Stopping the RatF**k: What Floridians Need … Desperately!!!

“The limits of tyrants are prescribed by the endurance of those whom they oppress.”

Frederick Douglass

A Disguised Opportunity?

It’s not usual to start a series of blogs about a problem with a discussion about what just might be a neat “solution.” But that’s what I am doing. Why? A problem of the magnitude we face today in the attacks we are experiencing on our 233 year old “experiment” with our republican form of government can drive us into hiding, into giving up.

I am not into that!

Our second President, John Adams, once said: “Every problem is an opportunity in disguise.”

I’m into that!

To provide us with a “frame,” we state our Founder’s promise and begin with an overview of the problem.

Our Founders’ Promise: Republican Form of Government

In Article IV, Section 4 of our Federal Constitution, our Founders promised us, as their posterity: “The United States shall guarantee to every State in the Union a Republican Form of Government….”

A Republican form of government has a definition: It’s a democratic form of government in which people govern through their elected representatives.

Alexander Hamilton explained in the Federalist Papers #57: “The elective form of obtaining rulers is the characteristic policy of republican government…. Who are to be the electors of [our representatives in Congress]? Not the rich, more than the poor; not the learned more than the ignorant; not the haughty heirs of distinguished names, more than the humble sons of obscurity and unpropitious fortune. The electors are to be the great body of the people of the United States.”

Hamilton then described the quality of the men (women couldn’t vote or hold office in those times) “on whom the free suffrages of their fellow-citizens may confer the representative trust,” listing five factors:

1. The representatives will be individuals with “distinguished qualities.”
2. They will be men who, under the circumstances, have at least “temporary affection to their constituents.”
3. The ties that bind representatives to their constituents are strengthened by “a more selfish nature,” which arises from the pride in winning the favor of the people represented, rather than “from innovations in government subversive to the authority of the people.”
4. The representatives are “restrained” by, in the case of the House of Representatives, having to face election every two years, which makes them “compelled to anticipate the moment when their power is to cease, when their exercise of it is to be reviewed, and when they must descend to the level from which they were raised; there forever to remain unless a faithful discharge of their trust shall have established their title to a renewal of it.”
5. The representatives are also “restrained” from doing wrong, or passing oppressive laws, because “they can make no law which will not have its full operation on themselves and their friends, as well as on the great mass of society. … It creates between [rulers and people] that communion of interests and sympathy of sentiments, of which few governments have furnished examples; but without which every government degenerates into tyranny.”

Hamilton was focused on our Federal government, not the state governments which are the other facet of our republican form of government. In Federalist Papers #39, Madison explained that our combination of federal and state governments creates a “compound” form of republican government. Americans have voting rights protected by our Federal constitution at both the Federal and state levels. People elect state legislators for the state in which they live. They also elect Senators and House of Representative members representing their state in our national government. The Federal Constitution is a “delegation” of enumerated and implied powers, with states and the people retaining the rest of the powers of government. The Article IV guarantee of a republican form of government mandates that each state require its legislators to represent all of the people in that state.

In a sense, there is a similarity between a corporation and a republican form of government, Federal or state. Corporations have shareholders who elect a board of directors who run their business for them, in accordance with the corporation’s “constitution,” which consist of its articles of incorporation and bylaws. The directors are the shareholders’ governing fiduciaries. A country or a state with a republican form of government has its citizens who, like in America, elect a legislative body which sits as their board of directors running their government for them in accordance with their constitutions, state and federal. Legislators are the people’s governing fiduciaries. What differs, however, are the remedies for fiduciary wrong doing. Shareholder remedies are well stated, realistic and substantial. In contrast, beyond election rights, citizen legislature and executive officer remedies are limited, essentially nonexistent.

The Problem

Historically, too many of us – me included – have concentrated our attentions on our Federal government. The citizen-oppressive actions of legislators in several states this 21st Century should focus us on that fallacy. When it comes to voter priorities, “It’s the economy, stupid!” that comes to mind. When it comes to faulty governance, “It’s the states, stupid,” where, under our Federal and state constitutions decisive action begins, that should come to mind.

Let’s begin our understanding with another look at Hamilton’s comments, written in 1788, the year before our Constitution was adopted. Turns out they are naive:

1. Our representatives in Congress will have “distinguished qualities.” Gallup’s 21st Century polls don’t agree. Our opinion of the way Congress is handling its job in 2022 is at a dramatic low, with a 16% approval. Only 5% of Americans have a “great deal” of confidence in Congress. Those numbers reflect anything but confidence in the distinguished qualities of our Federal legislators. Gallup’s 2006 poll about voter confidence (its most recent on ethics) as to whether Congressmen adhere to high ethical standards indicates that 42% concluded “not much” and 17% concluded “none at all.” On a list of 22 professions, Congress ranks next to the bottom, just above car salesmen. A Harvard study, “Public Approval of State Legislatures,” indicates similar disapproval of legislators at the state level.

