After the Empire Collapses

Entry for September 30, 2007

This lady is clearly a realist. I concede to her analysis.

http://www.lewrockwell.com/kwiatkow ski/kwiatkowski1 92.html

In the future I will address my electoral discussions to how a post-imperial republic could be structured. That period may not be so far away if the global fiat money system collapses. One thing is a near certainty: the Empire cannot be voted out of office with ballots.

So, it is not too soon to consider how, and to what extent, new political entities could emerge that would be republics in North America based on a common residual culture.

One should not hope to reconstitute or "restore" the United States as it formerly existed at any time in the past. It was fatally flawed from conception and died because of those genetic flaws. We can learn from the autopsies that are being performed on the corpse.

The Republic is dead. Let's begin to consider alternatives. Like just how limited in power can a republic be? Why shouldn't individuals have memberships in multiple republics? How might compacts to facilitate free trade among republics be negotiated? What if a defense compact among many republics in North America could provide mutual security and avoid the danger of a unitary military state?

All empires collapse because their ambitions atrophy the means to fulfil those ambitions. Or, imperialism bleeds the golden geese until they can no longer produce golden eggs. But the empire dies before the all the geese do.

Bi-partisan bias for unitary government

Hidden Controls Over the Citizens Choices in Elections

Because national and state elections have been unified in time for so long and because the states do have concurrent jurisdiction with the Congress to administer elections, the constitutionality of many elections practices have gone unchallenged. This negligence has allowed partisans to entrench themselves in power by manipulating election rules to their advantage and suppressing voter sovereignty.

The question I raise here is this: Can a State using its authority to police the initiative petition process (on an issue which affects only State government - term limits- tailor that police power so broadly as to also restrict access the initiative on an issue which affects the rights of U.S. citizens to vote for national offices (Congress and President)?

The question directly implicates the principle of federalism in the American system of dual, and sometimes dueling, governments.

In reading, Judge Leonard's decision in Yes on Term Limits v Savage, it is clear that this question could not be raised. However, there is another initiative petition in circulation sponsored by a coalition of parties seeking the restore the rule which bars access to the ballot to requiring only 5,000 signatures - the standard used from 1924 to 1974.

In Oklahoma circulating a petition to access the ballot does not require the petition circulators be voters in Oklahoma. Given the rulings of the Oklahoma Supreme Court and Federal Judge Tim Leonard in YOTL v Savage, one can anticipate that such a requirement will be added by the legislature to ballot access petitioning as well.

To my knowledge, the present initiative on ballot access reform is not using circulators who are not residents of Oklahoma and they are therefore complying with the existing law affirmed by Judge Leonard.

But are the ballot access initiative proponents wrongly assuming that the YOTL v Savage rule also applies to them?

It may not be so clear. The ballot access initiative seeks to allow U.S. citizens residing in Oklahoma, in their capacity as U. S. electors in a national (and federal) election to vote for both state and national offices. Can the State interpose itself to prevent U.S. citizens from exercise their national suffrage rights? If Oklahoma does not apply the rule requiring resident petition circulators to ballot access petitions, can it apply the more restrictive rule to an initiative which seeks to reduce the requirements for ballot access?

What this line of analysis reveals, I hope, is that the real petition requirement for ballot access in a state is as high the U.S. Supreme Court will tolerate. But in states which have the initiative, the right of citizens to lower that barrier below the U.S. Supreme Courts tolerance level can be stymied by the higher signature threshold for initiatives over ballot access petitions. The consequence is that partisan control of state legislatures is used to entrench control of national offices. In other words, in states which have the initiative, the people are restrained from opening the ballot more than the Supreme Court will allow because the state legislature is further insulated behind the barriers to an initiative.

In short, if you can keep your opponents off the ballot for state office, then you can keep them off the ballot for national offices also and you can use the power to 'police' the initiative process to fortify your partisan control.

The Constitution clearly indicates that states must have a wide latitude to conduct their own affairs, but only so long as state actions do not impair the rights of citizens to exercise their power to control the national government. What has happened is that a long period of control of both the national and the state governments by the same partisans has enabled them to entrench themselves with state laws which also protect their control of the national government. This possibility was not sufficiently addressed by the framers. It continues to remain insufficiently resolved because their is now a unitary bi-partisan government bias against federalism at all levels state and national. The language of the U.S. and state constitutions retains a clear federalist intent. Much devious circumlocution is required to sustain entrenchment of the unitary bi-partisan ideology.

