Dwindling options for real change in DC

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Last year as the nominating phase of the presidential race was nearing its end, SAFE published a two-part blog entry on (A) why a “convention of states” to propose amendments to the US Constitution was beginning to seem necessary, and (B) how such a convention might work. For all the uncertainties involved, we concluded, a COS might be worth a shot.

A year on, the country has a new president who has promised to “drain the swamp” in DC and is trying to make good on this promise. The political establishment seems to have different ideas, however, and the case for a COS has not been negated. Time for an update, here goes.

I. Political landscape - In the 5/30/16 installment of our “it’s time to reboot the political system” analysis, it was argued that the federal government has been inexorably expanding and becoming ever less attentive to the wishes of American citizens (as distinguished from big donors, special interests and the intelligentsia).

Perhaps things would look different if Trump was elected president, it was suggested, but not many people expected that to happen. Bam, what did we know, the billionaire businessman won the election and Republicans retained control of both houses of Congress to boot. Given all that has happened since the election, however, the prospects for constructive change don’t seem to have grown brighter.

#OLD PROBLEMS - Some of our “leviathan government” examples have been addressed in the past year, but most of them remain applicable.

•There has been no discernible progress in cutting wasteful spending and bringing down deficits. GOP budget: Deficit spending “a sin;” we’ll do it 9 more years, Terry Jeffrey, towhnall.com,

•The growth of regulatory bloat has slowed, but the progress hasn’t been as great as claimed and the slowdown may prove transitory. Regulatory rollback: financial services, etc.,

Update: Despite filibuster exemption under the Congressional Review Act, a bill to repeal the CFPB’s anti-arbitration regulation may be blocked in the Senate. Republicans for Richard Cordray, Wall Street Journal,

. . . Sen. Lindsey Graham (R., S.C.) is opposed, no doubt as repayment to lawyers who have donated millions to support his long career blocking tort reform. Lisa Murkowski (R., Alaska) and Susan Collins (R., Maine), who recently voted to preserve Obama Care, are undecided.

•K Street lobbyists are still thriving, although some are scrambling to adjust their strategies for the new political landscape. Cash surges to lobby firms in Trump era, Megan Wilson, thehill.com,

Firms are already looking forward to a robust rest of the year, with government funding and tax reform — the biggest lobbying issue of all — looming on the agenda. 

•Operational problems at the Veteran’s Administration still abound, despite enactment of legislation to expedite the firing of incompetent employees. VA forced to rehire fired director of DC hospital, Niki Wentling, stripes.com,

The Merit Systems Protection Board, which hears appeals from terminated federal employees, ordered the VA to send former director Brian Hawkins back to work, according to a VA news release Wednesday. Hawkins appealed that he was wrongfully terminated, and MSPB is requiring the VA to keep him as an employee until the Office of Special Counsel reviews his claim.

•Despite the demands of House conservatives, IRS Commissioner John Koskinen was not impeached during the waning months of the Obama administration. Indeed, he remains in that post to this day. Congress doesn’t stand up for itself, respeonseaction.com,

Jason Chaffetz [after announcing his resignation]: Congress doesn't stand up for itself. I think it's, it's really lost its way. They say, oh, we'll use the power of the purse. That doesn't work. First of all, they never do cut funding. Even getting people to come up and testify before Congress, the Obama Administration at the end of their term, they got so brazen they stopped sending people up. They just didn't care. And, and there was no way to enforce that, and until that changes, uh the legislative branch is going to get weaker and weaker.

•Last but not least, the Republican vow to “repeal and replace” GovCare fell short, and our guess is that this outcome will prove final.

#NEW BUSINESS – Many fresh problems have surfaced, notably the investigation being conducted by Special Counsel Robert Mueller of alleged collusion by the Trump campaign with Russian efforts to meddle in the 2016 US elections.

One could write a book about how this exercise got started, as fired FBI Director James Comey will reportedly do. But for our purposes, suffice it to say that there was remarkably little public disclosure of the evidence; (if any) suggesting that further investigation of this subject (begun in mid-2016) was warranted, the goal of the investigation, the scope of the investigation, the size of the legal team to be involved, or the target date for completion.

