On the Role of the U.S. Supreme Court in Safeguarding the Peaceful Transfer of Power

In the E.U., the state governments and federal institutions can ask the European Court of Justice (the ECJ) for an opinion on a legal matter. This is rare in the U.S., though waiting for a dispute to winds its way formally through district and appellate courts may be unduly bureaucratic, not to mention lengthy. On December 11, 2023, Special Counsel Jack Smith asked the U.S. Supreme Court the ECJ’s counterpart, to decide whether the former U.S. president Donald Trump had any immunity from criminal prosecution of his involvement in the riot at the U.S. Capitol that interrupted the formal counting by a joint session of Congress of the Electoral College presidential ballots. The trial was set to begin the following March, and the question of the former president’s immunity had to be decided before the trial could begin. Hence the “extraordinary request,” which I contend should not be extraordinary given the time frame and the important role of the highest court in safeguarding American democracy from domestic threats.

The prosecutor asked the U.S. Supreme court to review district Judge Tanya Chutkan’s ruling that Donald Trump is not immune from “the election subversion prosecution case.”[1] Trump’s lawyers had argued that Trump’s actions in speaking outside the White House on January 6, 2020 were part of his official duties because he was protecting the American democratic system from alleged vote-fixing by Democrats. Chutkan rejected that argument, pointing out that the speech was oriented to Trump’s re-election and thus was not part of a president’s official duties—efforts to secure another term extend beyond the performance of the office within the current term of office.  Essentially, applying to continue in an office is not a function of the office. Chutkan classified Trump’s speech as falling under the rubric of campaign speeches even though the election had passed because he was using the speech to try be re-elected by Congress (by disputing the authenticity of several state electoral ballots).

To be sure, it was not as if Trump went with the option that he was considering of surrounding the Capitol with tanks—something President Nixon had also considered doing in 1974 during the Watergate scandal, which by the way ended up prompting him to resign. Instead, Trump was trying to throw the election to the Congress by pressuring it to vote on the validity of several of the Electoral College ballots that had been submitted by the state governments to be counted. The U.S. Constitution does give Congress a role in presidential elections, both in certifying the ballots and electing a president outright if no candidate gets a majority of the Electoral College votes. Had there been evidence of significant election fraud that would justify Congressional votes on the Electoral College ballots from several key states such as Arizona, Pennsylvania, and Michigan, then Congress could have intervened while staying within the constitutional framework. It was Trump’s way of applying pressure, by instigating a mob to disrupt the official counting, that resulted in the federal indictments that run just short of insurrection. By the way, I asked a judge on the D.C. district court why he thought Trump had not been indicted on insurrection. “It’s too messy,” he replied. “Isn’t that charge and a conviction based expressly on it necessary for someone to be barred from running for office in the U.S.?” I asked. “No,” the judge replied. “A judge in Colorado is looking at that now,” he added, presumably without there being a trial. It’s a pity that no one asked the U.S. Supreme Court to rule on what a Colorado judge was doing in lieu of a trial on the facts decided by a jury.

Perhaps even more than the presumption of innocence unless convicted of a crime, the rule of law applied even to U.S. presidents is vital to American democracy. Writing to the U.S. Supreme Court, the prosecutors with the special counsel insisted that “nothing could be more vital to our democracy” than holding a former U.S. president accountable for breaking a law.[2] Indeed, a “cornerstone of our constitutional order is that no person is above the law. The force of that principle is at its zenith where, as here, a grand jury has accused a former president of committing federal crimes to subvert the peaceful transfer of power to his lawfully elected successor.”[3] Many democracies have turned into military dictatorships precisely because the peaceful transfer of power was not respected. With a past of rule by kings, both domestic and colonial, many African countries have had trouble with the peaceful transfer of power. As a result, the foreign direct investment of multinational corporations has not been as large as the continent would need to develop economically. Even though it was hard to imagine a military coup in the U.S. in 2023, the precedent of a president getting away with having violated the U.S. Constitution could begin a slippery slope downward. More than sufficient grounds existed in 2023 for the U.S. Supreme Court to fast-track the question of Trump’s immunity.

The question of whether the trial could go forward was subject to time constraints; were the trial date of March, 2024 delayed pending the question of Trump’s immunity from prosecution going through the lengthy appellate process, the question of Trump’s guilt could still be unanswered by the next presidential election, in early November, 2024. Even though several presidential candidates were insisting that they would support a convicted felon for president, presumably voters would want to know whether Trump had committed a crime in attempting to thwart the results of the 2020 presidential election before casting their respective ballots.

