A Far-Right "States' Rights" Ideological Depiction of the European Union Critiqued

Roughly a month before the 2019 elections of the representatives in the E.U.’s Parliament, Matteo Salvini, the leader of an anti-immigrant party at the state level in the state of Italy, announced the formation of a far-right party—also anti-immigrant—at the federal level. Because far-right parties at the state level are dubbed “nationalist,” at least by The New York Times, that paper suggested at the time that such nationalist parties federalized can seem “incompatible with a transnational body.”[1] I submit that any such thought of even apparent incompatibility stems at least in part from a lack of understanding of the E.U. itself, as well as federalism and thus the place of states from the perspective of the federal system rather than a state. In short, the paper implicitly took the perspective of the states in writing about the upcoming election. The paradigm chosen by the paper reflects the far-right ideology in the E.U., and is thus not neutral. In fact, the slant is inherently helpful to the Euroskeptic and anti-immigration political agendas.

The paper’s uses of nationalist and transnational, for example, are misleading. Both terms imply that the E.U. is an international organization, or “bloc,” which was not the case even when the E.U. came into existence.  We can translate the term “nationalist” as used by the far-right parties in terms of two senses relevant to the federal level. The term could mean “Euroskeptic,” or, in American terms, “anti-federalist.”[2] Euroskeptic, unlike nationalist, is a term from the perspective of the E.U. because a Euroskeptic is a person who wants less power at the federal level and more at the state level. Nationalism, on the other hand, is a stand-alone term without implicitly or explicitly suggesting the existence of a federal system. In fact, nationalism implies a sovereign rather than a semi-sovereign state. In the cases both of the E.U. and U.S., complete governmental sovereignty encompasses that of both levels, hence both federal unions are nations even if not recognized as such.  In discussing a federal election, terms that make sense in terms of federalism should be used.

No contradiction exists in having an anti-federalist or Euroskeptic party active at the federal level. In the U.S., the anti-federalists became Thomas Jefferson’s Republican Party. Having a weaker central government paired with stronger state governments as the central pillar is consistent with federalism because ending the federal system itself is not being advocated. In contrast, a nationalist party at the federal level does not make sense unless the federation is a confederation of totally sovereign states, which does not apply to either the E.U. or U.S. because of the feature of dual sovereignty (i.e., both levels have some governmental sovereignty). Whether most of the sovereignty is at the state or federal level does not matter; in both cases, neither level has all of the sovereignty. If a nation has full national sovereignty, then the affairs of semi-sovereign states in a federal system cannot be labeled as nationalist. In such a system, and from its perspective, using nationalist to refer to the state level is incorrect. Neither does the national-transnational divide apply because transnational organizations do not themselves hold even some governmental sovereignty. Simply put, the E.U. is not an international or transnational organization, even if “nationalist” ideologies at the state level want to insist otherwise.

Besides meaning Euroskepticism in regard to federalism, nationalist can also refer to an anti-immigration platform. In 2019, the Republican Party at the federal level in the U.S. was strongly anti-immigration, especially in the White House. Both how many immigrants are allowed and the respective involvements of the state and federal governments are matters that involve federalism, rather than only the states. So to equate anti-immigration with nationalism at the state level is flawed. In fact, to use nationalist for either Euroskepticism or anti-immigration is faulty because “national” concerns do not reduce two platform items. In other words, the term is too broad for its use in characterizing the federal involvement of either a state-level or federal party at the federal level. I suspect the term was being used anyway as a way of furthering the far-right ideology. As noted above, even the media was implicitly (or intentionally) helping.

As for the E.U. being “transnational,” this term is a misnomer. To be sure, the European Council represents the state governments just as the U.S. Senate does. Both the Council and the Senate can be said to be transnational in that the member-states are semi-sovereign. Both bodies are based on principles of international law. For example, polities rather than individuals are the members, and thus represented, in the bodies. Qualified majority rule in the Council and the filibuster in the Senate reflect the fact that the respective members retain residual sovereignty. By the way, qualified majority voting is itself one way in which the federal level of the E.U. has some of the sovereignty in the federal system. Enumerated competencies (in the E.U.) and powers (in the U.S.) are another source of federal-level governmental sovereignty. In contrast, transnational bodies such as NAFTA and NATO do not have governmental sovereignty.

Another, glaring (i.e., because the Times was reporting on the Parliament’s upcoming election) reason why the E.U.’s federal level is not transnational centers ironically on the E.U.’s Parliament.  Unlike the Council, the Parliament consists of direct representatives of E.U. citizens rather than of the states. That each state has so many House seats in the U.S. and Parliament seats in the E.U. does not mean that the seats represent the states or that the state governments pick the representatives. Even though Americans vote for a specific candidate whereas Europeans vote for a party, the elected representatives in both cases represent the citizens rather than the states. This corresponds to the notion of direct effect, which means that federal-level governmental institutions can bypass the state governments in affecting the citizens directly. Transnational bodies and even international confederations, such as the ancient Spartan league and the early-modern U.S. Articles of Confederation, do not have legislative bodies that represent and have direct effect on citizens rather than the member polities.[3] 

In fact, whereas the U.S. Senate and the E.U. Council are predicated on modified international law, the U.S. House and the E.U.’s Parliament are national in principle, both in terms of citizens being directly represented and direct effect. The appellation of national to a federal-level institution may seem strange to many Europeans in 2019, but Americans had the same reaction during at least the first fifty years of the United States because, like the United Colonies before, the U.S. was commonly viewed on both sides of the Atlantic as an empire.[4] In fact, the members of the British Empire, whether Ireland or Virginia, had their own legislatures for domestic legislation.

Therefore, transnational is a misnomer in referring to the federal level of the E.U. Reflected in its federal institutions, the E.U., like the U.S., is actually a national/international hybrid at the federal level. Both citizens and polities are represented, and governmental sovereignty is split between the federal and state levels.