2. Our representatives in Congress will have “affection to their constituents.” In his book, RatF**ked, Why Your Vote Doesn’t Count, David Daley points out that “solid majorities of Americans would like to see” gun control laws, pro-choice laws, minimum wage increases, climate change mitigation, voting rights for all Americans, and a host of other “public good” objectives that are being ignored by Congress and state legislatures. Federal and state legislators respond to special interests and their money, not their constituents. (This is a subject of my 2021 book, Democracy of Dollars.)

Daley identifies the failure to respond to constituents as the “Koch Effect,” which includes campaign contributions in the $millions, lobbying and legislative drafting that focuses on the elite rather than the public good of all the people. The American Legislative Exchange Council (ALEC), established by the Koch brothers, is the dominate drafter of special interest legislation at the state level. Daley writes: “ALEC writes the bills. Legislators simply introduce them. When similar bills are introduced nationwide and race through Republican legislatures, that’s the influence of ALEC. ‘Legislators are not the trailblazers of developing policies,’ Michael Bowman, an ALEC official, told the group, as reported by ProPublica. ‘They’re the retail customers.'” The conclusion? Rarely do Federal nor state legislators have true “affection for their constituents.”

3. Our representatives will seek approval of people represented and will void “subversive” innovations. When Hamilton wrote, our Founders did not foresee political parties nor could they have contemplated the effect computers and technology have on elections. Unfortunately, and contrary to the law when I was in law school, in 2019 the Supreme Court approved political gerrymandering, which is the practice of setting voting district boundaries (often with irregular shapes) in ways that give the political party in power an unfair advantage by diluting the voting strength of the opposition. Computer sophistication now allows political parties to analyze voters, their preferences and habits, and draw the boundaries of voting districts with absolute precision to achieve the sought-after, unfair objective. The result is that primaries, which are essentially competition between candidates within a party, have become the prime selectors of our state and Federal representatives. When voting for legislators, gerrymandered districts vote “party” – red or blue. States set voting district boundaries for federal and state elections, which control representative elections, other than state governors, and, at the federal level, Senators and president. Thus, Republican dominated districts elect Republicans, and Democratic dominated districts elect Democrats, each without realistic cross-party competition and often without sufficient concern about a candidate’s “distinguishing qualities.”

Geography plays an enormous role in setting voting district boundaries. Although nationally, voters are about equally divided between Republicans, Democrats and Independents, Democrats tend to be bunched in cities. In the 2020 presidential election, Biden won the popular vote, but only won 477 counties (population centers). Trump lost the election, but won 2,497 counties.

Gerrymandering results in state being governed by minorities, not majorities, and state minorities electing House of Representative members, contrary to our Founders contemplations and the ideals of republican forms of government. For example, in the 2012 election: nationally, Democrats got 1.4 million more votes than Republicans, but the Republicans gained a 33-seat advantage in the House of Representatives. In a gerrymandered state, Pennsylvania, Democrats received 80,000 plus more votes than the Republicans, but the Republicans took 13 state seats to the Democrats 5. In my home state of Wisconsin, Obama won 53% of the votes, and the Wisconsin’s state-wide vote for Senator. But with 49% of the aggregate vote for House of Representatives members, the Republicans won 5 out of the 8 legislator seats running for reelection.

Daley’s Ratf**k conclusion? “America is the only major democracy in the world that allows politicians to pick their own voters. And since the 2010 election [which motivated the Republicans to create REDMAP, their computer-generated gerrymandering mapping system], the system has been gamed to create an artificial – but foolproof – Republican majority … nationwide. … Congress is not responsive to the will of the people.”

Although, nationally in number, Republicans, Democrats and Independents are in close balance, with the aid of gerrymandering, Republicans dominate state governments, controlling 30 legislatures. Legislative control provides the prime power to redraw legislative districts that control elections and to pass laws that further suppress the rights of voters that might vote for the competition. Yes, Democrats in control of states like Illinois and New York have also gerrymandered districts. Two wrongs don’t make a right. Gerrymandering is bad no matter which party is in charge in a particular state.

On the map below, states with legislatures controlled by Republicans that have Democratic governors are yellow. In yellow states with Republican legislatures in “super-majority” control sufficient to override governor vetoes, like Wisconsin, the legislatures have passed laws limiting the authority of governors to act independently of legislative approval.

Today, less than 8% of Federal voting districts are competitive. Lee Drutman points out in “What We Lose When We Lose Competitive Congressional Districts,” is that “representatives have little incentives to compromise.” Compromise is essential for governing democracies. Safe voting districts pressure representatives to be “very partisan.”