Hence, the prosecutors wrote to the U.S. Supreme Court, “Respondent’s appeal of the ruling rejecting his immunity and related claims, however, suspends the trial of the charges against him, scheduled to begin on March 4, 2024. . . . It is of imperative public importance that respondent’s claims of immunity be resolved by this Court and that respondent’s trial proceed as promptly as possible if his claim of immunity is rejected.”[4] The public importance has to do with the electorate having as much information as possible concerning the charges against the presidential candidate before going to the polls that upcoming November.

The fast-tracking would not be without precedent. In US v. Nixon (1974), the U.S. Supreme Court fast-tracked the question of Nixon’s claim of presidential privilege in being immune from a Congressional subpoena for the Oval Office tapes. “In that case, the high court moved quickly to resolve the matter so that one f the Watergate-era cases could proceed swiftly.”[5] It was not long after the ruling that the White House handed over the tapes to a congressional committee, and Nixon’s political fate was doomed from that point. Indeed, the difference between Nixon’s public persona and what he had been saying behind closed doors stunned many Americans who had no idea that even a “law and order” president could have such a squalid criminal mind. The public interest in furnishing the American electorate in 2024 with as much crucial information as possible on one of the presidential candidates can thus be appreciated. It should not be “extraordinary” for the U.S. Supreme Court to see to it that Trump’s federal trial could take place in time for the 2024 presidential election. Winding down the clock, to use a sports analogy, should not be a tactic that any defendant in a criminal trial should be able to use effectively, especially if accountability protecting the peaceful transfer of power is at issue.

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1. Hannah Rabinowitz and Devan Cole, “Special Counsel goes Directly to Supreme Court to Resolve Whether Trump Has Immunity from Prosecution,” CNN.com, December 11, 2023.
2. Ibid.
3. Ibid.
4. Ibid.
5. Ibid.

Weening the American Voters off Reliance on the Media in Selecting Candidates

How well do voters (i.e., an electorate) know and thus are able to assess people running for public office? As the proportion of people who know a candidate firsthand decreases, the importance of the campaign ads and debates increases. In other words, the candidate's marketing plays a greater role in who wins. At an empire-level, such as the U.S. Government, an overwhelming percentage of people in an electorate (e.g., voting in a U.S. Senate race, or that of the federal president) are significantly influenced by the candidates' respective media campaigns for lack of real knowledge. In a U.S. presidential campaign, financial contributions are vital in being able to orchestrate an empire-wide media campaign. Also, how a campaign manipulates the media coverage of the candidate is very important. The case of Sarah Palin, who ran as John McCain's running mate in 2008, illustrates the extent of distance that can separate what the public "knows" of the real person from the media-made candidate. When people learned of her shocking ignorance of government, the distance was suddenly transparent, and yet no electioneering reforms were subsequently put into effect. Americans still had to rely on presidential debates to get a glimpse of the "man behind the curtain." 

In the election of 2012, I had the sense in the second presidential debate that Barack Obama looked smug, even arrogant, as if he were running the debate in virtue of his office. His tone directed at the moderated seemed to say, "Ok Candy, you may proceed with that." Perhaps the two labels are unfair, though people who have had contact with the president in person tend to provide similar feedback. I suspect the average Joe (not necessarily "the plumber") voter is turned off by conceit. Watching the debate, I had a subtle sense that whispered in my ears, "American viewers might be reacting negatively to his personality, as if saying to themselves, 'now we see how he really is . . . hmmm.'" There is the brand and the man. In other words, apart from the speeches and the orchastrated ads, Barak Obame might not be someone we would necessarily want to get to know, after all. I wonder if this recognition or awareness was occurring for the American people only then, during the debates, as we observed Obama interact with a rival in real time. "So this is how he plays with others . . . hmmm."

In divining what prompts the electorate's leaning one way or the other in a given election, we would be wise not to leave out "comfort level" with seeing and hearing the candidate at issue. Mentality or attitude is relevant because we know that whoever is elected president will be a regular fixture in our lives, albeit vicariously through electronic means. I am not referring only to whether we like the guy; the matter extends to our comfort with his attitude. This is a very subtle thing. Personality and attitude can thus be understood to play a role, albeit a subtle one, in how a candidate for president is "evaluated." An election is not simply about policy, which is a reason why the latter should be included on a ballot separately. 

