‘Case of the Week’ 6 (NCFCA): Felon Voting

August 31, 2013

Important Disclaimer: We pretty much just throw these together over the weekend, and don’t put a lot of work into them. Case of the Week cases are not subject to the same editorial process and stringent quality standards as the COG 2013 sourcebook, and are frequently contributed by non-COG authors. You may find material and sources in these cases that would not appear in the sourcebook. That said, we hope these cases will be useful to you; enjoy!

About the Author: Evan Davis competes in Region 2, and has qualified to the NCFCA National Championship twice.

1AC: Democracy Restoration Act

By Evan Davis

Democracy has long been a cornerstone of our nation – allowing every man and woman to have a voice. But while democracy is very important in our society, millions of American’s are still denied the right to vote. So we stand Resolved: that federal election law should be significantly reformed in the United States.

Definition: The Democracy Restoration Act

Burt Neuborne (Professor of Civil Liberties at New York Univeristy School of Law), March 16, 2010; “Testimon of Professor Burt Neubourn in Support of H.R. 3335, The Democracy Restoration Act” http://www.brennancenter.org/legislation/testimony-prof-burt-neuborne-support-hr-3335-democracy-restoration-act [brackets added] [ESD]

“Good afternoon, and thank you for the opportunity to testify today in support of H.R. 3335, the Democracy Restoration Act [or DRA]. This legislation would restore the right to vote in federal elections to millions of our fellow citizens who have a criminal conviction in their past, but who have been released from prison and have rejoined their communities. The Brennan Center believes that it is both morally wrong and socially self-defeating to exclude citizens who are living and working in the community from full participation in our democracy. I am confident that the federal government possesses ample constitutional authority to enact this legislation which will restore voting rights in federal elections to nearly 4 million American citizens.”

The DRA would give millions of post-convicts a vote. Currently, the system restricts voting if anyone has committed a crime in the past, as we see in out next point…

Fact: Disenfranchisement

Brennan Center for Justice at New York University School of Law, 2009; “Restoring Voting Rights” http://www.brennancenter.org/content/section/category/voting_after_criminal_conviction [ESD]

“Voting is both a fundamental right and a civic duty. However there remains one significant blanket barrier to the franchise: 5.3 million American citizens are not allowed to vote because of a criminal conviction. As many as 4 million of these people live, work, and raise families in our communities, but because of a conviction in their past they are still denied the right to vote.”
Millions of citizens can’t vote today – resulting in the following problems.

Problem 1: Reentry Obstructed

New York Times, March 21, 2010; “Ex-offenders and the Vote” (Editorial) http://www.nytimes.com/2010/03/22/opinion/22mon3.html [ESD]

“Millions of ex-offenders who have been released from prison are denied the right to vote. That undercuts efforts to reintegrate former prisoners into mainstream society. And it goes against one of democracy’s most fundamental principles: that governments should rule with the consent of the governed.”

Smart On Crime (a highly accredited coalition composed of over 40 organizations), April 2008 or later; (internally dated) “Re-entry—ensure successful reintegration after incarceration” http://www.besmartoncrime.org/14_history.php [ESD]

“Denying individuals the right to vote even after they have repaid their debts to society perpetuates the insidious discrimination against this population that makes reentry so difficult.”

Problem 2: Democracy Harmed

New York Times also , October 19, 2010; “Their Debt is Paid” (Editorial) http://www.nytimes.com/2010/10/20/opinion/20wed4.html?adxnnl=1&ref=felonydisenfranchisement&adxnnlx=1374696004-MxN5OomSRiD39/8mEDkz/Q [ESD]

“Democracy is strengthened when as many citizens as possible have the right to vote. Fully integrating ex-offenders back into society is also the best way to encourage their lasting rehabilitation. It is past time for all states to restore individual voting rights automatically to ex-offenders who have served their time.”

Erika Wood (Associate Professor of Law) Brennan Center for Justice, March 16, 2010; (Erika L. Wood joined NYLS in fall 2011 to teach Legal Practice. Previously, she was the Deputy Director of the Democracy Program at the Brennan Center for Justice, where she designed and launched major reform campaigns around the country and provided legal counsel and strategic guidance to advocates, legislators, and policymakers nationwide. Professor Wood created the Brennan Center Law Enforcement and Criminal Justice Advisory Council as well as the Center’s Communities of Faith Initiative. She has litigated complex civil rights cases and is a frequent speaker and commentator on voting rights, criminal justice reform and racial justice issues. Professor Wood previously taught as an adjunct professor in the Public Policy Advocacy Clinic at New York University School of Law and was an attorney with the Legal Action Center. Her work has been featured in numerous media outlets across the country, including The New York Times, Newsweek, The Wall Street Journal, USA Today, and National Public Radio. In 2009, Professor Wood was awarded the Eric. R. Neisser Public Interest Award by Rutgers Law School in recognition of her efforts to carry forward the law school’s mission of providing liberty and justice for all.) “House leaders weigh restoring voting rights for millions” http://www.brennancenter.org/press-release/senate-bill-would-restore-voting-rights-millions-american-citizens [ESD]

“Excluding millions of citizens from the franchise only weakens our democracy. Congress should pass the Democracy Restoration Act because a strong, vibrant democracy requires the broadest possible base of voter participation, across all sectors of society,” said Wood.

The problem is real. Many Americans, who have fully paid for past crimes, are still tormented – they can’t vote! These people face major difficulty reintegrating into society. Additionally, disenfranchisement harms democracy. Millions do not have a voice.

Obviously, a reform is needed. We offer the following

Plan

Agency and Enforcement: The United States Federal Government.

Mandate: Pass the Democracy Restoration Act of 2011.

This plan shall be passed immediately, and no funding is necessary for it’s implementation

Once passed, our plan will improve our nation, as we can see in:

Advantage: Less Crime

Brennan Center for Justice, July 2009; “The DRA Fact Sheet” http://www.brennancenter.org/sites/default/files/analysis/DRA%20Fact%20Sheet.pdf [ESD]

“Passing the Democracy Restoration Act will restore the right to vote in federal elections to American citizens who are released from prison or serving probation sentences.”

Smart on Crime, April 2008 or later; (internally dated) “Re-entry—ensure successful reintegration after incarceration” http://www.besmartoncrime.org/14_history.php [ESD]

“Furthermore, voting promotes reentry because it encourages individuals to become engaged in their communities and to engage in socially responsible conduct. In fact, a study by sociologists Christopher Uggen and Jeff Manza found that, among persons with a prior arrest, “27% of non-voters were re-arrested over a three-year period, compared with only 12% of voters.”

Justin Jones (Director of the Oklahoma Department of Corrections), December 16, 2011; Published by the Brennan Center for Justice “Senate Bill Would Restore Voting Rights for Millions of American Citizens” http://www.brennancenter.org/press-release/senate-bill-would-restore-voting-rights-millions-american-citizens [ESD]

“‘One of the preeminent means of increasing public safety is to reduce recidivism. A key component is to involve offenders in civil activities designed to engage the disenfranchised,’ said Justin Jones, Director, Oklahoma Department of Corrections. ‘The restoration of voting rights provided by this bill is a crucial step in reintegrating offenders into pro-social responsibilities.’”

It is clear that passing the DRA will improve society. By letting those who are disenfranchised vote, you can ultimately reduce crime rates. Unite with us in bringing this necessary reform to the voting system.


COG 2013 sample briefs released!

August 24, 2013

The sample briefs for COG 2013 have been released!

Stoa: Regulatory Capture

NCFCA: Gridlock – Not A Problem

You can download them on the COG website. If you find them useful, you can help us out by sharing them with your friends and liking them on Facebook!

(Case of the Week will resume next Saturday.)


‘Case of the Week’ 5 (NCFCA): Term Limits

August 17, 2013

Important Disclaimer: We pretty much just throw these together over the weekend, and don’t put a lot of work into them. Case of the Week cases are not subject to the same editorial process and stringent quality standards as the COG 2013 sourcebook, and are frequently contributed by non-COG authors. You may find material and sources in these cases that would not appear in the sourcebook. That said, we hope these cases will be useful to you; enjoy!

Uploader’s Note: Actually, once again, you might have to scratch the “don’t put a lot of work into them” – this one has a pretty substantial bonus Negative brief at the end. (Many thanks to R.J.!)

About the Author: R.J. Martin is the 2013 NCFCA Extemp National Champion and an accomplished Team Policy debater. His career has included a 6-0 record and top seed at the Alabama Open, top 5 finishes in all but two career Team Policy tournaments, and an overall win rate of 75%. (Yes, he’s done the math.)

1AC: Born to Run Federal Term Limits

By R.J. Martin

“Always, I have done everything out of love. For the love of the people I became President, you made me President. I have ruled these years out of love. There is a lot left to do. I need more time. I need your vote. Your vote for love.”

– Hugo Chavez, a socialist who abolished term limits so he could… feel more love?

George Mason, one of America’s Founding Fathers, once stated, “Nothing so strongly impels a man to regard the interest of his constituents, as the certainty of returning to the general mass of the people, from whence he was taken, where he must participate in their burdens.”

The Founders created our country to be different from the British aristocracy and hereditary monarchy. American government hinged on the idea that politicians would come from normal walks of life and quickly return to the people as private citizens after only a term or two in office. Instead, today career politicians spend decades in Washington, are far removed from the average citizen, and funnel federal money to their district in order to secure perpetual re-election.

This is why the affirmative stands Resolved: That federal election law should be significantly reformed in the United States.

Election Law: The standards establishing who votes, when and how they vote, and/or for whom they may vote.

The affirmative position is simple: Career politicians should be stopped by implementing term limits. Unfortunately, the current system permits unlimited re-election to Congress. This is a problem because…

Harm 1: Incumbents are nearly unbeatable

Professor Kenneth Mayer (Ph.D. from Yale University in Political Science. He currently teaches Political Science at the University of Wisconsin-Madison), Assistant Professor Timothy Werner (Ph.D. from the University of Wisconsin-Madison. His is currently an assistant professor of Business, Government & Society at the McCombs School of Business at the University of Texas at Austin), and Amanda Williams. January 2006. Published by the University of Wisconsin-Madison Department of Political Science. “Do Public Funding Programs Enhance Electoral Competition?” http://works.bepress.com/cgi/viewcontent.cgi?article=1014&context=mayer&sei-redir=1&referer=http%3A%2F%2Fscholar.google.com%2Fscholar%3Fq%3Delection%2B%252B%2Bpublic%2Bfunds%26btnG%3D%26hl%3Den%26as_sdt%3D0%252C1%26as_ylo%3D2000%26as_yhi%3D2013#search=%22election%20%2B%20public%20funds%22

“Incumbent legislators win reelection nearly 100 percent of the time, and many face no opposition at all. In 2004 the House incumbent reelection rate was 99 percent, and only a handful of districts were even remotely competitive. In the states, 93 percent of all state legislators who ran for reelection won, and the major parties have given up on over a third of the legislative seats, contesting only 65 percent of races. In California, every incumbent legislator—in the State Assembly, State Senate, U.S. Congress, and U.S. Senate—won in 2004.”

