Things We Read Today, 8

Today: September 11, global change, evolution, economics, 17th amendment, gold standard, and a boughten electorate... all to a purpose.

Interesting Times in Rhode Island (and Wisconsin), June 6

1. The major national story is that Wisconsin Governor Scott Walker won his recall election, 53%-46% despite substantial efforts to unseat him from organized labor groups who oppose the budget and collective bargaining reforms he has spearheaded. The real message here is that there are still many Americans who don't like to be told that there is a deep government, superior in certain areas to the governments they elect, that mere elected officials shouldn't interfere with. This is a healthy attitude that should be cultivated.

2. And speaking of deep government, the East Bay Energy Consortium legislation that I wrote about yesterday was replaced in the House Environment and Natural Resources Committee with a "study commission" bill which was then held for further study (Justin has coverage of this meeting at the Ocean State Current). According to a GoLocalProv article by Stephen Beale, Governor Lincoln Chafee is on record as opposing major enhancements of the EBEC’s powers in this legislative session, which makes last minute passage of the bill, ala what happened with 38 Studios, unlikely.

3. West Warwick appears to be in worse shape than Woonsocket, according to a Brian Crandall report from WJAR-TV (NBC 10)...

Meanwhile, the West Warwick teachers union president confirmed to NBC 10 that they have been notified by the school administration that the school department won't be able to make payroll for the full year, that it will be two paychecks (4 weeks pay) short.

From a fiscal perspective, one way out of this, following the example of Woonsocket, would be to put a budget commission in charge in West Warwick which could request an acceleration of state-aid to address the shortfall. Are there any others? It seems too late for a supplemental tax increase, given that a supplemental would have to be approved by the General Assembly. A budget commission, by the way, would also have the authority to reverse a decision made by the West Warwick school committee, which opposes school sports programs and voted to eliminate them.

RISCing the Press Table

Andrew did an excellent job summarizing RISC's Winter Meeting, this morning. I was trying to follow along with the comments from the other side of the room, where I was doing the same thing from near the press table.

If you're interested in even more post-live liveblogging of the event, I think I might be a little bit faster typist than Andrew (while he was doing research and engineering in his younger days, I was writing long obscure novels). I've got some pictures, too.

RISC Panel Discussion on Municipal Finance

[9:16] Good morning, from the Rhode Island Statewide Coalititon Winter Meeting, where a panel discussion on municipal finance in Rhode Island has been convened. Panel members are Woonsocket Mayor Leo Fontaine, Cranston Mayor Allan Fung, Central Falls Receiver Robert Flanders, and the multi-titled Gary Sasse.

[9:18] Central Falls Receiver Flanders is the moderator, and introducing the discussion. He says he'd like to spend some time focusing on the legalities of receivership.

[9:21] CF entered into many agreements with its public employees that were unsustainable over time. $16M in revenue was being collected to pay for $22M in benefits, and that's before the real costs for OPEB benefits kick in.

[9:21] Flanders reminds us that CF petitioned the state for a judicial receiver. The state responded, eventually, by passing the current fiscal stabilization law. Flanders reviews the triggers that allow the state to step in.

[9:23] The triggers, Flanders says he's been told, are present in Providence and Woonsocket.

[9:24] Flanders reviews the 3 layers of fiscal stabilization (overseer, budget commission, receiver).

[9:26] The two powers the receiver has are 1) to take a city or town into bankruptcy and 2) all of the powers that the city government has (this is Flanders' description),

[9:27] Flanders discusses chapter 9 bankruptcy. Little used, not many precedents, but it seems to be generally agreed that a receiver can start making changes immediately after bankruptcy is filed for. Motion to reject all of the problem contracts can immediately be filed.

[9:30] Chapter 9 also requires state authorization. The RI law makes a receiver the only official who can give this authorization.

[9:31] A judge can't appoint a trustee to manage a city in a different way than it is currently be managed, nor liquidate the city.

[9:37] Biggest lesson of Central Falls: It's possible to get over the stigma of bankruptcy, which is just a restructuring.

[9:39] Flanders is discussing "regionalization" and "consolidation" as longer term structural fixes, but it's the lite version of each, incremental sharing of services, school dept./muni consolidation within towns.

[9:40] Other perception problem: City and town officials have to lose all of their powers -- but that doesn't have to happen.

[9:41] In my opinion, Judge Flanders is trying to redefine the concept of receivership as it has so far been applied, so that Providence or Woonsocket would be able to ask for a receiver as a form of power sharing, not as a complete state takeover.

[9:42] Flanders goes on, receivership is the best way to short circuit court interference in the process.

[9:43] Flanders also says, rather directly, RI state judges are ruling on items that could affect their own pensions.

[9:44] Now talking about the bondholder law. Flanders defends it with conventional argument that one muni bond failure in Rhode Island would cause higher interest rates to spread to other communities. This "tempers" concerns that bankruptcy would be bad for Rhode Island.

[9:49] Woonsocket Mayor Leo Fontaine is up next. Starts with a reference to the Declaration of Independence. To have a Tea Party today, we'd need a permit, a detail police officer, and probably get fined by the EPA and start a conflict with the Tea carriers union.

[9:51] We're collapsing under the pressure of bunches of promises made with good intentions.

[9:52] This isn't a problem of one or two cities or towns, this impacts all of us.

[9:52] Woonsocket looked at the same corporate receivership option that CF originally pursued. Woonsocket wanted to wait until the GA was out of session, so it couldn't be quickly contravened.

[9:54] Current receivership law is trying to solve the problem of government by inserting more government.

[9:54] Woonsocket has been trying to solve its problems by cutting costs.

[9:55] Fontaine claims that Woonsocket is one of the highest-taxed communities in the state. (However, I have questions about this claim).

[9:56] Mentions that it's school-side spending that's nout of control in Woonsocket, because of the independence that school committees have been given, again with good and noble intentions.

[9:58] Doesn't think that receivership is the answer.

[10:00] (Note to commenter "John": Mayor Fontaine is making the people of Woonsocket look like they have taken to choosing responsible politicians (at least lately)).

[10:04] Cranston Mayor Allan Fung up next: Cranston is not in as bad a position as Woonsocket or Providence, but it's not out of the woods yet. Percentage of budget going into contracted costs is about the same in Cranston as in other distressed communities. Both the costs, and the "playbook" for dealing with those costs are the problem.

[10:07] Binding arbitration has imposed many structural costs that are now a problem. Serious fiscal analyses were not done, when benefits were offered.

[10:09] Gary Sasse, advisor to the Providence City Council: If we have a sick capitol city, we're not going to have a healthy state. Bankruptcy can be made more predictable -- in public decision making, predictability is very important.

[10:12] Two factors creating difficulties for Providence: #1 State mandates, which make it difficult to treat property taxpayers fairly. 20 pieces of legislation have been proposed to relieve this, they couldn't get a hearing.

[10:13] Factor #2: The payments needed to keep the city pensions solvent.

[10:14] Huge tax increases will be needed, under the current system, just to make pension payments (basically the same argument that Gina Raimondo has explained regarding state pensions).

[10:18] 3 options 1) bankruptcy 2) negotiating with the unions and 3) a supplemental tax increase. It's legitimate to ask, from a tactical perspective, how do you get the unions to come to the table, to renegotiate what are effectively guaranteed annual raises and other benefits.

[10:20] Concept of bankruptcy needs some more conversation.

[10:21] State Rep. Laurence Ehrhardt (whom I neglected in the intro) is the final panelist to speak.

[10:22] Mentions taking back longevity increases and, of course, state-system pension reform as two things the legislature has done, to help RI's finances, that in the past he wouldn't have thought possible. However, there were some unique circumstances of timing and leadership that allowed this to happen.

[10:24] Leadership of the House is facing organized opposition pressure, because of their decisions.

[10:26] "Haven't seen much in the way of requested legislation, to deal with the municipal problem". Legislation that has been filed is mostly taxes on non-profits, that just moves money from one pocket to another.

[10:28] Mentions binding arbitration -- it wasn't clearly dead last session until the last night of the session (suggesting it could come back again this year?)

[10:29] Flanders asks for specific examples of problem mandates. Fontaine: BEP mandates on the school side, DEM mandates impact Woonsocket's waste water plant, mandates on renovating historic buildings.

[10:31] Sasse: 2 types of mandates that unnecessarily drive up costs: Environmental regulations and mandates that public employee unions got added to the law, when they couldn't get them written into contracts.

[10:32] Fung: We need reform, not repeal of mandates, to get the public to understand that cities and towns need more freedom to reduce their costs, e.g. evergreen contracts aren't mandates, as much as they are bad laws.

[10:40] Audience Q portion, based on written questions:

[10:41] Q to Gary Sasse on the specifics of Providence's pension. Sasse explains the difference between statutorially awarded pensions, and contractually negotiated pensions. Mentions state judges are making decisions that set precedents for their own pensions.

[10:42] Would a Providence bankruptcy affect the state's bond rating? Sasse: Bond markets don't just look at bankruptcy. They also look at what will be done, with the new flexibility gained through bankruptcy.

[10:46] A tax-to-the-max strategy would be worse than bankruptcy (from the perspective of the bond markets, I think).

[10:47] Q: Why are there so many school department deficits? Should all school departments be consolidated with their municipal governments?

[10:48] Flanders: "I think so". There should more connection between the tax-raising power and spending on schools in cities and towns.

[10:49] Fung: Cranston was downgraded, with 2 reasons cited 1) the pension system 2) school spending. Cities can't be an ATM for the schools, cities need more accurate info for budgeting.

[10:50] Fontaine agrees with above sentiments. Fung: End the Caruolo act.

[10:53] Q: Can local plans be merged into the MERS plan? Flanders: Courts have ruled that whatever plan someone retires under cannot be changed.

[10:54] Fung: You also need a carefully considered transition plan, to make a move into MERS work.

[10:55] Sasse: In Providence, 16M of 60M in pension costs is to pay COLAs to retirees.

[10:56] Q: could RI become a right-to-work state? Fontaine: Why shouldn't employee service costs be put out to bid, like other costs that cities deal with.

[10:58] Harry Staley wraps up. Bad bills get defeated, but come back the next year. Can the legislature afford to waste time, reconsidering things like binding arbitration every year? Or trying to repeal something like voter ID, that was just passed last year, and hasn't even been implemented yet?

[11:00] The time should be used to consider the real issues that are critical to our future.

[11:01] There's either going to be a voluntary or an involuntary solution to RI's problems. He hopes it's voluntary.

Justin's liveblog of today's RISC event is available at the Ocean State Current.

Robert Flanders' Answers to Questions on Receivership

Central Falls Receiver Robert Flanders certainly cannot be faulted for not responding to inquiries in a timely fashion...

Q1: You have been quoted on the Buddy Cianci radio show as saying that some sitting Rhode Island Mayors should approach the state government and ask to become the receivers for their cities. Is this indeed a course of action that you advocate?

Central Falls Receiver Robert Flanders: It depends on a number of factors, including whether the State (i.e., the Governor's office and legislative leadership) would be likely to have some measure of confidence that that particular sitting mayor would be able to and willing to take the sometimes politically unpalatable actions that might be needed to restore the City to fiscal solvency and whether the mayor in question has the credibility, capacity, political will, and respect needed to accomplish such a goal and to work cooperatively with the Director of Revenue, the Governor, and other stakeholders to do so.

Q2: Conflicting accounts of the rescinding of the recent parking ban in Central Falls have been presented to the public. Most recently, W. Zachary Malinowski of the Providence Journal attributed the rescinding of the ban to the Governor of Rhode Island and not the Office of the Central Falls receiver (February 4 Providence Journal, "The next day, Governor Chafee, reacting to a public outcry, suspended the parking ban"). Could you clarify the process by which the parking ban was rescinded?

RF: The Receiver suspended enforcement of the parking ban, after obtaining input from the Governor's office, local elected officials, and a number of Central Falls residents.

Q3: In Federalist 47, Montesquieu was quoted by James Madison: "There can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates". Do you believe it is a wise course of action to tell the people of Central Falls, of Rhode Island, of the United States and of the world that fiscal crises justify restructuring of government in a way that removes what some of the great thinkers of the Western political tradition believe to be an essential safeguard to liberty?

RF: To my knowledge, no one associated with the Receivership is telling people that or saying that, nor have they said that. Rather, what state policy makers decided when they enacted the Fiscal Stability Act (providing for the appointment of various levels of state fiscal oversight when a city or town experiences extreme financial difficulty) is that fiscal emergencies call for extraordinary temporary measures to correct a problem that threatens to cause a City or Town to default on its obligations and/or to run out of cash. When the emergency and crisis ends, then the temporary and extraordinary measures used to deal with that situation also end. The Rhode Island Supreme Court recently upheld the constitutionality of this statute in the teeth of arguments such as those that your question adopts, expressly rejecting them as legally unsound. A corollary to the quote in your question is that there can be no liberty when the executive and legislative branches of a state are powerless to prevent a city or town (and therefore the residents who depend on its viability) from experiencing utter financial ruin.

Receivership as a Way for Mayors to Grab Total Control of City Government?

Yesterday was the second consecutive day on which Buddy Cianci, during his WPRO (630AM) radio show, referenced an earlier interview with Central Falls Receiver Robert Flanders, where Receiver Flanders had apparently suggested that Rhode Island Mayors could deal with their fiscal problems by approaching the state and having themselves appointed receivers of their own communities. I'd be very surprised if state legislators had this kind of process in mind when they passed the "fiscal stabilization" law in 2010.

(Under the fiscal stabilization law, the state can move to immediately suspend municipal democracy in a community, without first passing through an "overseer" or a "budget commission" process first)...

In the event the director of revenue determines, in consultation with the auditor general, that a city or town is facing a fiscal emergency and that circumstances do not allow for appointment of a fiscal overseer or a budget commission prior to the appointment of a receiver, the director of revenue may appoint a receiver without having first appointed a fiscal overseer or a budget commission.

I didn't hear the original interview and haven't been able to find it on the WPRO website, so based on Mayor Cianci's account, I've put the following set of questions via email to Central Falls Receiver Flanders' office:

---

1. You have been quoted on the Buddy Cianci radio show as having said that some sitting Rhode Island Mayors should approach the state government and ask to become the receivers for their cities. Is this indeed a course of action that you advocate?

2. Conflicting accounts of the rescinding of the recent parking ban in Central Falls have been presented to the public. Most recently, W. Zachary Malinowski of the Providence Journal attributed the rescinding of the ban to the Governor of Rhode Island and not the Office of the Central Falls receiver (February 4 Providence Journal, "The next day, Governor Chafee, reacting to a public outcry, suspended the parking ban"). Could you clarify the process by which the parking ban was rescinded?

3. In Federalist 47, Montesquieu was quoted by James Madison: "There can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates". Do you believe it is a wise course of action to tell the people of Central Falls, of Rhode Island, of the United States and of the world that fiscal crises justify restructuring of government in a way that removes what some of the great thinkers of the Western political tradition believe to be an essential safeguard to liberty?

Who's Running Central Falls?

I ask, because it's really hard to tell from the way the issue of the overnight parking ban played out.

In December, Central Falls Receiver Robert Flanders "approved" an ordinance imposing a fine for overnight parking in Central Falls scheduled to take effect this month (though Senator Agostinho Silva's press releases on the matter have continually referred to the receiver having "endorsed" the ordinance).

After a lively public comment session on Monday with the receiver's chief-of-staff in attendance (AP reporter Erika Niedowski's report via WJAR-TV available here), the receiver announced the next day that the ordinance was being "suspended" (WJAR-TV's report available here)...