Of course, Obama's attitude was not the only one on display during the debate. I have in mind Romney's duplicity, even lying, in his claim, "I care about all Americans" during the debate after he had said in private that it would not be his job to worry about 47 percent of us if elected no doubt turned many people off (at least those of us who follow politics). As he looked straight into the camera and made his statement as though sincere, I wondered whether the highest politicians have such an astonishing ability to act. That is to say, the true gift of a politician could be the ability to come off as incredibly sincere when he or she is simply acting the part. "Wow he's good" was what came to my mind. Of course, the excellence of a skill is of little value if the skill itself is a vice. Perhaps what we are left with is a fleeting glimpse of how little we know about either candidate, and yet we presume we know so much about both. "Obama cares" and "Romney is compassionate" may turn out to be marketing-driven rather than real, yet we cannot be wrong about what we believe to be the case, right?

To offer a less sensitive example illustrating the distance between a person and his character on television, Andy Taylor, the nice, common-sense sheriff in The Andy Griffith Show, was easy for millions of viewers to like. From this viewing experience of  the character, many Americans doubtlessly felt a loss when Andy Griffith died in the summer of 2012 even though the man was reportedly not "good with people." He even fought with the actress who played Aunt Bee, a kind, motherly character (how many viewers could say the actress playing her was so nice?). The actor who played the sheriff was not as kind in person as is his character, yet people with just the character in mind mourned as if they had lost the man himself. This, I submit, is a problem that also impairs political elections. For some reason, the human mind is susceptible to viewing acting as if the actor were the character (i.e., no distance between them). In mourning President Reagan as his funeral was broadcast, the vast majority of Americans had only the actor's presidential character in mind, for they could not get to the man himself. How many knew that he called his wife, Mommie? Where most of an electorate do not get to meet the candidates in person, as in the case of the election for an empire-scale office such as the U.S. Presidency, the susceptibility is particularly strong because the contact comes only through the media and the candidates' own respective media campaigns. As debates can become unscripted, they are perhaps the best means of catching of glimpse of the real persons who would use judgment in office on some very important matters. To the extent that an electorate relies on the real people in offices so far away, getting to the real persons who mask as candidates is important, and yet little if any progress has been made in at least the United States. The European Union is a better construct for this, as more power in the E.U. resides with state-level office-holders. In general, less distance between the voter and a candidate is within states than at the empire-level (i.e., the Congress and the federal president). The sizes of the electorates for federal offices are a leap greater than those within the states. Less distance is involved in the latter, for the electorates are so much smaller. Hence it is easier for proportionately more of such electorates to know the "man behind the candidate." Other things equal, better candidates should be more likely to beat the bad ones. 

I suspect that in 2012 after the second debate, many independents (and perhaps even some Republicans and Democrats) had the sense that better people could have been selected as candidates. This suspicion was confirmed for me when I learned after the third debate that the candidates  to discuss took liberties in discussing domestic policy even though the debate was to be on FOREIGN policy. Such a lapse can itself be a red flag respecting boundary issues or problems with "keeping within the lines" (i.e., as in coloring books). At the very least, it evinces self-centeredness. In short, the debate gave the electorate a glimpse into the man behind the candidate--for both candidates, but should a democracy founded on popular sovereignty--the voters as a group--be satisfied with just glimpses?  They can trigger unfounded inferences, which in turn can lead a voter to use bad judgement in voting. At the very least, then, the American electorates should have better access behind the candidate. For example, release of President Trump's tax returns should have been mandated so voters could get a better sense of how he ran his company, as such an executive role is arguably related to how he would be the chief executive of the U.S. Government. Mandated disclosures could also have pointed to the man himself--his judgments and character. Generally speaking, the People should demand that their government require more along this line. Put another way, the People have a right to be informed even if it means that political media campaigns must deviate from their respective scripts and even have to play defense, losing control of the narrative.

On a Blatant Conflict of Interest in Georgia

A coalition of advocacy groups launched a lawsuit on October 11, 2018 to “block Georgia from enforcing a practice critics say endangers the votes of more than 50,000 people in [the upcoming election] and potentially larger numbers heading into the 2020 presidential election cycle.”[1] Kemp was at the time Georgia’s Secretary of State, which means he had considerable discretion concerning how the election would be run. The conflict of interest lies in the fact that he was running for governor—interestingly against Stacey Abrams, a candidate who had been a voter-rights lawyer! I submit that such a conflict of interest should never have been permitted.