Competition is key to any thriving democracy. The absence of term limits reduces the democratic process to a mere rubber stamp for 99% of Representatives. There are 2 impacts to this harm:

Impact 1: The Longer in Office, the Bigger the Spender

Patrick Basham, (Ph.D. in Political Economy from Cambridge University. He is currently the Director of the Democracy Institute and an adjunct scholar with the Cato Institute’s Center for Representative Government. His articles have appeared in the New York Times, the Washington Post, USA Today, the New York Post, and the Chicago Sun-Times; he has appeared in the flesh on ABC, CBS, NBC, CNN, Fox News, PBS, NPR, and the BBC). After May 2011. NOTE: Specific publication date not listed. Published by Our Generation. “Term Limits: A Reform That Works.” http://ourgeneration.org/wp-content/uploads/2011/06/term-limits.pdf

“Studies show that the longer an individual stays in office, the greater the support for increased government spending. Consequently, limiting terms may lead to limited government, or at least a smaller government than would have existed in their absence, as senior state legislators are more likely to vote for higher taxes and higher spending than are their junior colleagues.”

We’re broke. The nation can’t afford more reckless spending. And you probably can’t afford higher taxes. But that’s what you get when Congressmen remain in office for decades on end.

Impact 2: O’Keefe: Representatives Become Unrepresentative

Eric O’Keefe, (CEO of the Sam Adams Alliance and the Sam Adams Foundation). Note: No publication date. Published by Americans for Congressional Term Limits Now. Our Beliefs: Why Congress Needs Reform Now. http://actnowus.org/our%20beliefs.html

“The problem, quite simply, is that our representatives are no longer representative of the people. They are a separate ruling class, identifying their interests with those of the government, not the people. When the interests of the government in which they serve and the people they putatively serve conflict… they invariably side with the government.”

When career politicians are virtually assured of re-election, they have no incentive to serve the people. So instead, they serve themselves and the federal government. However, the affirmative advocates re-instating accountability in Washington, through the following:

Plan

Mandate: No one may serve in an elected federal office for more than 14 years. Individuals may not run for any federal office whose full term length would put them beyond 14 years of service.

Timeline: This plan will be phased in beginning with the 2014 elections. Current legislators will not be affected.

Agency: The US Federal Government, Congress, and any other necessary means.

In other words, the affirmative will mandate that no one may be elected to the federal government for more than 14 years. A decade and a half is long enough for anyone to spend in Washington. Of course, the affirmative reserves the right to further clarify this plan as needed in future speeches. There are 3 main advantages of passing the affirmative plan.

Advantage 1: Fresh Faces

Jennifer Drage Bowser, (Project Manager for the Joint Team on Term Limits at the National Conference on State Legislatures.) 2003. Published by The Council of State Governments. “The Effects of Legislative Term Limits.” http://knowledgecenter.csg.org/drupal/system/files/2003_bowser.pdf

“The most obvious positive effect of term limits has been to sweep out ineffective, long-serving incumbent legislators, and open the doors for fresh faces and new ideas. Under the circumstances, these new members have to learn faster and work harder than their predecessors did in order to accomplish their legislative agenda in limited time. Freshmen legislators in term-limited legislatures are more involved in the process — introducing bills, serving on or even chairing key committees, and getting involved in the budget process.”

Advantage 2: More Competition

Patrick Basham, (Ph.D. in Political Economy from Cambridge University. He is currently the Director of the Democracy Institute and an adjunct scholar with the Cato Institute’s Center for Representative Government. His articles have appeared in the New York Times, the Washington Post, USA Today, the New York Post, and the Chicago Sun-Times; he has appeared in the flesh on ABC, CBS, NBC, CNN, Fox News, PBS, NPR, and the BBC). After May 2011. NOTE: Specific publication date not listed. Published by Our Generation. “Term Limits: A Reform That Works.” http://ourgeneration.org/wp-content/uploads/2011/06/term-limits.pdf

Unquestionably, term limits have made elections more competitive. More candidates for office and the increased turnover of state legislatures have produced better choices for voters. Term limits have had a much richer effect on state legislative careers than previously understood, as they reduce the benefits of seeking re-election even for state legislators who are eligible to run, and reduce the opportunity cost of running for other offices. By increasing the supply of experienced challengers, term limits increase competition in elections for non-term-limited offices and, consequently, the quality of representation provided by those elected.”

Unfortunately, incumbents perpetually running for re-election are seldom tested and rarely forced to prove their ability as a legislator. Term limits counter-act the Incumbent Advantage, and ensure candidates have to prove their competence.

Link: Competition is key to Legitimacy and Accountability

Professor Kenneth Mayer (Ph.D. from Yale University in Political Science. He currently teaches Political Science at the University of Wisconsin-Madison), Assistant Professor Timothy Werner (Ph.D. from the University of Wisconsin-Madison. His is currently an assistant professor of Business, Government & Scoiety at the McCombs School of Business at the University of Texas at Austin), and Amanda Williams. January 2006. Published by the University of Wisconsin-Madison Department of Political Science. “Do Public Funding Programs Enhance Electoral Competition?” http://works.bepress.com/cgi/viewcontent.cgi?article=1014&context=mayer&sei-redir=1&referer=http%3A%2F%2Fscholar.google.com%2Fscholar%3Fq%3Delection%2B%252B%2Bpublic%2Bfunds%26btnG%3D%26hl%3Den%26as_sdt%3D0%252C1%26as_ylo%3D2000%26as_yhi%3D2013#search=%22election%20%2B%20public%20funds%22

Meaningful political competition is the foundation of democratic legitimacy. The ability to freely choose among realistic alternatives, especially at the ballot box, is a prerequisite to the exercise and protection of most other political rights. To create even a token degree of accountability, elections “must occur in circumstances that involve an appropriate degree of genuine competition.” At some point, a minimum level of competition is essential “for legislatures to be responsive to electoral change.

Advantage 3: Voters Better-Represented

Patrick Basham, (Ph.D. in Political Economy from Cambridge University. He is currently the Director of the Democracy Institute and an adjunct scholar with the Cato Institute’s Center for Representative Government. His articles have appeared in the New York Times, the Washington Post, USA Today, the New York Post, and the Chicago Sun-Times; he has appeared in the flesh on ABC, CBS, NBC, CNN, Fox News, PBS, NPR, and the BBC). After May 2011. NOTE: Specific publication date not listed. Published by Our Generation. “Term Limits: A Reform That Works.” http://ourgeneration.org/wp-content/uploads/2011/06/term-limits.pdf

“Although a 2006 nationwide survey found that term-limited state legislators feel less constrained by their constituencies, more recent research finds no evidence that term limited legislators are any less representative of their constituents than are non-term limited legislators. These results are consistent with the so-called “sorting model,” found in economics literature, in which elections are reasonably efficient at selecting leaders whose preferences align with those of their districts. In fact, term limits – or even the mere threat of term limits – increases the responsiveness of politicians’ policy platforms. Even in cases in which term limits do not produce much partisan change, they are likely to produce legislators who are closer to the median voters in their districts than in situations in which term limits do not apply.”

Politicians who face term limits have more competition. And more competition means that politicians are held accountable for their actions. Instituting term limits is the answer for stopping the vicious cycle of career politicians using their position to keep themselves in power. Now is the time to return to the vision of America’s founders – a government truly run by the people.

Backup: Term Limits

Opening Quote

Franklin D Roosevelt. http://www.brainyquote.com/quotes/keywords/democracy.html#8zPRbtsBSYKDC7pz.99

Let us never forget that government is ourselves and not an alien power over us. The ultimate rulers of our democracy are not a President and senators and congressmen and government officials, but the voters of this country.

THE PROBLEM

Rise of the Career Population

Niraj Chokshi, (policy reporter at NJ. Previously a staff editor at The Atlantic and reported on the nation’s largest law firms for The Recorder). July 9, 2013. Published by the National Journal. “The Rise of the Career Politician.” http://www.nationaljournal.com/congress/the-rise-of-the-career-politician-20130709

The number of House members whose previous careers were in public service or politics has risen steadily from 94 to 184 from 1987 to today, according to congressional data compiled by the Brookings Institution and the American Enterprise Institute.

Civil Service officials have an average tenure of 23 years

Professor Alexander Tabarrok (Ph.D. from George Mason University. Currently teaches in the Department of Economics at GMU). Fall 1994. Published by The Cato Journal. “A Survey, Critique, and New Defense of Term Limits.” http://www.cato.org/sites/cato.org/files/serials/files/cato-journal/1994/11/cj14n2-9.pdf

In the United States, senior officials in the civil service have an average tenure of 23 years. Similar lengths of term are not uncommon among Senators or even Congressmen in the present unlimited system but would be impossible under a term limit system.

Impact 1: Careerists Focus on the Career, Not the People

Patrick Basham, (Ph.D. in Political Economy from Cambridge University. He is currently the Director of the Democracy Institute and an adjunct scholar with the Cato Institute’s Center for Representative Government. His articles have appeared in the New York Times, the Washington Post, USA Today, the New York Post, and the Chicago Sun-Times; he has appeared in the flesh on ABC, CBS, NBC, CNN, Fox News, PBS, NPR, and the BBC). After May 2011. NOTE: Specific publication date not listed. Published by Our Generation. “Term Limits: A Reform That Works.” http://ourgeneration.org/wp-content/uploads/2011/06/term-limits.pdf

Careerism flourishes because incumbents are virtually certain to be re-elected, largely because of the inherent advantages of holding office. Careerism poses several problems for our system of representative democracy. Once in office, careerist legislators pay less attention to the needs and wishes of their constituents. Moreover, careerist elected officials become a political class attentive to their own interests.

Impact 2: Voters re-elect Congressmen who bring in the money

Professor Dan Bernhardt (Ph.D. in Economics from Carnegie Mellon University. Currently teaches Economics at the University of Illinois at Urbana-Champaign), Sangita Dubey (Ph.D. in Economics from Queen’s University [all but dissertation complete]), and Professor Eric Hughson (Ph.D. from Carnegie Mellon University. Currently teaches Finance and Economics at Claremont McKenna College). May 25, 2004. Published by the Journal of Public Economics. “Term Limits and Pork Barrel Politics.” http://www.sciencedirect.com/science/article/pii/S0047272704000386

The core model is missing aspects of the political environment that lead voters to set slacker standards for more senior incumbents. It may be that incumbents become more able with time. One view of this increased ability is that representatives just get better with experience. Then, having more senior representatives in office would be good for society. Surprisingly, however, slightly more than 30% of incumbent governors who ran for re-election lost, and another one-eighth of incumbent governors chose to retire rather than run again (Besley and Case, 1995). Were incumbents simply to become more able over time, one would not expect such a high proportion of governors to lose. An alternative is that more senior incumbents are more proficient at providing pork to their constituencies. This may be because of the allocation by seniority of committee positions in Congress, or because the incumbent becomes more knowledgeable about creating loopholes when crafting legislation. Opinion polls in which voters assert that all Congressmen are bad—except for their Congressman—are consistent with substantial pork provision. Voters want to throw the bums out—except for their bum, whose provision of pork serves them well.