Drutman adds: “But perhaps more importantly, when there isn’t competition, citizens and parties have little reason to show up and vote.” For example, Florida has 120 state house representatives and 40 state senators. In the 2022 elections, 24 state house seats and 8 state senate seats are not contested. In the 2018 Florida primary election, 28% of eligible voters voted, which means that about 15% of the voters (with very few moderates) elected Florida’s representatives.

4. House of Representatives legislators are restrained because they have to “face elections” every two years. Our Founders believed that elections would be contested between candidates with differing points of view, giving the people real choices. Founders didn’t foresee political parties and political party loyalties that trump concern about the characteristics of legislator candidates. Gerrymandering has trumped our Founders’ beliefs. Primaries prevail. Who wins the primary in safe districts faces no competition. In 2022 primaries, the issue for Republican-dominated districts is whether Trump supporters, who claim the 2020 election was a fraud, will win or lose. As I write this blog, it appears the champions of fake news are winners.

In addition to not contemplating political parties, Hamilton and our other Founders had no idea that lobbies would not only dominate legislators in office; but as I point out in Democracy of Dollars, become the prime employers of legislators after public office. For many legislators public office is nothing more than the training ground for a very lucrative future career. Many states, like Florida have term limits for legislators. Florida’s 8-year term limit is a master’s course for a lucrative lobbying career that can follow. You can check out how that kind of career pans out in Florida by subscribing to INFLUENCE Magazine. Nationally, 50% of our Congressmen wind up their careers as lobbyists.

What happens when we couple the dominance of “safe” voting districts with the Koch Effect? David Pepper writes in his 2021 Laboratories of Autocracy: “The individual politician doesn’t matter. They may not realize it, and voters may not realize it, but certain powers that be have figured it out. The formula is simple: guarantee the election results, ensure the right combination of incentives are in place … and the individuals who ultimately win in elections in all these legislative districts don’t change a thing. … [T]he Kochs have never viewed individual politicians as being central, considering them to be mere ‘actors’ reading from the scripts provided to them. Whoever gets elected doesn’t matter; that they all behave in a predictable way once elected. … When it comes to outcomes, these statehouses essentially run on automatic pilot as politicians pass through… .”

5. Representatives are restrained because “they can make no law which will not have its full operation on themselves and their friends” does not take into consideration the sophistication of computer technology and the ability to ferret out the differences between people. The habits of people that shape their lives can also shape voter suppression laws. Vote on Sunday? Georgia Blacks like Sunday voting. So why not prohibit voting on Sunday? Minorites typically work long hours and can’t get off work to vote? Eliminate after-hours voting and drop boxes. The list goes on. Check out New York Law School’s Brennan Center for Justice.

Ratf**k

“Ratfuck” also has a definition. It’s “an American slang term for political sabotage or dirty tricks, particularly pertaining to elections.” Politically, that’s what’s going on today. With gerrymandered voting districts that predetermine election outcomes, absent an earth-shaking catastrophe that motivates people to change their minds, there is not much that voters can do to shape traditional elections results, particularly at the state levels. Inability to deal with election results also produces the inability to successfully deal with laws passed that are contrary to the protection of our unalienable rights, which protection Thomas Jefferson wrote in our Declaration of Independence, is the prime purpose for the formation of government.

That’s why the American people, particularly in authoritative, oligarchy-controlled states like Florida, need a worthy tool that allows them to overcome what has become a tyranny of the minority. Read on.

The Tool

Although the issues that need our attention go beyond abortion, what happened in August 2022 in Kansas regarding abortion, provides insight to a solution. For many Americans, the Supreme Court’s reversal of women’s long-time pro-choice right to abortion is an earth-shaking catastrophe. When that occurs:

The solution is to reserve legislative oversight rights directly with the people, just as laws governing corporations reserve oversight rights for their shareholders.

The legislative oversight can be in the form of amending a state constitution. The 2022 Supreme Court decision in Dodds v. Jackson, “finding” there is no federal Constitutional right for women to have an abortion, leaves the states to determine whether or not abortions are legal.

Kansas has a state constitutional provision that legalizes abortions. It takes a vote of the people to amend the constitution. Kansas’s Republican-controlled state government set up a vote of the people to determine whether the constitutional protection should be revoked. And they did it in a way that they were convinced gave a revocation winning votes. They put the revocation vote on the primary ballot, which normally has about 50% of the turnout in general elections. Kansas is a strong Republican state with very few competitive primaries. Moderates rarely vote in primaries. The advocates of revocation also flooded voters with messages falsely telling them that a vote for revocation was a vote “to preserve the right to chose.” The people overwhelmingly voted no. In Kansas, the right to abortion stands. As Professor Heather Richardson wrote in her Letters from an American, “the dog caught the car.” Robert Hubble writes in Substack that the Kansas abortion vote exposed voting myths:

1. Reproductive freedom will not motivate turnout. The voter turnout for this primary was the largest turnout in Kansas history. The right of choice was such a significant issue, that the old rules of low turn out favoring the party in power did not apply.

