'Checks and balances' don't work; more proof from Iraq assassination

Gordon L. Weil

"Checks and balances" are the hallmark of the American political system.

But it is increasingly clear that they don't work.

The idea is to have three equal branches of government, legislative, executive and judicial. If each can limit the scope of action of the other two, the result should be a government that avoids dangerous excess and abides by the rules of the relationship.

If any proof is needed that the system is failing, President Trump provided it last week.

In a test of military force against Iranian elements operating in Iraq, the U.S. retaliated for an attack that killed an American and the Iranians in turn besieged the American Embassy in Baghdad. Then, in Iraq, the U.S. killed Qassem Soleimani, a top Iranian general, responsible for some of his country's brutal aggression.

How was Trump authorized to assassinate a military officer moving publicly in a country that accepted his presence? In these days of terrorism, Congress can no longer strictly use its war power. It allows the president to carry out military action in case of an "imminent" threat.

In other words, the president is authorized by Congress to act on his own when the danger to the U.S. is likely to occur so quickly that a defensive action is needed before Congress could approve it. The president is then required to report rapidly to Congress on the action taken.

Trump officials were slow to report and, when they did, they could cite no immediate threat. Without doubt, Soleimani was a murderous and dangerous enemy, but there was no clear or consistent reason given to Congress or the public that there was an imminent threat.

So what? Congress can pass laws but, if the president flaunts them, there's not much it can do short of impeachment. But, as we are seeing, that can become a partisan battle and it's quite rare. The third branch of government gets no role at all. So, despite the law, there are no checks and balances.

Admittedly, this assassination is an extreme case. More generally, the drafters of the Constitution meant Congress to wield most power and to limit the president so as to prevent the revival of royal rule. Now, public policy has become so complex that Congress routinely passes its legislative powers to the executive branch.

At the same time as Congress has been losing control of the president and the executive branch, the Supreme Court has been whittling down its authority. The Court has ruled that it decides if laws are constitutional, allowing it to nullify congressional action.

If it was possible to discern the pecking order of the power of checks and balances foreseen by the founders, it was Congress first, president second, courts third. Today, it looks more like president first, courts second, Congress third.

Perhaps this is an inevitable historical evolution. The founders certainly understood that the world would change and their original plan would need to be updated.

The Constitution itself may need to evolve to deal with a changed world. But it is regarded as being carved in stone. Many worry that if the Constitution were opened for amendment, some basic rights would be eliminated. So Americans are essentially left with a changing system controlled by the government itself.

If anything, the situation in Maine is even worse. Every bill passed by the Legislature proclaims that it was enacted by the "People of the State of Maine." Of course, it was only adopted by their legislative representatives.

Maine people can themselves adopt legislation. They may initiate bills and require referendums on legislative proposals, even going so far as to halt a law going into effect. They may appropriate money.

In 2014, more than two-thirds of Maine voters approved borrowing $14.5 million to be spent on affordable housing. Those funds would make it possible for the state to receive outside funds to multiply the effect of the state spending.

Gov. Paul LePage refused to carry out his administrative responsibility to let the state bonds be issued. He said the money would enrich the builders, which would invest too little themselves. Despite the vote, the governor ignored the state's ultimate legislators.

The Legislature did nothing. LePage got away with it. It did not even try to strip the governor of his administrative power over later bond issues. Where were the checks and balances?

Eventually Gov. Janet Mills allowed the bonds to go forward and matching funds became available. But years had gone by and people had suffered as result of the delay.

When people hear of "checks and balances," they should understand it's false advertising.

Supreme Court's political leanings show in new ruling on campaign contributions

Gordon L. Weil

The Supreme Court has ruled several times that free speech includes making political contributions.

These rulings get many people upset, mostly people without a lot of money. They believe that everybody has their own voice, but only a relative few have enough money to buy themselves a loudspeaker called television or social media or mass mailings.

One lesson from these rulings is that the U.S. Senate is naive when it accepts assurances from Court nominees that all they will do on the bench is apply the Constitution, not make law.

Last November, the Court dealt with an Alaska Republican complaint that the cap on campaign contributions to state elections was too low. In the search for a fair limit, Maine and a few other low-limit states were reviewed.

Because the Court finds that such contributions are an exercise of free speech, it accepts few limits on them just as it would accept few restrictions on spoken or written speech. A limit must be justified based on a strong possibility that large contributions would promote corruption.

The nine justices of the country's highest court focused on just how much money would be too much. The Constitution governs free speech, including campaign giving, in each state, so the court fine tunes the amount suitable for each state.

In the Alaska case, the Court considered $400 might be too low, compared with $500 used in some Maine races. And it said the ceiling should be adjusted for inflation. Will it find the Constitution empowers it how to choose among the many inflation indexes?