Impact 3: Legislators Become Out-of-Touch

Restart Congress (non-partisan Super PAC “committed to holding Congress accountable for their actions and ultimately re-establishing a government ruled by the people, for the people.”). 2012. “Founding Fathers.” http://restartcongress.org/revolution/founding-fathers/

Still, the Founding Fathers made their viewpoints clear in debates, speeches and writings. They could not have foreseen the modern political climate in which career politicians are standard. At the time of the Constitutional Convention, the notion of a person spending decades away from home to serve in government was unrealistic. A representative would have earned only a “modest” salary for serving his country; unlike today, a position in Congress was not a means to wealth.

[later, in the same context:]

They believed that the very essence of fair and responsible legislation relied upon the premise that those making the laws would soon return to their normal lives to live under the laws they created. When one spends decades as a member of the ruling class, he or she will lose sight of what it means to be a regular citizen. The Founders recognized term limits as the best way to avoid this situation and the dangerous legislation that may result from it – and the same holds true today.

Governors Cannot Provide Pork (A/T: “Incumbent Governors w/o term limits lose frequently”)

Professor Dan Bernhardt (Ph.D. in Economics from Carnegie Mellon University. Currently teaches Economics at the University of Illinois at Urbana-Champaign), Sangita Dubey (Ph.D. in Economics from Queen’s University [all but dissertation complete]), and Professor Eric Hughson (Ph.D. from Carnegie Mellon University. Currently teaches Finance and Economics at Claremont McKenna College). May 25, 2004. Published by the Journal of Public Economics. “Term Limits and Pork Barrel Politics.” http://www.sciencedirect.com/science/article/pii/S0047272704000386

Pork provision can explain why very few incumbent members of Congress lost between 1960 and 1988, but slightly more than 30% of incumbent governors who ran for re-election lost, and another one eighth of incumbent governors chose to retire rather than run again (Besley and Case 1995): Congressmen, but not governors, supply pork.

THE SOLUTION

Solution: 14-year Total Limit

Professor Bruce E Cain (Ph.D. in Political Science from Harvard University, also studied as a Rhodes Scholar at Oxford. Currently teaches Political Science at Stanford University), and Associate Professor Thad Kousser (Ph.D. from UC-Berkeley. Currently teaches Political Science at UC Sand Diego). 2004. Published by the Public Policy Institute of California. “Adapting to Term Limits: Recent Experiences and New Directions.” http://faculty.washington.edu/jwilker/382/term%20limits.pdf

There is little voter appetite for eliminating term limits, but it may be possible to modify the existing limits to provide for a total service limit rather than a specific one for each legislative house. Instead of allowing legislators six years in the Assembly and eight in the Senate, a new provision could limit members to 14 years of total legislative service. Oklahoma’s term-limit law has just such a “mix-and-match” provision. This alteration would do little to erode the gains brought by Proposition 140. The Legislature is already more diverse, and the oldest Senators have already been termed out. Because nearly every Senator today is a former Assembly member, limiting total legislative service would not increase the average age or tenure in the Senate. That change would be likely to increase Assembly tenures, however, and our findings suggest that this outcome may be beneficial. A mix and-match provision would stem the flow from the Assembly into the Senate and allow legislators who stay in one house to learn more about particular policy areas and committees. Experience levels for Assembly chairs and consultants, which have dropped to very low levels, would rebound. Assembly committees could also perform their gatekeeping function more proficiently. Crucially, Assembly leaders and budget negotiators who chose not to run for the Senate would have more time to obtain expertise and lead their caucuses effectively. As a result, the Legislature as a whole could be strengthened in its budget negotiations and oversight action. This type of term-limit law would make the houses more equal in experience and the branches more equal in power even as it ensured the turnover required by Proposition 140.

Term Limits Create Turnover

Jennifer Drage Bowser, (Project Manager for the Joint Team on Term Limits at the National Conference on State Legislatures.) 2003. Published by The Council of State Governments. “The Effects of Legislative Term Limits.” http://knowledgecenter.csg.org/drupal/system/files/2003_bowser.pdf

Often, over half the legislature is ineligible to run for reelection in the year that term limits first take effect. Over time, the turnover rates under term limits will likely level out, but the immediate effect has been to increase turnover in the term-limited states by an average of 10.7 percent in the decade of 1992-2000 compared to 1982-1990. In the 2002 elections, nine of the 10 highest turnover states had term limits.

Automatic Open Seats

Professor Kenneth Mayer (Ph.D. from Yale University in Political Science. He currently teaches Political Science at the University of Wisconsin-Madison), Assistant Professor Timothy Werner (Ph.D. from the University of Wisconsin-Madison. His is currently an assistant professor of Business, Government & Scoiety at the McCombs School of Business at the University of Texas at Austin), and Amanda Williams. January 2006. Published by the University of Wisconsin-Madison Department of Political Science. “Do Public Funding Programs Enhance Electoral Competition?” http://works.bepress.com/cgi/viewcontent.cgi?article=1014&context=mayer&sei-redir=1&referer=http%3A%2F%2Fscholar.google.com%2Fscholar%3Fq%3Delection%2B%252B%2Bpublic%2Bfunds%26btnG%3D%26hl%3Den%26as_sdt%3D0%252C1%26as_ylo%3D2000%26as_yhi%3D2013#search=%22election%20%2B%20public%20funds%22

Term limits are another option. Barring incumbents from running past their fourth term (or whatever limit is imposed) automatically creates open seats, which at least guarantee new faces, if not changes in party control.

More Women

Patrick Basham, (Ph.D. in Political Economy from Cambridge University. He is currently the Director of the Democracy Institute and an adjunct scholar with the Cato Institute’s Center for Representative Government. His articles have appeared in the New York Times, the Washington Post, USA Today, the New York Post, and the Chicago Sun-Times; he has appeared in the flesh on ABC, CBS, NBC, CNN, Fox News, PBS, NPR, and the BBC). After May 2011. NOTE: Specific publication date not listed. Published by Our Generation. “Term Limits: A Reform That Works.” http://ourgeneration.org/wp-content/uploads/2011/06/term-limits.pdf

A recent analysis examined the number of female legislators in both chambers of the state legislatures in all 50 states from 1990 to 2006. The study included 21 states with term limits and 29 states that had never had term limits. The results suggest a positive relationship between term limits and women’s representation in state legislatures. This research is among the first to show a statistically significant relationship; the actual impact is estimated at 2.6 percent. In other words, women’s representation in legislatures is approximately 2.6 percent higher in term-limited states than in non-term limited states.

Voters Are Trapped (R/T: “If terrible, why do they keep relecting the same terrible reps?”)

Professor Alexander Tabarrok (Ph.D. from George Mason University. Currently teaches in the Department of Economics at GMU). Fall 1994. Published by The Cato Journal. “A Survey, Critique, and New Defense of Term Limits.” http://www.cato.org/sites/cato.org/files/serials/files/cato-journal/1994/11/cj14n2-9.pdf

Voters reason that they should reelect their representative because senior representatives have more power in Congress and will be able to bring home more pork. But all voters reason in this way, so each region reelects its representative but none gain the hoped-for extra pork because seniority is relative. Even though reelecting incumbents does not increase seniority (and so does not make voters better off) not reelecting dramatically reduces seniority and so makes voters worse off. Voters are trapped into continually reelecting incumbents even though it makes the voters no better off. In fact, continual reelection makes voters worse off because politicians understand that the more senior they are the less likely the public is to vote them out of office. Since there is little threat to their jobs, senior politicians feel free to shirk and deviate from the voter’s preferences.

Limits Create a Rotation of Power

Professor Alexander Tabarrok (Ph.D. from George Mason University. Currently teaches in the Department of Economics at GMU). Fall 1994. Published by The Cato Journal. “A Survey, Critique, and New Defense of Term Limits.” http://www.cato.org/sites/cato.org/files/serials/files/cato-journal/1994/11/cj14n2-9.pdf

Over the 1960—90 period, for example, House seats switched party 5.0 percent of the time when an incumbent ran and 25.7 percent of the time in an open election. In the Senate, parties rotated 15.5 percent of the time when an incumbent ran but 42.7 percent of the time when the election was open. The probability of a rotation of power is five times more likely in the House and nearly three times more likely in the Senate in an open election than in an election with an incumbent.

No Polarization (A/T: “Term Limits make legislators more partisan”)

Professor Bruce E Cain (Ph.D. in Political Science from Harvard University, also studied as a Rhodes Scholar at Oxford. Currently teaches Political Science at Stanford University), and Associate Professor Thad Kousser (Ph.D. from UC-Berkeley. Currently teaches Political Science at UC Sand Diego). 2004. Published by the Public Policy Institute of California. “Adapting to Term Limits: Recent Experiences and New Directions.” http://faculty.washington.edu/jwilker/382/term%20limits.pdf

What is the overall effect of term limits on partisan polarization in California? We find no evidence that term limits have led to the election of ideological extremists. Comparing the voting records of new members in their first year to those of veterans, and controlling for the partisan makeup of districts, we see little change in the character of newly elected legislators. In fact, the 1986 Assembly class may have been slightly more polarized than the class of 1996. Further, term limits may make the Legislature as a whole more moderate by halting the extremist drift that most members appear to experience over their careers. The sole polarizing effect of Proposition 140 comes when members are termed out of a house; in their final session, they are freed from the electoral pressures that would otherwise push them toward the center. Our examination of individual voting records shows that the California Legislature has indeed become more polarized since the initiative was adopted but that term limits are not to blame.

SUCCESS STORIES

Worked in California

Professor Richard Clucas (Ph.D. from the University of California, Santa Barbara. He Currently Teaches Political Science at Portland State University and is Executive Director of the Western Political Science Association). February 2003. Published in the book The Test of Time: Coping with Legislative Term Limits. “California: The New Amateur Politics.” http://books.google.com/books?hl=en&lr=&id=8w41rq5eC1MC&oi=fnd&pg=PR9&dq=institute+term+limits&ots=8DY91HH911&sig=XVbJHLvkSPWXHKpXfAQ7mw4xVv4#v=onepage&q=institute%20term%20limits&f=false

In sum, these two tables tell us that the introduction of term limits has increased the competitiveness of legislative elections. There are more open-seat races. More candidates are competing. The election margins have tended to be closer, especially in the Assembly. The one manner in which competition has become more limited, as term limit opponents would point out, is that voters can no longer vote for termed out incumbents.