Novel Ideas

Entry for September 18, 2007

Conspiracy? Conspiracy? Only petty criminals conspire.

It would useful for the reader to consider this first: Black Ops: Conspiracy and 9/11
http://www.lewrockwell.com/wilson/wilson26.html

The author in the referenced article disbelieves complicity by Americans in 9/11 because they are too dim-witted to conceive the idea. Maybe, but they are not to dim-witted to read Tom Clancy and extrapolate.

What I find so anomalous is the continued apparent career of Osama Bin Laden. It's almost as if the U.S. has created and sustained a bogey man with superhuman abilities of evasion and escape or the U.S.government is capable of inflicting genocide anywhere any time on any group, but it cannot kill just one person that the U.S. claims is justified by Presidential edict alone. Such a person as Bin Laden must therefore be pardonable by secret Presidential edict alone.

Perhaps, that is why Bin Laden appears to soldier on. Or he may be dead, but his image is too useful to let his death be discovered. So we may be receiving messages from a virtual Bin Laden F/X. If Bin Laden still lives, he may be living quite comfortably and securely in Saudi Arabia. If Bin Laden is dead, his body may lie in a secret but honored place in the sands of Saudi Arabia. And if should ever become necessary, he remains will be 'found' and verified by 'experts' that he died just his cover story says he died. A man whose great service was to be publicly reviled in Western history and secretly honored by his co-conspirators.

Now, if all this was embellished with names altered and told as fiction by a talent like Tom Clancy, then millions would enjoy the yarn as harmless. But what would become of a real life Jack Ryan who decided to blow the lid off a real life conspiracy?

You can steal this plot line for your own novel. I already have a better one.

Death of the Dollar

Entry for September 14, 2007

The value of the U.S. dollar has declined about 96% from its value in 1910. It is now approaching a record low against other major currencies.

The value of the dollar has been the responsibility of the Federal Reserve since 1913. It seems obvious the Fed has failed to preserve the dollar.

It is not possible to take political action against the Fed, it is too well entrenched behind the full armed might of the U.S. government. The individual is not powerless however, It is still possible to speculate against the Fed. The time may well have come to do just that because the Fed has almost nothing of value (the dollar and the credit of the U.S.) to support it. They have almost no margin left.

The reserve currency of the world's central banks is nearly worth zero.

I leave it to the reader to explore this issue further for opportunities.

Commentary on an indirect ballot access case

Entry for September 09, 2007

The case discussed here was decided in Federal Court in Oklahoma City. You can read the entire opinion by Judge Tim Leonard see here.

Excepts appear in quotes. This case, while it addresses an initiative to place term limits om state offices, bears directly on the effort to circulate an initiative to open access to the ballot for new political parties in Oklahoma. The Judge's ruling bars non-resident circulators for this organization and apparently also the ballot access initiative petition. It is not known whether this decision will be appealed to the 10th Circuit by the plaintiffs.

YES ON TERM LIMITS, INC., et al., )
)
Plaintiffs, )
)
v. ) No. CIV-07-680-L
)
M. SUSAN SAVAGE, individually and )
in her official capacity as Oklahoma )
Secretary of State, et al., )
)
Defendants.

"Prior to 1969, Oklahoma imposed no qualifications on petition circulators. Oklahomans for Modern Alcoholic Beverage Controls, Inc. v. Shelton, 501 P.2d 1089, 1092 (Okla. 1972). Beginning that year, Oklahoma law prescribed that petition circulators be qualified electors of the State of Oklahoma and imposed criminal liability on persons other than qualified electors who circulated petitions." (pg 3)

What was the rationale (motivation) of the Legislature for imposting the ban? Not discussed in the opinion of the court and apparently not raised by the plantiff's attorneys.

"It shall be unlawful for any person other than a qualified elector of the State of Oklahoma to circulate any initiative or referendum petition to amend, add to, delete, strike or otherwise change in any way the Constitution or laws of the State of Oklahoma, or of any subdivision of the State of Oklahoma . . . . Every person convicted of a violation of this section shall be punished by a fine of not to exceed One Thousand Dollars ($1,000.00), or by imprisonment in the county jail for not to exceed one (1) year, or by both said fine and imprisonment. 34 O.S. § 3.1." (pg 3 footnote)

The Secretary of State is charged with responsibility to enforce this requirement the petition was circulated by lawful resident circulators. The SoS does not verify the validity of the voter's signatures, the (Oklahoma) Supreme Court is charged with administering the validity and sufficiency of the signatures.

