Monday, February 1, 2010

How to fix a broken government - by Judge JIm Gray

You probably do not need to hear much from me to convince you that our government is broken. The problems come directly from Congress and our state legislature, and the evidence is all around us. It was Thomas Jefferson who told us that we should have a revolution about every generation to keep special interests from being solidified in government. We should have listened. And Alexis deToqueville famously observed that the American Republic would endure until the day Congress discovered that it could bribe the public with the public’s own money. Unfortunately, that day has probably arrived.

For example, for the past decades Congress and our state legislature have been passing gimmicky budgets that simply ignore fiscal problems and pass them along to some unspecified time in the future. Why does this continue to happen? Because politicians are only truly concerned about the next election, not the next generation. That is what our system encourages. But as a consequence, the federal budget deficit for 2010 is projected to be $1.35 trillion, and the state budget deficit for 2009-10 is about $6.3 billion, and it has a projected budget deficit for 2010-11 of $14.4 billion. So what can or should we do about this dire situation?

Well, the first thing to do, short of electing more Libertarians to office, is to have a state constitutional convention that would incorporate some specific changes into our state government. That, in turn, would probably galvanize the rest of the country to get serious about the federal government as well.

What changes should be made? First, we should follow Texas’ lead and have our legislature in session only every other year. Texas has its legislature in session only in every odd year, which has some poetic justice to it. At these sessions, the legislature would be required to pass two-year budgets.

In addition, we should also follow the lead of the government of British Columbia that requires each bill literally to be read three times on the floor of Parliament before it can become law. The first time is mostly for show, and most members of Parliament are not present. But the second reading is done only one paragraph at a time, and that is followed by a debate and a vote on just that language alone. Then the third reading takes place before a vote on the entire measure.

This process accomplishes two important purposes. The first is that it vastly reduces the number of bills that are even addressed, much less passed into law. This tends to get rid of the junk and other special interest measures that routinely find their way into our statutes. The second is that it requires Parliament actually to read, understand and debate what is being presented to them. What a novel concept! Unfortunately, this enforced responsibility is simply foreign to our Congress and legislature in today’s world!

The new constitution should also include a provision for sunset laws that would require an affirmative vote every six years or so from the Legislature before any state government agency could continue to be funded. This suggestion has been discussed several times in this column, and would be one of the most effective ways of controlling the size, intrusion and bureaucracy of government. If an agency could not show it was giving us enough “bang for the buck,” its size could be reduced, its mandate could be delegated to another agency, or it could be eliminated entirely. Of course, that process would also give a performing agency an opportunity to shine by demonstrating its accomplishments.

In addition, no legislation or voter initiatives would be allowed to pass without first designating a funding source. One way our governments have been allowed to sink under the waves of red ink is because even some well-intentioned measures have been passed without any particular plans, or even thoughts, about where the money would come from to fund them. This fiscal irresponsibility must come to an end.

Recently the United States Supreme Court held that corporations are constitutionally entitled to spend any amount of money they choose to support any candidates running for election, as long as they do not give the money directly to the candidates or their political parties. By inference, that rule would also apply to labor unions. The court saw this matter as one of free speech. But actually, the Supreme Court got it backward.

Instead, the Constitution should be changed to disallow any political contributions of any kind from any of these artificial entities. But at the same time, all restrictions should be removed on the amounts of money or support that a human being can donate to any political candidate or cause — subject only to the full and public disclosure of all contributions. As a matter of simple fairness, corporations, labor unions and similar entities should not be allowed to spend communal resources for political purposes, unless each and every stockholder or union member, etc. specifically approves of that expenditure of their money. And if they do approve, fine. Just let them make the contributions in their own names!

Plus, the reality is that wealthy people will always find a way to support their chosen candidates anyway. So let them exercise their free speech and make any contributions they wish — of their own money. Just be sure to force them to do it openly. Then if some other voters become concerned that Candidate Smith might be controlled by Mr. Jones because of a large campaign donation, they can always vote for Smith’s opponent. This process would maximize openness, reduce violations of law and at the same time affirm everyone’s rights of free speech.

Another critically important measure to explore in the constitutional convention is our way of raising tax revenue. Today our income tax system is enormously controlled by special interests. And the largest of those special interests is Congress itself. Why is that true? Because the ability to designate tax breaks for particular special interests directly results in a great deal of campaign contributions. And this is what keeps politicians in office. So we must repeal the entire tax code, and in its place substitute a simple form of flat tax that will do away with this problem.

Just for illustration, the federal flat tax could provide that no one would pay any income taxes at all on their first $30,000 of income. That would both provide equal treatment for everybody, and also protect the poor. Then on the next $50,000, everybody concerned would pay a flat tax of 10% to the government, with no allowances for any deductions of any kind. Then on the next $200,000 of income, everybody at that level would pay a flat 20% to the government. Finally, everybody concerned would pay 25% to the government on every dollar they earned that was above $280,000. A similar program, but with much lower rates, could be used by the state.

This approach would enormously reduce the costs of record-keeping, tax preparation, fraud and enforcement, and along the way also increase basic fairness. And it would probably also increase gross revenues for the government, for each of two reasons. First, the savings to individuals and to businesses would probably spur the economy, so more tax money would be received. And secondly, because simplicity of enforcement as well as the reality and perception of fairness would all be increased, more people would pay their full share of taxes without feeling that they were being treated as chumps.

Obviously, all of these are complicated issues, and there will need to be a great deal of thought, discussion and compromise about them. Thus, we will need everyone to be involved in this critically important process.

But because you have each been religiously planning and practicing your public speaking due to last week’s column, I know you will be up to the task. So let’s all get started!

JAMES P. GRAY is a retired judge of the Orange County Superior Court, the author of Wearing the Robe – the Art and Responsibilities of Judging in Today’s Courts (Square One Press, 2008), and can be contacted at or via his website at .

1 comment:

  1. Judge Gray,
    I am interested in reading the basic outline of a modern libertarian argument regarding the proper relationship between church and state, given the federal Constitution's First Amendment clauses. Traditionalist conservatives generally argue for a reduced separation, but I presume that libertarians would more closely follow Jefferson and his high wall. Is this on track?