Rather than focus on the controversial “exact match” issue at the center of the suit, I want to call attention to the fact that “the Abrams campaign called for Kemp to resign as the state’s top elections official in order for Georgia voters to ‘have confidence that their Secretary of State [will] competently and impartially oversee the election.”[2] For a candidate to also be the top elections official is such a blatant conflict of interest that we can legitimately ask in retrospect why the travesty was allowed to exist in the first place. Shouldn’t candidates be barred from overseeing their own election? Why, moreover, didn’t Georgians scoff at the conflict of interest and demand that it be deconstructed immediately after Kemp declared his candidacy for governor?

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[1] Gregory Krieg, “Civil Rights Groups sue Georgia Republican Brian Kemp over 53,000 ‘Pending’ Voter Registrations,” CNN.com (accessed October 12, 2018).

[2] Ibid.

The E.U. Goes After Google: Where Was the U.S.?

In fining Google a record 2.4 billion euros (2.7 billion dollars) in June, 2017, for unfairly favoring its advertisers in its online shopping service, E.U. officials went “significantly further than their American counterparts.”[1] At the time, Google held more than 90 percent of the online search market in the E.U. Why would the E.U. go further than the U.S. in pressing anti-trust violations against a technology company that could be expected to gain monopoly profits? Presumably Google was favoring its advertisers on searches in the U.S. as well. Americans would mind too when an advertiser’s higher-price product comes up rather than a comparable product at a better deal. Was the E.U. more interested in protecting consumers and less concerned about pleasing a large company? The company’s sordid, self-serving practice nullifies any contending claim that the government’s motive was to go after a foreign company. I submit that the E.U. government’s action unwittingly points to a pro-business bias in the corresponding American government.

With the demand that Apple repay $14.5 billion in back taxes in the E.U. state of Ireland, an investigation into Amazon’s tax practices in the E.U., and “concerns about Facebook’s gathering and handling of data,” the E.U.’s anti-trust division was “laying down a marker for more hands-on control of how the digital world operates.”[2] Why no such marker in the U.S.’s anti-trust division? Clearly, concerns about Facebook were not uncommon there. The E.U. “is setting the agenda,” Nicolas Petit said at a European university.[3] Suddenly America looks like the Old World.

Especially after the Citizens United decision by the U.S. Supreme Court in 2010 allowing unlimited spending by companies on political campaigns, the question of the power of large companies in the halls of Congress as well as in the White House at the expense of consumers became more important even if the media kept the issue largely off the public’s radar screen. Is what is good for GM good for America? The fallacy that what is good for a part is necessarily good for the whole is enough to settle that question. The problem, therefore, lies in certain parts having inordinate influence over the whole—more specifically, on the rules by which the whole operates. Insufficient regard for the public good by public officials who don’t want to risk offending corporate chieftains is like the captain of a ship steering according to the desires of certain wealthy passengers instead of looking out ahead.

So it is telling, I submit, that the E.U.’s anti-trust division essentially shamed its American counterpart in being willing to stand up to very powerful private interests. The “proof in the pudding” lies, I suppose, in the dearth of cases in which the U.S.’s government (and those of the member states) has spoken truth to the powers behind the throne and gone on to act on that truth in enacting laws and regulations that protect the public. All too often, American regulatory agencies are captured by the very companies that are to be regulated. Beyond the agencies’ reliance on their respective regulatees for market information and the regulatees’ ability to hire former regulators for lucrative jobs, a company’s monetary influence in electoral campaigns gives elected representatives a powerful incentive to pressure the regulatory agencies to go easy on even an entire industry. From a company’s standpoint, unwanted regulations can be softened or averted outright, or new regulations can be used strategically at the expense of typically smaller competitors that are less able monetarily to comply with stiffer mandates. So it is not simply more regulations that attest to a willingness to “speak truth to power.” Government officials with the courage (and fortitude) to protect the public cannot simply enact laws and regulations that are in a dominant company’s interest. Clearly, the E.U. passed this test in being willing to stand up to Google.

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[i] Mark Scott, “Google Fined Record $2.7 Billion in E.U. Antitrust Ruling,” The New York Times, June 27, 2017.