Also, any citizen of the state can protest a petition or to object to the Secretary's signature count by filing a written notice with the Oklahoma Supreme Court. Interesting.

"Moreover, the court finds Rittberg's and Ferrell's alleged fear of prosecution under § 3.1 is not credible given Rittberg's prior campaign in Oklahoma and Ferrell's lack of knowledge of any criminal penalties. Tr. at 107. In short, plaintiffs have not sustained their burden of demonstrating they have standing to contest the constitutionality of the criminal penalties associated with Oklahoma's residency requirement for petition circulators." (pg 9)

The plantiff's ignorance or avoidance of potential criminal prosecution serves as
an excuse to the court to ignore addressing the constitutionality of the criminal jeopardy in this case. Curious. One must actually violate the law and be prosecuted to gain standing to contest the law.

However, to contest the validity of a petition one need only be a resident of the state to have legal standing and presumably bring a criminal complaint against non-resident circulators.

However, the court was willing to grant the defendants limited standing on the civil issues.

'The First Amendment to the United States Constitution, which was made applicable to the states pursuant to the Fourteenth Amendment, prohibits the State of Oklahoma from abridging the freedom of speech. See U.S. Const. amend. I, amend. XIV. Circulation of initiative petitions "is `core political speech,' because it involves `interactive communication concerning political change.'" Buckley v. Am. Const. Law Found., Inc., 525 U.S. 182, 186 (1999)." (pg 11)

Now we come to the core of the case: Is the State of Oklahoma in compliance with the U.S. Constitution under Amendments I and XIV? In such First Amendment cases the courts discriminate on whether the case passes the "strict scrutiny" test.

"[s]trict scrutiny demands state regulations "impos[ing]`severe burdens' on speech . . . be narrowly tailored to serve a compelling state interest." Strict scrutiny is applicable "where the government restricts the overall quantum of speech available to the election or voting process. . . . [It] is employed where the quantum of speech is limited due to restrictions on . . . the available pool of circulators or other supporters of a candidate or initiative, as in ACLF and Meyer."" (pg 11)

The intricacies of "strict scrutiny" and "compelling state interest" cannot be addressed here. Suffice it to say that they amount to an allegedly higher standard than "necessary and proper".

"By limiting petition circulators to residents only, Oklahoma has restricted the available pool of circulators, particularly professional circulators. The court thus finds the residency requirement is subject to strict scrutiny." (pg 11)

Footnote 11 to pg 11: "Indeed, the United States Supreme Court has recognized "there must be a substantial regulation of elections if they are to be fair and honest and if some sort of order, rather than chaos, is to accompany the democratic processes." Storer v. Brown, 415 U.S. 724, 730 (1974)."

What is unquestionable in courts is that "some sort of order" is indispensable for fair and honest democratic processes. That is the fundamental issue: What kinds of 'order' are sufficient to produce fair and honest elections as opposed to the kinds of order that simply entrench power and stifle democratic processes?

This more fundamental was not raised.

"Defendants" (the State) "contend that "Oklahoma has a compelling interest in [1] preventing fraud and policing and maintaining the integrity of its initiative and referendum" and "[2] restricting the process of self-government to members of its own political community." Defendants' Supplemental Trial Brief at 3, 5 (Doc. No. 41)." (pg 12)

Contention [2] is is rich in its implications. But the court opinion avoids it. Perhaps because it would raise 'novel' arguments and difficult legal analysis.

"The court finds that Oklahoma has a compelling interest in protecting and policing both the integrity and the reliability of its initiative process. See Buckley, 525 U.S. at 191 ("States allowing ballot initiatives have considerable leeway to protect the integrity and reliability of the initiative process, as they have with respect to election processes generally."); Chandler, 292 F.3d at 1241. The integrity of the petition circulators themselves is critical to that process." (pg 12)

The court finds contention [1] is a sufficient basis for its decision and does not address contention [2] at all. The remainder of the opinion is a discussion of the merits of Oklahoma's version of order to police the circulation of initiative petitions as meeting the test of strict scrutiny and compelling state interest under current constitutional legal doctrine.

The plaintiffs lose.

Returning to contention [2]"restricting the process of self-government to members of its own political community."

In a federal system doctrine there are two partially overlapping political communities (state and national). The configuration of that overlap has been the most contentious issue in American political history.

Most elections in the United States fall in that area of overlap. That is, when Oklahoma citizens exercise their rights as members of the Oklahoma political community they are also exercising their rights as members of the national political community. Most of our elections are simultaneously dual state and national elections.