Regarding the body in the Times’ term, “transnational body,” to characterize the E.U., again the intent or implication is to diminish the legitimacy of the federal legislative, executive, and judicial (i.e., governmental) institutions in line with the far-right ideology. The E.U. is not itself a “body.” Rather, the federal level has several bodies, or institutions. The European Parliament, the Commission, the European Court of Justice, and the European Council (and the Council of Ministers) are all governmental bodies at the federal level. They all have institutional interests going beyond particular state interests and even the summation of state interests, for in a federal system, both levels have their own distinct interests. Applying logic to counter ideology, the E.U. itself cannot be a body because the federal level contains several governmental bodies. Furthermore, to claim that the E.U.’s federal level reduces to one of its bodies, or even an aggregation of them denies the distinct interest of a federal level, which can be at odds with state interests.

So the “confusion” regarding the E.U. that The New York Times reported as one of the reasons why voter turnout had dropped in federal elections (i.e., of representatives in the E.U.’s Parliament) is in part caused by intentional misnomers. These tend to reflect an anti-federalist ideology that views the federal level as something less than a government whereas all legitimate legislation is promulgated at the state level. Hence the states are nationalist whereas the E.U. is a transnational body rather than national in part. The term nationalist is used problematically instead of Euroskeptic or anti-immigration, and the term transnational body and even bloc are used rather than federal level or even federal government. “Blocs” do not have legislatures, executive branches (the Commission), and a Supreme Court (the E.C.J.) as well as competencies in a variety of domains in addition to trade and even economics. To refer to the E.U. as a “bloc,” like a trading bloc (and where did the k go?), essentially denies the political development that differentiates the EEC from the E.U. Specifically, the federal competencies of the E.U. extend beyond economics and trade and the federal system itself fits under modern federalism wherein sovereignty is split and the federal level has direct effect (and a legislative body based on national rather than international principles), rather than under confederalism wherein the member-countries are sovereign (e.g. the UN).  I submit that the terminological “mistakes” fit and thus implicitly advance an anti-federalist or Euroskeptic ideology that seeks to minimize the onslaught of federal legislation by going after the credibility of the E.U. itself.

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1. Megan Specia, “European Elections 2019: How the System Works and Why It Matters,” The New York Times, May 21, 2019.

2. See Ralph Ketcham, The Anti-Federalist Papers and the Constitutional Convention Debate (New York: Penguin, 2003).

3. Althusius’ text on historical federal thought, based in large part on the Holy Roman Empire, clearly demonstrates that each level in a confederation acts only on the next lowest. Only the guilds act directly on the individuals. See Althusius’ Politica (Indianapolis: Liberty Fund, 1604/2010).

4. Skip Worden, British Colonies Forge an American Empire (2017). For more on this topic, see the following books: Essays on Two Federal Empires: Comparing the E.U. & U.S., American and European Federalism: A Critique of Rick Perry’s “Fed Up!” and Essays on the E.U. Political Economy: Federalism and the Debt Crisis. 

Protecting Minority Stockholder Rights: On a Conflict of Interest at Revlon

The principle of majority rule is a staple of democratic theory. Typically the victor of a close election is quick to proclaim that “the people” have spoken. That “the people” corresponds to 51% of those who voted is beside the point. What about the 49% who voted against the victor? What about the minority’s rights? In the U.S. Senate, the fact that it takes 60 out of 100 votes to end a filibuster means that a large minority can halt a majority’s bill. In the European Council, the qualified majority rule means that for a bill to pass, the states in the majority must be at least 55% of the total number of states and must have at least 55% of the E.U.’s population between them.  A large minority can therefore stop a small majority. In both of these “intergovernmental” bodies, the implication is that 51% of a vote is not as significant as the principle of majority rule suggests. What about the rights of a minority of shares of stock in corporate governance? When a majority stockholder has control of management, the interests of the minority stockholders can be shirked. This is particularly true when a majority stockholder proposes a going-private transaction with the aid of management.
“Going-private transactions create opportunities for shareholder abuse and can have coercive effects on minority shareholders,” Antonia Chion, a director in the S.E.C.’s enforcement division insists. A majority shareholder can propose a buy-out that is unfair to other stockholders, and a collusive management can keep those shareholders in the dark concerning independent assessments. This is not the case of a CEO who is controlling the board at stockholder expense; rather, the majority stockholder uses the management to circumvent the board and other stockholders at their expense and even that of the company.
On June 13, 2013, Revlon “agreed to pay an $850,000 penalty to settle accusations that it deceived shareholders and its independent directors in connection with” Ronald Perelman’s attempt to get the other stockholders to convert their common stock to preferred in what is called an exchange transaction.[1] As in the case of Perelman’s earlier attempt to take the company private, an independent assessment found that the other stockholders as well as the company would lose out in the deal. Perhaps because the other stockholders had had access to the information to reject the first proposal, Revlon, undoubtedly at Perelman’s urging, “went to great lengths to hide” the bad news of the assessment on the exchange transaction from the minority stockholders.[2] In fact among “other deceitful maneuvers,” Revlon “altered the agreement with the trustee to ensure that the trustee would not share the advisor’s opinion with” the minority stockholders.[3] In its filings with the S.E.C., the management lied that the board’s process had been “full, fair and complete.”[4] In actuality, the company’s board was “unable to fairly evaluate the adequacy of the exchange offer.”[5] The controlling stockholder, Ronald Perelman, had used the management of the company to go against the company’s own interest! That is, the company was acting against its own best interest simply because doing so was in the controlling stockholder’s interest. Surely this suggests that the majority stockholder had too much influence. Given the conflict of interest, having such influence at the expense of other stockholders and the board can be regarded as unethical.
Perhaps it could be argued that because Perelman’s investment firm, MacAndrews & Forbes, controlled about three-quarters of Revlon’s shares at the time, the company’s management had a fiduciary duty to act in Perelman’s interest even if it was not in the company’s interest. Stockholders are the owners, after all.
However, Perelman’s investment firm did not control all of the stock. It cannot be assumed that the interests of the other stockholders mirrored that of the stock Perelman owned or controlled. Furthermore, that the exchange transaction would have helped Revlon pay off a loan to Perelman’s investment firm only added to the majority stockholder’s conflict of interest. According to the New York Times, because “Perelman stood on both sides of the deal, there was a question about the transaction’s fairness.”[6] This is the reason the company asked its independent board members to assess the exchange transaction in the first place. For the company to turn around and require the independent assessor to hide the findings from the board is utterly contradictory, as well as unfair to the independent directors (as well as the other stockholders).
Therefore, even if the principle of majority rule applied to corporate governance supports Perelman’s influencing the management to the benefit of the stock that he controls, the conflict of interest suggests that the principle should not completely shut down the property rights of the other stockholders. Interestingly, not even the U.S. Senate’s 60 votes or the European Council’s qualified majority voting applied to corporate governance could have stopped the 75% of the shares that Perelman controlled at the time from directing the company’s management. Because the independent directors are designed to be free of pressure from management, they could be controlled by a majority stockholder in such a case.
Perhaps independent directors ought to be tasked with not only checking the corporation’s management, but also protecting the interests of the minority stockholders when those interests differ from that of the majority. At the very least, a majority stockholder should not be permitted to be situated in a conflict of interest with regard to the company. Merely being so situated can be argued to be unethical because even having the opportunity to exploit a conflict of interest causes harm (e.g., anxiety) to those who would be harmed financially. Additionally, the temptation is just too great, given the influence that the majority stockholder has over the company’s management. Even in terms of democracy, majority rule is not an absolute.