Shorter tenures in California

Professor Richard Clucas (Ph.D. from the University of California, Santa Barbara. He Currently Teaches Political Science at Portland State University and is Executive Director of the Western Political Science Association). February 2003. Published in the book The Test of Time: Coping with Legislative Term Limits. “California: The New Amateur Politics.” http://books.google.com/books?hl=en&lr=&id=8w41rq5eC1MC&oi=fnd&pg=PR9&dq=institute+term+limits&ots=8DY91HH911&sig=XVbJHLvkSPWXHKpXfAQ7mw4xVv4#v=onepage&q=institute%20term%20limits&f=false

With the exception of two redistricting years (1974 and 1982), the turnover rate in the Assembly never exceeded 29 percent between the late 1960s until the first post-term limits election in 1992. During the transition period and into the new era, the turnover rate each session has remained at or above 35 percent. The Senate has gone through a similar, though less dramatic, change. While turnover has risen, tenure has declined. By the late 1980s, the average length of tenure of Assembly members was over seven years and for senators over nine. In the 1999-2000 term, the average tenure is under three years in both houses.

Increased Diversity in California

Professor Richard Clucas (Ph.D. from the University of California, Santa Barbara. He Currently Teaches Political Science at Portland State University and is Executive Director of the Western Political Science Association). February 2003. Published in the book The Test of Time: Coping with Legislative Term Limits. “California: The New Amateur Politics.” http://books.google.com/books?hl=en&lr=&id=8w41rq5eC1MC&oi=fnd&pg=PR9&dq=institute+term+limits&ots=8DY91HH911&sig=XVbJHLvkSPWXHKpXfAQ7mw4xVv4#v=onepage&q=institute%20term%20limits&f=false

There has been an increase of Latinos and women in both houses since the introduction of term limits. Prior to term limits, the percentage of Latinos never surpassed 7 percent in the Assembly, and 5 percent in the Senate. In the 1999-00 session, 16 percent of the Assembly and 17.5 percent of the Senate were Latinos. The percentage of women has also reached record highs. In the 1999-00 session, 26 percent of the Assembly and 25 percent of the Senate were female.

ADVOCACY

Founding Fathers Endorse

Restart Congress (non-partisan Super PAC “committed to holding Congress accountable for their actions and ultimately re-establishing a government ruled by the people, for the people.”). 2012. “Founding Fathers.” http://restartcongress.org/revolution/founding-fathers/

The Founding Fathers imagined a Congress of citizen legislators. James Madison described the ideal representative as one “called for the most part from pursuits of a private nature and continued in appointment for a short period of office.” George Mason stated further, “Nothing so strongly impels a man to regard the interest of his constituents, as the certainty of returning to the general mass of the people, from whence he was taken, where he must participate in their burdens.” Jefferson defended his position in favor of Congressional term limits with: “My reason for fixing them in office for a term of years, rather than for life, was that they might have an idea that they were at a certain period to return into the mass of the people and become the governed instead of the governors which might still keep alive that regard to the public good that otherwise they might perhaps be induced by their independence to forget.”

Founding Father Never Imagined Today’s Legislature

Restart Congress (non-partisan Super PAC “committed to holding Congress accountable for their actions and ultimately re-establishing a government ruled by the people, for the people.”). 2012. “Founding Fathers.” http://restartcongress.org/revolution/founding-fathers/

Still, the Founding Fathers made their viewpoints clear in debates, speeches and writings. They could not have foreseen the modern political climate in which career politicians are standard. At the time of the Constitutional Convention, the notion of a person spending decades away from home to serve in government was unrealistic. A representative would have earned only a “modest” salary for serving his country; unlike today, a position in Congress was not a means to wealth.

Americans widely support term limits

Patrick Basham, (Ph.D. in Political Economy from Cambridge University. He is currently the Director of the Democracy Institute and an adjunct scholar with the Cato Institute’s Center for Representative Government. His articles have appeared in the New York Times, the Washington Post, USA Today, the New York Post, and the Chicago Sun-Times; he has appeared in the flesh on ABC, CBS, NBC, CNN, Fox News, PBS, NPR, and the BBC). After May 2011. NOTE: Specific publication date not listed. Published by Our Generation. “Term Limits: A Reform That Works.” http://ourgeneration.org/wp-content/uploads/2011/06/term-limits.pdf

Despite a steady onslaught of negative commentary emanating from the political and media establishments, a very large number of Americans continue to support term limits. For example, Our Generation recently polled over two million people and found that 96 percent of the responders favor term limits.

Limit-legislation Proposed

Patrick Basham, (Ph.D. in Political Economy from Cambridge University. He is currently the Director of the Democracy Institute and an adjunct scholar with the Cato Institute’s Center for Representative Government. His articles have appeared in the New York Times, the Washington Post, USA Today, the New York Post, and the Chicago Sun-Times; he has appeared in the flesh on ABC, CBS, NBC, CNN, Fox News, PBS, NPR, and the BBC). After May 2011. NOTE: Specific publication date not listed. Published by Our Generation. “Term Limits: A Reform That Works.” http://ourgeneration.org/wp-content/uploads/2011/06/term-limits.pdf

Eleven Republican senators are currently pushing a new constitutional amendment that would limit senators to two terms and members of the House to three terms. Authored by Senator Jim DeMint (R-S.C.) and cosponsored by ten other Republican senators, the amendment faces a Democratic majority in the Senate, but a companion bill is expected to be introduced soon in the Republican-controlled U.S. House. The amendment would require passage by twothirds of the House and Senate and then approval in two-thirds (38) of the country’s state legislatures for ratification.

BONUS: Negative Brief

Quote for the Opening: (and if you want to call the affirmative team a monster)

“…And we would like to turn our song into a prayer. The prayer is that we don’t become a monster in order to defeat a monster. That’s our prayer, tonight.”

– Bono, after 2005 London Subway Bombings

Neg Philosophy: Term Limits is a solution in search of a problem. In fact, having career politicians is arguably good. Constantly bringing brand-new, inexperienced legislators to the Capitol will only exacerbate the current gridlock. Additionally, inexperienced legislators are more prone to look to special interests for advice and are less likely to (know how to) hold the executive branch accountable. The other major argument is that term limits actually harm accountability. First, lame duck legislators have no incentive to please the people, and can therefore vote for/pass whatever plans they please, regardless of the people’s voice. Second, term limits eliminate the ability of voters to selectively retain legislators they like and who do a good job – in other words, there is significantly decreased incentive for legislators to please the people who elected them, since they can’t be elected again.

INHERENCY: No need

Term Limits Already Prevalent

Professor Michael Smart (Ph.D. in Economics from Stanford University. Professor of Economics at the University of Toronto) and Associate Professor Daniel M. Sturm, (Ph.D. in Economics from the London School of Economics. Currently a professor at the same college). July 2006. Published by the Social Science Research Network. “Term Limits and Electoral Accountability.” Note: Section quoted here is from Abstract of paper. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1077756

Currently, in the United States the office of the president, over two-thirds of state governors and many other politicians in the state executive face term limits.

Currently, more citizen-legislators than ever

Assistant Professor Alexander Tabarrok (Ph.D. from George Mason University. He is currently a Professor of Economics at George Mason University). Fall 1994. Published by the Cato Institute. “A suvery, critique, and new defense of term limits.” http://www.cato.org/sites/cato.org/files/serials/files/cato-journal/1994/11/cj14n2-9.pdf

If a citizen-legislator is a representative who shares similar characteristics with her constituents then it is clear that we have more citizen-legislators today than ever before. Not only are women and minorities better represented in the late 20th century but representatives are more likely to come from the same “class” as voters (as measured, for example, by education levels; Bogue et al. 1976).

SOLVENCY 1: Term Limits Do Not Increase Citizen Legislators

Failed Purpose in California

Professor Bruce E Cain (Ph.D. in Political Science from Harvard University, also studied as a Rhodes Scholar at Oxford. Currently teaches Political Science at Stanford University), and Associate Professor Thad Kousser (Ph.D. from UC-Berkeley. Currently teaches Political Science at UC Sand Diego). 2004. Published by the Public Policy Institute of California. “Adapting to Term Limits: Recent Experiences and New Directions.” http://faculty.washington.edu/jwilker/382/term%20limits.pdf [note: Proposition 140 is the California measure instituting term limits in the state]

Even the major figure behind Proposition 140, Pete Schabarum, recently voiced his discontent with the results. “What I was hoping was that we would have a group of 120 legislators who were actually private citizens willing to give a piece of their lives to public service. None of that is happening. It’s become a partisan cesspool” (Sprague, 2004).

High Turnover Rates do not ensure legislators with diverse backgrounds

Assistant Professor Alexander Tabarrok (Ph.D. from George Mason University. He is currently a Professor of Economics at George Mason University). Fall 1994. Published by the Cato Institute. “A suvery, critique, and new defense of term limits.” http://www.cato.org/sites/cato.org/files/serials/files/cato-journal/1994/11/cj14n2-9.pdf

Historically the House was not more diverse when turnover was high. During the 19th century, when turnover rates were four to six times greater than they are today, lawyers made up over 60 percent of the House, more than at any other time before or since. The occupational background of representatives has remained remarkably stable since the founding of the United States. Lawyers have always made up about 50 to 60 percent of the House and since the 1850s those with business backgrounds, the largest group after lawyers, have constituted about 20 percent of the House (Bogue et al. 1976)

Career Politicians Actually Empowered

Professor Bruce E Cain (Ph.D. in Political Science from Harvard University, also studied as a Rhodes Scholar at Oxford. Currently teaches Political Science at Stanford University), and Associate Professor Thad Kousser (Ph.D. from UC-Berkeley. Currently teaches Political Science at UC Sand Diego). 2004. Published by the Public Policy Institute of California. “Adapting to Term Limits: Recent Experiences and New Directions.” http://faculty.washington.edu/jwilker/382/term%20limits.pdf

To begin with, term limits did not lessen political careerism. The number of new members who were former legislative staffers dropped from 40 percent in the 1980s to 16 percent in the 1990s, but the percentage of local officeholders who won legislative seats increased from 52 percent to 64 percent. In other words, local officeholders and candidates from the private sector were the primary beneficiaries of the new opportunities created by term limits. Given the expense of running for office in California’s large legislative districts, it was difficult for inexperienced, less affluent candidates to win legislative seats in large numbers.

SOLVENCY 2: Human Interests Not Improved

Term Limits Decrease Women’s Representation

Jennifer Drage Bowser, (Project Manager for the Joint Team on Term Limits at the National Conference on State Legislatures.) 2003. Published by The Council of State Governments. “The Effects of Legislative Term Limits.” http://knowledgecenter.csg.org/drupal/system/files/2003_bowser.pdf

One trend that seems to be emerging in nearly all term-limits states is a decrease in the number of women in the legislature. The percentage of state house seats held by women in 11 states under term limits decreased from 25.5 percent before the 2000 election to 23.6 percent after.