The justices have no problem with ensuring on a case-by-case basis that the limit is not so low that it interferes with the full exercise of democracy. For them, one measure of defending rule by the people is how much they can spend on election campaigns. This is the justices' view of merely "applying the Constitution."

But this constitutional understanding raises a couple of problems.

So long as a contribution is not made directly to a campaign, but merely in support of it, the Court has practically lifted all limits. Its view is that, in spending money independently, a person's free speech right is unlimited. Let's not worry about corruption or buying influence.

If this logic is more generally applied, as seems quite possible, the Court could strip Alaska and Maine of any reasonable limit on state election contributions.

The Supreme Court has also been asked to review state decisions drawing congressional district or state legislature boundaries to favor a single party. One of the clearest examples came in North Carolina where the Republican leadership openly admitted designing districts to boost the GOP.

When that case came to the Court, it recognized the problem but found that the Constitution gave it no power to combat political gerrymandering by ordering fair and compact districts rather than oddly shaped districts meant to favor one party.

It perceives a difference between contributions as speech and districting as politics. It leaves districting issues up to the states, but not the state election giving that leads to the legislatures that draw district lines.

It has adopted a broad definition of speech, allowing corporations a free speech right to unlimited political spending, but it declines to extend that definition to the act of creating voting districts. Whatever way a person thinks these decisions should go, they seem inconsistent.

President Trump says there are Obama judges and Trump judges. Chief Justice Roberts tries to convince Americans that the Supreme Court is not partisan, that there are no Republican or Democratic justices. However well-intentioned, he only sugarcoats Trump's truth.

Both decisions, wiping away limits on political contributions and allowing political districting, favor Republicans. The Court majority justices, making these decisions, are GOP appointees.

Of course, the justices could claim their views were not a matter of partisan Republican support but appropriately reflect their conservative views, which the president appointing them wanted to dominate the federal judiciary. The result is the same.

They would have been more honest in admitting their partisan conservatism during confirmation hearings. Instead, they hide by refusing to take positions on issues that might come before the Court – just about anything – or their seemingly restrained commitment only to "apply the Constitution."

Nothing proves the Court's partisanship more than Senate Majority Leader Mitch McConnell continuously and successfully blocking Obama nominees and now greasing the way for Trump picks.

As a moderate, Republican Sen. Susan Collins says she almost always supports the nominees of any president. But, when she does, that comes just after McConnell has done his deed.

Prosperity at yearend; price to be paid later

Gordon L. Weil

As the year ends, it's time to take a look at the state of the economy.

There's a wide gap between what is happening now and what lurks beneath the apparent prosperity.

The economy is flourishing as corporations enjoy benevolent government policies and reduced taxes. The stock market reveals a persistent optimism and keeps climbing. It's considered bad news when a company earns good profits, but might have done better.

A strong stock market rewards investors and should improve retirement accounts. That makes people feel more secure and assured about their futures.

The economy needs more workers than are available, so unemployment falls and wages rise. That's a positive sign for job-seekers. But it may deny growth to employers short of workers.

The low jobless rate has begun to push up pay as employers compete for scarce workers. That's one of the goals of the Federal Reserve in favoring mild inflation.

But the Fed also wants to keep interest rates low to allow businesses to borrow and grow. Low rates translate into more consumers buying homes and autos.

Like any incumbent president, Trump takes credit for the economy, though he probably should share it with Congress and the Federal Reserve.

The key elements of the Trump era economic policy that contribute to the economy are increased government debt, tax cuts and reduced environmental regulation.

The GOP historically opposed deficits, because they increased debt to be paid by later generations. It also opposed government spending to stimulate the economy. All that has changed.

The federal budget has no discipline. The only difference between the free-spending, low-tax political parties is that Republicans focus on military outlays and Democrats favor social programs.

While the GOP fought Obama's efforts to add more economic stimulus spending, it now joins the Democrats in such massive deficits that they are doing just what they had opposed.

These seeming boom times are putting a lot more money in the hands of consumers. Their spending accounts for about 80 percent of the economy. They are piling up more debt. Spending is unusually high, so if it declines, the economy is likely to do so as well.

The problem with this economic high is that the underlying cost is obscured. As almost everybody knows, you cannot indefinitely pay for instant satisfaction by borrowing ever increasing amounts of money. What's more, your immediate desires may not correspond with your real needs.

Eventually paying off government debt becomes so big a part of the budget that either taxes must be increased or essential spending must be cut. If you consider the condition of roads and bridges, we may have already reached that point.

Prices for what consumers want will increase. While China must be forced to trade fairly, consumers should not be pushed to pay much higher prices resulting from the tariffs imposed on imports from all around the world. Higher prices will reduce consumer spending.

Cutting back on environmental regulation may help corporations boost their profits, but at great cost in quality of life. Trump says he favors clean air and water. That's good, but what about drought, fires and flooding as the Earth's temperature climbs? Merely denying science is not an answer.