"I'm going to suspend the enforcement of the ordinance until we can get more information about what alternatives might be possible," he said

Whatever you think of parking policy, it's not a great day for the rule of law when the one man who is empowered to both make and enforce the laws for a community decides not to enforce the laws he has made.

Or maybe Receiver Flanders didn't reach his decision on his own.

On Wednesday, Senator Silva put out a a press release thanking Rhode Island Governor Lincoln Chafee for "his decision to rescind the controversial on-street parking ban", with several General Assembly members praising the Governor for his "swift intervention".

Were the "rescinding" and the "suspension" the same act? And were General Assembly members Agostinho Silva, James McLaughlin, and Elizabeth Crowley thanking Governor Chafee for directly rescinding the ordinance, for ordering receiver Robert Flanders to rescind the ordinance, or just for having the foresight to appoint a receiver willing to not enforce his own ordinances?

Re: Taking Over Municipalities: The Governor's New Toy

Rhode Island's Director of Revenue provided a simple explanation to Projo reporters John Hill and Bryan Rourke about why the state has suspended municipal democracy in East Providence: It was necessary to make a "statement to Wall Street" to help East Providence get loans...

The appointment of a state budget commission with complete financial control of the city’s budget was more a statement to Wall Street than a reaction to any new problems that the state has found in the city’s finances, a state official said Wednesday.

State Director of Revenue Rosemary Booth Gallogly said the move was needed after a week that saw one of the nation’s major bond-rating services drop the city’s credit rating to junk-bond status and then, two days later, Bank of America backing out of a plan to loan the city $20 million next month.

Apparently, the statement is that Rhode Island's governing class is willing to suspend democracy, if financiers think that that's better for their business.

However, a quote from later in the article suggests a more substantive reason for the suspension of a democratically elected government...

In November, Booth Gallogly said she was optimistic that the overseer stage was all that would be needed. There was a deficit, she said, but the city had a broad and diverse tax base.

Serious questions should be raised when an official involved with replacing an elected taxing authority with non-elected appointees starts talking about "a broad and diverse tax base"; a primary question in this particular situation is what will the officials insulated from the people who pay the aforementioned taxes be charged with doing -- that the accountable officials weren't expected to -- in order to make the state's "statement" to Wall Street?

Last year, Anchor Rising put a question addressing exactly this situation to the administration of Governor Lincoln Chafee...

One set of criteria in the new fiscal stabilization law that can trigger a municipal takeover by the state involves decisions made by bond-rating agencies....Do we now live in a society that believes that financial-industry needs take precedence over democratic voice?

The answer from the Chafee administration was...

We do not agree with the premise of these questions.

Events have demonstrated that this is not now and never was an adequate answer. The question of whether Governor Chafee believes that representative democracy is the central organizing principle of the government he is part of, or instead believes that representative democracy is a luxury that common people can be allowed to play at, once the real groups that government is accountable to have been satisfied (including being sent the right "statements", of course) remains both open and important, and needs to be addressed before Rhode Island slides irreparably away from democratic practice.

Receivership for Entire Countries?

If you think that suspension of democracy justified on fiscal grounds will only be a small scale phenomenon occassionally affecting a municipality here and there, think again. From the Daily Telegraph (h/t Walter Russell Mead)...

An intrusive European body with the power to take over the economies of struggling nations should be set up to tackle the eurozone crisis, according to a leaked German government document...

The proposals urge that the European Stability Mechanism (ESM), a eurozone bailout fund that will be established by the end of next year, should be transformed into a version of the International Monetary Fund for the EU.

The European Monetary Fund (EMF) would be able to take full fiscal control of a failing country, including taking countries into receivership.

Over on our side of the pond, Rhode Island is a little bit ahead of everyone else in dealing with the mechanics of this. Are we going to be leaders in a movement to displace representative democracy with governments of the financiers and by the financiers, or are we going to be leaders in making sure that the fiscal insanity of the past half-century is addressed through structures of government of and by the people?

Defaulting on Democracy Yet Again

It seems that no plan for fiscal reform in Rhode Island is considered complete until it eviscerates democracy in some way. The pension reform plan submitted to the General Assembly yesterday by Governor Lincoln Chafee and General Treasurer Gina Raimondo is no exception.

The offending section is 36-10.2-7 which creates procedures that both municipalities and the state must follow, if they fall behind on actuarially determined pension funding. Section (2) is an early sign of trouble to come...

36-10.2-7(2) In the event that the state or a local municipality, as the employer of a plan, determines that, based on reasonable actuarial assumptions and upon exhaustion of all reasonable measures, the plan cannot reasonably be expected to meet the guidelines of subdivisions (i) and (ii), then the employer’s legislative governing body shall provide a report to the retirement board...

The "employer’s legislative governing body" is a city or town council in the case of a municipality, or the General Assembly in the case of the state. Just by itself, this section is a problem. The General Assembly, supposedly one of the 3 co-equal branches of government, is being required to report to a body outside of the legislative branch, the "retirement board", which is one of those curious Rhode Island combinations of union members, government lobbyists, and executive branch officials...

36-10.2-3(1) “Retirement board” or “board” means the retirement board of the Employees’ Retirement System of the State of Rhode Island as defined in Chapter 36-8...

36-8-4(a) ...The membership of the retirement board shall consist of:

• The general treasurer or his or her designee who shall be a subordinate within the general treasurer's office;
• The director of administration or his or her designee who shall be a subordinate within the department of administration;
• A representative of the budget office or his or her designee from within the budget office, who shall be appointed by the director of administration;
• The president of the league of cities and towns or his or her designee;
• Two (2) active state employee members of the retirement system or officials from state employee unions to be elected by active state employees;
• Two (2) active teacher members of the retirement system or officials from a teachers union to be elected by active teachers;
• One active municipal employee member of the retirement system or an official from a municipal employees union to be elected by active municipal employees;
• Two (2) retired members of the retirement system to be elected by retired members of the system;
• Four (4) public members, all of whom shall be competent by training or experience in the field of finance, accounting or pensions; two (2) of the public members shall be appointed by the governor...and two (2) of the public members shall be appointed by the general treasurer.

So under the new law, the representatives of the people will have to report to a board which includes members drawn from various private interests. Not good. Then it gets much, much worse. In particular, pay close attention to what the "Default A" plan is, and how it flows through the next sections of the law...

36-10.2-7(3) ...the actuary shall provide to the board, and in the case of MERS plan shall also provide to the impacted local municipality’s legislative governing body, at least five (5) funding improvement strategies but no more than ten (10) funding improvement strategies showing revised benefit structures, revised contribution structures, or both...

36-10.2-7(4) In addition to any funding improvement strategies provided by the board in subparagraph (3), the board shall include a default funding improvement strategy (“Default A”) that shall show increases in employer and employee contributions under the plan necessary to achieve the applicable requirements found in subsection (b), assuming no amendments to reduce future benefit accruals under the plan.

36-10.2-7(5) ...the board shall submit the “Default A” strategy as described in subparagraph (4) and one additional funding improvement strategy, as selected by the board, to the general assembly.

36-10.2-7(6) ...the general assembly shall select and enact into law one of the two (2) submitted funding improvement strategies. If no funding improvement strategy is approved by the general assembly by June 30th, the “Default A” strategy as described in subparagraph (4) shall be enacted into law effective July 1st following the date the plan was certified as being in endangered status under section 36-10.2-6.

Ponder for a moment the meaning of the phrase "shall be enacted" in the context of section (6). Does "shall be enacted" mean the General Assembly members must vote in favor of enacting Default A, if the other plan hasn't been approved by June 30? Or that Default A can automatically become law, without a majority vote of General Assembly members, if the other plan is not approved by June 30? Neither is acceptable in a democratic system.

But there's still more. A new section of the law created by the current bill would spell out exactly what the responsibilities of the members of the "retirement board" are...

36-8-4.1(a) A member of the board shall discharge duties with respect to the retirement system:
(l) Solely in the interest of the participants and beneficiaries...

Thus, to add final insult to injury, the law expressly instructs members of the retirement board to serve only their private interests and not the interests of the public when they use their new power to write legislation that the legislature must pass.

General Treasurer Raimondo has stated on several occasions that she would prefer that the pension bill be passed as initially submitted without amendments. The General Treasurer should publicly modify her position and make an exception for sections of the pension bill that attempt to (unconstitutionally) strip the law-making power of the state legislature and transfer it to a coalition of politically favored special interests.

And what do Rhode Island's Senators and Representatives think about Governor Chafee's latest attempt to remove their free and independent judgment from lawmaking process and let a board not accountable to the public write new laws that they are commanded to enact?

Analyzing the Civics of the Board of Governor's Illegal Immigrant In-State Tuition Policy Change

Determining whether it was a legitimate exercise of authority for the Rhode Island Board of Governors for Higher Education to make certain illegal immigrants eligible for in-state tuition at RI public colleges and universities takes us into a murky borderland in the civic landscape occupied by "public corporations" and "quasi-public entities" that have been created by governments to provide "non-public" goods or services. (In economic parlance, a "non-public" good or service is one that can be parceled out in a manner such that those who want it can spend what they want for it, and those don't want it don't have to buy any at all).

Whether government should ever create “public corporations” or other "quasi-public" bodies for the provision of private goods and services is a valid question in itself, but given that such entities are already with us and making decisions that impact people's lives, the immediate focus needs to be on whether their actions directly violate the core principles of democratic governance. In the case of the BoGfHE’s illegal immigrant tuition “policy change”, this means making certain that the Board has not exceeded its authority by doing something that must be a legislative function, and that it has acted in a way that was a reasonable exercise of its statutory mandate.

To address these issues, it is useful to consider a "public corporation" that deals with a less controversial good or service (at least in this century) such as a state-run liquor store. While the legislature authorizes and defines the purpose of a state-run retailer, it is not left to a legislature, or a committee of legislators, or even a board that is hired and fired directly by the legislature to make day-to-day decisions on matters such as pricing and inventory. Indeed, allowing a legislature to directly exercise executive authority in such a manner would be the violation of the separation of powers principle.

Likewise, allowing the Board of Governors for Higher Education to manage tuition pricing is not in inherent conflict with the principle of separation of powers, so long as the board is acts in a manner that does not conflict with the law. And since Rhode Island law makes no significant mention of immigration status in the context of public higher education and Federal law is unclear, the Board's action is consistent with current law.

Of course, because a “public corporation” can do something does not mean that it should, and there is a strong case to be made that the unelected board of a public corporation should not be imposing measures which the legislature has had before it but decided not to enact. The flip-side of this is that if a legislative majority feels that the Board has stretched an ambiguity in the law beyond reasonableness, it is their right -- and their duty -- to clarify the ambiguity.

The legislature does not have to wait for the Board of Governors to rescind its tuition policy change to begin a move to reverse it. It is not the legislature that has to make its actions conform to those of the Board of Governors; it is the Board of Governors that must set policies that conform to the law. If a new section is added to Rhode Island law regarding public higher education, perhaps in the form of language similar to section 40-6-27.1(b) of current RI law, which prohibits giving certain public assistance benefits to illegal immigrants, then the BoGfHE would have to change its policies in response.

The action taken by the Board at this stage is no more permanent than any preliminary budget recommendation for spending money in the next fiscal year, and it is certainly not written in stone that any government department, never mind a government created corporation, must get everything that it asks for. Indeed, for those inclined to view this purely as a budgetary and fiscal issue, one option the legislature could pursue would be to cut the budget of the BoGfHE -- a budget item separate from that of any actual educational institution, and that costs Rhode Islanders about $7 million annually in operations and personnel -- by the amount needed to make-up the difference between in-state and out-of-state tuition for the number of illegal immigrants expected to be admitted to RI colleges.

In the end, if a 3/5 majority of Rhode Island legislators think the Board of Governor's decision on in-state tuition for illegal immigrants is a bad idea, they can only be bypassed in our system of government if they allow themselves to be. (I am assuming that the current Governor of Rhode Island would veto a standalone bill on this subject, necessitating a veto override, although this matter would also be germane for inclusion in the annual budget bill, which could allow it to passed as part of the same 2/3 majority that has to approve the budget). Approval of the legislative leadership should not be any factor; if a supermajority wants a bill passed, there are various ways a bill can be brought to the floor, if the members value having something passed more than they value following leadership dictates. And if the voters believe that the Board's decision should be reversed, but their legislators refuse to act for whatever reason, then the people need to consider electing new legislators who will.

Municipal Bankruptcy is a Tenth Amendment Issue

The initial Projo report on today's announcement that the receiver for Central Falls will file for bankruptcy highlights one of the many high-level policy, political and legal issues that municipal bankruptcy is going to involve…

In a commercial bankruptcy, the judge has the authority to order the sale of assets, even the closing of the business, to pay the creditors. But a government can't be sold off.

A Chapter 9 judge can approve or reject a receiver's settlement proposal, but he or she can't order the sale of assets because of the Tenth Amendment to the United States Constitution, which states that any powers not specifically given to the federal government by the Constitution belong to the states, meaning a federal bankruptcy court can't tell the city how to run its affairs, like selling assets.

History Will Begin to be Made this Week

This is very likely going to be a memorable week in the history of self-government and public finance.

In addition to the Federal debt-ceiling issue which needs to be resolved by Tuesday in order for the Federal government to be able to keep paying everything it owes without resorting to various less-than-scrupulous financial gimmicks, the receiver for Central Falls may make an announcement as early as tomorrow that he is filing for bankruptcy. As Philip Marcelo wrote in today's Projo...

The square-mile city would be entering uncharted waters as federal municipal bankruptcy has been rarely tested nationally.

Central Falls is not sui generis; it is an advanced case of a situation faced by many cities and towns across the United States, and what happens with CF is going to contribute very visibly to a body of legal, policy and political knowledge about what to do and/or what to avoid when twenty-first century communities run out of money needed to pay for decisions made over preceding decades.

But the most important thing to keep in mind is that nothing ends this week. The reckoning (to use Matt Allen's word) of the fiscal crisis created by the political and social changes of the past 45 to 80 years, depending upon if you want to place the beginning of the problem with the New Deal or the Great Society or somewhere in between, is just beginning and what our society will look like as a result, for better or for worse, will be decided more by the reaction to this week's decisions than by the decisions themselves.

Finally, one symptom visible in Central Falls of the problem that is nationwide is captured beautifully by the quote from freshman state Rep. James McLaughlin in the Projo's CF story...

"They’re going to file for bankruptcy," said state Rep. James N. McLaughlin, a Democrat who represents a portion of the city and is opposed to [filing for bankruptcy]. "All avenues have not been exhausted. It is a rush because they do not have any money."

If our politics keeps producing a large number of elected officials who believe that just because we have no money doesn't mean we're bankrupt, we're basically doomed.

Accountability Matters

Ted Nesi of WPRI-TV (CBS 12) has the scoop on the Rhode Island Speaker of the House's position on binding arbitration…

House Speaker Gordon Fox says the outpouring of opposition to binding arbitration last month was even louder than to Governor Chafee’s sales tax plan – and makes it highly unlikely the issue will come up again during this fall’s special legislative session.

The speaker’s office received about 2,200 emails opposing the binding arbitration bill in June and was lobbied to block the bill by mayors and town councils from across Rhode Island, Fox said Friday during a taping of WPRI 12′s "Newsmakers."

Outcomes are different, when government officials are accountable to the people -- and when they take their opportunities to get involved with the process.

UPDATE:

Ian Donnis of WRNI (1290 AM) has an interview with Gordon Fox, where the Speaker discusses his position on binding arbitration in principle, as well as with regards to the General Assembly session scheduled for the fall.