2. “Partisan sorting” divides America into a red and a blue team on abortion. When the issue is significant to the people, contrary to legislator polarization, both red and blue voters will respond. Although only 25% of Kansas voters are Democrats, the champions of choice, the proposed revocation was approved by 59% of the voters, which means a lot of Republicans bought in to the idea of preserving abortion rights.

3. Reproductive choice does not motivate women to register in, and vote in, large numbers. Prior to the Supreme Court case revoking women’s rights to abortion, women accounted for 52% of Kansas’s new registered voters. After the Supreme Court decision, women accounted for 68% of its new registrants.

My conclusion? When the issue presented is a suppression of rights, voters regardless of political party, can be motivated to respond.

Florida doesn’t have a specific constitutional provision approving abortions; but it does have a constitutional provision protecting “privacy.” In 1989, Florid’s Supreme Court held in In Re TW, that the right to abortion falls under that privacy protection, subject only to a “compelling state interest.” In 2022, Florida adopted a limiting abortion law, which is being challenged by a Jewish rabbi and others as being unconstitutional. Should Florida’s current Supreme Court, which is far more “conservative” than it was in 1989, decide that Florida’s limitation on abortion rights is legal, or that abortions aren’t protected by a right to privacy, a constitutional amendment is a possibility.

The methodology for amending Florida’s constitution is well documented, but it is also expensive, and subject to legal challenge. I’ve been advised that anyone desiring to amend the constitution should have a “war chest” of not less than $3 million. Any amendment that thwarts the party in power is going to be challenged. For example: Florida’s Republican legislature passed a law limiting contributions supporting or objecting to constitutional amendments to $3,000. And when a constitutional amendment was approved giving felons the right to vote after serving their sentences, Florida passed a law requiring that felons must also pay their fines and fees before they could vote. Neither requirement was addressed in the constitution. A Florida court held the $3,000 contribution limitation an unconstitutional infringement of free speech. A Federal appeals court upheld the law requiring felons to pay fines and costs. Other constitutional provisions have held to be non-enforceable as they were not complete (“self-executing”), and the ambiguities required legislation for effectiveness.

What should be done to effectuate the voice of the people, when suppressed or ignored by the political party in power?

In Laboratories of Autocracy, David Pepper tells us that Ohio voters can repeal repugnant laws through petition that meets the state’s referendum process. Faced with the Ohio’s adoption of Senate Bill 5 that attacked collective bargaining, citizens collected over 1.3 million signatures in 90 days, and in the referendum that followed, defeated the anti-labor legislation 61% to 39%. The Ohio law, section 3519.01 of the Ohio Revised Code, not only allows citizens to revoke laws, it also allows them to propose laws, which become effective on citizen approval.

What I propose is that Florida adopt a constitutional amendment, as difficult as that may be, to accomplish the statutory result achieved in Ohio. Our state constitution created a government for the people and the people’s voice should not be trampled by an autocratic governor or legislature. Democracy should prevail. Floridians should have the right to revoke laws, including executive orders, and to pass laws, all by referendum that are approved by the majority and do not violate unalienable rights reserved to the people. The amendment should be carefully prepared, clearly providing it is “self-executing” and requires no legislation. It also should provide that citizen action revoking or adopting laws by the constitutional procedure cannot, in form or substance, be overcome by the legislature, unless approved by a vote of the people.

The effort to adopt such a constitutional amendment will be challenged.

I am sure it will be claimed that such an amendment is illegal as it was not adopted by the people’s representatives, the tool of a “republican” form of government. However, in 1912, our Supreme Court did approve direct, democratic citizen initiatives. If the effort is attacked and fails, bring it back again. And again.

Remember: “The limits of tyrants are prescribed by the endurance of those whom they oppress.”

Endure.

Endurance just might stop the Ratfuck!

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Excerpts from the Ohio law #3519.01 that could guide us in shaping Florida’s needed constitutional amendment:

(A) Only one proposal of law or constitutional amendment to be proposed by initiative petition shall be contained in an initiative petition to enable the voters to vote on that proposal separately. A petition shall include the text of any existing statute or constitutional provision that would be amended or repealed if the proposed law or constitutional amendment is adopted. …

(B)(1) Whoever seeks to file a referendum petition against any law, section, or item in any law shall, by a written petition signed by one thousand qualified electors, submit the measure to be referred and a summary of it to the secretary of state and, on the same day or within one business day before or after that day, submit a copy of the petition, measure, and summary to the attorney general. …

(C) Any person who is aggrieved by a certification decision under division (A) or (B) of this section may challenge the certification or failure to certify of the attorney general in the supreme court, which shall have exclusive, original jurisdiction in all challenges of those certification decisions.

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