For more on conflicts of interest in business (and government), see Institutional Conflicts of Interest, available at Amazon.

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1. Peter Lattman, “To Perelman’s Failed Revlon Deal, Add Rebuke From S.E.C.,” The New York Times, June 14, 2013.

2. Ibid.

3. Ibid.

4. Ibid.

5. Ibid.

6. Ibid.

The U.S. Senate: What Is It Really?

Part I

In 1928, the Senate stopped the bill that would have given WWI vets their bonus then rather than in 1946.  Mass protests for weeks by thousands of vets on the U.S. Capitol may have swayed the U.S. House, but the Senate was undaunted: passage of the bill would be economically disasterous .   Such a scenerio is exactly what the delegates in the U.S. constitutional convention in 1787 would have predicted.  They designed the House to reflect the passions of the people, and the Senate as a check on such passion where it is intemperate.   Looking back at Shays’ Rebellion in Massachusetts, the delegates feared excess democracy.  No supporter of the Senate, Madison nonetheless points out that “a numerous body of Representatives were liable to err also, from fickleness and passion. A necessary fence against this danger would be to select a portion of enlightened citizens, whose limited number, and firmness might seasonably interpose against impetuous councils” (Madison’s Notes, p. 194).

However, the delegates also designed the U.S. Senate “to represent the wealth of the Country” (Pinkney, in Madison’s Notes, p. 198).  Col. Mason claimed that “one important object in constituting the Senate was to secure the rights of property” (Madison’s Notes, p. 200).  Does being wealthy make one temporate or enlightened?   Madison observes that “wisdom & virtue” are among the objects of the proposed Senate (Madison’s Notes, p. 195).  Does being wealthy mean that one is apt to stand up for virtue?  Does wisdom come from having inherited or earned wealth?

As if these two purposes etched in the design of the U.S. Senate are not sufficiently disjoined, the delegates also intended that the Senate represent the State governments so as to proffer them a means of defending their turf against encroachment by the U.S. Government.  Senators were selected by State governments before the ratification of the 17th Amendment in 1913.  It was debated in the convention whether popular election would give the senators a sufficient incentive to protect their respective State governments.  The delegates concluded that it would be insufficient, and history has proved them right–as the governments of the States have steadily lost power to the expansive U.S. Government.

So, the U.S. Senate was designed as a check on the excess democracy possible in the U.S. House, to protect the interests of property, and to represent the State governments and protect the balance of power so crucial to the viability of federalism.   It is not clear to me that these three functions are mutually-supporting or even compatible.  I don’t see evidence in Madison’s Notes of Debates in the Federal Convention of any consideration of the assumed compatibility.

Just as any human institution is apt to subtly morph if it endures for a sufficient time, the U.S. Senate has changed through the centuries.  As a result of the 17th Amendment wherein U.S. Senators are now popularly elected (by State), the U.S. Senate is more democratic–hence more like the House.  The six year senatorial term is a buffer, to be sure. However, re-election is never too far off to be absent from a given Senator’s political and legislative calculation.   Hence we are unwittingly leaving ourselves vulnerable to our own excesses.  Are we assuming that our passionate, spur-of-the-moment, collective impulse cannot be reckless and ultimately not in our own best interest?

I have already pointed to the implications for the State governments, and we have seen their eclipse through the last century.   What about the protection of property?  How does this mix with the more-democratic “structural tendency” in the Senate?   Are Senators more oriented to the upper-class voters while soothing the rest as if we too are being represented?  In other words, is there a sort of duplicity built-in to this combination?

In my opinion, the U.S. Senate can represent the State governments while simultaneously serving as a check on the intemporate excesses possible in the U.S. House.  Property is sufficiently represented in the U.S. Government as a whole, given the small number of elected and appointed officials relative to the entire population.   I would look to the commensurate European Council in the E.U.   The Council not only represents the State governments, the chief executives of the States (or their ministers when specialized topics are decided) sit on the Council.   It is a viable check on the European Parliament, which is commensurate with the U.S. House (i.e., elected representatives by the people of the EU).   We could do better by emulating the European Council.

Accordingly, I recommend that the governors sit in the Senate (which would meet periodically…with the governors’ respective staffs doing the leg work), with the relevant members of the States’ cabinets meeting on specialized topics.   This might seem confusing, but it works in Europe.  Essentially, officials in the respective State governments would meet in a common council.  50, not 100 members.  The latter number is too numerous for a council.   Because governors are elected, democracy would not be shirked even as the Senate would be a viable check on the excesses in the House (because the governors acting in a council are “two degrees” from the voters while the U.S. Reps are only one).   To be sure, the Senate would not be meeting every day, but meeting periodically to decide the major points.

The Senate representing the State governments would distinguish the Senate from being a replica of the House.  Do we really need two Houses?   Strictly speaking, proportional representation applies where citizens are being represented.  In contrast, in an intergovernmental council each government is a member–a person, as it were–regardless of how much each weights (e.g., different populations, territorial size, or wealth).  The European Council deviates from the “intergovernmental council” model because the number of votes assigned to the governments is influenced by its population.  I don’t see why the Senate would no longer be an intergovernmental council just because the votes are proportional; the key would be that governments would be voting, so the one vote per government could be relaxed.  Because proportional represention is the rule in the U.S. House, the big States can protect themselves.  So I don’t view the one vote per government in the Senate as problematic in terms of the Congress as a whole.  In general terms, the more we can distinguish the two bodies of the Congress, the more we enrich our system of government by taking advantage of the unique contributions from different forms of polity.   If there is a downside to proportional representation,  a Senate not partaking of that method would automatically be a check (and vice versa, of course).