No Place Screws Up the Concept of Fiscal Responsibility Quite Like Rhode Island Does

The bill being heard today by the House Finance Committee that would give municipal bondholders a "first lien" on local government treasuries (H5376), introduced on behalf of the Rhode Island Department of Revenue and already passed by the Senate Finance committee (S0614), should not be passed into law. Peder Schaefer of the Rhode Island League of Cities and Towns, which has taken a position against the bill, relays a key rationale being advanced by its supporters, as offered at the Senate Finance hearing: "A bond lawyer retained by the Department of Revenue testified that the real reason for the bill was in the event of a Federal Bankruptcy in Central Falls. She testified that if this were to occur, bond holders would not have a first lien on city revenues. She believes that the language of the act would improve the credit quality of all municipal bonds in the state".

In other words, the Chafee administration Department of Revenue believes that a community should not be allowed to drastically restructure its finances to deal with a financial meltdown until the bondholders are taken care of. The bondholders come first, and then everyone else can fight over what's left.

But even those who don't believe that full-blown bankruptcy for Central Falls or any other Rhode Island community is likely should be troubled by this bill.

1. Allowing "first liens" on general tax-revenue does damage to the underpinnings of democratic governance. Tax revenue is taken from the income and/or wealth of taxpayers; revenue doesn't magically fall out of the sky, despite what some government officials might believe. To create a bondholder lien on general tax revenue is to create a bondholder lien on taxpayers, i.e. to grant one group of people long-term, legally enforceable claims on the incomes and wealth of another. This is less compatible with modern than with medieval concepts of government and property rights, and I don't think there's any case to be made that we will do any better than our ancestors did under a system where regular citizens can find a portion of their incomes automatically claimed by a class of people who assert their superior position in the order of things.

2. Consider possibile outcomes, short of Federal bankruptcy, in the case of Central Falls. Section 45-9 of RI law (already in place) gives a receiver the power to issue bonds on behalf of his municipality including the power to use them to fund a deficit or to fund pension obligations. (Regular municipal governments are barred from issuing bonds to cover a deficit; the current bill reinforces that a receiver is immune from this limitation). The receiver cannot break collectively bargained contracts, so union benefits are locked in. And if this bill is passed, bond-holding financiers will be locked in too -- which means that it's the people in-between who will absorb the entire burden of government's inability to rationally finance itself, as everyone else will have to be paid first, before regular citizens get anything from government. Except the bill, of course.

3. I know there is a group of people who believe that financial efficiency is the primary issue that needs to be addressed by government, and who aren't much concerned with the undemocratic system being installed for dealing with Rhode Island's financial mess (I think there may be more than a few of these folks in the Chafee administration). But even those who believe in nothing but the brutal efficiency of markets should be troubled by the imbalance created by this bill. If government writes into law that bondholders have a direct legal claim to money in the public treasury, then there is little to no risk of them not receiving their scheduled payments, and every bond covered by the law should be given the highest possible rating with lowest possible interest. Financiers who want to assert a legal claim over a portion of the tax levy and a right to take money through legal compulsion are not assuming true market risks, and should be paid accordingly.

In a special report put out last November, the Fitch Ratings service concurred with the idea that "first lien" bonds involve very limited risk, because people are required to pay whatever amount government demands of them...

Question: Given the strained finances of most state and local governments, and the likelihood of continued difficult times to come, why do Fitch’s ratings suggest confidence in the ability of most to meet their debt?

Answer:...Other commonly issued municipal bonds are secured by a first lien on sales or income taxes, where there is little if any legal discretion for the taxpayer to choose not to remit the taxes owed to the government.

The attitude reflected above, by the way, is why you should never trust the "financial efficiency is everything" crowd to run the government.

Once upon time, in the Western tradition of democracy and self-government, it was understood that government's ability to compel people to surrender a portion of the fruits of their labor was a critical reason for limiting government claims on the property of the citizenry and to err on the side of the taxpayer. Rhode Island is sadly leading the way in eroding this tradition, asserting instead that government power to compel payment of taxes is a valid reason for allowing groups of people favored by the political class to make near-permanent claims on the livelihoods of average taxpayers.

Professor Jared Goldstein's Definition of Democracy Doesn't Include the Tea Party or James Madison

The Tea Party Movement is anti-democratic, avers Roger Williams University Law Professor Jared A. Goldstein in his working paper recently posted to the Social Sciences Research Network titled The Tea Party Movement and the Contradictions of Popular Originalism. In Section C of the paper, under the subheading of "The Tea Party Movement's Anti-Democratic Agenda", Professor Goldstein argues that "The Tea Party movement's constitutional agenda seeks to limit democratic power", that "Tea Party supporters complain that the people, acting through their electoral representatives, have created a variety of regulatory programs" and that "the Tea Party emphasizes that the people lack power to adopt such programs, regardless of their support by electoral majorities".

But Professor Goldstein relies on a narrow and extreme definition of democracy to develop his premise. Throughout the Anti-Democratic Agenda section, he casually conflates "the people" with the "Federal Government", not exploring or even acknowledging the concept that placing limits on what the Federal Government can enact is not identical to limiting what "the people" can enact. There are governmental functions that Tea Partiers object to the Federal government carrying out that they would consider wholly legitimate if enacted at lower levels of government -- and those lower levels are made up of "the people" too. Indeed, the idea that when "the people" loosely defined want something, then it must be delivered to them by the largest and most remote unit of government that they are a part of is an extreme conception of democracy that tends towards the latter end of the scale of modern governmental forms summarized concisely by the French political sociologist Raymond Aron: "representative governments restrained by the balance of power and so-called democratic governments invoking the will of the people but rejecting all limits to their authority" (though Professor Goldstein would obviously believe that governments with expansive powers can invoke the will of the people without becoming "so-called" democracies).

Less parsimoniously, in his magnum opus on democratic theory Democracy and Its Critics, the American political scientist Robert Dahl employed a dialog between (fictional) advocates of the ideas of James Madison and Jean-Jacques Rousseau, whose differing ideas about government and democracy form the basis of the two poles described by Aron, to work through the question of how to maintain a governing system that stays true to democratic ideals of participation while preventing individuals living in a society the size of the modern nation-state from being totally subsumed into meaninglessness. The Madisonian solution, i.e. federalism, is to divide governmental authority between different governing units of different scales, allowing citizens to deal with their common concerns within the smallest, most intimate governing unit suited to a task. This system reinforces a foundational principle of democracy that is as important as the idea of majority rule, that every citizen should have meaningful influence on the government decisions that most directly impact his or her life.

Rousseau viewed things differently, believing that the existence of more than single center of government power would ultimately only confuse the citizenry. But the views associated with his thoughts do not singularly define democracy. There is nothing essential to the idea of democracy that requires that a single unit of government be absolutely supreme in all areas of civic and political life, or that larger units of government be able to assume all of the powers of smaller ones. And unless James Madison is to be ejected from the democratic tradition (over the objections of the likes of some serious political thinkers like Robert Dahl and Raymond Aron), there is nothing inherently undemocratic about the Tea Party advocating for American-style federalism and its division of legitimate government authority between different levels of government.

Yesterday it was Rhode Island, Today it is Michigan Deciding that those Pesky Democratic Practices Get in the Way of Governing

Michigan is on the verge of enacting a law that, at least as it is described in the CBS News account, will be very similar to Rhode Island's "municipal fiscal stabilization law", i.e. it will allow the executive branch of state government to replace an elected municipal government with a single individual who assumes full authority in all areas of municipal governance (h/t Drudge). In Rhode Island, this law has been used to replace the elected mayor and city council of Central Falls with a state-appointed "receiver", though a case on the acceptability of this law under the Rhode Island constitution is pending.

Democrats in Michigan are attempting to draw a parallel between what is happening in their state and what is happening in Wisconsin. The parallel, beyond being unimaginative, is inappropriate.

In Michigan, the Governor and legislature are working to roll back democratic governance, there's no accurate way to describe it other than that, by allowing major municipal fiscal and policy decisions to be made by an official unaccountable to the people most impacted by the decisions. In Wisconsin, on the other hand, it is the Governor and legislative leaders who have been trying to act democratically, while groups who disagree with their policies are insisting that they have fiscal and policy prerogatives that must restrict the choices allowed by the democratic process. There is no comparison.

If anyone from Michigan wants a head start on explaining why the idea of a municipal dictator is a bad idea, we've been working on that subject for a while now here at Anchor Rising; here, here, here, here and here, for starters.

Finally, from a detached political-sciencey perspective, there is one area of comparison between Rhode Island and Michigan worth monitoring: will Michigan's "emergency fiscal managers" claim the same outrageous compensation as Rhode Island's have -- or will it turn out that the acceptance amongst the political elite of municipal privateering as a respectable career choice is something unique to Rhode Island's political culture?

The Sources of Public Unrest with Public Unions

The recent events in Wisconsin and Indiana, where elected legislators fled from their states to avoid voting on issues where they and their public-sector union patrons would lose, followed by union protests and counter-protests, are part of a recurring dynamic of history where a group that has grown accustomed to the benefits of a set of governing prerogatives is having its prerogatives challenged -- and fighting not to have to give them up. I know that members of public employee unions bristle sincerely at being told they are "privileged", so let me be specific about what I mean: public sector unions have been granted a set of governing privileges within the institutional framework of American democracy -- privileges that conflict with the ideals that the system is based upon.

The ideals themselves are not the source of contention; most Americans today, union and non-union alike, agree on a basic set of ideals that governments should respect; that all men are created equal and possess certain inalienable rights sums them up pretty well. But the genius of modern democratic government is supposed to be that it depends not solely only on ideals, but also on a set of institutional arrangements that can protect those ideals from imperfect humans who will not always live up to them. The institutions relevant to what is happening now date back at least to seventeenth-century England, where specific steps were taken to guarantee that kings and nobles who still held real power (including James II, who was floating the idea of returning to an absolute monarchy around that time) could not undermine or reverse the notions of equality and rights that were gaining serious traction. Government had to find a way to allocate a portion of the people's resources to a central authority so that it could carry out its functions while still defending the idea that no one -- not even the king himself -- had a right to make a claim on the life and livelihood of another indefinitely into the future.

Balance was achieved by requiring the executive branch of government (the king in the English Bill of Rights, later the President in the American Constitution) to continually return to the people to secure financing. Two requirements were most prominent 1) the property of the citizens -- which included their future income -- could only be appropriated with the approval of a body of the elected representatives of the people, and 2) appropriations could only be authorized for a limited time. These are probably not what you think of as the most exciting features of democratic machinery, but they were important checks on the power of the king and his lords and continue to be important checks on the power of democratic governments today. Not only did these rules prevent a king from taking resources to fund a royal court in perpetuity, but they prevented any organ of government, including the legislature, from authorizing permanent funding for anyone. Whatever tasks that government undertook, the executive would have to come back each year for the necessary appropriations and each year the representatives of the people would have to renew their decision to provide resources to the government.

These principles, that only the representatives of the people acting in concert could legitimately appropriate the property of the people, and that not even the legitimate authority could lay claims on the property of the people indefinitely into the future, have lived on in Western democratic governance largely unchanged. Of course, here in the United States, the creation of royal courts was never at issue, but ultimately more important than denying a formal place in government to people with hereditary titles or silly hats was the durability of the principle that there was no authority higher than the legislature elected by the people that could compel taxes to be raised or programs or personnel to be funded -- including decisions made by previous legislatures. The final word on what is to be funded during a legislative session was the legislature itself (with a few exceptions related to the principle of separation of powers, e.g. the legislature cannot zero-out the salaries of certain parts of the other branches of government).

Except that, over the past half-century, a major exception was allowed to creep into the system. One class of organization, the public-sector union (with the support of some politicians), began to assert rights to make long-term claims on the property of the citizenry. A view grew uncritically within the governing and political classes that agreements made through exclusive "collective bargaining" processes -- processes oftentimes closed or secret -- and codified into a contractual form can bind the body of elected representatives of the people into making certain appropriations. Public sector unions insist that, in order to pay for their pension and health care arrangements, they are to receive hundreds of millions of dollars straight off of the top of the tax levy collected from the citizens each year, perhaps for decades into the future, and that legislatures should not (and maybe cannot) exercise independent judgment regarding this piece of the annual appropriation, unless they first secure union blessing. And as the flight from Wisconsin has demonstrated, unions and their allies in the Democratic party now go as far as to support the idea that if a legislature intends to act in way that unions do not accede to, then the legislative process must be halted.

In other words, public-sector unions have been allowed, and want to continue, appropriations prerogatives that would be prohibited to kings.

Yes, it would be hyperbolic to say current practices define a full-blown return to aristocracy, but if you believe that human nature remains the same across time, that we 21th Century Americans are not intrinsically different from the 18th Century Americans who wrote the appropriations limitations into the US Constitution, or the 17th Century Englishmen who wrote similar provisions into the English Bill of Rights, then giving a certain class of people -- be they royalty, corporate bosses, or union members -- an exclusive process that does not involve the consent of everyone involved for appropriating what they want from the public, then the result to be expected is the privileged class taking more and more, ultimately at the expense of the greater good, until people outside of the class granted the special prerogatives begin to push back.

This is not a dig at unions, this is a dig at human nature. The goal of Governor Scott Walker of Wisconsin is not to punish public-sector unions, but to end their privileges to make long-term claims on taxpayers, allowed to no other group in society, that have thrown the political system into imbalance. It is perfectly reasonable, for example, for Governor Walker to propose replacing a system where unions decide what their raises should be in an extralegislative process and then require the legislature to fit that expense into the budget with a system that instead requires raises to be approved by the legislature on equal footing along with the rest of the items in the budget. For as long as one group is given a special process for taking appropriations that takes precedence over the independent judgment of an assembly of the representatives of the people, the contentiousness we are experiencing today will persist, as people not granted special prerogatives wonder why one group gets to go to the head of the line in the appropriations process, while the group that enjoys its advantages continues to use them to press for further ones.

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Continuing to Define Democracy Down in Central Falls

Over on the municipal side in Central Falls, lawyers for Receiver Mark Pfeiffer have made their latest arguments explaining how the suspension of municipal democracy in CF is constitutional. Here is the most thoroughly unconvincing one, from John Hill's report in today's Projo...

Pfeiffer’s lawyers disputed the usurpation argument, saying that in May, before Pfeiffer’s appointment, Moreau and the City Council went to court and asked for and got a court-appointed receiver with much the same powers that Pfeiffer has now. Pfeifer’s brief also said that the council in June passed a resolution that endorsed the state receivership law that called for a state-appointed receiver — eventually Pfeiffer — to replace the one chosen by the courts.

Presenting a theory of government that cannot seriously be called democratic, Receiver Pfeiffer is arguing that a city's Mayor and council have a legitimate power to give away the people's right to democratic government, in consultation with another organ of government, but without the consent of the governed. This is not correct. Democratic systems are not systems that have some optional democratic features that can be done away with when some (OK, in the case of Central Falls, when many) bad decisions create problems. Democratic systems are systems where the people are sovereign over the government, where government cannot sever itself from accountability to the governed without sacrificing its legitimacy.

I ask to the readership here -- and especially to those who think this is just a Central Falls or an urban core issue -- are you truly comfortable with creating a precedent in Rhode Island where your mayor and/or city or town council is granted the power to give away your right to democratic governance, in order to "solve" an issue in your municipality -- keeping in mind that, as we head into what could be a very tumultuous period of public financing decisions in Rhode Island (and elsewhere), Central Falls is probably not the only place where the upper echelons of Rhode Island's political culture would like, if given the chance, to move democracy out of the way of the exercise of governmental power.

