The Blagojevich Scandal: A Call For Change

Originally Published for the MoBlog

The indictment and arrest of Illinois Governor Rod Blagojevich is yet another example of a broken system of government where the opportunities for real change are impeded by the corrupt ambitions of a few. The FBI audio recordings which will no doubt be played at a forthcoming trial provide substantive evidence to those who argue that they no longer live in a country whose government is responsive to their needs. Further, the Governor’s refusal to resign, even when faced with near-certain impeachment by the State Legislature, shows that elected office has become an institution mired in its own self-gratification and isolated from the needs of the people it is structured to service. It is easy to look at the Blagojevich Case and decry the damage that it does to the present state of our Democracy, at what we already know is a critical state. As Bob Edgar, President of Common Cause, said yesterday, “It is always disheartening to see elected officials appear to veer off the path of the public interest that they pledged to serve.”

Although it is harder to do, the case is also, more importantly, a compelling example for citizens to become engaged, demanding that their elected officials be agents of change, accountability and leadership. As Millennials, we are uniquely positioned to leverage our social networks through new and evolving channels of information to demand that our democracy be upgraded.
Coming just a month after a historic election that produced, for many, a hope that America would return to a road of progress, the news from Illinois this week show that the work ahead will be difficult and that change will only come through cooperative efforts. For many Millennials, who voted for the first time just four weeks ago, it is frustrating to see the promise that was associated with the presidential campaign still be far off in the future.

Yet just as campaigns are won and lost on the grassroots effort, so too is our theory of Democracy 2.0, our Millennial-generated plan to upgrade the process of American governance. Beginning at the local level, individual citizens identify problems affecting their communities. Once problems are identified, they must engage in conversations searching for innovative solutions, and then these solutions must be implemented, assessed and adjusted as necessary. The ultimate vision for Democracy 2.0 rests with the institutionalization of this process within the framework of every level of American governance.

As Millennial leaders, we are compelled to not let egresses examples of corrupt abuses of power deter us from advancing our cause or suppressing our voice. Joining together, we will demand our elected leaders uphold their office to the highest standards possible. The first way to begin this process is by dialogue and we encourage you to become involved and engaged through the channels that Mobilize.org offers on our blog, website and other online networking sites. Offline, the conversation of bringing Millennial-generated change will dominate our forthcoming grant summit, Constitutional Convention: Building Democracy 2.0, where teams are invited to summit project proposals and compete for funding. For more information, visit www.democracyupgrade.com.

Concluding Thoughts on Article 1 Section 6

Continuing the ongoing discussion on the Constitutional Convention: Building Democracy 2.0 Blog, www.democracyupgrade.com, here are some concluding thoughts on the mertis of Article 1 Section 6 as it relatest to the nomination of Hillary Clinton as the 67th Secretary of State.

In my closing argument, I find it necessary to once again present a rebuttal for the limited and restricted view that my colleague has continually taken with regards to Article 1 Section 6 and the Saxbe Fix through the course of this argument and, more broadly, to defend those who argue for historical precedence as a precondition for appropriate Constitutional application against charges of destruction of our revered Founding Document. Concurring with Shakespeare’s statement on brevity, I will attempt to keep this summation as short as possible.

The argument is one of a specific Constitutional detail but it has to be seen as a greater debate over the interpretation of the Constitution as a whole and the two viewpoints that have existed since the early days of the Republic. On the one hand, there are those who view the Constitution as the framework of an infant nation that lives and breathes as it guides throughout American history, a prerequisite that allows for sections that become outdated and not applicable in certain circumstances to have the force of law applied in a different way than at other circumstances. On the other hand, there are those who view the Document as absolute, having to be strictly constructed and applied consistently. Those who argue for appropriate application do so not through one person or one situation but rather as a result of the compelling, compounding forces of history which we believe dictate and drive the Constitution to be applied with the same intent in all circumstances. We view the Constitution as having a greater flexibility but, as the argument in this circumstance has shown, take this power-- that we believe comes from the document-- very seriously. Ones belief about the Constitution as a whole constitutes how they form opinions about how to proceed in the circumstance that currently exists with regard to the nomination of Senator Clinton as Secretary of State.