Part II

The US Senate is “absurd.” So said Katie Connolly of MSNBC in 2010.  She was referring to Sen Shelby (R-AL) being able to singlehandedly place a hold on all pending nominations.  Citing a congressional scholar, Johathan Chait noted that a blanket hold has never been used before. Connolly argued that Shelb was doing it “because he wants a European corporation to build some planes in his state.”  Such a reason would be ubiquitous if not squalid enough in either body of the US Congress, so it is certainly plausable.  One might recall the money Sen. Ben Nelson got for Nebraska by agreeing to the health care reform bill.  In needing all 60 votes from the democrats and two independents, that bill gave us all a reminder of what an international body is like where each member has a veto.  In singlehandedly blocking all pending nominations before the US Senate, Sen Shelby was drawing on this theory as well.  While it is easy to trounce on each Senator (or each state) having a veto, I would argue that it is far less sordid than Shelby’s reason (i.e., more pork).  Because every state in the Union is semi-sovereign (and enjoys residual sovereignty as per the tenth amendment), there is constitutional support for any state represented in the US Senate having a veto on any legislation or appointment.  Because the veto is based on governmental sovereignty (i.e., the US Senate being in this respect an international body—unlike the US House), Alabama can use its veto even for reasons we might find disgusting.

So if each Senator (who represents his or her state as a political body even though he or she is elected by the citizens of his or her state) having a veto makes the US Senate “absurd” (and I join with those who are frustrated by it), we might want to consider the consequences that would be involved in depriving the political members of the Union of their vetos in the General Government (ie., Washington).  We could expect an acceleration in the consolidation of power in the General Government at the expense of the state governments—resulting in one size fits all in a heterogenous empire-scale Union (i.e., empire).  Any state government objecting to Washington taking over yet another domain of power would be powerless to stop that train without breaks running down the tracks toward a central state.  Meanwhile, that train would be able to pass more legislation through the US Senate, further accelerating its speed.

Some time back, I asked Sandra Day O’Connor of the US Supreme Court why she wasn’t objecting to the US Government going beyond its enumerated powers.  She replied to the small group that Congress was acting like a state legislature.  Disgust was palpable in her voice.  In a sense of futility, she added that it takes five on the US Supreme Court to have a majority decision (meaning that a majority would not go along with her on the enumerated powers matter).   You might be wondering what is wrong with Congress acting like a state legislature. The problem is that the US is in scale (and its make-up) commensurate with an empire by today’s standards.  In other words, most of our states are equivalent to countries.  You just can’t (or shouldn’t) run a combination of countries as though it were one country.  For one thing, a combo is inherently diverse.  Also, its center is further from the people.  It means less democracy or republican principles of representation because there are far fewer US Reps and Senators than state Reps and Senators.  Also, the US Government is designed as an empire-level polity.  Whereas the states’ Senates represent citizens (just as the states’ assemblies do), the US Senate (unlike the US House) represents political entities (the states) rather than US citizens.  In other words, both US citizens and US states are members of the US.  The US Government isn’t fashioned like a state government because the Union is a combination of such states (whereas a state is not a combo of republics in turn).

So we ought to be very careful about kneejerk reactions to fix the “absurd” US Senate.  To be sure, holding up appointments to get pork is squalid even by a pig’s standards, but turning the US Senate into a state senate would drastically alter what the US are.   Even though we use “the US” as a singular noun, the entity itself and its government were formed and designed with it as a plural noun (the states) in mind.  The US constitutional convention delegates invented modern federalism to suit this new genus of an empire: the Union.  The EU has since come into being along similar principles because it is of the same genus.  To treat either the US or EU as though it were commensurate with one of its states would be to treat something other than what it is.  That can only lead to a downfall.   So perhaps rather than change the US Senate to fit our understanding, we might alter our understanding to fit what the US are. This would entail taking the pressure off of the US Senate by returning most of the domestic legislation to the state governments (where there is more democracy).  Consider the coherence in having the US Senate  mainly involved in foreign policy (and regulating between the states) and having a filibuster (which is close to the principle of international organization).  That is, the state governments meet in the US Senate technically on an international basis. Moreover, the U.S. Constitution forms a hybrid between or composed of international and national governance.  This unique situs fits with the empire-scale of the United States, especially as they have expanded to fifty. 

Treating the US Senate as a state legislature…legislating on everything from healthcare to education…is a gross departure from this coherence.  It is indeed absurd—only we have the arrows reversed.  It is our use of the US Senate that is absurd—not the Senate’s principles (even though they can be abused, such as by Nebraska and Alabama). Treating the US Senate (and the Union) as other than what it is can only lead to the fall of our empire…our Union of States. To be sure, every empire that rises must fall.  So why write?  I’m merely trying to stay the fall a bit, but the outcome is certain.  In the meantime, let’s not help it along.  This will take more humility and much less presumptuousness in what we think we know about our system of public governance.  With more humility, perhaps more of us will be content to get involved in our state governments.  As it is, we overlook them and advocate changing the US Senate into our own image of what it should be, presuming the extant Senate is "absurd" (perhaps it is sheer hubris to make such a summary judgement?).

Source: http://blog.newsweek.com/blogs/thegaggle/archive/2010/02/05/need-more-evidence-the-senate-is-absurd-look-no-further.aspx

On the Allure of Popular Suffrage

In the European singing contest/show in which Susan Boyle competed, she lost the top spot to a teenage rap group. The method of selection made all the difference. Rather than having a three-judge panel of experts on singing determine the winner, the general public could “text” via cell phone or other device to vote. That one of the judges explicitly advocated for Boyle after her final performance (just before the voting) was no never mind to the general public that submitted a majority of the votes. To be sure, there were certainly non-music reasons to vote against her. Most notably, the suggestive comments she made on stage just before her first performance, including, “I’m 48, and that’s not my other half” (as she was swinging her hips as if she were sexy), were downright emetic, if not utterly bizarre. So it is possible that the voters put her personality defect above her excellent singing. It is also possible that the “texters” responsible for a majority of the votes simply preferred rap music. I do not like rap “songs” that include shouting and swearing; I do not even regard such “songs” as music. Otherwise, I could sing a song simply by yelling at you. From what I saw, the rap group in the competition was not swearing, but the “singing” did sound at times like shouting to me. Moreover, the group members seemed more oriented to dancing than singing. It is possible that the votes for that group went for any of the fads being represented rather than to singing per se.

