Poligags :: America's Fix Tank


Month: August, 2015

Larry Lessig is Brilliant – But His “Referendum Candidacy”..?

Lawrence Lessig is an ivy league professor, political activist, and amazing mind. He helped define Internet law and was on the founding board of Creative Commons. He has sought to correct campaign finance inequity through his Mayday (Super) PAC’s influence, helping to elect those who would advance campaign finance reform legislation. Recently, he announced plans to possibly run for the presidency in 2016 as a “referendum candidate”.

Lessig’s Plan

Lessig’s attention is laser focused on fixing the rigged electoral system first, recognizing this fatal flaw as the one from which other national woes originate. Lessig would run for president and his candidacy would be a referendum. If elected, the theory holds, a mandate supporting that referendum will have been achieved.

The Election

The referendum presidency would exist solely to pass the Citizen Equality Act of 2017. Once that goal has been achieved, Lessig would quit and turn the balance of his term over to his VP.

Before any of this can begin, however, Lessig needs to bank $1 million by Labor Day (which will be returned to donors if the threshold isn’t met). He raised $150,000 by the end of the day after he announced.

The Citizen Equality Act of 2017

Lessig proposes – or, more accurately, proposes to propose the Citizen Equality Act of 2017. According to his website, if the million dollar goal is met by Labor Day, he will “crowdsource a process to complete the details of this reform, and turn it into proposed legislation by January 1. In other words, he’s got nothin’ right now.

However, that “nothin’” consists of three fundamental parts:

The Equal Right to Vote – at present, this consists of the Voting Rights Enhancement Act of 2015 (S. 1659), which would amend the Voting Rights Act, and the Voter Empowerment Act of 2015 (HR 12), which amends the National Voter Registration Act.

Equal Representation – achieved through the termination of gerrymandered districting, with the Fair Vote plan serving as the model to achieve equality.

Citizen-funded Elections – it is proposed that some hybrid of the Government by the People Act (HR 20) and a plan floated by Represent.US (which does not appear to have been introduced yet) be drafted.

At present, none of these challenge the concept of corporate personhood or would overturn Citizens United and cases associated with it. To accomplish that requires that either the Supreme Court reverse itself or a constitutional amendment be passed and ratified by the states.

So What’s Wrong With The Plan?

Wrenches in the ‘Works’

The Presidential Bid – Lessig appears to be running as the personification of the referendum he proposes. This country elects presidents, not referenda, with the victor ultimately decided by the Electoral College.

Likewise, he will choose his vice president with a little help from those who “vote” via https://lessigforpresident.com/vote4vp/ There is no means for determining whether those who “vote” via the website are eligible voters, which calls into question the legitimacy of such an “election”. Nevertheless, Lessig’s choice would succeed him upon his stepping down.

The US Constitution says that the President and the Vice President are chosen separately; in practice, however, they are chosen together. In the event that a vice presidential choice fails to receive an Electoral College majority, then the Senate selects the VP. Lessig’s plan appears to be outside of this legal framework.

A National Referendum – A referendum is a right reserved to the people to approve or reject an act of the legislature, or to approve or reject legislation that has been referred to them by a legislature. Referendum power is derived from a state’s constitution; people do not have the right to challenge federal legislation by referendum. Likewise, the Constitution does not provide for a national initiative.

The subject of initiatives and referenda (I&R) is addressed by the I&R Institute, which says “[t]here have been two distinct approaches to obtaining a national I&R process in the United States. One is working through the states and the other is by getting Congress to pass an amendment establishing the initiative process.” In other words, a constitutional amendment proposed, passed and ratified in accordance with Article V of the Constitution would be a prerequisite.

Article II, Section 1, Clause 8 of the Constitution

Should Lessig’s referendum candidacy be successful, he hopes to be in office for a mere day, have Congress approve his Act, and allow him to step down. Given their record over the years, this single-day scenario is unlikely. So what of the nation’s other business while Lessig waits for his Act to move through both chambers? In an August 19 interview with Rolling Stone, Lessig said he “has to convince the public that, in the case of something extraordinary, they could act as a kind of leader that the nation needs at the time of crisis. That tepid response does little to inspire confidence.