If I Were a Betting Man, I'd Bet On Judge Michael Silverstein Throwing Out the New Receivership Law...

...or at least significant chunks of it. I opine this after reading John Hill's report in today's Projo which highlighted a particular line of questioning asked during yesterday's oral arguments on the constitutionality of the municipal receivership law, to the lawyer for Central Falls receiver Mark Pfeiffer...

[Judge Silverstein] pressed [lawyer Theodore Orson] on the lack of a specific term for the receiver several times. Orson said the receiver’s tenure was not indefinite because the law allowed him to be removed once the conditions that led to his appointment were resolved.

This questioning by Judge Silverstein is very likely related to a precedent established in Marran v. Baird, the 1994 West Warwick case where the RI Supreme Court ruled that the state was not prohibited by the home-rule provision of the state constitution from creating of a "budget commision" to oversee an individual municipality's financial decision-making, as long as it was for the limted duration that was specified in the law at that time...

The plaintiffs also maintain that by enabling the commission to impose a budget upon the town of West Warwick, 45-9-3 bypasses West Warwick's financial town meeting and, thus, impermissibly alters the town's form of government. We disagree.

45-9-3 does not expressly alter the structure or form of West Warwick's municipal government. Indeed, any effect it may have on a local government is contained, delineated, and temporary, lasting no longer than the end of the fiscal year...

Obviously, the appointment of a commission that adopts and maintains a balanced budget for West Warwick has a temporary impact on West Warwick's budgetary process. The commission's role, however, lasts no longer than "the end of the fiscal year." Accordingly, 45-9-3's effect on the structure of West Warwick's government is at most incidental and temporary. The provision does not, therefore, affect the form of government of any city or town and consequently does not violate article 13.

Personally, I don't find the logic of it's only a temporary change in form government, so it doesn't count as a change in the form of government to make much sense. But from a legal perspective, what is most important to the present case is that the new receivership law, because of its open-endedness, may be found to violate the Constitutional provisions prohibiting state-imposed changes to municipal forms-of-government under the loose standards already established by the Rhode Island Supreme Court and without contradicting any existing precedents.

Re: Regionalization? You May Want to Consider Who is Standing With You

UPDATE:

Commenter "Brassband" points out that Article XII of the Rhode Island Constitution expressly makes education a state matter, and gives the state legislature broad authority to reglate it. This removes education from being one of the "local matters" under Article XIII and indeed, the school committee system we have here in RI is defined, not in a series of town and city charters, but instead at the state level in Title 16 of the Rhode Island General laws...

16-2-2 Except as specifically provided in this section, every city or town shall establish and maintain for at least one hundred eighty (180) days annually exclusive of holidays a sufficient number of schools in convenient places under the control and management of the school committee and under the supervision of the board of regents for elementary and secondary education...

So in theory, the state could create a single-statewide district by changing the statute above to read "the state shall establish and maintain...a sufficient number of schools in convenient places", etc.

Which means, of course, that it's doubly important to find out what your legislator's position is on local control versus a statewide district.

---

The issue of combining all of Rhode Island school systems into a single statewide district, highlighted by Monique in a previous post, is an example of why people need to be paying attention to the recent events in Central Falls, and thinking about how far they are willing to allow the different branches of state government to collude in ignoring the home-rule provisions of the Rhode Island Constitution, before they say "stop".

On its face, the state Constitution is pretty clear: you cannot change the form of government in any city or town unless the people of that city or town agree via a referendum. That means that state shouldn’t be able to take governance of a school system away from local control by statute-alone unless residents agree. This, in turn, means that creating a single statewide school district should require either 1) a Constitutional amendment or 2) city-by-city, town-by-town approval in a set of referenda.

If that is the route that single-district advocates are planning, it is likely to be a long one.

However, in Central Falls this year and West Warwick before that in the 1990s, Rhode Island’s governing class, including Governor, legislature and courts, has basically ignored the state Constitution’s home-rule provisions. And if Central Falls becomes the standard by which future home-rule cases are judged, you could see legislation creating a single statewide RI school district upheld by the RI courts, based on an argument along the lines of 1) education affects the whole state, so it’s not just a local matter and 2) as long as school committees are still elected, even if they become just advisory boards, it’s not a change in the form of government, therefore[, but Article XII of the Rhode Island Constitution means that] 3) it is entirely constitutional to place all schools under state control, based on an act of the legislature alone.

The question of how far state government should be able to go in ignoring the home-rule provisions of the RI Constitution would be a pretty good one to ask the next set of nominees to the RI Supreme Court -- as well as to your legislative candidates in the upcoming election.

Keven McKenna, on the Constitutionality of the Central Falls Receivership

Keven McKenna, independent candidate for Attorney General and one of the speakers at Saturday's Tenth Amendment rally, was the President of the 1985-1986 Rhode Island Constitutional Convention. Aware of that item on his resume, I asked him if he thought that the application of the new "fiscal stabilization law" to Central Falls was constitutional...

"No, and I'll tell you why. It's not [Article XIII, the home rule provision]. You've got to move back a bit, to the second Article on the right to vote. They're taking their right to vote away. If a person is elected, you can abolish the office, after their term is over, but during the term, you can't touch it..."

Audio: 1m 9 sec

"The real underlying policy problem obviously in Central Falls it that it's one mile square of poor people with no factories. That's why it doesn't work as a town..."

Audio: 38 sec

In the spirit of Saturday's event, Mr. McKenna also expounded upon some of his beliefs about the principles of democratic governance in general...

"...people forget that democracy is only two documents. It's one word, but two documents, that state constitution and the US Constitution. That's where it is. If it's not there, you don't have it. Those documents say a very important thing...that we're a bottom-up democracy..."

Audio: 2m 2 sec

"When I was active in the sixties, power-to-the people was sort of a left-wing notion, but everyone should believe in power-to-the people. It's not left, right or upside-down. It is a process that everybody, that every single person, should make sure they protect..."

Audio: 22 sec

John Loughlin and Mark Zaccaria at the Tenth Amendment Rally

Republican Congressional Candidates John Loughlin (District 1) and Mark Zaccaria (District 2) spoke at Saturday's Tenth Amendment rally at the Rhode Island Statehouse. The interesting and accurate common theme in both of their statements was that protecting rights via the Tenth Amendment cannot depend on theoretical legal arguments alone; it also requires electing representatives, at both the state and Federal levels, who believe in ideas of limited government.

John Loughlin's remarks:

"...What happens in Congress is obviously very important. But what happens in this building [the RI Statehouse] is sometimes even more important to the Tenth Amendment....It's the little things that add up over time, that lead to a loss of our liberty and loss of our freedom..."

Audio: 27 sec

"[Congress] said, you know what, we think it would be a good idea for all of the states to implement a salt-water fishing license. Sounds like a little thing. Well, it says in our Rhode Island Constitution that we all have free access to the shoreline for fishing and gathering of seaweed and we had a building behind us that says well, the Federal Government wants us to do it, so gee, I guess we better..."

Audio: 48 sec

"So what that tells us, ladies and gentlemen, is that perhaps the most important elections for your freedom, and for the continuance of freedom and for the freedom of Rhode Island and America don't take place at the top of the ticket, they take place down lower on the ticket..."

Audio: 51 sec

Mark Zaccaria's remarks:

"It's great to see you all out here, thinking about your role in government. As you just heard, I'm a candidate for Congress. And people have frequently asked me why do I want to run for a Congressional seat against a five-term incumbent in the bluest of the blue states. The answer is simple. I don’t want to; I have to..."

Audio: 55 sec

"...you are the free citizens of a republic, and that confers on you tremendous responsibility, because it confers on you tremendous authority. For too long, too many of us did not step up and do what they needed to do to be full-fledged citizens of this republic. That's got to change, or we are going to lose the Republic that our founders put together for us..."

Audio: 58 sec

"When I say it's tough to be a citizen, and you have to step up and do it right, what I mean is you really have to consider what your vote is going to be in November, because you need to put a General Assembly into this building that is full of people that you trust to enforce the Tenth Amendment, to stand up against the ever-increasing Federal Government..."

Audio: 43 sec

A Guide for Candidates for Engaging the Issues

Based on five years of observing the patterns of discussion associated with public policy issues of concern to Rhode Islanders, I'd like to offer a short list of principles that candidates and activists, first-timers and others, may find useful when bringing their ideas to the public...

1. No issue is as complex as someone whose objective is to prevent you from offering reasonable input will try to make you -- and the voters -- think that it is.

2. Statistics and rankings are not the final word on a subject, but meaningful numbers change for a reason. So make sure the numbers you choose to explain yourself with are the meaningful ones.

2A. There is no fundamental law of the universe that says Rhode Island has to be near the bottom of a list of state rankings. That Rhode Island is so often at the bottom of such lists is an indication of things that need to be changed, not that Rhode Island is doomed for all time.

3. Advocating "raise taxes and expand bureaucracy" is no more or less nuanced a solution to a policy issue than is advocating cutting taxes and cutting back bureaucracy; you are not required to "prove" that we don't need a tax increase or a new spending program any more than a tax-increase or spending advocate is required to "prove" that we do.

3A. But you entered your political race to win, not to tie, so make sure you can explain why your position is superior to that of your opponent's, and not just a reflexive mirror image.

Update: Rhode Island Municipalities May be Able to Open Existing Contracts, if Democracy is Suspended First

Attorney Joseph Larisa, who helped initiate the current "municipal receivership" action in Central Falls, is quoted by John Hill of the Projo as advising the Central Falls City Council to consider going along with the new process defined in the "fiscal stabilization" law signed by the Governor last week...

He cautioned that it was up to the City Council, not him, to decide if the city challenges the law. But he said he would advise the council that the new law would accomplish the same things the city had sought with the receivership filing.

For the city, he said, the key provision in the new law is one that allows a receiver appointed by the state Department of Revenue to file for federal bankruptcy on behalf of an insolvent municipality, if all other efforts fail to balance its budget.

Larisa said a federal bankruptcy filing, which carries the ability to break union contracts, or at least the threat of it, was needed to win the kinds of concessions the city needs to close its budget gap.

The law lays out a three-step process for "stabilizing" a community that is having fiscal troubles. Ideally, if problems can be fixed at an earlier step, the community doesn't have to proceed to the next step; presumably, Central Falls would have to go through steps 1 and 2, before ending up in step 3 full-blown receivership. (See update below).

The specific steps specified in the "fiscal stabilization" law are...

1. ...the fiscal overseer stage where a "fiscal overseer" is appointed who is something more than an adviser to a town or city government. Local elected officials retain most of their formal powers, but both the overseer and the state's Director of Revenue get final vetoes over the municipal budget. The overseer is also required to be involved in all new contract negotiations, but is given no special authority regarding existing contracts.

   If the fiscal overseer can't fix the problem (with his or her super fiscal overseer powers that mere mortal elected officials apparently don't possess), then we go to...

2. ...the budget commission stage where a commission is created, with 3 members appointed by the state's Director of Revenue, and 2 drawn from elected officials of the town. All decisions by the budget commission are made by majority vote. Formally, the elected town or city government still exists, but it must defer to the "budget" commission, whenever the budget commission decides anything...

   In addition to the authority and powers conferred elsewhere in this chapter, and notwithstanding any city or town charter provision or local ordinance to the contrary, the budget commission shall have the power to...exercise all powers under the general laws and this chapter or any special act, any charter provision or ordinance that any elected official of the city or town may exercise, acting separately or jointly; provided, however, that with respect to any such exercise of powers by the budget commission, the elected officials shall not rescind or take any action contrary to such action by the budget commission so long as the budget commission continues to exist.

   And if the budget commission cannot solve the problems (with their super-budget commissioner powers), then we go to...
3. ...the receivership stage where the Director of Revenue appoints a single individual who is given the power...

   ...to exercise the powers of the elected officials under the general laws, special laws and the city or town charter and ordinances relating to or impacting the fiscal stability of the city or town including, without limitation, school and zoning matters; provided, further, that the powers of the receiver shall be superior to and supersede the powers of the elected officials of the city or town shall continue to be elected in accordance with the city or town charter, and shall serve in an advisory capacity to the receiver.

   So the citizens of a city or town still get to participate in local elections -- just not for the single person who has absolute authority to make all decisions about taxes, budgets or any other municipal matter.

Now, the receiver is granted a power that could ultimately lead to the reopening of existing contracts:

The power to file a petition in the name of the city or town under Chapter 9 of Title 11 of the United States Code, and to act on the city's or town's behalf in any such proceeding.

...i.e. the power to file for municipal bankruptcy, but this is not a power given to the budget commission, or to the fiscal overseer, or to the schmucks in town or city government acting on their own.

So the most basic question is, why is suspension of municipal democracy viewed as a necessary or even preferred condition for the filing of bankruptcy?

UPDATE (6/18/10):

Apparently the "fiscal overseer" and "budget commission" stages are completely optional. The law contains a provision says that if a fiscal emergency is severe enough, in the opinion of the Director of Revenue and the Auditor General, they can move immediately to suspend municipal democracy and appoint a receiver, without meeting any of the conditions specified in the earlier steps of the process...

In the event the director of revenue determines, in consultation with the auditor general, that a city or town is facing a fiscal emergency and that circumstances do not allow for appointment of a fiscal overseer or a budget commission prior to the appointment of a receiver, the director of revenue may appoint a receiver without having first appointed a fiscal overseer or a budget commission.

Rhode Island: The Place Where 'Da Contract Outranks 'Da Constitution

When the news story of Central Falls' entry into receivership first broke, there was chatter from some quarters and maybe even a little glee -- perhaps a bit too much glee -- that an era of fiscal reckoning in Rhode Island had begun. But what the terms of the reckoning were, no one was really sure. "Municipal receivership" did not have a clear definition anywhere in Rhode Island law and different news stories reported on a wide range of options that had been put onto the proverbial table. For instance, on May 20, John Hill from the Projo reported that...

The court-appointed receiver has the power to approve or reject purchases and payments and, if the court approves, change contracts with unions and vendors and hire and fire municipal employees.

[John Savage], who said he'd be paid between $100 and $375 an hour for his work as receiver, said it was too soon to predict what he might ask the court to do, from imposing new contract terms or increasing taxes.

On the same day, Donna Kenny Kirwan of the Pawtucket Times reported that...

Savage is authorized to oversee the municipal business of the city, which includes making purchases, paying vendor bills, meeting payroll obligations and any and all other actions that involve daily operations. He also has final approval over the hiring and/or termination of "any and all" city personnel....

Under questioning by reporters, he did not rule out a re-negotiation of union contracts, or some type of a property tax increase, but said that any such actions would have to first be approved by Superior Court, which has the final say in all such matters involving the receivership.

...and on the day before, Eric Tucker of the Associated Press had said that...

The appointment transfers day-to-day operational control of the city to Savage, who specializes in receiverships and says he'll have the authority to recommend the renegotiating of municipal contracts or tax increases.

Last week, the Governor and legislature gave definition to the terms of the supposed reckoning. They agreed on a new municipal fiscal stabilization law, passed with the Governor's signature, that spelled out an exact meaning of "municipal receivership" (and several legal steps that have to precede it). And of all of the possibilities that had been discussed as measures that might be taken in Central Falls, only one was taken off of the table by the new law: the modification of existing contracts.

Politics, of course, requires compromise. So what did the Governor get in return for signing on to this law? Did he ask in return for contracts being made exempt from emergency fiscal stabilization measures, for example, that cities and towns be given the fiscal "tools" they've been asking for in order to have a better opportunity to balance their budgets on their own, before the occurrence of full-blown crisis requiring emergency stabilization measures? Well no, the "tools" legislation died in committee.