[ii] Ibid.

[iii] Ibid.

Power beyond the Constraints of Federalism: The Case of Gambia’s 2016 Presidential Election

Even though Adama Barrow defeated the longtime president of Gambia, Yahya Jammeh, in the state’s presidential election in December, 2016, Barrow was rushed to the state of Senegal for security reasons when Jammeh refused to relinquish the power of the presidency. Jammeh had led a successful coup in coming to power in 1994. So it is no surprise that days after accepting the election result, he “changed his mind, declared the election results invalid and vowed to use the power of his military to stay in charge.”[1] This attests to the allure of power and how difficult it is to give up. In the E.U. and U.S., the protocols and institutional procedures are so well established that the nature of power is eclipsed from view as one political party assumes power previously held by another party. The reality of power as it lives in human nature is much more raw in the case of Gambia’s transition of presidents in 2016. I submit that federalism at the empire level was too lax to bracket the true nature of power at the state level.

Gambia's new president, Adama Barrow, 

returning to the state after the previous president agreed to leave office. (Jerome Delay/AP)

“It took repeated personal overtures from West African presidents and finally a regional coalition of troops that crossed into Gambia to persuade [Jammeh], renowned for human rights abuses, to step down.”[2] That he felt compelled to leave Gambia for Equatorial Guinea says as much about the reach of the International Criminal Court as it does about the matter of how Gambia’s rule of law is no match for raw power in human vengeance materializing through political power. In other words, the exaggerated actions, including the need of a regional coalition of troops and Jammeh’s self-imposed exile, point to the reality of power without the channels of well-established, or fortified, institutional rules and even societal customs.

Furthermore, the ad hoc nature of the regional coalition bespeaks the need for a strengthening of the African Union. Unlike the E.U. and U.S., the A.U. is a mere confederation with little or no governmental sovereignty at the federal level. Were the A.U. balanced in terms of state and federal power (and the same could be said of the Articles of Confederation in the U.S. and the EEC before the E.U.), the federal level could have acted as a check against Jammeh’s dogmatic decision to remain in office. On the other side—and Americans in particular need to be reminded of this—the state governments in a federal system should have enough power to act as a check against over-reach at the federal level. The E.U. is much closer to a balanced federalism, with the A.U. on one side and the U.S. on the other (i.e., risks of dissolution and consolidation, respectively).

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[1] Jaime Y. Barry and Dionne Searcey, “His Predecessor Gone, Gambia’s New President Finally Comes Home,” The New York Times, January 26, 2017.

[2] Ibid.

Political Contributions in the U.S.: Political Bribery Beyond Access

What exactly does a large political contribution do for a contributor? The standard line is that access is “bought.” Being far removed from the Washington “belt-way,” the American people have swallowed the line, admittedly naively. As of 2015, we can look at the proverbial “man behind the curtain” for a much more realistic grasp of the extent to which private interests seeking particular benefits even at the expense of the whole (e.g., increasing a deficit) corrupt the American political system.

Speaking in 2012, former U.S. president Jimmy Carter asserted, "we have one of the worst election processes in the world right in the United States of America, and it's almost entirely because of the excessive influx of money."[1] In 2015, both Carter and the current federal president, Barak Obama, lamented what Carter characterized as political bribery, “a complete subversion of our political system as a payoff to major contributors.”[2]  No one is clean in Washington, Obama said at a news conference. We have to take the money to compete in elections and that obliges us. In other words, both presidents were confirming for us that major political contributors do indeed get more than access; the elected office-holders feel obliged to repay the contributors with benefits through favorable legislation or regulation.

Hence, Goldman Sachs was the largest single contributor to Obama’s 2008 campaign, and the financial reform law passed two years later steered clear of breaking up the five largest U.S. banks, which at the time had even more assets—a third more—as a group than they did in September 2008. Additionally, Obama backed off including even a public-sector health-insurance option after the health-insurance industry lobby objected. Had that industry contributed to his campaign? If so, did the companies that denied pre-existing conditions bribe the president to insure that the insured would still have to rely on those companies?