Existing Legislation and Candidates

As noted, the as-yet-written Lessig plan is a patchwork of existing and proposed legislation. One of the declared candidates for president already introduced legislation that would overturn Citizens United; the other bills mentioned above can stand, be amended and pass or fail on their own merits. Lessig, through his Mayday PAC, could advocate for the advancement of any or all of them.

© 2015 Poligags


UPDATE (September 8, 2015) – Lessig achieved his million-dollar goal over the Labor Day weekend, and officially announced.

Are Anti-immigrant Republican Candidates “American Enough”?

It started when then-Senator, Barack Obama first ran for the presidency: the “birther” movement was born. People of this mindset sought to prove that Obama did not meet the constitutional mandate of “natural-born citizen” in order to have him declared ineligible to run. Once elected, however, the focus shifted to removing him from office.

The 2016 campaign started off relatively quietly. Recently, though, in part because immigration is a key issue in the race and because of the expansive field of candidates, the birthers have re-emerged. Some have indicated that FOUR Republican candidates are actually ineligible because they are not, somehow, “American enough”: Cruz, Jindal, Rubio and Santorum.

Where do they get this notion? Our research showed that a significant number of them cite a 1758 text by a Swiss author (Vattel), titled Law of Nations. According to The Free Dictionary’s law dictionary, “[i]t is a system of rules deducible by natural reason from the immutable principles of natural justice, and established by universal consent among the civilized inhabitants of the world”. The birthers believe that it expressly instructs them as to who may become POTUS. This, despite the book having been written before the U.S. became a country.

So who is a citizen? The US Constitution (14th Amendment) says: All persons born…in the United States…are citizens of the United States… This has been further codified in 8 USC § 1401, which says:

The following shall be nationals and citizens of the United States at birth:
(a) a person born in the United States, and subject to the jurisdiction thereof;

(b) a person born in the United States to a member of an Indian, Eskimo, Aleutian, or other aboriginal tribe…

(c) a person born outside of the United States and its outlying possessions of parents both of whom are citizens of the United States and one of whom has had a residence in the United States or one of its outlying possessions, prior to the birth of such person;

(d) a person born outside of the United States and its outlying possessions of parents one of whom is a citizen of the United States who has been physically present in the United States or one of its outlying possessions for a continuous period of one year prior to the birth of such person, and the other of whom is a national, but not a citizen of the United States;

(e) a person born in an outlying possession of the United States of parents one of whom is a citizen of the United States who has been physically present in the United States or one of its outlying possessions for a continuous period of one year at any time prior to the birth of such person;

(f) a person of unknown parentage found in the United States while under the age of five years, until shown, prior to his attaining the age of twenty-one years, not to have been born in the United States;

(g) a person born outside the geographical limits of the United States and its outlying possessions of parents one of whom is an alien, and the other a citizen of the United States who, prior to the birth of such person, was physically present in the United States or its outlying possessions for a period or periods totaling not less than five years, at least two of which were after attaining the age of fourteen years..; and

(h) a person born before noon (Eastern Standard Time) May 24, 1934, outside the limits and jurisdiction of the United States of an alien father and a mother who is a citizen of the United States who, prior to the birth of such person, had resided in the United States.

Some of the candidates themselves would terminate “birthright citizenship” and deport newly-declared non-Americans – nearly all of whom have no connection to or knowledge of the nations to which they do “belong”. But what of people whose ancestry includes members of multiple countries? To which would they be deported? How far back in one’s lineage would we have to go before someone’s family “earned” their citizenship? And which candidates among the Republican field are American enough?

We did some masterful Googling and found the following:

The Winner: Rick Perry

Perry has ancestors on his mother’s side who were members of the Choctaw tribal nation. That’s about as American as you can get. His family has had a presence in Texas since it was Mexican territory. Prior to that, they were in Tennessee.

Pre-colonial Roots – American enough?