How about insisting on inserting a little accountability to citizens and taxpayers into the fiscal stabilization process? No, that wasn't part of the plan either. Instead, the Governor and the legislature together created a plan for decapitating local governments and replacing them with state appointees not accountable to local voters, blatantly contravening the home rule provisions of the Rhode Island Constitution. If a receiver or state-appointed "budget commission" (another possible emergency fiscal stabilization measure) orders taxes to be raised, there is no direct recourse for the taxpayers, either via an administrative process or via the ballot box. The citizens will pay what they are told and they won't be allowed to get in the way of determining how much of their income is enough.

In short, Rhode Island's governing class, Democrat and Republican alike, have decided that the state Constitution is wholly ignorable while union contracts are sacrosanct. If our political class does not see a fundamental problem with this, then there can be no denying that government has truly become primarily a private interest of public sector unions and connected pols, aided and abetted by Republican officials who have decided that their job is to be middle-managers within a system owned by and operated for unions and special interests.

Governor Carcieri Should Veto Have Vetoed the Suspension of Rhode Island Municipal Democracy Act of 2010

PROEM:

Looks like I was too late; the bill has been signed into law. Governor Carcieri, I fear that you've been had. Details tomorrow.

---

Governor Donald Carcieri should veto the hastily assembled set of rules for "municipal receivership" introduced to and passed by the General Assembly under the guise of an act "providing financial stability" last week. The bill, both an attempt to retroactively address the financial situation in Central Falls motivated by the growing realization that there is nothing in Rhode Island law that authorizes the actions that have been taken in CF so far, and a measure that could be applied to any Rhode Island community in the future, is nothing less than a set of procedures for suspending democracy at the municipal level, violating both the spirit of democratic, constitutional governance and the specific letter of Rhode Island's Constitution.

The most egregious provision of the financial stability act is the powers granted to a municipal receiver, the culmination of a three-step process by which democratic governance in a city or town can be suspended for financial reasons...

Upon the appointment of a receiver, the receiver shall have the right to exercise the powers of the elected officials under the general laws, special laws and the city or town charter and ordinances relating to or impacting the fiscal stability of the city or town including, without limitation, school and zoning matters; provided, further, that the powers of the receiver shall be superior to and supersede the powers of the elected officials of the city or town shall continue to be elected in accordance with the city or town charter, and shall serve in an advisory capacity to the receiver.

This provision is clearly incompatible with the home rule provision of the Rhode Island Constitution (Article XIII) prohibiting the state legislature from taking any action that changes the form of government in a city or town, without the approval of the voters in that city or town...

Section 4 -- The general assembly shall have the power to act in relation to the property, affairs and government of any city or town by general laws which shall apply alike to all cities and towns, but which shall not affect the form of government of any city or town. The general assembly shall also have the power to act in relation to the property, affairs and government of a particular city or town provided that such legislative action shall become effective only upon approval by a majority of the qualified electors of the said city or town voting at a general or special election...

Decreeing that elected mayor and a city or town council can be reduced to the role of offering non-binding advice to an appointed official is inarguably a change in form-of-government.

Several of the events that can help trigger the suspension of municipal democracy under the potential new law relate to the actions of private financial institutions...

(3) The city or town has been downgraded by one of the nationally recognized statistical rating organizations;

(4) The city or town is otherwise unable to obtain access to credit markets on reasonable terms in the sole judgment of the director of revenue,

...which means that, while Rhode Island law contains no statewide provision allowing voters to have a say in removing local officials in cases of outright criminal behavior, private financial institutions lacking any local presence will be given a voice in scrapping all of a municipal government.

These and other provisions of the bill reduce democratic self-governance to something citizens are allowed to play at, but something that is definitively less than the process by which a community comes together to make the most important civic decisions affecting its members. The proposed law runs counter to centuries of democratic practice where decisions relating to revenue must be approved by a body of local representatives freely elected by the people. And it embodies the odious principle that the best way for solving difficult problems of governance is to subordinate democracy to the will of a benevolent strongman. That may be the ideal way to do things within the limited imaginations of our state legislature, but it is not a philosophy that should be imposed on the cities and towns of Rhode Island.

Complexity is Knowing that Government Control Must be Better, No Matter What that Pesky Constitution May Say

One of the more maundering sections in the Projo's recent Tea Party editorial began by looking at the view expressed at many Tea Party events that modern government needs to continue to be consistent with the principles of the founding of America...

They also make frequent reference to getting back to what the nation's Founders wanted, though it is not at all clear how the Founders would have governed a country that has grown from about 3 million people living in a mostly agrarian nation in 1790 to about 310 million in the highly urban/suburban, technological and multicultural one now. We do know that the Founders supported the right to amend the Constitution as things changed.

But complexity is anxiety-provoking, while simple slogans are comforting.

The connection that the editorial seeks to establish, between simplicity and Constitutionality, is not at all clear. Given that defining and enforcing limits on the power of government has never been a simple problem for any society, it would have been helpful if the editorial board had discussed the specific Constitutional sections they believe to be too simplistic for a "highly urban/suburban, technological and multicultural" nation.

Indeed, much modern history has been shaped by human struggles with and against the consequences of contrasting formulations of government. The renowned philosopher and sociologist Raymond Aron described the key contrast in the past two-and-half-centuries as being defined by the difference in the ideas of...

...representative governments restrained by the balance of power, and so called democratic governments invoking the will of the people but rejecting all limits to their authority.

Then again, given the Projo editorial board's steady stream of editorials over the past year declaring the need for more government power over healthcare regardless of the details -- and perhaps the Constitutionality -- of the the plans that were being proposed, they may feel that the issue has been settled, with the latter view of government described by Aron having won out.

However, those who would feel comfortable with a system where the most important factor limiting a government's power is that government's ability to decide for itself when its actions serve true public interests really shouldn't be congratulating themselves on their ability to deal with complexity.

Why the Tea Party Has Emerged from America's Side Streets

Bill James, the pioneer baseball number-cruncher who is also a gifted sportswriter, once observed that historians reduce real events to patterns of light and shadow, which popular memory further reduces to black and white. The description of the Tea Party movement offered yesterday by the Projo in an unsigned editorial was derived from a black-and-white picture of political activity that allows for only limited avenues of basic citizen participation: decisions by individual voters, activities of special interests and not much else.

In the political science literature, Republican Party support is often characterized, in terms of this limited set of possible actors, as an alliance of Main Street and Wall Street interests (which then added the "religious right" leading to the Republican Revolution of the 1990s). But the Wall Street/Main Street model has to my mind always been insufficient, as it is difficult to envision enough votes existing in the dual-street coalition to provide the totals needed to actually win anything. In cases where Republicans have been successful, there have to have been a goodly number of people from the side streets who also choose to vote Republican.

Side-street voters can be brought into the picture in a couple of different ways. In addition to citizens who focus solely on their narrow interests, our political and social system can also produce citizens concerned more generally about the long-term health of their municipality, state or country (I know it's hard to believe, given the cynicism of the times). Over the course of American political history, the Republican Party may have had the stronger attraction to these voters, who served to counterbalance the coalition of special interests that is the Democratic Party. (Digression: Don't blame me for characterizing the Democrats like this. This is how the poli-sci literature frequently describes them). Or there could be a significant segment of American voters who lie outside of a deep attachment to either party, who serve as neutral referees, choosing amongst the options they believe best serve the common good. Like many items in political analysis, the reality will be a continuum between the two ends.

But however this dynamic has worked in the past, at the present moment, the side-streets are where the Tea Partiers are coming from. The Tea Partiers are citizens who have put their hands up, to tell the established political players 1) you've really screwed up in planning for the future of our country 2) so you need to put together a better plan to pull things together 3) or else we will replace you, via the ballot box, with someone different who will. Yet while efforts to replace politically-chosen decision makers when the public believes that they have governed poorly are recognized as fundamental to the practice of democracy, reactions to the emergence of a segment of citizens who are visibly signaling that they want better choices than what is currently being offered have ranged from the dismissive to the apoplectic.

The negative reactions towards citizen participation are, in part, the result of special-interest-centric attitudes towards politics that have disimagined any significant role for regular citizens concerned about the long-term future their society. In many theories which gained traction in the latter-half of the 20th century on the subject of how democracy "really" works, the role of the common-folk was limited to picking amongst options offered by coalitions of elites and organized interests. Elites had the ability to transcend base motivations of self-interest, as well as to manage a power-structure that balanced competing special interests and to create the right messaging to get some of the common folk to come along, but the common folk, being common, couldn't be expected to organize in pursuit of a larger purpose, on their own, with the same vigor that they would organize themselves to pursue more immediately gratifying ends. Elite leadership was required to move them towards broader, high-minded goals.

Now, this is not the only pattern of light and shadow about the workings of American democracy offered by modern political science and, in this century, it may not even be the dominant one. But it is still one accepted view. Certainly, for example, a black-and-white picture of narrowly-focused special interests being the only significant mode of citizen participation that is possible informs the Providence Journal editorial board's cynical attempt to pound Tea Partiers into the mold of a traditional interest group.

Fortunately, immediate evidence of the deficiency of the narrow view of citizen participation is present on the same Projo page as the Tea Party editorial, where in what is either an unintentionally schizophrenic juxtaposition, or a brilliantly subversive move by someone on the editorial staff, a second editorial discusses the need for spending restraint to secure the future of all of Rhode Island.

When one newspaper editorial calls for spending restraint which will depend on political change, while another expresses unconcealed disdain for citizens who advocate for political change involving spending restraint, it is safe to say that a contradiction has been identified. The question needing to be asked to the author of the Tea-Party editorial, in light of the spending editorial, is whether it is acceptable for regular folks to organize on their own to address the long term, system-wide consequences of special-interest dominance of government -- or whether they should only be addressing hazards to the general good that staid and proper elites (like maybe the Projo editorial board) have declared to be legitimate concerns.

Why the Proposed Teachers' Health Insurance Board is an Unconstitutional Violation of Separation of Powers

A non-trivial question concerning the new teachers' health insurance board proposed by the legislature but opposed by the Governor is which branch of government it would belong to.

It's obviously not the judiciary.

And as currently structured, the board cannot be an offshoot of the legislature. A legislature has no power to delegate its statewide lawmaking authority to a group of non-legislators operating outside of the normal lawmaking process -- unless it is through the rule-making authority of an executive branch agency.

That leaves the executive branch, which makes sense, as this new board is basically a regulatory agency charged with overseeing the actions of school committees in certain aspects of teacher contract negotiations. However, the legislature does not have the power to designate anyone it chooses as makers of administrative rules that ultimately carry the force of law; according to the principle of separation of powers, this power can only be delegated to a constitutionally recognized executive.

This aspect of separation of powers, fundamental to the structures of our state and Federal governments, is spelled out directly in Article IX Section 5 of the Rhode Island Constitution…

The governor shall, by and with the advice and consent of the senate, appoint all officers of the state whose appointment is not herein otherwise provided for and all members of any board, commission or other state or quasi-public entity which exercises executive power under the laws of this state; but the general assembly may by law vest the appointment of such inferior officers, as they deem proper, in the governor, or within their respective departments in the other general officers, the judiciary or in the heads of departments.

Rhode Island legislators have no basis for ignoring Article IX and replacing the Governor with labor unions or other organizations in making appointments to state boards (no matter how much they might like to) unless they're claiming the authority to create new branches of government without needing a constitutional amendment.

Colleen Conley: What Will It Take For You to Take a Stand?

Recently, I attended a GOP meet-and-greet, hosted by a group of beautiful women at one of their gorgeous “House and Garden” homes in an affluent neighborhood. The food was delicious, the wine sublime, and the hospitality of genteel, like-minded couples unparalleled. The Governor and his delightful wife made an appearance and both gave heartwarming speeches, as did a candidate for Governor of our state. It was a picture-perfect evening that went off without a hitch.

So why did I awake the next morning with a sinking feeling? I had just met a great group of educated and presumably informed people who had an understanding of the issues which face our state and our nation. These were not your average folks; the resources at their disposal put them in a unique position, somewhat buffered by the economy which ravages the average working folks, and with time, money, and access to information that gives them a distinct advantage over those who live from paycheck to paycheck.

As I watched speakers, perched on an impressive staircase in front of a rapt audience, discuss their ideas for a better tomorrow, I pictured similar scenes that might have taken place 240 years ago, in which our founding fathers stood to make their pitch for the creation of new nation; a nation of the people, for the people, and by the people. I imagined that those orators suggested to their listeners that the time had come for action; that as leaders of their communities with resources, means to spread the word, and ability to sway the masses working simply for their everyday survival, that now was the time to take a stand for freedom. And not just for their freedom, but for the freedom of generations to come.

In my state and my country, we are at a not so dissimilar point in history. Our freedoms are under assault in all corners of our state and federal government. As the leader of the Tea Party movement in RI, I am proud and honored to have met thousands of average working folks who have had “enough” and who are willing to take a stand for their freedom. Junkyard owners and nurses, retirees and teachers, stay-at-home moms, and small business owners; each and every one fills me with a sense of hope that all is not lost.

But some members of the political party which should embrace the tea-party ideals of fiscal responsibility, accountability, and a return to Constitutional principles seem content to converse amongst themselves and host beautiful gatherings with beautiful people. By and large, they do not show the fortitude to speak amongst a room full of foes, and debate the merits of their stances on the issues. Why is this? Why are people, even educated people of means, cowed by the opposition, which has nothing but tired, long disproved theories in their arsenal?

My charge to the leaders of our communities is this: it is time for bold action in defense of our freedom and freedom of our children. It is no longer acceptable to simply host gatherings and hope that change will come, for without the concerted action that only you can take, it will not. You could, and should, be the contemporary Statesmen of our time. You must consider running for political office (no matter how distasteful that seems), you must donate your time and money to go on offense against the corrupt status quo, you must speak the truth, even if you feel that it may offend some. Times which test us require men and women of strength and resources to reach outside of our comfort zones. Be models for your children. Our future, and theirs, depends on it.

Colleen Conley is a founder and the President of the Rhode Island Tea Party.

Re: A Constitutional Glitch in the Ciccone Consolidation Bill?

Monique points out that the state Constitution has to be considered in any plans to "consolidate" or "regionalize" Rhode Island's cities and towns. And a direct reading of the first 4 sections of Article XIII of the Rhode Island Constitution certainly seems to rule out the top-down pile-driver consolidation recently proposed by Senator Frank Ciccone, unless a major set of Amendments are first approved by the voters…

Section 1: Intent of article. -- It is the intention of this article to grant and confirm to the people of every city and town in this state the right of self government in all local matters.

Section 2: Local legislative powers. -- Every city and town shall have the power at any time to adopt a charter, amend its charter, enact and amend local laws relating to its property, affairs and government not inconsistent with this constitution and laws enacted by the general assembly in conformity with the powers reserved to the general assembly.

Section 3: Local legislative bodies. -- Notwithstanding anything contained in this article, every city and town shall have a legislative body composed of one or two branches elected by vote of its qualified electors.

Section 4: Powers of general assembly over cities and towns. -- The general assembly shall have the power to act in relation to the property, affairs and government of any city or town by general laws which shall apply alike to all cities and towns, but which shall not affect the form of government of any city or town. The general assembly shall also have the power to act in relation to the property, affairs and government of a particular city or town provided that such legislative action shall become effective only upon approval by a majority of the qualified electors of the said city or town voting at a general or special election, except that in the case of acts involving the imposition of a tax or the expenditure of money by a town the same shall provide for the submission thereof to those electors in said town qualified to vote upon a proposition to impose a tax or for the expenditure of money.