To the extent that the same processes of procedure and administration are applied to both elections, the supremacy of the U.S. Constitution must apply and that means citizens who are exercising political rights OTHER THAN VOTING OR SEEKING ELECTION TO OFFICE in a State must be treated equally as U.S. citizens (I and XIV Amendments). This reasoning appears to be novel.

On this reasoning I contend that the judge got it wrong, at least because the proper issues were not raised. Why not? The legal profession is inherently constrained to acceptable doctrines. These constraints make litigation which challenges acceptable doctrine extremely risky and provocative. Few capable attorneys have the guts for it and the economic incentives.

This reality makes direct political action even more critical. Even direct political action that challenges the judiciary itself. Why target the State Supreme Court Justices who are open to public accountability at the polls (in Oklahoma)? To encourage their colleagues to rethink their habits of thought. It's to make them "feel the heat to see the light."

Furthermore, on the level of practical politics it is far more difficult and obviously self-serving if courts avoid applying very strict scrutiny to restrictions on campaigns directly aimed at unseating them.

Federal judges are unreachable except indirectly though election to national office of members of Congress, Senate and the Presidency. Restrictions on attempts at political reform to open up access to these national as well as state offices necessarily implicates who shall serve on the Federal bench. Hence, State election administration and processes coordinate control of both states and the national government.

Suppression of initiatives which bear on elections in those states which have that constitutional process directly affect elections to national offices in those states.

The decision of the Federal Court in this case directly impaired an effort to enact term limits for Oklahoma state offices only. However, the application of the Judges reasoning does not differentiate between a strictly state application for that "political community" and its application to the "political community" of Oklahomans in the capacity as citizens of the United States. The court did not address this aspect of the case even though the defendants opened the door in their brief.

We infer Judge Leonard wanted to decide the case by the most narrow and conventional doctrine possible. Lawyers who must face such judges are half gagged when they try to argue their cases.

In conclusion, the initiative for more open ballot access should be exempted from this case precedent by applying strict scrutiny and voiding its application to their petition and allowing non-resident petition circulators as legitimate for any citizen of the United States.

Of course, if these issues were raised in a similar case before Judge Leonard he might agree. Just because the door (contention [2]) was open to him and he didn't explicitly slam it shut leaves the Judge or another Judge a way out of a conundrum.

Where's the Model Election Code?

Entry for September 05, 2007

Customs serve as implicit multilateral contracts
which form a framework to facilitate other more
specific human actions. Elections are social
customs. There is no universal, best or ideal
model for conducting elections. There are superior,
better practices and inferior corrupt practices
in the context of social custom.

Elections are intended by the participants to
minimize social friction. Elections are
supposed to lubricate the inevitable conflict
between coercive authority and voluntary
cooperation. Two very dissimilar realms of
social custom.

The official act of voting in the United States,
for many citizens, constitutes their only
participation in government, and it is
fundamental that elections are conducted with
all possible evidence of integrity. However,
State control of elections constitutes one of
the most difficult problems to solve in the
application of democratic theory and custom.
It is clear that current election laws are
seriously defective. This study will focus
on the analysis of electoral friction and
propose alternatives to current legal rigidities.

I began this research project by querying
for model election code. Curiously, the only
one I found is from 1934! Has no one attempted
to construct a template for a state election
code in nearly 75 years? Apparently not.

The 1934 model code is interesting as a
snapshot of political science thinking
of that era. Excerpts from the report
presenting that Code appear in italics.
In this discussion we shall use the term
“bipartisan” to indicate the two largest
political organizations – traditionally
Democrats or Republicans, but that could
vary under local circumstances. For example,
some other parties could be the
bipartisan elements in a precinct like the
Libertarians and the Greens together
outnumbering either the Republicans or
Democrats.

Excerpts from the 1934 model code appear
in italics.

Every investigation or election contest
brings to light glaring irregularities,
errors, misconduct on the part of precinct
officers, disregard of election laws
and instructions, slipshod practices, and
downright frauds. The entire country
has been shocked from time to time by the
revelation of wholesale election
frauds.... Competent political observers
report that election frauds are ...
are widely prevalent.... Even these election
scandals and the slipshod administration
revealed by election recounts do not indicate
the real state of affairs which prevails
generally in election administration. The
truth of the matter is that the whole
administration- organizations, laws, methods and
procedures, and records-are, for most states,
quite obsolete. The whole system, including the
election laws, requires a thorough revision and
improvement. 1 (Emphasis added.)