Jeb! Bush

John Ellis Bush (J.E.B. – get it?) comes from a family of primarily English and German descent. However, the last traceable European ancestor was one John Bush, who lived from 1593-1670. Bush family members are among those who dwelled in the Plymouth Colony, according to Wikipedia.

Mike Huckabee

Someone went to a lot of trouble to document Mike Huckabee’s ancestry: http://www.wargs.com/political/huckabee.html Members of his family have been on this continent since the 1600s. They migrated to Arkansas in the 1800s.

Rand Paul

Likewise, the Paul family has been on this continent since the 1600s.

Antebellum Period

Ben Carson

Through a PBS series called “African American Lives,” Carson’s lineage was traced back to before the Civil War.

Cara Carleton “Carly” (Sneed) Fiorina

Like the Bush family, Fiorina’s heritage is mainly English and German. She was born in Texas and her traceable family roots date back to the Civil War. In fact, her name came from one of those who died in that war. Although biographies are careful to omit for which side, the Sneeds mostly resided in Texas and Tennessee. See: http://worldconnect.rootsweb.ancestry.com/cgi-bin/igm.cgi?op=PED&db=nancybesspeyton&id=I1886

Lindsey Graham

While he’s actually been for immigration reform in the past and called other candidates’ positions on the issue “gibberish,” apparently Lindsey doesn’t like birthright citizenship, either. His family have been in the US since at least 1850.

Jim Gilmore

We found it very curious that the former Governor of Virginia has almost nothing that we could find about his family history beyond his parent generation. He appears to be a Virginian through ‘n’ through, though, so we lumped him in this category.

More Recent Arrivals

Chris Christie

Christie’s father is of German, Scottish, and Irish descent. His mother was of Sicilian ancestry. Little is published beyond that much. We’re going to peg him at second generation American.

John Kasich

Kasich’s father was the son of Czech immigrants. His mother was the daughter of Croatian immigrants. So he’s “only” second-generation American.

George Pataki

Pataki’s paternal grandparents were Hungarian and came to the US in the early 1900s. On his mother’s side, his grandfather was Italian-born and married a woman who emigrated from Ireland. Pataki, too, is a second-generation American; when he’s deported, to which country do we send him?

Donald Trump

Trump’s grandfather emigrated to the US in 1885 and became a naturalized US citizen in 1892. His son (Donald’s father) married an English immigrant who gave birth to Donald ten years later. So he is first-generation American on his mother’s side and second-generation on his father’s. And, although he’s made quite a fuss about the immigration topic, three of his children have a Czech-born mother. A fourth child has a Slovenian-born mother.

“Anchor Babies”

Finally, we get to those to whom some might apply the derogatory term “anchor baby”. These would be defined as children born to a non-citizen mother in a country having birthright citizenship.

Rafael “Ted” Cruz

Ted was famously born in Canada of a Cuban father and American mother. Now we ask you to return to 8 USC § 1401(d); whether he is a “natural” citizen of the US is entirely predicated on his mother’s status and residence around the time of his birth. A formal request has been made by birthers for information on this subject. We’ll see how it plays out.

Piyush “Bobby” Jindal

Jindal’s parents were both living in the US – legally, on visas – when little Bobby was born. According to the US Constitution and 8 USC § 1401(a), he is a natural-born citizen, eligible to run for the presidency. Birthers call him an “anchor baby” and further cite that, under the Law of Nations, he and/or his family would necessarily have divided loyalties.

Marco Rubio

Despite his own lack of clarity on the subject, it is well documented that his parents applied for visas to leave Cuba in May 1956. Like Jindal, Rubio would ordinarily be considered a natural-born citizen under the Constitution and 8 USC 1401(a), but some birthers define him as an “anchor baby” with the potential for divided loyalties to a commie country.

Richard John “Rick” Santorum

Santorum’s father arrived in the US from Italy at the age of seven; his mother is of Italian and Irish ancestry. Some birthers take issue, apparently, with his father having been an immigrant; even they, though, admit their case against him is weak. Other birthers have decided he’s “American enough”. http://www.birtherreport.com/2015/01/attorney-rick-santorum-is-article-ii.html

© 2015 Poligags