Section 2 quite clearly denies the General Assembly the power to eliminate home-rule charters. Section 3 says every city or town gets to have a city or town council of its own. Then -- most importantly for this discussion -- the final clause of the first sentence of Section 4 says the General Assembly can't act to change the form of government in any city or town, preventing (among other things) any end-runs around Sections 2 & 3 by changing the definition of city and town through statute alone.

However, there's nothing in the state constitution regarding cities and towns, similar to the provision in the Federal Constitution that says "equal representation in the Senate cannot be changed, even through an amendment", that prevents Amendments being adopted that would allow for county-level governance. Perhaps an Amendment to the state Constitution that says no regionalizing a city or town, without the consent of "a majority of the qualified electors of the said city or town voting at a general or special election" should be considered. Nick Gorham could make such an Amendment the centerpiece of a campaign for the statehouse in 2010, depending on the position of the current state Rep in his district on the Ciccone plan…

A Constitutional Glitch in the Ciccone Consolidation Bill?

Andrew brings to our attention Senator Frank Ciccone's pile driver consolidation bill, enumerating the ways that this is a bad idea and adding some shrewd speculation about the (possibly calculated) existential threat that the bill poses to the Mayor's office of North Providence, a position currently occupied, it would seem, by a trouble-maker obsessed with stabilizing local taxes.

Part of the senator's consolidation proposal would involve passage of a separate bill eliminating Rhode Island's home rule charters, thereby returning all such power, including the power to tax and spend on the local level, to state government.

Now, Rhode Island's current home rule charters came to exist at a Constitutional Convention in 1951. So how could they be revoked simply by an act of the General Assembly? Wouldn't it take another Constitutional Convention to accomplish this dramatic change to the structure of Rhode Island government?

The Idea of "Consolidation" Takes Its Biggest Hit Yet, as Senator Frank Ciccone Enthusiastically Signs On

State Senator Frank Ciccone (D - North Providence/Providence/Anyone with a Monetary Interest in Dog Racing) has introduced a bill to implement about a strong as consolidation plan as is possible in Rhode Island -- abolishing all city and town governments in Rhode Island, replacing them with county-level government (h/t Brian Hull). To make sure that no uppity city or town tries to keep control of its own affairs, Senator Ciccone's package of legislation will include this little bit...

To allow the state to seamlessly transition into a county-type form of government, Senator Ciccone will also introduce a bill to eliminate all home rule charters- which allow cities and towns to adopt their own forms of government.

At the same time, the Senator wants to make the current legislature full-time but smaller...

Saying that Rhode Island needs a General Assembly comprised of legislators who answer solely to the people who elected them, he also plans to reintroduce legislation to establish a full-time legislature....

He also plans to introduce a bill to reduce the size of the General Assembly from 113 members to 75 members. Under his proposal, the House of Representatives would be reduced from 75 to 50 and the number of senators would decrease from 38 to 25.

Conclusion: Rhode Island's union Democrats are apparently so unhappy with officials in cities and towns who view high-levels of government spending as a problem that needs to be addressed, they want to eliminate the local self-governance structures that can produce results like the current East Providence school committee or Charles Lombardi as Mayor in North Providence, replacing them with a structure that maps more closely to the structure of the state legislature.

By the way, Senator Ciccone's district includes part of North Providence. Yes, the union-backed state Senator from North Providence wants to take out the Mayor of North Providence -- who has never been hesitant on multiple fronts to challenge his town's municipal unions. Draw your own conclusions about what's going on here.

Beyond the politics, for reasons that I outlined a few months ago, in response to former Providence Mayor Joseph Paolino's six-region consolidation plan, I'm skeptical that dumb consolidation, i.e. top-down consolidation, imposed within legacy boundaries, can actually save much money without reducing the quality of public services in many places. Here's the example I used before...

The town of Foster still uses a volunteer firefighting force; how will a consolidated Providence address this issue going forward? Will residents of Former-Foster pay the same taxes as everyone else, but receive no municipal fire-service in return? Or will some kind of sub-jurisdiction be created, where Former-Foster residents pay a different tax rate and receive a different mix or services? And if the answer is the latter, by the time you have created the administrative structure capable of dealing with the variations in the different communities that get merged together, is it realistic to believe that the result is going to be any more efficient -- and less expensive -- than separate municipal governments?

How does the Ciccone plan deal with details like this -- beyond, of course, implementing standard the Obama-era progressive philosophy of giving more power to more remote units of government, then having them figure out the details later.

Turning back to politics for a final note: Without the intention of endorsing any particular opponent, but instead to show how popular Rep. Ciccone seems to be with his constituents, here are the results of the 2008 Democratic Primary in Senator Ciccone's district...

• Frank A. CICCONE, III (DEM) 1114 54.8%
• Catherine E. GRAZIANO (DEM) 920 45.2%

...in case anyone is thinking of mounting or supporting either a 2010 primary or a general election challenge in District 7 -- where a central question would be: people of North Providence, are you ready to have your town run out of Providence City Hall?

The Disrespect for Democracy that is Binding Arbitration

More vigorously than at anytime since the 1960s, America's political left has been promoting its two-point all-purpose plan for solving domestic problems: More government spending (point 2) paid for by higher taxes (point 1). At the Federal level, the focus of applying this philosophy has been on healthcare. At the state level in Rhode Island, look for education "funding formula" advocates to ramp up their push for higher state taxes, so that spending can be raised in some communities. And at the local level...

Well, at the local level, the story is a bit different. Members of the progressive/union alliance in RI are afraid that local elected officials are not on board with the idea that everything can be fixed with higher taxes and more spending, so they've decided that the influence of local elected officials on municipal budgets must be reduced. Specifically, at the behest of the leadership of Rhode Island's core-left, the state legislature this week could vote to impose binding arbitration procedures on cities and towns unable to agree upon teacher contract terms within a certain time-frame. Such action would remove true decision-making authority concerning the largest single item (personnel) of the largest chunk of most local budgets (school system) from elected officials and turn it over to electorally unaccountable panels of arbitrators.

As much as binding arbitration is intended to minimize the influence of locally elected officials, it is also intended to minimize the influence of the voters who elect those officials -- an intent that runs contrary to the most basic notions of self-government. Any meaningful definition of democracy, from the classical ideas of the Enlightenment to the starker, more cynical theories of modern political science, involves the idea that actual decision makers must face the possibility of being replaced by election when the public disapproves of the decisions that are made. And since the late 17th century, dating back to the English Bill of Rights, a fundamental tenet of democratic rule has been that decisions to raise revenue properly belong to a body of freely elected representatives of the people. To replace a system of electing fiscal decision makers with a system where the role of the people is mostly to choose a panel that will present their case to an electorally unaccountable final decision maker is to disregard the principles and ideals of centuries of democratic practice.

I don't know if binding arbitration advocates shrug or laugh when asked to consider the non-democratic nature of the means they are willing to use to advance their agenda, but what is abundantly clear is that they believe that government needs the power to spend more money even when the elected representatives of the people don't want to -- and that when the democratic process doesn't facilitate an agenda of more spending, then a different kind of process is needed that will.

Fortunately, we still live in a country and in a state where the marginalization of public influence on local spending decisions can occur only for as long as the public is willing to accept it, i.e. only for as long as the public is willing to re-elect legislators (and city and town councilors) who approve of replacing democratic rules with a system of governance that transfers power to unelected arbitrators. Keep this last point in mind -- because if you don't like the decision the Rhode Island legislature makes on binding arbitration this week, it can be easily reversed by the legislature that is seated following the 2010 elections.

Tollgate's Five Dollar Revolution

For the price of a $5 footlong, Tollgate High students can park their car for a year in the school parking lot.

Toll Gate Principal Stephen Chrabaszcz said he decided to institute the policy for two reasons. First, to make the campus safer and reduce auto break-ins. Students would have to register their cars and license plates and use a sticker that will mark their vehicles as belonging in the Toll Gate lot.

Secondly, Chrabaszcz said, the parking privilege would be used as a way to discourage tardiness. Any student who is late for more than 10 days would lose their parking privileges for 30 days.

The $5 fee is being collected to cover the cost of the stickers and the recent striping of the lot; each student would have an assigned space, Chrabaszcz said.

But that's too much to pay for some.

Michelle Foss, whose daughter is a senior at Toll Gate, said Wednesday that she already knows what she thinks of the plan. “I think it’s ridiculous to make students pay for parking at a public school we pay for and in a community where we pay taxes,” she said.

Foss, who has registered her complaints with school officials, said it’s mostly a matter of principle, but the school should be aware the many teenagers will have to pay the fee themselves.

“My daughter’s working for minimum wage,” she said. “Are they also going to charge the teachers who make a lot more than that? And is Mr. Chrabasczcz going to pay for parking?”

Foss told the Warwick Beacon:

She questioned what right the school has to implement the charge; whether faculty and custodians would be required to buy stickers and whether she would have to buy two stickers since her daughter would use her car or her father’s car depending which is available.

Chrabaszcz had some answers. He said she would need two stickers.

“He didn’t want to hear any of it,” she said. “‘This is the way it’s going to be,’ he said.”

Foss’ daughter Sharon, who is a senior at Toll Gate and enrolled at the Warwick Area Career and Technical School, said she needs a car in order to complete her internship program. She said students are talking about boycotting driving to school, an action she claimed would require the School Department to put on additional buses that they can’t afford.

Again....$5. But setting aside that Tollgate used to charge for parking and that other schools, include Warwick Vets, charge for parking, there is a deeper anger being exposed here.

You see, some of the parents argue that their problem with the fee is more over principle than the $5 price. They rightly point out that parents are asked to buy more school supplies than ever; pay more via PTO's and PTA's for school activities; pay more in property taxes year after year. And now $5 for parking? C'mon!

They have a valid point, but it seems remarkable that these parents who have, for the most part, grumblingly acquiesced to previous piling up expenses are finally inspired to revolution over five bucks a year. Perhaps this is the straw breaking the camel's back. Be that as it may, the deeper problems cited aren't going to go away if the Tollgate kids "win" this battle and keep getting their free parking.

For the simple fact remains that most school budget money is going to keep being put towards payroll and benefits, leaving less for everything else. That's just the way it is. Yet, I'm betting that while the school budget or teacher contract haven't brought parents to a school committee meeting, this $5 annual parking fee will. Who knows? Maybe that will get them interested in the deeper financial issues and they'll start being more active in the future.

But I'm guessing that, if they win, the free-parkers and their parents will go back to spending their minimum wage money on their D-n-D coffees and $5 footlongs and won't want to be hassled with that other stuff. How could we blame them? After all, they will have won their Five Dollar Revolution.*

*Credit to Dan Yorke for coining the term during his show yesterday.

ADDENDUM: We have these "$5 Revolutions" from time to time: little outrages--often stemming from larger problems--that put people momentarily over the edge. Yet, when the minute issue is resolved, the anger is alleviated and the outraged people feel as if they accomplished something...when they haven't, really. It's a form of populism and it helps illustrate an inherent problem within populism. A movement built on emotion (anger) or feelings (hope) instead of a concrete philosophy is resting on a perilous foundation. Maintaining emotion--or passion--at a high level is exhausting, especially if it is unfocused or unsupported by a framework of cogent thought.

Edward Fitzpatrick Versus Scott MacKay, Dueling Critics of Art and Democracy

Projo political columnist Edward Fitzpatrick and WRNI (1290AM) political analyst Scott MacKay have come to very different conclusions about what they witnessed at Congressman James Langevin's town hall meeting in Warwick last week.

MacKay quite clearly didn't like what he saw…

The iconic image of a New England Town Meeting was painted by Norman Rockwell in his World-War II-era Freedom of Speech illustration. The 1943 painting, inspired by a Vermont town meeting, shows a plainly-clothed working man speaking up while his white collar neighbors look on....Now, roll the clock ahead 66 years to last week's two raucous Rhode Island gatherings on national health care.

Boorishness and shouting have replaced respect and civility. The meetings with members of the state's Washington delegation were magnets for a grab-bag of unfocused rage, much of it aimed at issues far afield from health-care. There were folks protesting abortion, illegal immigration, the banking and auto company bailouts, socialism, President Obama and even the end of the gold standard.

The sight of zealots last Wednesday at Warwick City Hall screaming at Congressman Jim Langevin, a wheelchair-bound quadriplegic, wasn't pretty. And it wasn't civil or respectful.

…but Fitzpatrick came away with a very different impression (albeit with a reference to the same painting!)…

Inspired by a 1941 speech by President Franklin Delano Roosevelt, artist Norman Rockwell created a series of paintings called the Four Freedoms. Perhaps the most famous is Freedom of Speech, which pictures a sincere, determined everyman standing to speak at a New England town hall meeting....

Certainly, we did not get that idealized version of a town hall meeting on Wednesday night when 430 people packed Warwick City Hall (and hundreds more gathered outside) to tell Democratic U.S. Rep. James R. Langevin what they think of the proposed health-care overhaul.

The meeting amounted to an amazing mix of bad behavior and good points, absurdity and poignancy, interruptions and interactions. People were nutty and nuanced, cloying and annoying, frightful and insightful. It was ugly at times, but a beautiful thing to behold. It was a First Amendment festival, a carnival of democracy, complete with a few freaks and sideshows. In short, it was more Salvador Dali than Norman Rockwell.

Having been inside at Congressman Langevin's event, I have to say that I am more partial to Fitzpatrick's description. And I can't help but be reminded of a quote I once heard from author Charles Rappleye, regarding a description offered of Rhode Island in its early days, not in a positive sense: It's a "downright democracy" around here!

But of course, we've got complete video of Congressman Langevin's event here at Anchor Rising, to help you decide for yourself…

The RI Tea Party President on the Town Hall and the Community Dinner

On Saturday, I stopped by the Rhode Island Tea Party's roving protest at its stop in front of Senator Jack Reed's offices in Cranston, where RI Tea Party founder and President Colleen Conley was one of the demonstrators.

Ms. Conley has also been on the inside (literally) at Congressman James Langevin's town hall meeting held in Warwick this past Wedensday and at Senator Sheldon Whitehouse's and Senator Jack Reed's community dinner held in West Warwick this past Thursday.

I asked Ms. Conley for her impressions of what transpired in the public forums with the members of our Federal delegation. The audio of her answer is available below...

• Part I: "My impression is that they are going to vote party line, no matter what their constituents say…"
• Part II: "They're not even considering the other ways to reform health care…."
• Part III: Congressman Langevin's event and Senator Whitehouse's/Senator Reed's event, compared and contrasted.

Takeaway #1 from Congressman Langevin's Town Hall: The Point of Failure in American Democracy

The first takeaway from Congressman James Langevin's town hall meeting last evening (actually, it was a city hall meeting, but why quibble) is bigger than the issue of healthcare alone. It concerns one of the weakest points in the American democratic system, the committee system used for creating legislation.

When asked if he had read the "current" healthcare bill, Congressman Langevin responded by saying that there was no final bill yet, but that there would be "a finished bill that we will all have plenty of time to read". There's no reason to question the Congressman's sincerity on this issue -- but remember, President Obama originally wanted a healthcare bill passed by both chambers of Congress before the beginning of the August recess. On that schedule, there would have been no time for either Congressmen or their constituents to substantively review a 1,000-page bill filled with technical language and cross-references, after committee work had been completed.

I submit that a significant reason that the town halls of 2009 have become as contentious they have is because citizens have a legitimate fear of a process that could finish with their waking up one morning, reading their local political blog (or maybe their newspaper or something) and finding out that a final or near-final healthcare bill was passed out of committee yesterday, that it will be up for a floor vote by the end of the week, and that their chance to impact or prevent or improve a major change in the government's role in their lives has passed.