For all the “trust us” assurances of Deputy AG Rod Rosenstein (who appointed the special counsel because AG Jeff Sessions had previously recused himself from the Russian investigation), the scope of the investigation is open-ended. Transcript of interview by Chris Wallace, Fox News,

•Chris, the special counsel is subject to the rules and regulations of the Department of Justice, and we don’t engage in fishing expeditions. Now, that order that you read, that doesn’t detail specifically who may be the subject of the investigation because we don’t reveal that publicly.  But Bob Mueller understands and I understand the specific scope of the investigation and so, it’s not a fishing expedition.

•Well, Chris, if he finds evidence of a crime that’s within the scope of what Director Mueller and I have agreed is the appropriate scope of the investigation, then he can [consider that]. If it’s something that’s outside that scope, he needs to come to the acting attorney general, at this time, me, for a permission to expand his investigation. But we don’t talk about that publicly.

One might wonder why Mueller should have been chosen to head the investigation and agreed to do so, given that (1) the decision to appoint a special counsel was precipitated by Comey’s decision to leak information to the New York Times after being fired by the president, and (2) Mueller and Comey are long-time colleagues and friends. Is Robert Mueller conflicted in Trump probe? Byron York, Washington Examiner,

Further questions arise from the size of the legal team Mueller has assembled: 16 attorneys to date, not a conservative in the bunch, and the scope of the probe that is apparently underway. Despite Rosenstein’s assurances, this does indeed seem to be a “fishing expedition,” and it can be expected to continue for months if not years. Mueller’s targets [former Lt. Gen. Michael Flynn and Trump Campaign Manager Paul Manafort are mentioned] face financial strain, Betsy Woodruff, dailybeast.com,

David Rivkin, a longtime conservative Washington attorney who worked in the Justice Department under Ronald Reagan and George H.W. Bush, said Mueller’s probe is undoubtedly straining the finances of all its targets. “It’s obvious that it has morphed into an open-ended investigation that is way beyond the Russian collusion, and the only unifying principle seems to be that it covers people who are close to Trump or worked with Trump,” he said. “And that is a classical definition of a fishing expedition.”

Critics dismiss the Russian collusion theory as baseless and question the need for further investigation of the matter, which could quite conceivably migrate into other areas such as the Trump family’s many business dealings over the years. Perhaps the true goal of the probe is to goad the president into firing Mueller, they say, which would fuel a firestorm of criticism, as the firing of Archibald Cox did in the Nixon era, and conceivably start the impeachment ball rolling. Here’s how Democrats plan to destroy President Trump, Wayne Allen Root, townhall.com,

At the same time, the continuation of this investigation threatens to throw the president off his game and distract attention from his policy agenda – including decisions on how to handle the North Korean nuclear crisis. It can be argued, therefore, that the president must put his foot down and send the special counsel packing – after setting the stage by stating what the investigation is supposed to be about, posing a series of pointed questions, and directing Mueller to answer them within three days on the understanding that his response will be made public. Trump needs to be smart about how he fires Mueller, Kurt Schlichter, townhall.com,

Trump has to set the stage before he pulls the trigger and puts the coup de grace into the temple of this appalling fiasco. He has to do it so the American people will see and understand why ending this idiocy is so absolutely necessary to preserve our Republic despite the mainstream media’s best effort to hide the truth.

So far, the president’s response has been rather muddled. On one hand, he has tweeted that the investigation is a “witch hunt,” etc. On the other, he has been sending Mueller conciliatory notes as though expecting to win him over. President Trump has sent private memos to [Mueller], David Jackson & Kevin Johnson, usatoday.com,

Trump's legal team has been in contact with Mueller's office, and [John] Dowd says he has passed along the president's messages expressing “appreciation and greetings’’ to the special counsel. 

Conclusion; the Mueller investigation will proceed, with whatever results it may bring, along with parallel investigations in both the House and the Senate. This investigatory activity seems way over the top, and it surely doesn’t inspire confidence that the US system of government is evolving in a healthy direction.