A tension, or even an outright contradiction, can exist between meritocracy and direct democracy, or popular sovereignty. Plato and Aristotle both claim that there is a dark side to each system. Meritocracy can slide into aristocracy and democracy into mob rule: government by a selfish and uninformed mob swayed by the passions of the moment over even the people’s own best interests. What struck me about the results of the singing contest was that the rap singing wasn’t good singing whereas Susan Boyle sang very well, yet even so, the group won. It can be safely assumed that most of the voters probably were not experts on good singing. They were not trained to separate their own tastes from a critical perspective focusing on the singers’ voices. The judges presumably could have done this, but they were relegated to proffering their views before the voting—views that the voters could ignore without any imprecation. Indeed, the selection method itself—popular sovereignty—tacitly "disvalues" expertise. In one person, one vote, no one is assumed to be any better qualified to render a decision than anyone else. Differences in effort and talent among the electors are irrelevant unless particular voters care to take them into account.

Lest it be assumed that people in Western democracies necessarily privilege popular sovereignty or the will of the people refracted through elected representatives, it should be noted that power-elites are tacitly permitted to run our political, commercial and non-profit sectors. When Greece’s prime minister, George Papandreou, proposed a referendum in which the Greek people would decide whether to accept the latest debt-deal negotiated at a meeting of the European Council (consisting of heads of the E.U.’s state governments), leaders of France and Germany as well as E.U. appointed officials bore down on the prime minister, perhaps even undercutting his influence with members of his own party in the Greek legislature. Although defending the euro currency from a collapse assumed likely without the implementation of the latest debt deal, the E.U. leaders (including Merkel and Sarkozy) sent the message that direct democracy, ironically in Greece, could not be tolerated given the severity of the economic challenges involved. Experts at the E.U. level, such as the head of the European Central Bank, were included as the E.U. leaders met with Papandreou to pressure him to drop his proposal or change the question to being on the euro zone (rather than on whether to accept the latest E.U. debt deal). Disrespect for direct democracy, or popular sovereignty, was very much implied in the stance being taken at the impromptu E.U. meeting before the G-20 meeting. Yet strangely, the “gang” got away with it. Europeans did not stand up for the voice of the Greek people to be heard directly. Not even the Greek parliament resisted the E.U. “gang” by sufficiently backing the prime minister’s proposal. Instead, leaders of some of the E.U.’s big states and maybe even some E.U. appointed officials may even have pressured members of Papandreou’s own party to bring him down lest he not relent and do what was being deemed necessary to save the euro and the E.U. itself.  Indeed, even Papandreou, when he was caving on the referendum, betrayed his earlier appeal to popular sovereignty by stating that the referendum had value only as long as the opposition was opposing the debt-deal.

I contend that in the E.U., as well as in the U.S., all too often lip-service is given to popular sovereignty and representative democracy, when in fact people still look up to expertise. The Oscars, whose awards are decided by members of the film academy who have expertise in the various fields of filmmaking, is more esteemed than are the People’s Choice Awards. The Oscars are more likely to recognize Maryl Streep’s acting ability than is the People’s Choice.  I would argue that the results of the Oscars are more credible because expertise is not chucked for a flavor of the month. For instance, in the 2010 Oscars, Hurt Locker beat Avatar for Best Director and Best Picture. Hurt Locker was largely an Indie (i.e., on the fringes) film, whereas Avatar broke box office records and was no doubt much more popular with the general public. The Academy members were able to weight improved 3D effects, story and direction without allowing the technical dazzle to overshadow. Indeed, Avatar did receive the Oscar for its development and use of new 3-D technology, even as the members of the academy recognized that the most technologically-advanced film is not necessarily the best.

Of course, Oscar voting is not perfect. The 5000 plus membership may be sufficiently small that cronyism or, its opposite, grudges, may play a role. Avatar’s David Cameron, for example, was apparently not the best-liked man in Hollywood at the time, and his ex-wife just happened to be the director of Hurt Locker. I saw a television clip a few months before the 2010 Oscars showing Cameron being very rude to a fan who simply wanted an autograph at LAX, so I was rooting for his ex-wife and her movie even though Avatar was one of my favorite movies at the time. The lesson is perhaps that no selection process, or person for that matter, is perfect.

My point is that the case of Susan Boyle and the Oscars both point to there being drawbacks to popular suffrage. The E.U. suggests that efforts to bracket direct and even representative democracy are tolerated by the general populous even in democracies. Maybe we are not as much the democrats as we think we are. Maybe there is good reason to leave some things to experts. Even so, at least with respect to political judgment, there may be good reason not to cut off the will of the people. Hence, the U.S. has its Electoral College and the European Council appoints its president, while the U.S. House of Representatives and the E.U. Parliament have elected representatives of the people. In binding the Electoral College to popular vote, the U.S. has moved to the democratic pole, even while tolerating the influence of “big money” in politics. In looking the other way while E.U. leaders undercut state government vetoes and referendums, the E.U. have moved subtly away from the rule of law as well as democracy, even while the salience of state-level elected officials at the EU level (via the European Council) emphasizes “first order” representative democracy (over “second order” selected by the first order). Ideally, neither expertise nor the will of the people are eclipsed, with the rule of law protecting both. The E.U. and U.S. could both take a lesson.

Sources:

 Richard Corliss, “Oscar Wrap-Up: Why Avatar Lost,” Time, March 8, 2010. 

Marcus Walker and Alkman Granitsas, “Greece Blinks on Euro Threat,” The Wall Street Journal, November 4, 2011. 