The American people and their elected representatives -- at both the state and Federal levels of government -- need to come to a clearer mutual understanding about a standard, consistent place in the legislative process when the public has its opportunity to offer meaningful input on legislation.

Maybe an official public comment period on proposed legislation, just like there are official comment periods on executive-branch regulations, needs to be created. Or maybe we need a new rule that says for every 100-pages that a bill spans, 1 week has to be allowed to pass between its approval by a committee and consideration on the floor (minimum allowed period of two weeks).

Projo Endorses Term Limits

Somewhat out of the blue, the Projo editorial page has come out in favor of term limits for Congressmen...

Now, it’s time for Americans to look at limiting the terms of members of Congress....A good way to start the discussion would be proposing to limit the time in office to, say,10 or 12 years (five or six terms) in the House and 12 years (two terms) in the Senate. That’s enough to provide a necessary learning curve but not so much that these legislators become life-tenured barons whose incumbency, supported by economic interests giving campaign money, thwarts democracy

However, the main question about reviving the term-limits movement is a strategic one; is this really the best time for those dissatisfied with the direction of government to be focusing their energies on a notoriously difficult-to-achieve process goal, when there's so much happening in the realm of substance requiring careful scrutiny and public involvement?

On the other hand, perhaps if it were part of a larger movement to reform the Federal Government at the Constitutional level...

The Bill of Federalism: Amendment #9

I mentioned at the start of this series of postings that the Bill of Federalism is a stronger alternative to "Tenth Amendment resolutions" and the like. In the ninth proposed amendment of the Bill of Federalism, the subject of the Ninth and Tenth Amendments of the US Constitution -- the rights retained by the people -- is directly addressed via two related prongs…

1. In terms of substance, the ninth proposed amendment erases any doubt that the Constitution protects "fundamental" rights, such rights to life, liberty and the pursuit of happiness, from governmental infringement, in the same way that enumerated rights in the Bill of Rights are protected.
2. In terms of process, the ninth proposed amendment specifies "due process" as meaning that the government in defending its actions has the burden of proving that it has acted in conformity with its powers as granted by the Constitution and that it is not infringing on the fundamental rights of any citizen, which is different from the process that exists now.

The text of the ninth proposed amendment states...

Section 1. All persons are equally free and independent, and have certain natural, inherent and unalienable rights which they retain when forming any government, amongst which are the enjoying, defending and preserving of their life and liberty, acquiring, possessing and protecting real and personal property, making binding contracts of their choosing, and pursuing their happiness and safety.

Section 2. The due process of law shall be construed to provide the opportunity to introduce evidence or otherwise show that a law, regulation or order is an infringement of such rights of any citizen or legal resident of the United States, and the party defending the challenged law, regulation, or order shall have the burden of establishing the basis in law and fact of its conformity with this Constitution.

There is a long, technical but interesting, and very important legal history behind the need for this amendment. If you were allowed just two sentences to describe that history, you'd be hard pressed to do better than the Bill of Federalism's author, Georgetown University Law Professor Randy Barnett, has done with these…

The Constitution that was actually enacted and formally adopted creates islands of government powers in a sea of liberty. The judicially redacted Constitution creates islands of liberty rights in a sea of governmental power.

His more detailed explanation of the specific need the ninth proposed amendment, as explained on the Bill of Federalism website, is as follows…

The existing Ninth Amendment says that "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people." Section 1 of this proposal elaborates on the original meaning of "rights . . . retained by the people" with language that is adopted from the wording of amendments proposal to the first Congress by state ratification conventions and by James Madison, and from the very similar wording found in several state Constitutions at the time of the Founding. For example, the constitution of Pennsylvania read: "That all men are born equally free and independent, and have certain natural, inherent and unalienable rights, amongst which are, the enjoying and defending of life and liberty, acquiring, possessing and protecting property, and pursuing and obtaining happiness and safety." Likewise, the Civil Rights Act of 1866 protected the right of any citizen "to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property. . . ."

Section 2 corrects the current approach of the Supreme Court that precludes citizens and legal residents from contesting the necessity and propriety of restrictions on their retained rights unless the Court deems the right in question to be "fundamental" and provides all liberties with the same type of protection now accorded the rights of freedom of speech, press, and assembly, and the right to keep and bear arms.

Though I have nominated the fourth proposed amendment as the Federalism Amendment I would choose if I could add a single one to the Constitution right now, you can make a solid case that this amendment is actually the most important of the group.

Links to the earlier proposed amendments are below the fold...

Continue reading "The Bill of Federalism: Amendment #9"

The Bill of Federalism: Amendment #8

The eighth amendment proposed in the Bill of Federalism would increase the power that the President of the United States has for bringing Federal budgets into balance…

Section 1. The budget of the United States shall be deemed unbalanced whenever the total amount of the public debt of the United States at the close of any fiscal year is greater than the total amount of such debt at the close of the preceding fiscal year.

Section 2. Whenever the budget of the United States is unbalanced, the President may, during the next annual session of Congress, separately approve, reduce or disapprove any monetary amounts in any legislation that appropriates or authorizes the appropriation of any money drawn from the Treasury, other than money for the operation of the Congress and judiciary of the United States.

Section 3. Any legislation that the President approves with changes pursuant to the second section of this Article shall become law as modified. The President shall return with objections those portions of the legislation containing reduced or disapproved monetary amounts to the House where such legislation originated, which may then, in the manner prescribed in the seventh section of the first Article of this Constitution, separately reconsider each reduced or disapproved monetary amount.

Section 4. The Congress shall have power to implement this Article by appropriate legislation; and this Article shall take effect on the first day of the next annual session of Congress following its ratification.

This amendment goes beyond the notion of a "line-item veto" and allows the President to reduce or zero out any amount in any legislation (save for the exceptions in section 2) in the year following the passage of an unbalanced budget. Congress does retain its power to restore funding reduced by the President through the usual 2/3 override process.

I would consider modifying this just a bit, allowing the President to reduce amounts until the budget is balanced, but not beyond.

In his commentary on this proposed amendment, Georgetown University Law Professor and Bill of Federalism author Randy Barnett explains the budgeting practices he feels make this amendment necessary…

The practice by Congress of aggregating thousands of lines of expenditures into "omnibus" appropriation bills has greatly diminished the veto power that the Constitution reposes in the President. Because of their reluctance to threaten a government shut down, Presidents are loath to veto such bills. Knowing this, Senators and Representatives can load spending bills with pork, knowing that Congress will never have to give an up or down floor vote to a particular line item and that the threat of a presidential veto is empty. While there is great demand for constitutional requirement of a balanced budget, mechanisms for this that have been devised to date are highly complex, typically contain numerous exceptions and loop-holes, and lack effective means of enforcement. By linking the goal of a balanced budget with a temporary presidential line-item veto, the eighth proposed amendment provides a real incentive for Congress to devise a balance budget; if Congress fails to do so, the President would then have a temporary line item veto power over any appropriation in the budget. For example, should Congress enact a budget with a deficit, the President could veto Congressional earmarks and be held accountable for failing to do so. The amendment also ensures that Congress will retain the same power to override any presidential line item veto as it currently has for a traditional veto.

Links to the earlier proposed amendments are below the fold...

Continue reading "The Bill of Federalism: Amendment #8"

The Bill of Federalism: Amendment #7

No need for any extended explanation on this one; the seventh proposed Amendment in the Bill of Federalism is term limits for Congress…

No person who has served as a Senator for more than nine years, or as a Representative for more than eleven years, shall be eligible for election or appointment to the Senate or the House of Representatives respectively, excluding any time served prior to the enactment of this Article.

…which doesn't mean that there isn't plenty of room for an extended discussion on the merits!

Prof. Barnett, also taking the minimalist approach, adds only that…

The seventh proposed amendment establishes congressional term limits by allowing two full terms for Senators and six full terms for Representatives. It phases in these limits by exempting the time already served by incumbents from the calculation of the limits on their terms.

Links to earlier proposed amendments are below the fold…

Continue reading "The Bill of Federalism: Amendment #7"

The Bill of Federalism: Amendment #6

In a very important sense, the sixth proposed amendment of the Bill of Federalism is compensation for the change brought about by the Seventeenth Amendment to the US Constitution, which provided for the direct election of Senators, when they had previously been chosen by state legislatures.

Now, as a resident of the state of Rhode Island and an observer of its politics, I am definitely NOT in favor of repealing the Seventeenth Amendment.

However, it must be noted that passage of the Seventeenth Amendment dissolved the only direct check that States had on the power of the Federal government. Given this fact, should we be surprised that the power of the Federal government has grown at the expense of the states?

In order to remedy this problem, the sixth proposed Federalism amendment would create a new mechanism that allows states to check Federal action…

Upon the identically worded resolutions of the legislatures of three quarters of the states, any law or regulation of the United States, identified with specificity, is thereby rescinded.

Professor Randy Barnett of the Georgetown University Law School and author of the Bill of Federalsim offers this rationale for the sixth proposed amendment…

At present, the only way for states to contest a federal law or regulation is to seek an amendment to the Constitution by applying for a constitutional convention to propose amendments that must then be ratified by three-quarters of the states. This proposed amendment provides an additional check on federal power by empowering the same number of states to rescind any law or regulation when they concur it is necessary. Such a power provides a targeted method to reverse particular Congressional acts and administrative regulations without the risk of permanently amending the text of the Constitution.

Links to earlier proposed amendments are below the fold…

Continue reading "The Bill of Federalism: Amendment #6"

The Bill of Federalism: Amendment #5

The fifth proposed Amendment in the Bill of Federalism seeks to reverse various encroachments on the freedom of expression…

The freedom of speech and press includes any contribution to political campaigns or to candidates for public office; and shall be construed to extend equally to any medium of communication however scarce.

The meaning of this one is pretty direct, as the proposal's author, Professor Randy Barnett, explains…

The fifth proposed amendment makes it clear that the freedom of speech and press now protected by the First Amendment extends equally to all media, including for example radio and television, as well as to financial contributions to political candidates and campaigns.

The earlier proposed amendments...

Continue reading "The Bill of Federalism: Amendment #5"

The Bill of Federalism: Amendment #4

If I could choose a single amendment from the proposed Bill of Federalism to place into the US Constitution, it would be this one…

No treaty or other international agreement may enlarge the legislative power of Congress granted by this Constitution, nor govern except by legislation any activity that is confined within the United States.

In other words, if a proposal by the Executive branch, a Senator or a Congressman doesn't have the support it needs to pass through the regular lawmaking process, treaty-ratification cannot be used as an alternative mechanism for legislating. Allowing some government actions to short-circuit the law-making process and acquire the force of law, on the basis that deals cut between governments are entitled to a special consideration not given to measures fully deliberated by the representatives of the people, is an affront to the democratic legitimacy that forms the basis of self-government.

Georgetown University Law Professor Randy Barnett, author of the Bill of Federalism, offers these thoughts on the proposed Amendment…

The framers of the Constitution were profoundly wary of entangling the United States in international legal commitments, so they required two-thirds of the Senate to ratify all treaties, and they assumed that treaties would only reach matters of truly international concern. These principles have been subverted by several misinterpretations of the Constitution. First, the treaty power has been interpreted to reach every imaginable subject, including many subjects of purely local concern. Second, the treaty power has been interpreted as a mechanism to increase the legislative power of Congress, thus creating a doubly perverse incentive: an incentive to enter into new international legal obligations simply to attain increased domestic legislative power. This amendment would correct these errors and restore the original meaning of the Treaty Clause and the Supremacy Clause.

The earlier proposed amendments:

• Article III: Limits on unfunded mandates and on conditions applied to Federal disbursements to states
• Article II: Limiting Federal Powers under the Interstate Commerce Clause
• Aritcle I: Reconstituting the Taxing Power of the Federal Government

The Bill of Federalism: Amendment #3

The third proposed amendment to the US Constitution contained in the Bill of Federalism places express limits on the Federal government's ability to use the extensive machinery of modern government to compel state governments to act in certain ways…

Congress shall not impose upon a State, or political subdivision thereof, any obligation or duty to make expenditures unless such expenditures shall be fully reimbursed by the United States; nor shall Congress place any condition on the expenditure or receipt of appropriated funds requiring a State, or political subdivision thereof, to enact a law or regulation restricting the liberties of its citizens.

As Georgetown University Law Professor Randy Barnett explains, this amendment has two distinct purposes 1) disallowing unfunded mandates by the Federal government on the states and 2) disallowing the practice of threatening to withhold Federal tax money, in order to force states to do what the Federal government is unable or unwilling to do directly…

The third proposed amendment addresses two sources of persistent federal intrusion into the powers of states. The first is federal laws mandating state action necessitating the expenditure of state funds without reimbursing the states for their expenditures. In this manner, the federal government can take credit for adopting measures without incurring the political cost of increasing taxes or borrowing. The second problem is the use of federal spending to restrict liberty for purposes not delegated to the United States. For example, the 55 mph speed limit was imposed by the states by conditioning the receipt of federal highway funds upon compliance with this mandate. This amendment makes this type of condition on funding unconstitutional.

I wonder if this could also serve as a model for a state Constitutional amendment, prohibiting states from applying unfunded mandates to cities and towns…

Earlier Proposed Amendments:
Article II: Limiting Federal Powers under the Interstate Commerce Clause
Aritcle I: Reconstituting the Taxing Power of the Federal Government

The Bill of Federalism: Amendment #3

The third proposed amendment to the US Constitution contained in the Bill of Federalism places express limits on the Federal government's ability to use the extensive machinery of modern government to compel state governments to act in certain ways…

Congress shall not impose upon a State, or political subdivision thereof, any obligation or duty to make expenditures unless such expenditures shall be fully reimbursed by the United States; nor shall Congress place any condition on the expenditure or receipt of appropriated funds requiring a State, or political subdivision thereof, to enact a law or regulation restricting the liberties of its citizens.

As Georgetown University Law Professor Randy Barnett explains, this amendment has two distinct purposes 1) disallowing unfunded mandates by the Federal government on the states and 2) disallowing the practice of threatening to withhold Federal tax money, in order to force states to do what the Federal government is unable or unwilling to do directly…

The third proposed amendment addresses two sources of persistent federal intrusion into the powers of states. The first is federal laws mandating state action necessitating the expenditure of state funds without reimbursing the states for their expenditures. In this manner, the federal government can take credit for adopting measures without incurring the political cost of increasing taxes or borrowing. The second problem is the use of federal spending to restrict liberty for purposes not delegated to the United States. For example, the 55 mph speed limit was imposed by the states by conditioning the receipt of federal highway funds upon compliance with this mandate. This amendment makes this type of condition on funding unconstitutional.

I wonder if this could also serve as a model for a state Constitutional amendment, prohibiting states from applying unfunded mandates to cities and towns…

Earlier Proposed Amendments:
Article II: Limiting Federal Powers under the Interstate Commerce Clause
Aritcle I: Reconstituting the Taxing Power of the Federal Government

The Bill of Federalism: Amendment #2

The second Amendment of the proposed Bill of Federalism is a limit on Congress' powers under the Interstate Commerce Clause…

The power of Congress to make all laws which are necessary and proper to regulate commerce among the several states, or with foreign nations, shall not be construed to include the power to regulate or prohibit any activity that is confined within a single state regardless of its effects outside the state, whether it employs instrumentalities therefrom, or whether its regulation or prohibition is part of a comprehensive regulatory scheme; but Congress shall have power to regulate harmful emissions between one state and another, and to define and provide for punishment of offenses constituting acts of war or violent insurrection against the United States

The Interstate Commerce Clause has been Congress' workhorse for expanding its reach over time. When Congress wants to take an action that is not within the scope of its powers delegated by the Constitution, it often claims the right to do so by asserting that it is regulating activities that have an impact on interstate commerce.