Bribery is a strong term; it is a stark indication that the United States are not cities on a hill—salubrious bastions of clean business and government in a corrupt world where bribery runs rampant. American CEOs cannot justifiably lament having to pay brides in other countries because the political contributions domestically are in fact bribes. Put another way, legalized bribery is still bribery even if the shiny veneer makes it more difficult to see underneath. Speaking in 2015, Carter’s recommendation was to make public financing of elections mandatory, hence limiting or expunging altogether private contributions. For this to happen, the U.S. Supreme Court would have to step down from its judicial doctrine that money is speech. The next question in need of a real answer may be whether the Court is subject to bribery, whether directly or through a power-elite.

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1. The Associated Press, “Jimmy Carter Slams ‘Financial Corruption in U.S. Elections,” CBS News, September 12, 2012.

2. Paige Lavender, “Jimmy Carter Blasts U.S. ‘Political Bribery’,” The Huffington Post, July 31, 2015.

Americans on How Political Campaigns Are Funded: A Black Hole in the Center of the Political System

Considering the widening cultural and political divides in American society that were on full display in Congress during the first half of the 2010s, uncovering a general will stretching across partisan lines as well as across a the continent and beyond would proffer a rare opportunity for significant legislative output. Furthermore, such a case would enable us to assess whether the elected representatives of the People were indeed representing, and, if so, whom. That is to say, the political distance between the People and their political class could be measured. I contend as respecting the stance of the People on money in politics and public governance, much unity and, unfortunately, much distance can be discerned, at least as of the end of May 2015 when a New York Times/CBS News telephone-poll was taken.

Evincing a unity striking not only in its singularity, but also given the partisanship on the topic then in the Congress, more than four in five Americans said that “money plays too great a role in political campaigns,” and two-thirds said “that the wealthy have more of a chance to influence the elections process than other Americans.”[1] By a significant margin, Americans said “they reject the argument . . . that political money is a form of speech protected by the First Amendment.” That even self-identified Republicans were evenly split suggests that The New York Times does not overstep in generalizing to characterize Americans, rather than the poor or Democrats, for instance, as rejecting the money-as-speech judicial doctrine. In fact, 75 percent of self-identified Republicans said they support more disclosure by outside groups, and Republicans were almost as likely as Democrats to favor further restrictions on campaign donations.

Nevertheless, Republican Congressional leaders had “blocked legislation” to require more disclosure by political nonprofit groups that were not required to reveal their respective donors. Furthermore, “some prominent Republicans” in Congress were calling “for legislation to eliminate existing caps on contributions.” As startling as the amount of daylight visible between the political class and the rank and file in the Republican Party itself is, the distance between the governed and their governors is even more grave, considering that the people doing the legislating happened to be elected.

A"Rockefeller Republican" turned populist? He stands alone in the rain outside the White House. (Getty Images)

It should come as no surprise, therefore, that The New York Times observes from the poll that “Americans appear to be as inured to the role of money in campaigns as they are disillusioned by it, expressing a deep cynicism about the willingness of elected officials to fight the system they inhabit or to change the rules they have already mastered.” A majority of Americans were pessimistic that campaign rules would be improved. The conflict of interest that Americans believed that their elected representatives were actively exploiting dovetails with the role of money in politics at the time because the representatives and their “paymasters” had written the rules! At the very least, both parties knew how to “work the rules” in their respective, and, mostly joint, interests.

In business theory, “agency costs” are incurred by someone (i.e., the principal) who has hired another person (i.e., the agent) to the extent that the latter does not do the will of the former. The principal not only loses out because the job isn’t getting done, but also must spend additional time and energy to get the agent to get the job assigned done. Perhaps the agent finishes the job, but skews it to be more in the agent’s own benefit. If the principal’s benefit is less as a result, this loss is also an agency cost. This theory can be applied to politics.

When a supermajority of an electorate want a law passed but those voters’ own elected representatives (i.e., agents) refuse, the principals incur agency costs. Moreover, when a People want one system of governance and the political class ensconced in another one—the current one in which that class benefits (and therefore has a conflict of interest in)—the People suffers agency costs. In terms of democratic theory, the governmental sovereignty is suspect rather than legitimate from the standpoint of popular sovereignty (i.e., the general will of the People as a people).

I contend that the political class’s continued exploitation of the conflict of interest is a significant factor in the distance that had widened between the governed and the elected governors. “Candidates for political office are not in it just to serve the people; they also want the prestige and the perks,” said one respondent in the poll. The New York Times reports that in follow-up interviews, respondents “described political leaders as a kind of class apart.” Mixing “public life and personal enrichment,” elected officials were in the habit of taking “frequent flights on the private planes of billionaires” and going on “junkets paid for by corporate lobbyists and foreign governments,” all while ostensibly doing the people’s business.