On U.S.Senators Being Elected

According to David Firestone of The New York Times, a “surprising number” of the Tea Party members were calling for the repeal of the 17th Amendment of the US Constitution during the election campaign season of 2010. That amendment, which was ratified in 1913, provides for direct election by the people of each state of US senators. According to Firestone, “allowing Americans to choose their own senators seems so obvious that it is hard to remember that the nation’s founders didn’t really trust voters with the job. The people were given the right to elect House members. But senators were supposed to be a check on popular rowdiness and factionalism. They were appointed by state legislatures.” That it may seem so obvious to us does not mean that we have it right. Yet Firestone presumes so in writing, “a  modern appreciation of democracy — not to mention a clear-eyed appraisal of today’s dysfunctional state legislatures — should make the idea unthinkable.” Should it really?  Firestone seems biased in his dogmatism.

For one thing, the delegates to the Constitutional Convention in 1786 didn’t want to restrict direct representative democracy in the US Government to the US House only out of fear of mob rule as Firestone suggests.  They thought the direct power of the state governments in the US Government would be necessary to keep the new empire from consolidating at the imperial level (i.e., in the US Government). Firestone himself admits that to most authors of the Constitution, “allowing states to appoint the Senate was the linchpin of the entire federalist system and the real reason there are two houses of Congress.” Whereas the British House of Lords represents wealth, the US Senate was to represent not only that, but semi-sovereign republics as well.  The latter likens the US Senate to the European Council rather than to the upper chamber of one of the EU’s states.  Firestone makes a category mistake where he avers that it “may be true that appointed senators, accountable only to state legislators, would never approve of many useful federal mandates designed to put the national interest above local parochialism — including everything from the minimum wage to the new health care reform law.” States commensurate with European kingdoms/countries are not local polities.  Furthermore, reducing the US Government to a “national” interest ignores the semi-sovereign nature of the states (and thus the international principles in the design of the US Senate as opposed to the US House, which is national in nature).

Firestone seems to misunderstand what the US Senate is.  In referring to returning to having the state legislatures appoint their delegates to the US Senate as an “elitist notion,” Firestone forgets that state legislators are elected by the people and in fact have smaller electorates than do US House or Senate members.  Empowering state legislators would ironically be to bring power back closer to the people.  ”Senate candidates have to raise so much money to run that they become beholden to special interests,” Tea Party members say according to Firestone.  The members ”argue that state legislators would not be as compromised and would choose senators who truly put their state’s needs first.” That in turn would restore checks and balance to federalism, wherein both the state and federal governments would be checked (by the other). This is not just a matter of state rights; rather, it is a matter of a viable federalism instead of consolidation. As Tim Bridgewater, who ousted Sen. Robert Bennett of Utah as the Republican candidate writes, “We traded senators who represent rights of states for senators who represent the rights of special interest groups.” By rights of the states, one can infer an empowerment of the representatives elected by the people of the states.  Such a change would hardly be anti-democratic or elitist; rather, it would reduce the power of the elitism in Washington DC.  A writer ought to be careful in dogmatically writing that something is ridiculous or unthinkable, for the lack of thought could come back to haunt him or her.  It is clear that Firestone is not very open to the possibility that he could be wrong.  The arrogance of centralized power at an empire-level is truly remarkable, even in its press.

Source: http://www.nytimes.com/2010/06/01/opinion/01tue4.html?hp

See American and European Federalism  and Essays on Two Federal Empires, both available at Amazon.

Van Rompuy as the European Council's First Extended-Term President

“In a sense, Europe seemed to be living down to expectations. Earlier, the foreign minister of Sweden, Carl Bildt, warned against a 'minimalist solution' that would reduce the European Union’s 'opportunity to have a clear voice in the world.'"  Olivier Ferrand, president of Terra Nova, a center-left research institute in France, said, “It is quite astounding. . . . It is jaw-dropping. It is the end of ambition for the E.U. — really disappointing.”

I think these are rather extreme positions on the selection of Herman Van Rompuy on November 19, 2009 as the first non-rotated president of the European Council.  Moreover, I don’t think the E.U. is going the way of the dinasaur just because Van Rompuy was not well known at the time of his selection.  He has written six books, is a writer of Japanese poems, has consensus-skills, and seems humble enough.  Would popular election have yielded a better candidate? As the election would have been E.U.-wide, it is doubtful that a high proportion of the voters would have been sufficiently familiar with him to make an informed decision. 

The New York Times continues, “The deal that produced the two choices emerged as a result of backroom negotiations among leaders jockeying for future and more important economic portfolios that could be more powerful in the enlarged European Union, which is still more of an economic union than a political one and looks to remain so.”  However, the E.U. includes a popularly-elected Parliament. Is a parliament not political? Is a parliament not a government body?  Perhaps, moreover, we should simply say that transfers of sovereignty are now economic in nature.

One might ask: who would have a vested interest in perpetrating such a subterfuge wherein governmental institutions, whether intergovernmental (e.g., the European Council) or national (e.g., the E.U. Parliament) are to be portrayed as solely economic in nature? According to The New York Times,  “The leaders of Europe’s most powerful countries, France and Germany, did not want to be overshadowed. Nor apparently did their foreign ministers.”   After the European Council elected Van Rompuy, Gordon Brown, the then-current British Prime Minister who had been pushing for Tony Blair (his precursor), told reporters that the posts are only ceremonial anyway since the state governments are still in control.  However, is Van Rompuy's role in presiding over the European Council merely for show? Is there not power in chairing a political institution? Furthermore, are the heads of the state governments in charge of the E.U. Commission, the E.U. Parliament, and the European Court of Justice? Even within the European Council where the governors of the states sit, qualified majority voting on most issues means that any given state government is not in control. We can conclude that E.U. level officials are not mere gloss on a window, and that the member states have indeed transferred some of their governmental sovereignty to the E.U. Government. Lest is be thought otherwise--that the E.U. does not have a government, there is a saying in English: If it quacks like a duck, walks like a duck, and swims like a duck, odds are it is a duck.  It might be useful to ask why it is in the interest of some that the obvious conclusion be withheld.