Term Limits Mostly Not Responsible for Increased Women (California)

Professor Bruce E Cain (Ph.D. in Political Science from Harvard University, also studied as a Rhodes Scholar at Oxford. Currently teaches Political Science at Stanford University), and Associate Professor Thad Kousser (Ph.D. from UC-Berkeley. Currently teaches Political Science at UC Sand Diego). 2004. Published by the Public Policy Institute of California. “Adapting to Term Limits: Recent Experiences and New Directions.” http://faculty.washington.edu/jwilker/382/term%20limits.pdf

Since 1990, that representation has increased dramatically, with eight new Assemblywomen per two-year cycle and five new women per four-year cycle in the Senate. Before attributing all of this increase to term limits, however, we should note the timing of the large surges. Much of this increase occurred in 1992, often dubbed the “Year of the Woman” (Figure 2.3). Four years before Proposition 140 brought its first set of forced retirements, 15 women were elected to the two houses. National events likely increased the propensity of high-quality female candidates to run, and the 1991 Special Masters’ redistricting gave them the opportunity by creating many open seats. After dropping in 1994, the number of new female legislators grew sharply, bringing in 28 new Assemblywomen and 11 new female Senators. Whom did they replace? From 1996 to 2001, 71 percent of the new Assemblywomen replaced a term-limited member, 25 percent replaced someone who ran for another office, and only one (Wilma Chan) defeated an incumbent. This pattern contrasts with that of the 1990–1995 period, when 23 percent beat an incumbent, 23 percent replaced an incumbent who retired or died, and 27 percent won a new seat created by redistricting. The remaining 27 percent replaced a member running for another office, probably in anticipation of term limits. Using this calculus, we estimate that 18 of the 25 Assemblywomen newly elected from 1990 to 1995 did not owe their victory to term limits. Over the next three elections, 27 Assemblywomen won seats that were directly or indirectly vacated as a result of term limits. Comparing these figures indicates that term limits opened up nine Assembly seats for women over the course of three elections.

Women Representing CA nationally also increased, despite no term limits (A/T: “Term Limits in CA led to more women”)

Professor Bruce E Cain (Ph.D. in Political Science from Harvard University, also studied as a Rhodes Scholar at Oxford. Currently teaches Political Science at Stanford University), and Associate Professor Thad Kousser (Ph.D. from UC-Berkeley. Currently teaches Political Science at UC Sand Diego). 2004. Published by the Public Policy Institute of California. “Adapting to Term Limits: Recent Experiences and New Directions.” http://faculty.washington.edu/jwilker/382/term%20limits.pdf

From 1990 to 2000, the share of state legislative seats held by women grew from 19.2 percent to 29.2 percent. Over the same period, the percentage of women in California’s House seats rose from 6.7 percent to 30.8 percent. In 1992, Californians also elected Senators Barbara Boxer and Dianne Feinstein. This analysis suggests that term limits have not been responsible for any of the increase in women’s representation.

No More Racial Diversity in California with term limits

Professor Bruce E Cain (Ph.D. in Political Science from Harvard University, also studied as a Rhodes Scholar at Oxford. Currently teaches Political Science at Stanford University), and Associate Professor Thad Kousser (Ph.D. from UC-Berkeley. Currently teaches Political Science at UC Sand Diego). 2004. Published by the Public Policy Institute of California. “Adapting to Term Limits: Recent Experiences and New Directions.” http://faculty.washington.edu/jwilker/382/term%20limits.pdf

A similar story can be told about black, Latino, and Asian American representation in the Legislature. The dramatic increase in minority legislators was ultimately the product of underlying demographic change. California’s Latino and Asian American populations grew dramatically in the 1980s and 1990s. Because much of this growth came from immigration, its political implications were delayed; foreign-born residents had to become naturalized and then active in the political system.

California, Florida diversity a product of population changes, not term limits

Jennifer Drage Bowser, (Project Manager for the Joint Team on Term Limits at the National Conference on State Legislatures.) 2003. Published by The Council of State Governments. “The Effects of Legislative Term Limits.” http://knowledgecenter.csg.org/drupal/system/files/2003_bowser.pdf

Proponents claim that term limits bring more ethnic diversity to the legislature. However, much of the increase in minority representation has come in states like California and Florida that have booming minority populations. It has been argued that the increase in minority representation began as a result of the increasing minority population, well before term limits were implemented in these states.

SOLVENCY 3: Voters Still Decide

Incumbency is a Problem of the Voters (A/T: “Terrible incumbents stay in office”)

Assistant Professor Alexander Tabarrok (Ph.D. from George Mason University. He is currently a Professor of Economics at George Mason University). Fall 1994. Published by the Cato Institute. “A suvery, critique, and new defense of term limits.” http://www.cato.org/sites/cato.org/files/serials/files/cato-journal/1994/11/cj14n2-9.pdf

A central problem with all of these arguments is that the people who are being implored to vote for term limits are the same people who reelect their representatives. Ultimately, it is the voters who are responsible for incumbency advantage. Term limit proponents treat incumbency advantage as if it were an exogenous force imposed upon the voters by a nefarious power. They often fail to ask, “If incumbency advantage creates unresponsive politicians why do voters continue to reelect their representatives?”

Impact: If voters continually select terrible politicians…why won’t they continue to do so? It’s not like we have a shortage of terrible ones to vote for.

SOLVENCY 4: Less Effective Legislators

Term-Limited Legislators did LESS to check Executive Branch

Professor Bruce E Cain (Ph.D. in Political Science from Harvard University, also studied as a Rhodes Scholar at Oxford. Currently teaches Political Science at Stanford University), and Associate Professor Thad Kousser (Ph.D. from UC-Berkeley. Currently teaches Political Science at UC Sand Diego). 2004. Published by the Public Policy Institute of California. “Adapting to Term Limits: Recent Experiences and New Directions.” http://faculty.washington.edu/jwilker/382/term%20limits.pdf

This chapter examines the effects of term limits in three critical areas of the relationship between the legislative and executive branches of California state government. First and most important is the process of negotiation over the state budget. Looking closely at line items from four budgets written during comparable sessions, we find that the Legislature has made roughly 50 percent fewer amendments to the governor’s budget since the implementation of term limits.

Worse Bill Screening

Professor Bruce E Cain (Ph.D. in Political Science from Harvard University, also studied as a Rhodes Scholar at Oxford. Currently teaches Political Science at Stanford University), and Associate Professor Thad Kousser (Ph.D. from UC-Berkeley. Currently teaches Political Science at UC Sand Diego). 2004. Published by the Public Policy Institute of California. “Adapting to Term Limits: Recent Experiences and New Directions.” http://faculty.washington.edu/jwilker/382/term%20limits.pdf

Sacramento Bee columnist Dan Walters explains that, since term limits, “Freshman Democrats show up in December and they say, ‘Here’s your office. The bathroom’s down the hall. And by the way, you’re a committee chairman’” (Walters, 2001). Assemblyman Darrell Steinberg, for example, was first elected in November 1998 and was appointed chair of the Assembly Labor and Employment Committee. How did he fare compared to his pre-term limits counterpart? Our sample of bills from the 1999–2000 session includes 50 bills that were assigned to Steinberg’s committee. Forty-three passed, giving the committee a gatekeeping rate of 14 percent. The Labor Committee amended only 13 of these bills, but as the 43 passed bills worked their way through the legislative process, they were collectively amended 14 times by other Assembly committees and a dozen times on the Assembly floor. The 14 Assembly bills that advanced to the Senate were altered 25 times in that body. The frequency of amendments at other points in the process suggests that these bills were not finished products when they emerged from Steinberg’s committee. Contrast these figures to the record of the Labor Committee during the 1979–1980 session, when it was chaired by Bill Lockyer. Although Lockyer was in his first term as chair and had no prior experience on the committee, he had served in the Assembly since 1972. His committee approved only 46 of the 60 bills assigned to it, a gatekeeping rate of 23.3 percent, and amended 20 of these bills. After passing out of the Labor Committee, these 46 bills were amended nine times in other committees and four times on the floor. In the Senate, 19 amendments were made to the 18 Assembly bills that had been moved out of Lockyer’s committee. The deference shown to the committee’s work indicates that it did a better job of screening and shaping labor legislation before term limits than afterward.

State-Level Success Does Not Guarantee Success Elsewhere (A/T: “Term Limits Worked in the State of ____”)

Jennifer Drage Bowser, (Project Manager for the Joint Team on Term Limits at the National Conference on State Legislatures.) 2003. Published by The Council of State Governments. “The Effects of Legislative Term Limits.” http://knowledgecenter.csg.org/drupal/system/files/2003_bowser.pdf

The first lesson to heed when studying term limits is that it is very difficult to generalize across states about their effects. What happens in Arkansas, a smaller population state with a citizen legislature, does not necessarily happen in California, a large population state with a highly professionalized legislature. Results vary according to the type of limits too — states with shorter limits, such as Michigan’s lifetime limit of six years in the House and eight in the Senate, are likely to see more dramatic effects than states with more generous limits, like Arizona’s limit of no more than eight consecutive years per chamber.

DISADVANTAGE 1: Chaos Ensues

Loss of Institutional Memory

Jennifer Drage Bowser, (Project Manager for the Joint Team on Term Limits at the National Conference on State Legislatures.) 2003. Published by The Council of State Governments. “The Effects of Legislative Term Limits.” http://knowledgecenter.csg.org/drupal/system/files/2003_bowser.pdf

Scholars and legislators alike often bemoan the loss of “institutional memory” that term limits inflict. Institutional memory provides the history, context and informal behavior cues that are so critical to the legislative process. Losing institutional memory means that there is no longer anyone around to say, “We dealt with that 10 years ago. Here’s what we learned, and why we chose to act in the way that we did.” The current difficult economic times provide a good example of when institutional memory is most valuable — there is no doubt that the legislators currently serving would appreciate the advice of members who have lived through the experience of balancing a budget in the face of declining revenues.

Complex Issues Demand Experience

Ruth Marcus (J.D. from Harvard Law School, Pulitzer Prize Finalist). September 6, 2011. Published by the Washington Post (Opinion). “Those career politicians.” http://articles.washingtonpost.com/2011-09-06/opinions/35274205_1_career-politicians-sarah-palin-fiorina

The romantic image of the citizen-legislator, Cincinnatus called to service and then returning to his plow, is a constant theme of American political life. Yet a government composed entirely of Cincinnati would be dangerously ineffective. As James Madison wrote in Federalist 62: “A good government implies two things: first, fidelity to the object of government, which is the happiness of the people; secondly, a knowledge of the means by which that object can be best attained.” In other words: Wanting to do the right thing doesn’t matter if you don’t know how to get it done. The political short-timer has little interest in forging relationships or building the coalitions necessary for productive compromise. The reviled “career politician” may have been around long enough to see this play before. The more complicated the issues, from health care to defense spending, the more valuable the institutional knowledge.