Moreover—and this is where it gets really important—some of those polled “expressed a profound alienation from their own government. They said they did not expect elected officials to listen to them. They described politics as a province of the wealthy.” Incredibly, “they said they sometimes did not feel informed enough to come to an opinion about the candidates.” In spite of “being inundated with political advertising,” they said they were repulsed by the billions of dollars” behind it. In short, a significant part at least of the electorate had tuned out, given up, and lost hope. It would appear that popular sovereignty can commit suicide, rather than continue to endure a sordid political class—humiliatingly the People’s agents—and the related self-aggrandizing deep pockets who shamelessly put their private interest above the public weal. Abstractly stated, popular sovereignty can simply choose to give up, rather than even recognize the bill that would be required to pay in order to take back the wayward governmental sovereignty. I suppose the latter can be like a black hole, sucking in power and money even as the universe itself becomes unhinged from its outer walls and begins to collapse into itself. So narrow-minded, so greedy with its ruddy, fat hands, can a black hole be that it consumes the very conditions of its existence.

Incremental change, or “reform,” is not the way to correct such a dysfunctional system as a political class at odds with its principals (as well as principles) in a democracy; the class’s paymasters would only subvert the “reforms” in all but name. The Dodd-Frank Financial Reform Act of 2010, for example, merely tweaked with the problem of systemic risk by raising reserve requirements on the largest banks; the proposal to break up the five largest banks predictably got nowhere. The People were led to believe that holding more in reserves would make a difference in an inter-bank credit freeze an amid short-selling. Meanwhile, Wall Street would continue to fund the Congressional re-election campaigns of the law’s “writers” and supporters.

The superiority of the popular sovereign (i.e., the People) over the entrenched governmental sovereign (i.e., the political class) is evinced in the poll in that 39% said fundamental changes are needed in the way political campaigns are funded in the United States, and a whopping 46% said the system should be completely rebuilt. That, my friends, is an astonishing find in American politics. Almost half of the popular sovereign believed that the way its agents are selected had to be completely rebuilt. Beyond mere statute, such a “big picture” standpoint is constitutional in nature. Unfortunately, the political class would almost inevitably have its say, even a veto, on any proposed constitutional amendments—even any in which elected officials have a conflict of interest. The wish to completely rebuild the way campaigns for elected office are run may be like hoping that a universe take back its power from the black hole at ground zero already dominating even space and time.

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[1] Nicholas Confessore and Megan Thee-Brenan, “Poll Shows Americans Favor Overhaul of Campaign Financing,” The New York Times, June 2, 2015. All of the quotes in this essay are from this source.

The 2014 E.U. Presidential Debate:An Analysis

The election, or selection, of the E.U.’s chief executive in 2014 tacitly pitted democracy at the federal level against the equally legitimate prerogative of state governments to protect their turf through their direct involvement at the federal level. This tension exists institutionally in the European Council and the European Parliament, and in the problematic procedures for how the E.U. president is to be selected. In this essay, I contend that the European project has more to do in terms of how both the states and E.U. citizens both have a role in the selection.

Euroskeptics point to the democracy deficit as but one of the justifications for defending state rights against federal encroachment. So it is significant in terms of continued European integration that, in 2014, for the first time, the parties in the E.U. Parliament nominated their respective candidates for president of the European Commission, the E.U.’s executive branch. Although E.U. citizens could not vote directly for any of those candidates, the choice of representative necessarily involves a choice of party. Yet even this indirect, or parliamentary, democracy had to contend with the other major element of the E.U.—that which can be called confederal. Namely, the E.U. represents not only individuals, but also states. Whereas the European Parliament represents the former, the European Council represents the latter. In a system of modern federalism, wherein both the federal and state governments are semi-sovereign, both representatives of the people and officials of the state governments must be accommodated at the federal level. So it is fitting, though certainly not comfortable, that the European Council members—the state governments represented by their respective executives—are obliged according the 2009 Lisbon Amendment to “take into account” the choice of the European Parliament for President of the Commission “before selecting the new head.”[1] Of course, the choice of the Parliament is, in the words of The Financial Times, “the EU election result.” The implication of the Council having only to take it into account does not bode well for European democracy at the federal level.