A recent example of this was the Gun Free School Zones Act, passed in the mid-1990s, which made it a Federal crime to possess a gun within 1000 ft. of a school. A Federal District court upheld the law in response to a Constitutional challenge, saying that "is a constitutional exercise of Congress' well defined power to regulate activities in and affecting commerce, and the `business' of elementary, middle and high schools . . . affects interstate commerce", a rationale that stretches the meaning of "interstate commerce" to the point where there are virtually no limits on what the Commerce Clause allows Congress to legislate. The Supreme Court rejected this broad argument and overturned the law, but Congress re-passed the act the next year, simply adding a requirement that the some kind of interstate commerce impact be proven by the prosecution.

Prof. Randy Barnett of Georgetown Law School, author of the Bill of Federalism, offers this comment on the proposed Amendment…

As Congress has exercised powers beyond those delegated to it by the Constitution, the powers of states that were reserved by the enumeration of delegated powers have been usurped. The second proposed amendment restores the Commerce Clause to its original meaning, thereby leaving wholly intrastate activities to be prohibited or regulated by the several states, or be left completely free of any regulations as states may choose. And it negates three constructions adopted by the Supreme Court to expand the reach of Congress under the Necessary and Proper Clause -- sometimes called the "Sweeping Clause" -- of Article I: that Congress has power to regulate wholly interstate activity that either (a) "affects" interstate activity, (b) uses instrumentalities obtained from outside the state, or (c) is part of a comprehensive national regulatory scheme. This amendment makes clear that Congress retains the power to regulate interstate pollution and the power to define and punish acts of war and insurrection against the United States, for example, the possession of weapons of mass destruction. This provision leaves untouched the delegated powers of Congress to regulate wholly intrastate activities to enforce civil rights as expressly authorized by, for example, the Thirteenth, Fourteenth, Fifteenth and Nineteenth Amendments; it only restricts the improper construction of the Commerce and Necessary and Proper Clauses to reach wholly intrastate activity.

Introducing the Bill of Federalism to Rhode Island

Forget your wimpy resolutions reaffirming the Tenth Amendment; Professor Randy Barnett of Georgetown Law School has a much stronger suggestion for you.

Professor Barnett has proposed recalibrating the relationship between the Federal Government and the states -- and more importantly, between the Federal government and the people -- that has drifted over time towards ever-increasing Federal power through a set of 10 amendments to the US Constitution that he has labeled a "Bill of Federalism".

Remember, according to Article V of the Federal Constitution, the amendment process can originate in the state legislatures…

The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several states, or by conventions in three fourths thereof,

…so for the same scale of time and effort that would be involved in getting a 10th amendment resolution passed, it would be possible involve a state in the more decisive action of amending the Constitution.

For each of the next 10 days, I'll post one of the proposed Federalism Amendments, and invite commentary, pro or con.

The First amendment of the Bill of Federalism would redefine the taxing power of the Federal Government…

Section 1. Congress shall make no law laying or collecting taxes upon incomes, gifts, or estates, or upon aggregate consumption or expenditures; but Congress shall have power to levy a uniform tax on the sale of goods or services.

Section 2. Any imposition of or increase in a tax, duty, impost or excise shall require the approval of three-fifths of the House of Representatives and three-fifths of the Senate, and shall separately be presented to the President of the United States.

Section 3. This article shall be effective five years from the date of its ratification, at which time the sixteenth Article of amendment is repealed.

This is probably the most radical amendment of the group, as it proposes the biggest substantive change to how the Federal government currently operates. Professor Barnett offers the following commentary...

The income tax has vastly increased the power and the intrusiveness of the federal government, far beyond what the framers of the Sixteenth Amendment ever imagined. The first proposed amendment restores the original taxing power of Congress by denying it the power to enact income estate or gift taxes, or to circumvent this restriction by levying an annual tax on net consumption or expenditures. Lest the prohibition on an aggregate consumption tax raises any doubt, the provision makes clear that Congress retains the power to impose a sales tax that is uniform. Sometimes called a "fair tax," a national sales tax would be paid by all persons residing in the United States, whether legally or illegally, without the need for intrusive reporting of their activities. As people buy and consume more, they would pay more in taxes, but all their savings and investments would appreciate free of tax. To give Congress ample time to fashion an alternative revenue system (and do away with the IRS) the implementation of this amendment is delayed for five years. Of course, Congress may end the income or estate tax sooner if it so chooses.

Is this a good idea? And if you think it is, do think it's so good that it belongs in the first slot?

Pondering the Difference Between Good Protests and Bad Protests in Providence

Providence Mayor David Cicilline has called Providence Firefighter's Local 799 decision to picket this year's Annual Meeting of the United States Conference of Mayors an attempt at "extortion"…

As you may know, next week, for the first time ever, our city will have the honor of hosting the annual meeting of the United States Conference of Mayors. This is a once-in-a-lifetime opportunity for Providence to shine on the national stage, highlighting all the good things about our city, and all the accomplishments of our community.

But this opportunity is now in jeopardy. Because the union bosses have decided to picket next week’s meeting. The result of the union’s action is that members of the Obama Administration, including Vice President Biden, the Attorney General, the Secretary of Education and eight other members of his cabinet won’t be coming to Rhode Island.

The union thinks this will force me to agree to a bloated, unaffordable contract. They are expecting me to cave in and allow the taxpayers to pay the price. I will not give in to this political extortion.

The Providence Journal Editorial Board opted for the term "intimidation"…

It is sad that Providence firefighters will apparently refuse to set aside their tactics of intimidation during the U.S. Conference of Mayors meeting in Providence this coming weekend.

But given that the firefighters are not the only ones protesting outside of the Mayor's conference this weekend, it's fair to ask why this picketing by the firefighters on Saturday morning is considered intimidating…

…when this activity, from Friday afternoon's Head Start protest, is not…

Er, maybe that second photo wasn't such a great choice for illustrating the point I'm trying to make. Allow me to re-queue…

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But given that the firefighters are not the only ones protesting outside of the Mayor's conference this weekend, it's fair to ask why this picketing by the firefighters on Saturday morning is considered intimidating…

...when this activity, from Friday afternoon's omnibus left-wing protest at Kennedy Plaza, is not…

Have you heard anyone, Mayor Cicilline or the Projo editorial board or anyone else, say that the assorted left-wingers who have showed up in Providence for the Mayor's conference shouldn't be there, because they're making the city and the state look bad? If not, then why should firefighters, uniquely amongst the assorted protesters, stand accused of casting Rhode Island in a bad light? (Especially, when according to this Richard C. Dujardin Projo story, the left-wing protests seem as likely as any to discourage visitors from attending events associated with the conference)...

With signs declaring "Take Back the city" and "Mayor Cicilline, We will not be silenced," a noisy crowd of nearly 300 activists marched from Broad Street to the center of Kennedy Plaza Friday night, calling on the nation's mayors to enact measures to make sure federal stimulus dollars go into projects that will benefit the poor -- instead of the pockets of corporations with political connections....

There is no question that sounds from at least part of the noisy demonstration filtered into the white tent where the nation's mayors were gathered, though drums from a regimental band drowned out some of the sounds.

One mayor, from outside Chicago, said he hadn't expected "any of this" and called a cab to take his family to a restaurant somewhere else.

I'll offer two theories of why the focus is on saying that firefighters shouldn't protest, while taking no position on what other protesters are doing. As always, I welcome objections to my ideas and the addition of others.

1. There may be a sincere belief amongst some Rhode Islanders that a union protest is inherently more significant than a non-union one, because a union protest can "compel" certain actions by government officials. However, this belief is hardly an uncontested one. John E. Mulligan of the Projo provides one example from a visiting mayor…

   "This is a very bad decision that was made'' by Vice President Joseph R. Biden Jr., Senior Advisor to the President Valerie Jarrett, and other White House officials to withdraw from the convention," Patrick Henry Hays, mayor of North Little Rock, Ark., said in an interview. But Hays said if he is invited to the White House, he would probably accept. "I don't want to take what has been a pretty bitter plate of sour grapes and try to magnify that,'' he said.

   "I am a Democrat'' from a strong union family background, Hays said, ``and I can't tell you how excited I am about the partnership that has been forged'' between mayors and the White House in the early months of the Obama administration. But he called it "a big mistake'' for the White House to back out of the mayors meeting in order to respect firefighters union picket lines aimed at Providence Mayor David N. Cicilline….

   Hays said the firefighters success in keeping the Obama administration out of Providence might give other municipal unions ideas. "I'd be very reluctant to invite an Obama administration official to my city now,'' Hays said, because a union in bargaining talks with him might raise a picket line.

   …and Ian Donnis of WRNI (1290 AM) radio's On Politics blog provides another, from the text of an e-mail written by a local Obama supporter…

   I am extremely disappointed in the response of President Obama and his administration to the dispute between the City of Providence and the Providence firefighters. It is a clear signal that the President is lacking in his support for the challenges that cities and towns across the country are engaged in to manage the impossible budget problems they face in these unprecedented times.

   Encouragingly, the leaders of America's cities seem to understand that there's more governing a municipality than figuring out how to give the unions what they want -- and it's only our current Federal leadership that seems to believe that unquestioning deference to unions is a core governing principle!

   The solution here is to choose different leaders, not to discourage protests.

2. Beyond the issue of union versus non-union protesting, I can't help but think there's something deeper at work. To my ear, at least, there are definite similarities between some of the commentary discouraging the firefighters' protest and some of the commentary discouraging the recent statehouse protests (albeit originating from different sources).

   I think tea-party-goers will know the kinds of arguments that I'm talking about, i.e. what do you really think you are adding by making your dissatisfaction public? If better solutions were possible, don't you think the government would have already bestowed them upon you? Don't you realize your job, if you've got one -- whether you're in the public or the private sector -- is to do your job QUIETLY and let government handle everything else, because it knows what's best for you?

   I know I'm not terribly impressed when these kinds of arguments are hurled in my direction -- I don't think the firefighters should be expected to take them seriously either.

Pondering the Difference Between Good Protests and Bad Protests in Providence

Providence Mayor David Cicilline has called Providence Firefighter's Local 799 decision to picket this year's Annual Meeting of the United States Conference of Mayors an attempt at "extortion"…

As you may know, next week, for the first time ever, our city will have the honor of hosting the annual meeting of the United States Conference of Mayors. This is a once-in-a-lifetime opportunity for Providence to shine on the national stage, highlighting all the good things about our city, and all the accomplishments of our community.

But this opportunity is now in jeopardy. Because the union bosses have decided to picket next week’s meeting. The result of the union’s action is that members of the Obama Administration, including Vice President Biden, the Attorney General, the Secretary of Education and eight other members of his cabinet won’t be coming to Rhode Island.

The union thinks this will force me to agree to a bloated, unaffordable contract. They are expecting me to cave in and allow the taxpayers to pay the price. I will not give in to this political extortion.

The Providence Journal Editorial Board opted for the term "intimidation"…

It is sad that Providence firefighters will apparently refuse to set aside their tactics of intimidation during the U.S. Conference of Mayors meeting in Providence this coming weekend.

But given that the firefighters are not the only ones protesting outside of the Mayor's conference this weekend, it's fair to ask why this picketing by the firefighters on Saturday morning is considered intimidating…

…when this activity, from Friday afternoon's Head Start protest, is not…

Er, maybe that second photo wasn't such a great choice for illustrating the point I'm trying to make. Allow me to re-queue…

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But given that the firefighters are not the only ones protesting outside of the Mayor's conference this weekend, it's fair to ask why this picketing by the firefighters on Saturday morning is considered intimidating…

...when this activity, from Friday afternoon's omnibus left-wing protest at Kennedy Plaza, is not…

Have you heard anyone, Mayor Cicilline or the Projo editorial board or anyone else, say that the assorted left-wingers who have showed up in Providence for the Mayor's conference shouldn't be there, because they're making the city and the state look bad? If not, then why should firefighters, uniquely amongst the assorted protesters, stand accused of casting Rhode Island in a bad light? (Especially, when according to this Richard C. Dujardin Projo story, the left-wing protests seem as likely as any to discourage visitors from attending events associated with the conference)...

With signs declaring "Take Back the city" and "Mayor Cicilline, We will not be silenced," a noisy crowd of nearly 300 activists marched from Broad Street to the center of Kennedy Plaza Friday night, calling on the nation's mayors to enact measures to make sure federal stimulus dollars go into projects that will benefit the poor -- instead of the pockets of corporations with political connections....

There is no question that sounds from at least part of the noisy demonstration filtered into the white tent where the nation's mayors were gathered, though drums from a regimental band drowned out some of the sounds.

One mayor, from outside Chicago, said he hadn't expected "any of this" and called a cab to take his family to a restaurant somewhere else.

I'll offer two theories of why the focus is on saying that firefighters shouldn't protest, while taking no position on what other protesters are doing. As always, I welcome objections to my ideas and the addition of others.

1. There may be a sincere belief amongst some Rhode Islanders that a union protest is inherently more significant than a non-union one, because a union protest can "compel" certain actions by government officials. However, this belief is hardly an uncontested one. John E. Mulligan of the Projo provides one example from a visiting mayor…

   "This is a very bad decision that was made'' by Vice President Joseph R. Biden Jr., Senior Advisor to the President Valerie Jarrett, and other White House officials to withdraw from the convention," Patrick Henry Hays, mayor of North Little Rock, Ark., said in an interview. But Hays said if he is invited to the White House, he would probably accept. "I don't want to take what has been a pretty bitter plate of sour grapes and try to magnify that,'' he said.

   "I am a Democrat'' from a strong union family background, Hays said, ``and I can't tell you how excited I am about the partnership that has been forged'' between mayors and the White House in the early months of the Obama administration. But he called it "a big mistake'' for the White House to back out of the mayors meeting in order to respect firefighters union picket lines aimed at Providence Mayor David N. Cicilline….

   Hays said the firefighters success in keeping the Obama administration out of Providence might give other municipal unions ideas. "I'd be very reluctant to invite an Obama administration official to my city now,'' Hays said, because a union in bargaining talks with him might raise a picket line.

   …and Ian Donnis of WRNI (1290 AM) radio's On Politics blog provides another, from the text of an e-mail written by a local Obama supporter…

   I am extremely disappointed in the response of President Obama and his administration to the dispute between the City of Providence and the Providence firefighters. It is a clear signal that the President is lacking in his support for the challenges that cities and towns across the country are engaged in to manage the impossible budget problems they face in these unprecedented times.

   Encouragingly, the leaders of America's cities seem to understand that there's more governing a municipality than figuring out how to give the unions what they want -- and it's only our current Federal leadership that seems to believe that unquestioning deference to unions is a core governing principle!

   The solution here is to choose different leaders, not to discourage protests.

2. Beyond the issue of union versus non-union protesting, I can't help but think there's something deeper at work. To my ear, at least, there are definite similarities between some of the commentary discouraging the firefighters' protest and some of the commentary discouraging the recent statehouse protests (albeit originating from different sources).

   I think tea-party-goers will know the kinds of arguments that I'm talking about, i.e. what do you really think you are adding by making your dissatisfaction public? If better solutions were possible, don't you think the government would have already bestowed them upon you? Don't you realize your job, if you've got one -- whether you're in the public or the private sector -- is to do your job QUIETLY and let government handle everything else, because it knows what's best for you?

   I know I'm not terribly impressed when these kinds of arguments are hurled in my direction -- I don't think the firefighters should be expected to take them seriously either.