My only caveat concerning the selection of Van Rompuy is that the consensus maker was not the sort to make transparent the "duck" subterfuge and denial, which had gone unchecked at the expense of greater European integration. In other words, the E.U. needs its own leaders who can garnish attention for the E.U. itself (i.e., apart from its state governments) because if integration falters, the danger will be dissolution unless or until more governmental sovereignty is transferred to the E.U. As for Van Rompuy's low name recognition outside Belgium at the time of his selection, let’s not forget that few, if any, presidents of the U.S. Senate (the Vice President of the U.S.) have been known at the beginning of their respective terms. Of course, outside of breaking tie votes, the president of the U.S. Senate (whose members are the member states of the union) is more ceremonial than is the president of the European Council.  In fact, senators regularly stand in for the presiding officer when the U.S. Senate is in session, whereas Van Rompuy himself presides over sessions of the European Council.  Also, the European Council is possibly more powerful among E.U. governmental institutions than the U.S. Senate is in the U.S. This is probably so because the state governments in the E.U. have more power at the E.U. level than the American state governments do in the U.S. This could explain why Van Rompuy's position, the President of the European Council, is powerful (because the Council he chairs is powerful) even if Van Rompuy had been an unknown outside of Belgium and was not an attention-getter in the media (e.g., unlike Tony Blair).

Source:

Stephen Castle and Steven Erlanger, "Low-Profile Leaders Chosen for Top European Posts," The New York Times, November 19, 2009.

U.S. Senators: Falling Short in Representing their States

Like the European Council of the E.U., the U.S. Senate has polities rather than citizens as represented members. That is to say, in both cases, the states are represented. In the case of the E.U., the chief executives of the respective states represent them. In the U.S. case, the citizens of the states elect senators directly, who in turn are tasked with representing their respective states. From the standpoint of representing the polities, the E.U. case is tighter, for a U.S. senator is susceptible to the temptation to vote in the interests of the state’s citizens who voted rather than of the state itself. The two interests may overlap, but they are not identical, for citizens of a member-state may or may not be interested in protecting the prerogatives of the state (government). The Republican legislative responses to the Affordable Care Act (i.e., “Obamacare”) are a case in point.

Under the Act, state governments could expand their Medicaid programs to cover anyone with incomes less than 138% of the federal poverty level, with the federal government picking up the tab through 2018 and 90% thereafter. Even Republican-controlled state governments saw that the deal was in their fiscal interests even if it meant giving up some sovereignty in the domain of health-care to the federal government. Nevertheless, a Republican electorate could vote for one of its U.S. Senators based on the sentiment that poor people should not get “free money.” Behind this is a sort of “survival of the fittest” philosophy wherein the weak should not be propped up. Additionally, prejudice or even animosity towards the drudge of society could be in the mix. From a European standpoint, such a sentiment must seem rather odious, and foreign. In any case, the majority of a state’s voters may at some point vote contrary to their state government’s interests. Being selected by the voters rather than the government, who do you think a U.S. senator is going to pay attention to, other than institutional campaign-contributors, in deciding how to vote on whether to retain Obamacare?

On July 17, 2017, Sen. Mitch McConnell, the Republican majority leader in the U.S. Senate, announced that his second attempt to repeal and replace Obamacare had failed for lack of votes. Back in March, the Kansas legislature had voted to expand Medicaid. Nevertheless, Sen. Moran of that state said in July, “There are serious problems with Obamacare, and my goal remains what it has been for a long time: to repeal and replace it.”[1] In coming out against the proposed replacement, he said it “fails to repeal the Affordable Care Act or address health care’s rising costs.”[2] By omission, we can discern from his statement that he was not opposed to rescinding the expansion of Medicaid even though his own state’s government had approved it.

Because the states as polities are members of the U.S. Senate, I submit that a senator’s discretion should not extend to such a point that it goes against the will of his or her state’s government. Accordingly, a state government should be able to direct the state’s U.S. Senators to take particular positions. A senator’s discretion would come into play when a government is of mixed opinion. For instance, the legislative chambers may disagree, or the legislature and governor may differ on the state’s interest on a proposed piece of federal legislation. State governments could of course legislate which offices (e.g., governor) and legislative chambers would have a voice in directing the senators on particular legislative measures before the U.S. Senate. Without such a tie to a state’s government, a U.S. senator could undercut the state’s representation in the U.S. Senate with impunity. This may in part be why the states have lost so much governmental sovereignty to the federal institutions, thus unbalancing American federalism at the expense of its checks and balances in defense of liberty and justice for all.

For more on the U.S. Senate and the E.U. Council, see the book: Essays on Two Federal Empires

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[1] Thomas Kaplan, “Health Care Overhaul Collapses as Two Republican Senators Defect,” The New York Times, July 17, 2017.

[2] Ibid.

Brexit and Calexit: Excessive Democracy?

Ordered by Britain’s Supreme Court to get the state’s Parliament’s approval for the state to secede from the Union, the Prime Minister, Teresa May, faced the prospect of debate, amendments, and the votes themselves in the House of Commons and the House of Lords. In the latter chamber, May’s Conservative Party did not at the time have a majority. Some in her party “suggested that she should quickly appoint enough new lords to give her the votes she needs. But few say they expect that to be necessary: with little democratic legitimacy, the 805 lords are unlikely to dare to block” the referendum outcome favoring secession.[1] I submit that the democratic criterion is ill-fitting to the House of Lords.

The complete essay is at Essays on Two Federal Empires.

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[1] Katrin Bennhold, “Ordered to Seek Approval on ‘Brexit,’ Teresa May Does So. Tersely,” The New York Times, January 26, 2017.

Wallonia Threatens to Veto the E.U.-Canada Trade Treaty: Complicating State Sovereignty in the E.U.

"The European Union and Canada signed a far-reaching trade agreement on [October 30, 2016] that commits them to opening their markets to greater competition, after overcoming a last-minute political obstacle that reflected the growing skepticism toward globalization in much of the developed world."[1] The obstacle may indeed have reflected increasing resistance at the time to globalization, but this veil can be pulled back to reveal the underlying political obstacle--that of states' rights in the E.U., taken to a crippling extreme.

The complete essay is at Essays on Two Federal Empires.

1. James Kanter, "Canada and E.U. Sign Trade Deal, Bucking Resistance to Globalization," The New York Times, October 30, 2016.