It is no accident that in the 2014 presidential debate, Jean-Claude Juncker stressed that the state constitutions must be respected at the E.U. level even as Catalonia and Scotland bristle under two; he undoubtedly knew that the state governors would have a say on his candidacy even if the Parliament votes in his favor. Identifying this vote with the Parliament election, the five candidates were united on the stage in their firm belief that the state government officials in the European Council would be obligated to pick from among the five. Interestingly, the five did not hold as one would expect from a democratic standpoint that the Council would be obligated to select the candidate whose party does best in the election; not even parliamentary democracy is so direct, given the typical need to form coalitions.

The state leaders sitting on the European Council are of course themselves democratically elected, and from this basis they could assert their own imprint on the decision from democratic auspices. Moreover, the governors could point to the U.S. as evidence of just how real the risk of political consolidation is at the federal level once the direct involvement of the state governments at that level is weakened or removed outright. This occurred in the U.S. in 1913, when popular election replaced appointment by state legislature as the means by which U.S. senators are selected. Mandating that the European Council accept the will of the people as judged by the Parliament by limiting consideration to the five candidates selected by the parliamentary parties entails that the state governments cede their power to see to it that the next E.U. president be a person who could be expected to protect the states' turf in the face of baleful federal encroachment.

To be sure, other ways exist for giving both states and individuals a role in the selection of a federal president. In the U.S. the Electoral College exists to give weight to both the people and the states. Technically, the voters vote for electors, who in turn meet by state to vote or the U.S. president. While this system suffers from severe flaws, so too does the procedure governing the E.U.’s presidential election in 2014.

The five presidential candidates at the debate held in May, 2014 at the European Parliament in Brussels. The debate went from issue to issue, more or less in line with what people were tweeting about, rather than focusing on the "big picture" of the European Union. (Image Source: Europolitics.com)

The 2014 election included the first E.U. presidential debate, which brought with it the implication that one of the five candidates would be elected as president. The five said as much. For the state governors in the European Council to protect the state-federal balance of power by “overruling” the election result would be to expose the democracy deficit as all too real. With only 43 percent of E.U. citizens voting in the last E.U. Parliament election, the number would surely be less if the message in 2014 is that the results of the voting do not matter in the selection of the federal chief executive. That much of the debate centered around banking and austerity rather than the future direction of the E.U. itself suggests that the event would not stimulate much voter interest in the E.U.

Making matters worse, Martin Schultz, president of the Parliament and one of the five candidates, claimed during the debate that the E.U. is “not a federal state. We are a union of sovereign countries.” This ceased to be the case when the E.U. gained its first competency from the states. By the year of the presidential debate, the E.U. institutions such as the Commission, Parliament, and European Court of Justice had enough governmental sovereignty to render Schultz’s claim patently absurd. Contravening his own assertion, Schultz joined with the other presidential candidates in asserting that the “sovereign” state governments represented in the Council are obliged to rubber-stamp the Parliament’s decision as per the federal election. In the words of James Madison, the European Parliament is a national institution whereas the European Council is federal; the mixture of these two types is what we know as modern federalism. So it is odd, to say the least, not to mention oxymoronic, that the sovereign states must bend to a federal-level election and subsequent confirmation by a federal-level “national” legislature. In American terms, it would be like telling the U.S. Senators that they are obliged to vote for the result obtained in the U.S. House of Representatives; the U.S. Senate being based on federal principles and the House resting on “national” principles.

In conclusion, the E.U.’s basic or constitutional law on the selection of the chief-executive is inherently unstable. The states could lose a means by which they have to protect their prerogatives against federal encroachment, and E.U. citizens could come to perceive the democracy deficit as real (and themselves marginalized as voters in federal elections). As the case of the U.S. attests, maintaining a viable federal-state balance of power is fraught with difficulties over the long term. Pretending the states are still sovereign will not help the Europeans do better. The best chance lies with forsaking neither the ability of state governments to protect their portions of governmental sovereignty nor the place of democracy distinct at the federal level. Unlike confederalism, modern federalism is a system of government in which both citizens and polities are members, and the various procedures and institutions at the federal level should be geared to enabling both of the member-types to protect themselves and enjoy a pro-active role federally.

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1. James Fontalella-Khan, “Fresh Powers Add Spice to European Parliament Election Battle,” The Financial Times, 8 May, 2014.