its own hands.  

In 2015, the US Supreme Court weighed in on the notion of direct voter initiatives in Arizona State Legislature v. Arizona Independent Redistricting Commission. citation  It noted the constitutionality of ballot initiatives as being part of the use of “legislative law” in the general description of “the power that makes laws.”  Therefore, the power to make law derives from either ballot initiatives or the people’s representatives.

My proposal for one such ballot initiative to constrain public servants may seem radical but there is both federal and employment law to lend it credence.  It requires those voted into state executive, legislative, judicial or prosecutorial roles to place their assets in a trust under the control and monitoring of a third party.  This would also be required of immediate family members who are dependents of the candidate.  Duration will be while in any office and for a set amount of time afterward, perhaps 2 years.  Statutory law, common law and the plain meaning of the relevant constitutional text will support my proposal.

The creation of Section 2634 of federal election law applies to those entering the executive branch as employees or appointees. citation  Its purpose is to avoid conflicts of interest while in office.  Instead of having to sell assets as they enter public service, it delays capital gains payments by re-investing the gains into securities such as mutual funds or treasury bonds that are less likely to present a conflict of interest for the holder.  The Office of Government Ethics has offered this option since 1989.

In 1989, President Bush signed Executive Order 12731. citation Entitled “Principles of Ethical Conduct for Government Officers and Employees”, subsequently modified by EO 12674. citation It sought to reign in real or perceived abuses within the executive branch.  In part, it states, “You shall not hold financial interests that conflict with…performance of duty” and “You shall not use your public office for private gain.” Federal statutes exist regarding conflict of interest, with violations subject to criminal or civil action by the Department of Justice.

At the state level, prohibitions already exist in their Constitutions. For instance in Pennsylvania, Article 3, section 12 states “A member who has a personal or private interest in any measure or bill proposed or pending before the General Assembly shall disclose the fact to the House of which he is a member, and shall not vote thereon.”

The best way to avoid a conflict of interest and the financial toll it may take while serving, would be for the public servant to recuse themselves from involvement in situations where it may exist.   However, if admonitions or laws had teeth, my proposal would have no purpose. Therefore, the trust will determine which investments represent a conflict of interest for the public servant and will take action accordingly.

Regarding the issue of trust control extending beyond the time one is in public service, we can use restrictive covenants as a guide.  Professional employment contracts often include restrictions on post-employment competition, limitations based largely on time and geographic distance.  The enforceability depends on state law, therefore change at the state level is required, change in this case emanating from voter initiatives.

An objection may be raised that the formation of a trust represents the loss of control of private property, a “taking”, and therefore in violation of the Constitution’s Eminent Domain clause.  Unconstitutional takings exist when private property becomes public use without just compensation to the owner. In my proposal, what goes into a trust is not for public use but for public protection.

Recognized aspects of property rights include possession, use, and disposition. Takings can be total or partial. In a trust scenario, the public servant retains possession of the assets so a full taking of property has not occurred. Nor has a partial taking occurred since the asset’s use and disposition are limited no more than when capital gains are re-invested to limit conflicts of interest, as in federal Section 2634, which has not been deemed unconstitutional. An alternative would be the option of full liquidation of assets prior to assuming public service. Is there a constitutional right to public service that supersedes either of these choices?

Although the constitutionality of imposing term limits on Congress was rejected by the US Supreme Court in US Term Limits, Inc., et al. v. Thornton et al., citation there are options available to pressure the federal government to accept what states could impose upon their public servants.

Perhaps there will be a role for the state Attorney’s General, using their investigatory powers to uncover federal office holder’s sources of income, conflicts of interest etc.  Keep in mind the state AG’s hands were also tied as noted above for their election/selection.  Misery loves company.

Finding those conflicts of interest should not be difficult since the public has found them, for example, by following and making the same investments that the spouse of the current Speaker of the House makes. Reportedly, those individuals have benefitted handsomely from such a strategy. citation

The goal is to limit the time people spend in any level of government service, since time gives opportunity for which to act against the public interest. My proposal will ease their financial burden, make it applicable throughout, and make extended stays in government employ less financially palatable. Finally, although there are plenty of ethics laws at the federal level, our system only works when there is a functional, not dysfunctional, Department of Justice.

One weakness in my proposal is that it hinges on voter initiatives. Only 21 states allow for citizen initiated state statutes. My state of Pennsylvania does not allow for it, and getting an initiative on the ballot requires proposal by a House or Senate member, followed by 16 steps to make it on the ballot, in other words, unlikely. I hope that one of those 21 states will take up my proposal. In order to save our republican form of government, democracy may be required to disrupt the tendency toward kleptocracy.