II. Convention of States project – The 6/6/16 installment of our previous review considered a number of objections (primarily from skeptical conservatives) and concluded that the COS project might be viable. No amendments to the Constitution have ever been proposed by a COS, however, so choosing this path would entail a leap of faith.

Seeking to combat fear of the unknown, the COS team has now conducted a simulated convention. All 50 states were represented, by a total of 137 commissioners – mostly state legislators, with a smattering of constitutional lawyers – who met in Williamsburg, VA for two days in September 2016.

The action began with a general session to introduce the commissioners and review the convention rules, after which the commissioners broke into committees to discuss possible amendments in three areas (fiscal restraint; legislative & executive jurisdiction; term limits & judicial jurisdiction).

On Day 2, the commissioners reassembled to debate and vote on the proposed amendments. Here’s a
video (6+ hours) of the action . Of the six packages of amendments considered, four got more than enough votes (38 states, or over ¾) for ratification under Article V while two fell short.

Participants in the simulated COS and viewers of the video have lauded the civility and orderliness of the proceedings. Fine, but the results were distinctly mixed – see examples below. Official proposals of the simulated Convention of States,
9/23/16. (download PDF of “final simulated convention report”).

•The simulated convention did not pass a Balanced Budget Amendment in the interests of requiring fiscal restraint, as has been suggested by many states that have called for a COS over the years, but instead proposed an amendment that would require a 2/3 vote of each house of Congress to raise the debt limit (and only for a period not to exceed one year). Whatever its theoretical merits, we doubt such an approach would work well in practice.

•It was proposed to restrict the federal power over commerce to regulating the movement of goods across state lines. Does that mean the federal government would be barred from regulating interstate services, and why would that make sense?

•A 12-year term limit for the members of Congress (6 terms for representatives, 2 terms for senators) was proposed, which sounds about right, but only 35 states supported it.

Perhaps a real COS would come up with a better slate of amendments after months of deliberation, but there are no guarantees of this. And it’s unlikely that a real COS would run as smoothly as the simulated convention did. Is changing the Constitution the only way to fix Washington? Sophie Quinton, pewtrusts.org,

Mark Meckler, co-founder of the Convention of States Project, said he expects any convention discussions would take place under tremendous political pressure. Some states could try to block the proceedings and it’s possible that lawmakers would fail to agree on amendment language. “I think the hardest thing is actually getting something out of a convention,” he said.

Legislatures of the several states are being asked to approve a standard application for a COS (approved by the ALEC board of directors on 9/14/15), which generally defines the areas of concern but leaves plenty of room for consideration of alternative approaches.

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This resolution has been introduced in the legislatures of 48 of the 50 states. Nationwide there are 2,700 district captains working on the COS campaign, backed up by some 80,000 committed supporters. Within a couple of years, the resolution has been adopted by both houses of the state legislatures in 12 states and is being actively considered in many additional states.

Getting 2/3 of the states (34) on board may prove challenging, however, since this would require making the sale in some purple or blue states and not just in red ones.

III. SAFE – Our group is following the COS project with interest, and we have supported two events to publicize it in Delaware.

•SAFE director Jerry Martin arranged a talk to the Retired Men’s Luncheon Club by Ken Quinn of the Convention of States project on

•The Conservative Caucus of Delaware sponsored an
8/1/17 talk on the case for a COS, which covered both the national campaign and the grassroots campaign being conducted in New Jersey.

We close with a question: What further support should/could SAFE provide to the COS project, bearing in mind that (1) the big government train keeps barreling along, and (2) none of the conventional ways for slowing it down has worked? Reader input would be greatly appreciated.


# I support the COS movement.  What is the risk? – SAFE member (DE)

# I'd be EXTREMELY leery of taking such a step.  The extreme left is MUCH more organized than the conservatives.   I'd not trust the process one bit... – SAFE member (DE)

#An excellent blog. You gave a “fair and balanced” treatment of the case for a COS. And the need for a COS. – SAFE director

Comment: Agree that the far left is better organized than conservatives, and it’s certainly possible that a COS would be disrupted and disband in failure. As every state (from California to Wyoming, Delaware, etc.) would have one vote, however, the scenario of a “runaway convention” proposing a slew of left-leaning amendments seems remote.

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