While low unemployment is always a top goal, what happens when you reach it? Corporations and the wealthy get tax breaks so they will invest to create jobs. But that should not entitle them to perpetual tax breaks, leading to more government deficits, even after unemployment is almost eliminated.

Low unemployment may turn out to be a problem. Without more workers, business cannot grow, becoming better able to meet needs of the domestic and export markets. Natural population growth is so slow it hardly replaces retiring workers.

Right now, the U.S. has no immigration policy other than "keep them out." A sound policy would allow for the entry of people with needed skills and, as throughout the nation's history, people hungry for work and anxious to learn.

Immigrants are customers for a growing economy, new contributors to Social Security, and the labor business needs to expand. If the U.S. closes the door on the economic growth that comes with a larger labor force, it's difficult to believe the current prosperity can last.

Government spending, the environment, immigration, tax policy and trade wars may menace the current prosperity. Economic history shows that expecting the good times to roll indefinitely is mistaken.

The question during good times is not merely how to keep them going, but also how to prepare for difficult times ahead – times of higher prices, huge debt and global warming.

Impeachment not purely partisan for Golden, House swing voters

Gordon L. Weil

You are a first-term U.S. House Democrat, representing a large, sparsely populated district.

In 2018, by a narrow margin, you took a seat, previously held by a Republican. The district had voted for Trump in the 2016 election. You are among the 31 House Democrats, 22 in their first term, who won in districts he carried.

After taking office, you held yourself somewhat aloof from Democratic House leadership. Now, you are faced with the decision of whether to vote to impeach President Trump. There are no party instructions on this vote, because Speaker Pelosi understands your dilemma.

These 31 representatives are the swing votes who will decide if the president will be impeached.

If you are Anthony Brindisi, a newcomer from upstate New York whose district gave Trump a 15 percent margin, you vote in favor of both articles of impeachment.

If you are Jared Golden, from Maine's 2nd district that gave him a 10 percent margin, you split your vote on the two articles, an action not taken by any other House member.

If you are New Jersey's Jeff Van Drew, whose district gave Trump only a 4 percent margin, you vote against both impeachment articles, quit the Democrats and become a Republican. Despite Trump's endorsement, you could well lose your seat.

Two Democrats, Van Drew plus a long-time conservative, voted against both impeachment articles and a third abstained, having the same effect. If only 17 more had joined them, there would have been no Trump impeachment.

The media did the GOP a great service and the voters a great disservice by jumping to the conclusion that the outcome was partisan, except for the three Democrats. That disrespected the integrity of each of the 31supposedly vulnerable Democrats. And it glossed over Trump's standing in their districts.

Here's what's wrong with the media's conclusion.

There was one GOP defector. Justin Amash, a five-term Michigan Republican, had quit the party to become an independent before the impeachment vote. He opposed Trump, quit his party and announced he would not run again. He voted for both articles, but, because of timing, the media did not count him as a GOP defector.

His district voted by 9 percent for Trump. Did his impeachment votes matter? Yes, to Trump. At the very moment the House was voting on his impeachment, the president held a rally in Amash's district.

Did the media check voter opinion in the supposedly "swing" districts? Did they explore whether Brindisi and those like him had tapped into a swing of their district's voters against Trump? Such a switch could provide hints about the 2020 presidential election.

To write off the House votes as purely partisan devalues the Trump impeachment, only the third such action in American history. What about the examples of Brindisi, Van Drew and Golden?

As for Brindisi's district, the Almanac of American Politics reports: "Politically this area had been Republican since the party came into existence in the 1850s." Yet Democrat Brindisi won in 2018.

Perhaps he detected change or, even better, had the courage to force change at some political risk to himself. If he did that, he would deserve praise, not merely being dismissed as partisan.

Van Drew may well have ended his congressional career. He will face well-financed competition in the GOP primary and Democrats angry with what they see as his betrayal. He had to understand this when he voted.

Golden says his split vote was a matter of conscience. He agreed that Trump had abused his powers but believes the courts should decide if Trump had the right to instruct executive agencies not to provide witnesses or documents.

His decision was more a matter of judgment than of conscience. In the Nixon and Clinton impeachment cases, the Supreme Court ruled unanimously against presidential claims of executive privilege.

President Washington said that executive privilege falls in cases of impeachment. But Golden apparently believes each president on the brink of impeachment should have his day in court – even on the same issue.

If there is a question of conscience, it must be rooted in Golden's belief that, even on matters relating to impeachment, which the Constitution makes an exclusive power of the House, the courts have the last word.

His critics might claim Golden split his vote in an attempt to please both sides. That assertion would play right into the easy cynicism of pundits who say impeachment was a purely partisan exercise. For some members at least, it was just as likely to have been a matter of judgment.

The decisions of the 31 could have been based on more than partisanship. They deserve respect for their judgment, whatever it might be. That deference would enhance the historic significance of the impeachment itself.