Therefore, we examine the issue of the Emoluments Clause, “No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been increased during such time…”

My colleague argues for a literal interpretation of the Emoluments Clause whereby “it does not matter how such Emoluments were raised…all that matters is the fact that they were raised.” My fundamental disagreement comes here, where I believe it is essential to look at the intent of the Founder’s in inserting the Emoluments Clause, to derive any tests that develop and to apply those tests to this situation.

It was the founder’s intention to limit corruption and prevent it from crossing from the Legislative Branch to the Executive Branch, by the building of a wall of separation between them through the prohibitions in Section 6’s language. The second part of that statement is important to understanding why it is so important to test this clause—because through the course of American history, that wall of separation has eroded, bringing with it a question as to the validity, necessity and actual enforceability of this provision. This is an important prerequisite to our return to comparing original intent with this circumstance.

As a means to prevent corruption by disallowing a member of Congress from creating or increasing the pay of an office that he intends to be appointed to, this clause fails to apply to the current nomination. Reasons include the real-world negligibility of the increase (we will return to that in a minute), the fact that the increase occurred by Executive Order by a President of a different political party than his successor, and the nominee, and the length of time between the increase and the nomination. Further, as an ode to the original intent of the Founder’s to prevent corruption and in recognition that there may come a time in the future when the Section will be needed to prevent corrupt abuses as was outlined, the Congress has proposed to go on record and remove any appearance of impropriety by lowering the salary increase to the level that it was before the Senator took office.

Second, my colleague puts forward a second objective of the Founders’, one that is much harder to quantify, but which also fails when tested against the current circumstance. The nomination does not do anything to expand the size of the federal government and nor does it provide an incentive for members to expand the size of the bureaucracy in the future. The argument that by increasing the salary for a position you are increasing the amount of capital output on the federal balance sheet and thereby increasing the size and scope of the government is a failing argument. Further, looking and recognizing the compounding system that has developed for presidential nominations and appointments, it is archaic to argue that lawmakers are hesitant to create new offices because they would be disqualified from assuming that position. Even if it was a concern of the founders, it is not the way that the process has developed—another reason why this section should be subject to greater tests than, say, other sections of the documents whose original intention are consistent with their intention today.

There is one other critical element to explore in relation to Article 1/Section 6—the meaning of what an “encrease” is. A literal view may look strictly at a numerical increase in the total salary. It is not outlined in the Constitution, however, whether the Founder’s would consider an increase to be an additional reward for services rendered. In which case the cost of living increase, derived by formula, simply adjusts the level of salary to real-world levels, cancelling any changes out in the process. The argument could then be made that the Saxbe Fix goes above and beyond what is necessary and is further evidence as to how the fix is a tremendous recognition of the original intent, past necessity and possible future—for a clause which does not apply in this situation.

Seeing how the nomination fails both tests as outlined through the intent of the author’s, and seeing how the application of this section should be considered differently, allowing for the historical evolution to modern circumstances, it is not fair to just conclude that “different people at different times interpreted the document differently, especially for their political ends.” Instead, a concurring opinion has developed to apply this section of the document in an appropriate way following its original intention without regard for a political end save the benefit of expediency. Further, how is it possible that if the intention of even the smallest detail within the Constitution is treated with great respect and recognition, even though it is no longer directly relevant, that it threatens the integrity of the document as a whole? Wouldn’t the country be threatened more if an impediment established for means that do not existed proved to be a roadblock towards progress?

I believe that it was the further intent of the Framers to purposely engage the country in the type of dialogue that my colleague and I have started on this blog. They purposely did not spell out every circumstance in which their text would be questioned or provide any overarching guidance as to how to answer those questions. Thus they accounted for the fact that the People, or the People’s representatives would debate and draw a conclusion—and trusted that this resolution would be stronger than any additional layer they could draw to the Framework they had established.

It was indeed a pleasure to go through this debate with Mr. Troiano this week; it is our joint hope that we have raised issues, concepts and interpretations that are important in our national dialogue and, further, that we can use this platform, as well as those at the upcoming Constitutional Convention to continue that discussion to build a more perfect Constitution and an upgraded Democracy.