Lack of Experience Has an Effect

Ruth Marcus (J.D. from Harvard Law School, Pulitzer Prize Finalist). September 6, 2011. Published by the Washington Post (Opinion). “Those career politicians.” http://articles.washingtonpost.com/2011-09-06/opinions/35274205_1_career-politicians-sarah-palin-fiorina

I’d argue, for example, that President Obama’s current difficulties stem less from his being a “career politician” than from the fact that his political career was so brief before he won the White House. Experience matters, even in politics. This is why Vice President Biden, with long-standing relationships in Congress, brings value to the Obama White House. It is why governorships have proved to be such an effective preparation for the presidency.

In the private sector, experience is crucial

Ruth Marcus (J.D. from Harvard Law School, Pulitzer Prize Finalist). September 6, 2011. Published by the Washington Post (Opinion). “Those career politicians.” http://articles.washingtonpost.com/2011-09-06/opinions/35274205_1_career-politicians-sarah-palin-fiorina

My point is different: that the attack on the “career politician” is as misguided as it is familiar. Your career politician is my devoted public servant. Imagine this line of argument applied to another job. “Unlike my competition, I haven’t spent my life in the oil industry,” an aspirant to the chief executive post at Exxon Mobil announces. “I’m no career retailer,” crows a would-be Wal-Mart head.

Staff Cannot Substitute (A/T: Staff will just serve as institutional memory”)

Jennifer Drage Bowser, (Project Manager for the Joint Team on Term Limits at the National Conference on State Legislatures.) 2003. Published by The Council of State Governments. “The Effects of Legislative Term Limits.” http://knowledgecenter.csg.org/drupal/system/files/2003_bowser.pdf

To a certain extent, improved record-keeping and technological advances can help to make up for this loss, and in many states, long-serving staff are filling this role. However, there are indications that the staff turnover rate is higher under term limits too. In states like California and Michigan, where members have personal staff, the staff often leave the legislature when the member they serve leaves. Even states like Colorado, where the staff structure is largely centralized and nonpartisan, are experiencing turnover in senior staff. This may not be due to term limits at all, but instead to the fact that many of these staff were hired in the 1970s and 1980s as legislatures were going through a period of rapid professionalization, and the staff members hired during that period are reaching retirement age. Nonetheless, the fact remains that experienced staff play an important role in the term-limited legislature, and term-limited legislatures appear to be losing their staff at an accelerated rate.

DISADVANTAGE 2: Special Interests Empowered

Professor Bruce E Cain (Ph.D. in Political Science from Harvard University, also studied as a Rhodes Scholar at Oxford. Currently teaches Political Science at Stanford University), and Associate Professor Thad Kousser (Ph.D. from UC-Berkeley. Currently teaches Political Science at UC Sand Diego). 2004. Published by the Public Policy Institute of California. “Adapting to Term Limits: Recent Experiences and New Directions.” http://faculty.washington.edu/jwilker/382/term%20limits.pdf

Many legislators turned to lobbyists for guidance. A few new members confessed that in their first year, over 90 percent of their bills were drafted or given to them by lobbyists. When members had questions that their staff and other members could not answer, they called lobbyists for explanations. Although consulting with lobbyists is not a new practice in the California Legislature, some interviewees told us that since term limits were implemented, members have relied more on lobbyists to craft bills.

DISADVANTAGE 3: Decreased Accountability

Elections Ensure Accountability

Professor Michael Smart (Ph.D. in Economics from Stanford University. Professor of Economics at the University of Toronto) and Associate Professor Daniel M. Sturm, (Ph.D. in Economics from the London School of Economics. Currently a professor at the same college). March 2013. Published by the London School of Economics and Political Science. “Term Limits and Electoral Accountability.” http://personal.lse.ac.uk/sturmd/papers/wp/smart-sturm.pdf

In representative democracies, periodic elections are the main instrument through which voters can hold politicians accountable. A broad lesson from the growing literature on political economy is that electoral accountability should benefit voters through two main channels. First, elections enable voters to selectively retain incumbents whose track record suggests that they are of high ability. Second, electoral accountability constrains opportunistic behavior of incumbents. If the payoffs from future terms in office are sufficiently large, then the threat of being replaced by a challenger should reduce politicians’ willingness to implement policies which are not in the interests of the electorate.

Term Limits Remove Accountability Measure

Professor Michael Smart (Ph.D. in Economics from Stanford University. Professor of Economics at the University of Toronto) and Associate Professor Daniel M. Sturm, (Ph.D. in Economics from the London School of Economics. Currently a professor at the same college). July 2006. Published by the London School of Economics and Political Science. “Term Limits and Electoral Accountability.” http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1077756′

In representative democracies, periodic elections are the main instrument through which voters can hold politicians accountable. A broad lesson from the growing literature on political economy is that electoral accountability should benefit voters through two main channels. First, elections enable voters to selectively retain good incumbents. If politicians have heterogeneous preferences, for example, then politicians with preferences which are close to those of the electorate should face a higher re-election probability. Second, electoral accountability constrains opportunistic behavior by incumbents. If the payoffs from future terms in office are sufficiently large, then the threat of being replaced by a challenger should reduce politicians’ willingness to implement policies which are not in the interests of the electorate. From this perspective term limits, which limit politicians to a maximum number of terms in office, are a curious intervention into the political process. In the presence of term limits voters are unable to retain good politicians who face a binding term limit. Furthermore, term limits will reduce or, in the case of a binding term limit, eliminate the incumbent’s payoffs from future periods in office, which reduces voters’ ability to punish opportunistic behavior by threatening to replace the incumbent with a challenger.

No Incentive to Please the People

Associate Professor Maurizio Zanardi (Ph.D. in Economics from Boston College. He currently teaches Economics at the Universite Libre de Bruxelles), Associate Professor Paola Conconi (Ph.D. in Economics from the University of Warwick. She currently teaches at the Universite Libre de Bruxelles, and is a Research Fellow of the Centre for Economic Political Research), and Assistant Professor Nicolas Sahuguet (Ph.D. in Economics from the University of Pennsylvania. He currently teaches at the Institute of Applied Economics at HEC Montreal). August 30, 2008. Published by VOX. “Democracy and accountability: The perverse effects of term limits.” http://www.voxeu.org/article/democracy-and-accountability-perverse-effects-term-limits

Term limits may reduce the disciplining effect of electoral accountability, as politicians who cannot be re-elected have little to lose from displeasing voters and may thus behave in a more self-interested way.

[later, in the same context:]

In autocracies and democracies with term limits, in which there is no need for “contract renewal”, politicians can adopt unpopular policies with no repercussion on whether or not they are able to stay in power.

Elections Provide Incentive

Professor James Alt (Ph.D. in Government from the University of Essex. Currently teaches Government and Political Economy at Harvard University), Professor Ethan Bueno de Mesquita (Ph.D. in Political Science from Harvard University. Currently teaches in the Harris School of Public Policy Studies at the University of Chicago), and Assistant Professor Shanna Rose (Ph.D. in Political Economy and Government from Harvard University, She currently teaches economics and politics at New York University). January 2011. Published by the Journal of Politics of the Southern Political Science Association. “Disentangling Accountability and Competence in Elections: Evidence from U.S. Term Limits.” http://home.uchicago.edu/~bdm/PDF/term_limits.pdf

Voters’ threat to reelect only incumbents believed to be good types gives politicians an incentive to exert effort in order to try to convince voters that they are ‘‘good’’ (that is, more competent than they really are).

DISADVANTAGE 4: Impacts of Less Accountability / Incentive

Less economic growth, higher taxes

Professor James Alt (Ph.D. in Government from the University of Essex. Currently teaches Government and Political Economy at Harvard University), Professor Ethan Bueno de Mesquita (Ph.D. in Political Science from Harvard University. Currently teaches in the Harris School of Public Policy Studies at the University of Chicago), and Assistant Professor Shanna Rose (Ph.D. in Political Economy and Government from Harvard University, She currently teaches economics and politics at New York University). January 2011. Published by the Journal of Politics of the Southern Political Science Association. “Disentangling Accountability and Competence in Elections: Evidence from U.S. Term Limits.” http://home.uchicago.edu/~bdm/PDF/term_limits.pdf

In regression models with state and year fixed effects, state time trends, and a variety of economic and political controls, we find that economic growth is higher and taxes, spending, and borrowing costs are lower under reelection-eligible incumbents than under term-limited incumbents, holding tenure in office constant (evidence of an accountability effect), and under second-term incumbents than under first term incumbents, holding term-limit status constant (evidence of a competence effect). We find that these two effects are of comparable magnitudes.

Example 1: For lame-duck governors, $7 – $9 avg. tax increase per capita

Professor Timothy Besley (D.Phil and M.Phil in Economics from Oxford University. Currently teaches Economics and Political Science at the London School of Economics) and Professor Anne Case (Ph.D. in Economics from Princeton. Currently teaches Economics and Public Affairs at Princeton). August 1995. Published by the Quarterly Journal of Economics. “Does electoral accountability affect economic policy choices? Evidence from gubernatorial term limits.” http://www.princeton.edu/~accase/downloads/Does_Electoral_Accountability_Affect_Economic_Policy_Choices.pdf

We find a positive and significant effect of a governor working under a term limit on the level of state sales taxes (column 1). When a governor faces a term limit, sales taxes per capita will be $7 to $8 higher in all years of this final term. (This is roughly 3 percent of the mean state sales tax.) Income taxes also rise significantly in states led by governors ineligible to stand for reelection. On average, income taxes per capita are nearly $9 higher in all years of a lame duck’s term. This is roughly 7 percent of the average income tax collected in states that have income taxes ($127).

Example 2: For lame-duck governors, $15 avg. state spending increase

Professor Timothy Besley (D.Phil and M.Phil in Economics from Oxford University. Currently teaches Economics and Political Science at the London School of Economics) and Professor Anne Case (Ph.D. in Economics from Princeton. Currently teaches Economics and Public Affairs at Princeton). August 1995. Published by the Quarterly Journal of Economics. “Does electoral accountability affect economic policy choices? Evidence from gubernatorial term limits.” http://www.princeton.edu/~accase/downloads/Does_Electoral_Accountability_Affect_Economic_Policy_Choices.pdf

Term limits have a positive and significant effect on total government expenditures per capita. We expect that, when a governor faces a term limit, state spending per person will rise by roughly $15.