Conflicts of Interest in Europe’s Greek-Austerity Impasse

At the conclusion of the European Council session in March 2015, all 19 of the state governors in attendance still wanted the state of Greece to remain with the euro. As for whether Greece should continue its austerity program and reform its economy as per the ongoing agreement on continued bailout funds, the tally was 18 to 1. Although both federal and state officials in the E.U. overwhelming believed that the austerity program had been behind the growth in the Greek economy in 2014, the Greek finance minister and most Keynesian economists disagreed, pointing to the fact that the state had lost a quarter of its GDP under the austerity. Besides this honest difference of opinion on the effectiveness of the strategy, conflicts-of-interest compromise the “club of 18” and thus its position.

The full essay is at "Essays on the E.U. Political Economy," available at Amazon.

The Scottish Referendum: A Political Analysis

Any political analysis of the Scottish referendum on secession from Britain should include not only the Scottish National Party (SNP) and Westminster, but also other large E.U. states and even the E.U. powers at the federal level. Such an analysis may leave the cynic wondering whether the question could even conceivably be decided by the Scots themselves—so much being on the line for state and federal officials and their respective institutions.

I

How much say do the voters really have? Are they actually pawns being moved without their knowledge? Perhaps large vested interests are the real deciders. David Cheskin (AP)

that keeping the British pound would be incompatible with “sovereignty.”[7] I would not be surprised to learn that Westminster was behind this timely warning to the Scots.  

The full essay is at "Essays on the E.U. Political Economy," available at Amazon.

Budget Austerity in the E.U.: Turning the Russian Invasion of Ukraine into an Advantage

With economic growth in the E.U. flat-lining in mid-2014 after a modest recovery, pressure mounted to relax the federal "austerity" constraints on the state budgets. According to The New York Times at the time, "(p)olitical and financial instability related to Russia's confrontation with Ukraine and the effects of escalating economic sanctions between [the E.U.] and Russia have further clouded the economic outlook."[1] Mired in the austerity vs. fiscal stimulus dichotomy, E.U. leaders may have been missing an opportunity here.

With yet another round of sanctions in the works on the heels of a recent Russian invasion and unemployment at a stubborn 11.5 percent, and the threat of runaway deflation hitting wages in particular, the E.U.'s economy looked poised for an ongoing onslaught of stag-deflation. The E.U. "is menaced by long and possibly interminable stagnation if we don't act," Francois Hollande of the state of France warned.[2]  He had in mind some movement along the ongoing relaxation vs. austerity dichotomy in the direction of larger state deficits--something the governor over in Germany was still fiercely resisting. We "really must question whether we can go on receiving less than we spend, so that our debts keep on growing. Indeed," Angela Merkel pointed out, "a whole crisis of confidence has grown out of that."[3] Such a basic imbalance in state finance undercuts the equilibrium that is so vital to the survival of the macro system in the long run.

So, it would appear that the well-worn dichotomy had reached a dead-end, or the proverbial brick wall. I contend that in such a case thinking beyond the either/or strictures is advisable. To illustrate my point, I present a thought-experiment of sorts (i.e., unrealistic, but it gets the point across).

Let's imagine that the president of Ukraine met with the European Council as Russian troops were crossing the border into Ukraine with the eventual aim of separating the eastern half of the independent state from Kiev.

"I come before you with an admittedly unorthodox suggestion," President Poroshenko might have told the Council. "Without a massive infusion of support from the E.U., my country will split apart and Russia will gain the eastern half."

"What kind of support do you have in mind," the Council's Van Rompuy might has asked.

"Well, the sort that would make your fast-track accession process look like a snail's pace," Ukraine's head of state might have replied with a curious grin that told of something very new coming. "Make Ukraine a state; my government will accept all of your conditions without reservation. Send in your Commission's bureaucrats right away to implement the conditions. To protect them, I recommend that you send along military troops from your state militias as well as the small federal army you have. We could even request that U.N. peace-keepers come along. Putin is already in hot water at the U.N. for continuing his KGB tactics as president."

"What if he keeps sending in Russian troops?" Merkel might have asked.

"This is why speed would be so vital, both in Ukraine's accession, which could be of a limited term if that is easier for you, and the influx of bureaucrats and others doing the E.U.'s business and protecting them. Ukraine would agree to the Schengen Agreement on open borders, and I would request that the E.U. attend immediately to the external border--meaning that which we share with Russia. Securing that border has precedent for the E.U., does it not?" In fact, the need to protect the E.U. bureaucrats pouring into the eastern parts of Ukraine with troops from the state armies would mean that NATO would be relevant. This point, if made explicit, could deter Putin from sending in still more military hardware and troops.

"Please excuse us as we discuss this proposal," Van Rompuy might have politely yet curtly told the Ukrainian head of state. After all, the E.U. leaders do their best work behind closed doors. The point is that their minds need not be closed either. Lemons can indeed be made into lemonade.

Even if this scenario is too outlandish to be taken seriously in a world so wetted to the status quo as its default, thinking in such terms "outside the box" could stimulate more realistic policy prescriptions going beyond the austerity vs. fiscal stimulus dichotomy. For example, the notion of troops and hardware from state militias in the E.U. going along to protect federal bureaucrats might prompt an E.U. leader to suggest that the state armies transfer even more to the small federal army of 60,000 troops. Doing so would enable the state budgets to accommodate both more fiscal stimulus and lower deficits as less military spending would be needed. I am assuming the E.U. would pick up the tab for the operation of the added hardware and the salaries of the additional troops. From the perspective of the E.U., the shift would mean less duplication. How likely is it really that Belgium and Portugal, for example, would need to use their respective armies anyway? In the context of continued stag-deflation, such nationalist luxuries are difficult to justify, especially considering the opportunity cost in terms of stimulating the economy.

In short, the E.U. need not have faced a future of stagnation. Ideas hitherto undiscovered can indeed have great value in practical results. The key is to think beyond the confines of what are presumed to be the only possibilities. The human brain has a tendency to shrink the possible in a way that cuts off many potentially fruitful possibilities without any recognition of doing so. The advisable condition of receptivity is to welcome such ideas into the public discourse rather than going with the knee-jerk reaction of "that's too radical!" or "that would never see the light of day." We might be surprised what could see the dawn and beyond.

1. Liz Alderman and Alison Smale, "Divisions Grow as a Downturn Rocks Europe," August 29, 2014.
2. Ibid.
3. Ibid.