Some things just go on and on it seems until,
and if, someone notices.

 
There should never be the slightest question
about the integrity of the ballot box or doubt
cast upon the honesty of the elections. It is
hardly necessary to point out that the presence
of election frauds and sharp practices will
undermine public morale and interest in civic
affairs more quickly than any other condition.
The existence of election frauds is an unfailing
sign of bad government, for frauds cannot be
perpetrated upon a large scale except by a powerful
and corrupt political organization, willing to go
to any length to maintain its control over the
government, and able to afford protection
to those who corruptly carry out its orders.
Fraudulent elections cannot be tolerated by
any self respecting community. Fair elections are
absolutely essential to good government, but do not,
of course, guarantee good government.2
(Emphasis added.)

After three-quarters of a century that does seem
rather evident, but when did we get to the point
of "fair" elections to test that assumption?

The right of the suffrage is an empty formality
where election frauds prevail. Public opinion,
civic interest, and efforts to elect capable
officers and to secure good government are of
no avail in the face of a powerful political machine,
able and willing to corrupt the elections.3

Here we discuss only the administration of
balloting at the point when the ballot is cast by
the voter and exclude consideration of pre-election
bipartisan rigging of the ballot.

There should never be any question about the
accuracy of election results. The returns should
be as accurate as the accounts of a bank or of any other
commercial institution. Would banks or other commercial
or business institutions be willing to operate on the
theory that one error will be offset by another? The
truth of the matter is that our elections at present are
conducted in such manner that errors and inaccuracies
are inevitable,.... 4

Hence much of the focus on regulating the pre-election
campaign showmanship and financing while ignoring the
business end – the ballot and ballot counting.

At the present time inaccuracies are the rule rather
than the exception in election returns. Recounts produce
different results from the original count in practically
every precinct, and the variations are sometimes startling.5

Of course, one proposed solution is to make recounts
moot by just re-tabulating the tabulation in question.
An ephemeral (electronic) ballot is no ballot at all.

A cardinal principle of election administration at present
is that of bipartisanship. It may be observed in the
election statutes in every state in the Union.6

This bipartisanship is the quintessential characteristic
vice of U.S. election administration.

The bipartisan principle results in our elections being
controlled by the very elements of society most bent upon
winning the election - the bitter partisans whose livelihood
may depend upon party victory. Common sense would dictate
that such persons should be debarred from having
any control over elections, but under the bipartisan
theory it is necessary to "set a thief to watch a thief."
Unfortunately, thieves may make bargains. The supposed
opposition of the two leading political parties is little
more than a farce in many large cities. The minority
party is often the tool of the majority party.7

It is obvious that the worst possible procedure is to place
the selection of election administrators in the hands of
the dominant political organizations. It is foolish to expect
honest elections when the very persons who would profit by
fraud control the machinery of elections.

The superior alternative is empanel a jury by lottery from
the large pool of voters who are not government employees
or officials at the precinct level to oversee the conduct
of an election. The term of service for such juries should
be for one election only over a span of days or weeks
- not months. 

This would place original jurisdiction over elections
closest to the voters. Selection by lottery at the
precinct level assures a rotation in office beyond
the control of professional politicians. In a precinct
election jury a significant number of independents and
other party voters would secure oversight along side
the “bipartisans”.

How large should a precinct jury be? Any odd number seven
or larger depending on the precinct size.

How large/small should a precinct be? A minimum is easer
to establish than a maximum. A precinct of only 300 voters
may have a turnout of only ten or fifteen percent in some
elections. This makes the secrecy of the ballot problematic.
But the use of a seven member election jury seems
unjustifiable for such a small precinct. I suggest a
one percent rule, that is, a seven member precinct jury
requires a precinct of at least 700 voters minimum. On the
other hand a precinct jury should not be larger than 11 members.
Therefore, the maximum size for a precinct would be about
1100 to 1200 voters. This would apply to precincts in urban
or suburban communities generally. The only exceptions should
be for very small and relatively isolated rural communities
with fewer than 700 voters. It is entirely possible or even
likely that bipartisans would still dominate a jury in such
small precincts. But an “affirmative action” provision might
require that no more than a majority of such a jury is bipartisan.

1 Model Election Code by Joseph P. Harris, Prof. of Political Science,
University of Washington, 1934; Institute for Government Research
Studies in Administration No. 27, The Brookings Institution,
Washington, D.C. 1934
2ibid
3ibid
4ibid
5ibid
6ibid
7ibid