Increased Public Spending (Abstract)

Assistant Professor H. Abbie Erler (Ph.D. from Yale University in Political Science. Currently teaches Political Science at Kenyon College). December 2007. Published by Public Choice. From Abstract of “Legislative Term Limits and State Spending.” http://link.springer.com/article/10.1007/s11127-007-9209-2

Supporters of legislative term limits often claim that they will lower state spending levels. Using fiscal data from 48 states from 1977 to 2001, this paper finds little support for this assertion. Instead, this analysis finds that states with term limits have higher spending levels than states without term limits. These results suggest that term limits give legislators greater incentives to deviate from socially optimal fiscal policy by altering the legislative environment in which such policy is formulated.

Impact: Public Spending Limits Economic Growth

DISADVANTAGES by Specific Proposals

Single-Term Limits vs. 2-Term Limits

Professor James Alt (Ph.D. in Government from the University of Essex. Currently teaches Government and Political Economy at Harvard University), Professor Ethan Bueno de Mesquita (Ph.D. in Political Science from Harvard University. Currently teaches in the Harris School of Public Policy Studies at the University of Chicago), and Assistant Professor Shanna Rose (Ph.D. in Political Economy and Government from Harvard University, She currently teaches economics and politics at New York University). January 2011. Published by the Journal of Politics of the Southern Political Science Association. “Disentangling Accountability and Competence in Elections: Evidence from U.S. Term Limits.” http://home.uchicago.edu/~bdm/PDF/term_limits.pdf

The first and third columns show that per capita spending and taxes are three to 5% lower under both first-term eligible governors and second-term lame ducks than under first-term lame ducks, supporting the accountability and competence effects, respectively. This difference, the estimated effect of elections, is of a similar magnitude (but opposite in sign) to the difference made by having a Democratic majority in the state legislature. Column 5 shows that borrowing costs are six to seven basis points lower under both first-term eligible governors and second-term lame ducks, compared to first-term lame ducks. This is similar to the effect of an extra $300 to $400 in real state per capita income. As shown in column 7, the economic growth rate is nearly 0.7 percentage points higher (about a quarter of the average growth rate) under first-term reelection-eligible governors than under first-term lame ducks, reflecting the accountability effect; the positive coefficient on the competence effect goes in the expected direction but falls short of statistical significance at conventional levels

(A/T: “Why are second-term lame ducks better than first-term lame ducks?”)

Professor James Alt (Ph.D. in Government from the University of Essex. Currently teaches Government and Political Economy at Harvard University), Professor Ethan Bueno de Mesquita (Ph.D. in Political Science from Harvard University. Currently teaches in the Harris School of Public Policy Studies at the University of Chicago), and Assistant Professor Shanna Rose (Ph.D. in Political Economy and Government from Harvard University, She currently teaches economics and politics at New York University). January 2011. Published by the Journal of Politics of the Southern Political Science Association. “Disentangling Accountability and Competence in Elections: Evidence from U.S. Term Limits.” http://home.uchicago.edu/~bdm/PDF/term_limits.pdf

As states have gradually switched from one- to two-term limits, voters have increasingly been able to use elections to weed out low-quality incumbents and incumbents have had increased scope for on-the-job learning. As average tenure has increased, performance by term-limited governors has increasingly reflected the effect of greater incumbent competence, offsetting the effect of lower effort over time.

Two-term limit vs. No term limit

Professor James Alt (Ph.D. in Government from the University of Essex. Currently teaches Government and Political Economy at Harvard University), Professor Ethan Bueno de Mesquita (Ph.D. in Political Science from Harvard University. Currently teaches in the Harris School of Public Policy Studies at the University of Chicago), and Assistant Professor Shanna Rose (Ph.D. in Political Economy and Government from Harvard University, She currently teaches economics and politics at New York University). January 2011. Published by the Journal of Politics of the Southern Political Science Association. “Disentangling Accountability and Competence in Elections: Evidence from U.S. Term Limits.” http://home.uchicago.edu/~bdm/PDF/term_limits.pdf

Column 1 reveals that per capita spending is nearly 3% higher under first-term eligible governors than under second-term eligible governors, who have survived reelection and have more experience (competence) as well as stronger incentives to exert effort (accountability), all of which pull in the same direction. The coefficient on second-term lame duck (accountability) has the expected sign but falls short of statistical significance. Column 3 shows that per capita taxes are 3% higher under second-term lame ducks than under second-term eligible governors (accountability), and more than 4% higher under first-term eligible governors than under second-term eligible governors (competence and accountability).


‘Case of the Week’ 4 (Stoa): Bottom Trawling

August 10, 2013

Important Disclaimer: We pretty much just throw these together over the weekend, and don’t put a lot of work into them. Case of the Week cases are not subject to the same editorial process and stringent quality standards as the COG 2013 sourcebook, and are frequently contributed by non-COG authors. You may find material and sources in these cases that would not appear in the sourcebook. That said, we hope these cases will be useful to you; enjoy!

About the Author: Daniel Gaskell is the developer of the popular Factsmith research software and the lead editor of COG 2013. He debated in the NCFCA and Stoa for six years, qualifying to both NCFCA Nationals and NITOC multiple times. Daniel attends Baylor University.

1AC: Trade Sanctions for Bottom Trawling

By Daniel Gaskell

Imagine for a second that you live next to a nature preserve – a huge forest filled with animals and plants. It’s great – people go there to hunt and fish; the trees help keep the air clean; Bambi frolicks in a clearing somewhere. Then one day you come home and it’s gone. Utter devastation. The trees have been ripped out by the roots and there are just rocks and mud everywhere. You see a burly worker leaning up against a bulldozer, so you go up and ask him, “Hey? What happened?” He pulls out a handkerchief, wipes the sweat off his face and says, “Yeah, we were trying to catch some squirrels, so we just ripped it all out.”

Preposterous? Unfortunately, no. Something very like this is happening in the oceans as we speak. It’s called bottom trawling, a tremendously destructive fishing technique that my partner and I want to end. That’s why we stand Resolved: That the United States Federal Government should substantially reform its marine natural resource policies.

First, to make sure we’re all talking about the same thing, let’s look at:

PART 1: DEFINITIONS

The American Heritage Science Dictionary defines marine as “relating to the sea”, and a natural resource as “Something, such as a forest, a mineral deposit, or fresh water, that is found in nature and is necessary or useful to humans”. (http://dictionary.reference.com) So essentially we’re talking about things that occur naturally in the ocean that are useful to humans – like fish.

Now, let’s look at the problem we’re trying to solve, in:

PART 2: HARMS

Let me explain what bottom trawling is, and why it’s so bad, in our first point:

Point 1. Incredibly Destructive: Bottom trawling lays waste to deep-sea ecosystems

Prof. Howard Schiffman (JD, PhD, international lawyer and visiting associate professor of environmental conservation education at New York University), 2011 (lecture originally delivered in 2010), Thomas M. Cooley Law Review, “The Evolution Of Fisheries Conservation And Management: A Look At The New South Pacific Regional Fisheries Management Organization In Law And Policy”, Vol. 28, No. 2, accessed August 8, 2013, http://www.cooley.edu/lawreview/_docs/2012/vol28/2/10-Schiffman.pdf (page 184-185)

Bottom trawling is unquestionably one of the most destructive fishing techniques ever devised. Boats on the surface drag nets across the ocean floor with the assistance of heavy weights to keep them in place. It is a nondiscriminating fishing method that hauls up everything caught in the nets. This includes ancient sea corals and sponges. The visuals supporting this are striking. Healthy seamounts are brimming with life. There are layers of colorful coral, fish, sea stars, anemone, and other marine life. Photos of trawled seamounts, by contrast, look like a highway after a snowstorm. There is just no doubt that bottom trawling lays waste to whatever it comes into contact with on the sea floor.”

Bottom trawling isn’t just destroying the environment; it’s destroying the fishing industry from the inside out, as we see in:

Point 2. Unsustainable: Bottom trawling destroys its own fishing grounds and will drive itself out of business by 2025

Dr. Sara Maxwell (PhD, research fellow at the Marine Conservation Biology Institute), Prof. Richard Haedrich (PhD, professor at the Memorial University of Newfoundland), Prof. Alex Rogers (PhD, professor of conservation biology at Oxford, leads the Core Programme on Biodiversity at the British Antarctic Survey), Dr. Lance Morgan (PhD in ecology, president of the Marine Conservation Biology Institute), and Dr. Elliot Norse (PhD, chief scientist of the Marine Conservation Biology Institute), June 2005, Deep Sea Conservation Coalition, “Why the world needs a time – out on high – seas bottom trawling”, accessed August 8, 2013, http://www.savethehighseas.org/publicdocs/TimeOut_english.pdf

“Rather than fishing deep-sea fish sustainably, commercial bottom trawlers reflect a typical pattern of serial over-fishing that is best summarized as “plunder and push on”. High-seas bottom trawling – as currently practiced- quickly renders localized deepsea fish populations commercially extinct, whereupon fishing vessels move on to the next fishing ground. Glover and Smith predict that all deep-sea fisheries present in 2003 will be commercially extinct by 2025.

Point 3. Unnecessary: Bottom trawling makes up a tiny fraction of all fishing

Dr. Sara Maxwell (PhD, research fellow at the Marine Conservation Biology Institute), Prof. Richard Haedrich (PhD, professor at the Memorial University of Newfoundland), Prof. Alex Rogers (PhD, professor of conservation biology at Oxford, leads the Core Programme on Biodiversity at the British Antarctic Survey), Dr. Lance Morgan (PhD in ecology, president of the Marine Conservation Biology Institute), and Dr. Elliot Norse (PhD, chief scientist of the Marine Conservation Biology Institute), June 2005, Deep Sea Conservation Coalition, “Why the world needs a time – out on high – seas bottom trawling”, accessed August 8, 2013, http://www.savethehighseas.org/publicdocs/TimeOut_english.pdf

Globally, the market impact of HSBT is tiny: it constituted only a fraction of one percent of the reported total marine fish catch in 2001 by volume and value. The world’s high-seas bottomtrawling fleet consists of several hundred vessels at most. The catch level in 2001 would at best support between 100 and 200 vessels operating on a year-round equivalent basis. This compares to a global fishing fleet of approximately 3.1 million vessels.”

Let me re-emphasize that last point. All this horrific damage is coming from just a few hundred fishing vessels – barely a blip on the radar compared to all the rest of the fishing we do. So if bottom trawling isn’t economically important, why don’t we just ban it? That’s the question over a thousand scientists have asked.

