An Open Letter to America’s State Governors

Free Republic ^ | 10/15/2015 | self

[conservatism_IS_compassion]

This letter is nominally addressed to the governor of Wisconsin, because Wisconsin is a purple state with Republican governance which has made headlines for courageous legislation. But its message is equally applicable to the government of every state in the Union. Indeed, every state has the right (and, I contend, the duty) to address the issue raised here. If any state passes the legislation I suggest it would have an effect; if any of certain specific states (including Wisconsin) were to adopt it would be very nearly dispositive of the issue, and if most or all states adopted it that would seem to be certainly dispositive, and a bulwark against mischief in the courts. Here is the issue:

Article 1 Section 9:

no person holding any office of profit or trust under [the United States], shall, without the consent of the Congress, accept of any present, emolument, office, or title, of any kind whatever, from any king, prince, or foreign state

That is obviously a sensible constitutional provision; most constitutional provisions are sensible. But the prohibition it expresses is not self-enforcing; indeed it is not obvious that any mechanism is in place to enforce it against even the most egregious violator. This issue appears to now becoming acutely relevant, and action should be taken in a timely fashion in your state government.

A person who was Secretary of State of the United States while simultaneously being an officer of at least two organizations which accepted substantial donations or substantial dubious honoraria from foreign governments (or creatures thereof) The former organization was the Clinton Foundation. The latter was Mrs. Clinton’s own marriage. Congress has not, as far as has been made known, voted to authorize the donations/honoraria in question, and the acceptance of them was therefore an extraconstitutional act.

Now it is seriously proposed that the person in question (Mrs. Clinton) be nominated for election to the presidency of the United States. And if nominated and voted for by a plurality of Wisconsin voters, Mrs. Clinton stands to have Wisconsin’s ballots cast for her in the Electoral College after the 2016 election. As matters stand it is not clear that a person who violates Article I Section 9 quoted above suffers any penalty or disability for that abuse. But Wisconsin has the authority to change that.

Article II Section 1 :

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector . . .

I submit that Wisconsin, and indeed every State, should enact a law forbidding the placing on the ballot anywhere in the state the name of a person who has been an officer of an organization which has accepted substantive - shall we say, $5000 or $10,000 - donations or honoraria from foreign governments or creatures thereof without congressional authorization. It must be admitted that SCOTUS has held that the states do not have the right to institute term limits for Congressmen by keeping long-time incumbents’ names off the ballot. However, the situation of the Electors to be selected by Wisconsin is quite distinct, as is illustrated vividly by the example of Nebraska. Most other states conducting presidential elections award all their electors to the winner statewide, but Nebraska awards only two electors to the statewide winner, and award one elector to the winner of the presidential vote in each congressional district. So not only the plain text of the US Constitution but also the Nebraska precedent show that each state controls the way its electors are chosen. It is not even clear that a state must use a vote of the people in any way at all when it “appoint[s], in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress . . .”

While Wisconsin is addressing the issue, it should (if it has not already) enforce the constitutional provisions that

Article II Section 1 :

No person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty-five Years, and been fourteen Years a Resident within the United States.

Amendment 12:

The Electors shall meet in their respective states, and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves

by forbidding the placing on the ballot of electors pledged to any such person, or to a person not a citizen by birth, or to a person not 35 years old the following Inauguration Day, or pledged to both a presidential candidate and a vice presidential candidate from the State of Wisconsin.

I would further make all provisions of the law severable, so that a SCOTUS holding of a defect in one provision or another would not invalidate all of the law’s provisions. And, in that respect, I would lastly propose that the law forbid the placing on the ballot of electors pledged to vote for any person, whether or not “holding any office of profit or trust under” the United States, and whether or not authorized by Congress, who otherwise meets the standard of disqualification for accepting foreign government gratuities. After all, a potential POTUS must be considered a target of potential foreign bribery. Is the prospect of the purchasing of the presidency of the United States by unlimited, laundered campaign financing by one or more foreign powers to be viewed with indifference by Wisconsin?

Note, BTW, that the Nobel Peace Prize Committee is a creature of the government of Norway, and thus the Nobel Peace Prize would qualify as a foreign government gratuity under the law as I propose it. Of course, Wisconsin could, if a future situation somehow obviously warranted it, enact an exception for a specific individual of outstanding merit who deserved a prize for peacemaking as judged by Wisconsin.

[conservatism_IS_compassion]

A modest proposal . . .

[conservatism_IS_compassion]

Ping.

[WKUHilltopper]

Since we have no Constitution anymore, it doesn’t apply.

[conservatism_IS_compassion]

Since we have no Constitution anymore, it doesn’t apply.

Wisconsin has the authority to change that. Article II Section 1 : Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors . . .

The point is that there are constitutional provisions, there are laws, and there are traditions. I would never recommend that the legislature of a state abolish presidential voting within a state. We have a tradition of casting a ballot for POTUS, and that tradition is not to be eliminated without a serious backlash. And simply imposing a political litmus test on candidates for POTUS would similarly be a nonstarter. My point in adding explicitly constitutionally necessary conditions (35 years of age, etc) to my proposal is simply to emphasize that the proposed law enforces the Constitution and therefore is utterly unexceptionable. Reference to campaign finance “reform” objectives could also be incorporated into the bill for political cover, with full justification.

Again, the Nebraska Plan example can be held out as a precedent. You could even incorporate an option, if the courts rejected all else, that Wisconsin (in the example) switch to the Nebraska Plan at the discretion of the opposition to the violator of Article I Section 9.

The Nebraska Plan would benefit Republicans in any Purple or blue states. There is a natural Gerrymandering effect helping Republicans in Congress; Democrats are relatively concentrated in cities, so a natural political subdivision for a city will tend to be naturally a sure Democrat lock - and the rest of the state has a relatively modest Republican advantage. The preponderance of Republican Congressional Districts in Pennsylvania - notwithstanding overwhelming Democrat concentrations in Philadelphia and Pittsburg - is shocking. It’s one reason that throwing the presidential election into the House of Representatives - where the balloting is by state delegation, each delegation having one vote - would be a lock for the Republicans.