Point 4. Must Ban: 1,136 scientists support banning bottom trawling

John Pickrell, February 19, 2004, National Geographic News, “Trawlers Destroying Deep-Sea Reefs, Scientists Say”, accessed August 8, 2013, news.nationalgeographic.com/news/2004/02/0219_040219_seacorals.html

“Yet even before these deep reefs have been fully explored and documented, they are being destroyed by unregulated deep-sea trawling. Concerned that many species may be lost before they are identified, a group of 1,136 scientists from 69 countries is appealing for new laws to protect deep-ocean corals and sponges. “Based on current knowledge, deep-sea coral and sponge communities appear to be as important to the biodiversity of the oceans and the sustainability of fisheries as their analogues in shallow tropical waters,” said a statement released earlier this week at both the American Association for the Advancement of Science meeting in Seattle and the United Nations Convention on Biological Diversity held in Kuala Lumpur, Malaysia. “We urge the United Nations and appropriate international bodies to establish a moratorium on bottom trawling on the high seas,” the scientists said. They include Harvard University’s renowned ecologist Edward O. Wilson and former head of the U.S. National Oceanic and Atmospheric Administration, D. James Baker.

So we should get the United Nations to ban it. Yeah… about that. They’ve tried – several times – but it hasn’t worked. Let’s look at this in more detail in:

PART 3: INHERENCY

Point 1. UN Failed: The UN passed resolutions, but they haven’t been followed

Deep Sea Conservation Coalition (an organization of over 70 scientific and environmental organizations committed to protecting the deep sea), static information page, “What’s Been Done”, accessed August 8, 2013, http://www.savethehighseas.org/whatsbeendone/unprocesses.cfm

“For the past decade, the issue of protecting biodiversity in the deep sea in areas beyond national jurisdiction – the high seas – has been extensively debated by the United Nations General Assembly (UNGA) and in other international fora. The UNGA adopted a series of resolutions, beginning with UN Resolution 59/25 in 2004, which called on high seas fishing nations and regional fisheries management organizations (RFMOs) to take urgent action to protect vulnerable marine ecosystems (VMEs) from destructive fishing practices, including bottom trawl fishing, in areas beyond national jurisdiction.

[later, in the same context:]

Based on this review, the DSCC concluded that high seas fishing States are, with few exceptions, failing to live up to the provisions of UNGA resolutions 61/105 and 64/72. As a result, deep sea stocks continue to be increasingly overexploited and vulnerable marine ecosystems may be lost. At the September 2011 workshop, the DSCC called on States fishing in areas where the UN resolutions have not been fully implemented to cease bottom fishing, as is required by resolution 64/72, until effective measures consistent with the resolutions are adopted and implemented, including required impact assessments.”

Point 2. Unenforceable: Trawling nations have no incentive to stop, and the UN can’t make them

Charles R. Taylor (JD candidate at the University of Hawaii), 2010, Environs Environmental Law and Policy Journal, “Fishing with a Bulldozer: Options for Unilateral Action by the United States under Domestic and International Law to Halt Destructive Bottom Trawling Practices on the High Seas”, Vol. 34, No. 1, accessed August 8, 2013, environs.law.ucdavis.edu/issues/34/1/taylor.pdf (page 143)

“None of the recommendations are ill intentioned or misguided, but they still fail to address the underlying problem of enforcement and member compliance. Because UNGA Resolutions are non-binding and generally not enforceable, fishing nations and RFMOs have no incentive to make these controversial but environmentally necessary choices.”

So the UN tried to ban bottom trawling, but nobody has an incentive to comply. But what if we gave them an incentive? Let’s look at the reform we’re proposing, in:

PART 4: THE PLAN

We have two mandates, to be enacted by Congress, the President, and any necessary federal agencies:

1. Ban Trawling. The U.S. shall ban all deep-sea bottom trawling within U.S. territory.

2. Trade Sanctions. The U.S. shall exercise its authority under the Pelly Amendment and applicable World Trade Organization laws to ban the import of agricultural products from any nation that refuses to stop bottom trawling.

Both mandates shall take effect in one year. Any necessary funding shall be provided through normal means.

Now, let’s take a look at why this plan will help solve the problem of trawling, in:

PART 5: SOLVENCY

We have one point:

Effective: Unilateral trade measures will help, and we must act now

Charles R. Taylor (JD candidate at the University of Hawaii), 2010, Environs Environmental Law and Policy Journal, “Fishing with a Bulldozer: Options for Unilateral Action by the United States under Domestic and International Law to Halt Destructive Bottom Trawling Practices on the High Seas”, Vol. 34, No. 1, accessed August 8, 2013, environs.law.ucdavis.edu/issues/34/1/taylor.pdf (page 167-168)

“Because of the vulnerability of seamount ecosystems and the decimating effect bottom trawling causes them, time is of the essence. Each trawling pass destroys 95-98% of all coral life on seamounts, and these corals take an extremely long time to recover, if they are able to recover at all. Other deep-sea animals, like fish and invertebrates, are directly threatened as well, largely due to their slow growth and reproductive rates. Considering that scientists have explored less than 1% of all seamounts in the deep ocean and that many organisms on seamounts may only exist in that one place, bottom trawling nations are pushing species to the brink of extinction without even knowing that these species exist. A U.N. moratorium on deep-sea bottom trawling activities is a worthy goal. However, without a binding and enforceable treaty or resolution, U.N. action is not enough. Trade measures, however, are effective.

Using Pelly and MSRA to apply unilateral trade measures against bottom trawling nations should be legal under international trade law if nations apply them within the framework of the Shrimp-Turtle dispute. The United States should step in and boldly enact import restrictions and trade sanctions on deep- sea bottom trawling nations as a display of global environmental responsibility.”

We can’t afford to hold off any more. The longer we wait for the UN to get its act together, the worse the situation gets, and the more barren and useless deep-sea fisheries become. It’s time for us to put our words into action, step up, and end this useless environmental tragedy.

Thank you, and please vote Affirmative.

Backup: Bottom Trawling

I like this concept because it’s straightforward and it has a strongly visceral aspect. The literature is on your side, too; pretty much every good source agrees that bottom trawling needs to be stopped or at least severely restricted.

Where it gets tricky is the solvency and trade-law side of things. If you intend to run this case, it would be a good idea to read up on Taylor’s discussion of the Pelly amendment and surrounding legal precedent. (It’s pretty complicated, so I didn’t cut cards on it here.) Ideally, you should be familiar with (a) what the Pelly amendment stipulates; (b) what “international fishery conservation programs” you could justify it under; and (c) the various WTO requirements established by the Shrimp-Turtle ruling.

Fortunately, it’s unlikely that many Negatives will plunge the labyrinthine depths of WTO case law deeply enough for this to become a major issue, and if you hit something you’re not prepared for, you can always just respond with “well, we have legal experts saying it works!” (That might be a better response anyway, because the moment you start talking about GATT and Shrimp-Turtle and the WTO appeals process, your judge’s eyes will probably glaze over. Unless they’re a law student, of course.)

You’ll probably want to cut more specific cards for the advocacy; most of the ones here are pretty general and don’t explain exactly what Taylor is proposing.

Also, remember that the point of trade sanctions isn’t actually to stop importing stuff; it’s to force the exporters to change. So if the Negative is like, “oh noes! stopping imports and would devastate the economy!” – that’s the whole point. The exporters can’t afford it either, so they’ll just stop trawling, and it will never get to that point. It’s worked in the past (see below.)

(Tip: If you want another weird advantage, you might research how trawling can damage undersea communication cables. In the past, dragging ship’s anchors have briefy cut entire countries off from the internet.)

INHERENCY

UN resolution not implemented widely, delays risk major damage (2013)

Prof. Heather Koldewey (PhD, section head of global programmes at the Zoological Society of London, adjunct professor at the Fisheries Centre of the University of British Columbia), Prof. Nicholas K. Dulvy (PhD, professor and Canada research chair in marine biodiversity and conservation at Simon Fraser University), Liane Veitch (marine policy officer at the Zoological Society of London), and five other marine conservation experts, June 15, 2012, Science magazine, “Avoiding Empty Ocean Commitments at Rio+20″, Vol. 336, accessed August 8, 2013, http://www.savethehighseas.org/publicdocs/Science-2012-Veitch-et-al.pdf (page 1384)

However, there is some good news. For example, a campaign for a global mora- torium on high-seas bottom trawl fishing, which can destroy fragile habitats and deplete slow-growing and long-lived species that are highly vulnerable to overexploitation achieved a UN resolution in 2006 to ban the method in sensitive sea-bed areas by 2008. Although promising, this resolution has yet to be implemented widely and the future trajectory of high-seas protection remains unclear. Unless implementation improves, ocean biodiversity risks enduring an extended phase of marine population crashes and species extinctions that has already begun.

HARMS

Most destructive thing we do to the ocean; must reduce impact

Dr. Elliot Norse (PhD, chief scientist of the Marine Conservation Biology Institute) and Prof. Les Watling (PhD, professor of zoology at the University of Hawaii at Manoa), February 20, 2008, quoted in ScienceDaily, “Bottom Trawling Impacts On Ocean, Clearly Visible From Space”, accessed August 8, 2013, http://www.sciencedaily.com/releases/2008/02/080215121207.htm

Bottom trawling is the most destructive of any actions that humans conduct in the ocean,” said Dr. Watling. “Ten years ago, Elliott Norse and I calculated that, each year, worldwide, bottom trawlers drag an area equivalent to twice the lower 48 states. Most of that trawling happens in deep waters, out of sight. But now we can more clearly envision what trawling impacts down there by looking at the sediment plumes that are shallow enough for us to see from satellites,” he said.

[later, in the same context:]

For years marine scientists have been telling the world that fishing has harmed marine biodiversity more than anything else,” said Dr. Norse. “And it’s clear that trawling causes more damage to marine ecosystems than any other kind of fishing. Now, as the threats of ocean acidification and melting sea ice are adding insult to injury, we have to reduce harm from trawling to have any hope of saving marine ecosystems,” Dr. Norse said.

Most harmful method of fishing

Dr. Sara Maxwell (PhD, research fellow at the Marine Conservation Biology Institute), Prof. Richard Haedrich (PhD, professor at the Memorial University of Newfoundland), Prof. Alex Rogers (PhD, professor of conservation biology at Oxford, leads the Core Programme on Biodiversity at the British Antarctic Survey), Dr. Lance Morgan (PhD in ecology, president of the Marine Conservation Biology Institute), and Dr. Elliot Norse (PhD, chief scientist of the Marine Conservation Biology Institute), June 2005, Deep Sea Conservation Coalition, “Why the world needs a time – out on high – seas bottom trawling”, accessed August 8, 2013, http://www.savethehighseas.org/publicdocs/TimeOut_english.pdf

The huge bottom trawls are dragged across the seafloor to catch fish and shrimp that live in, on, or just above the bottom. Because more than 98 percent of marine animal species live in, on, or immediately above the seafloor, anything that causes significant harm to the seafloor profoundly damages the health of ocean ecosystems as a whole. Both logic and the large, and rapidly growing, number of scientific studies documenting trawling-impacts lead to the unmistakable conclusion that bottom trawling is the world’s most harmful method of fishing.

Damage lasts – even after trawling stops, recovery takes many decades (study)

Prof. Thomas Schlacher (PhD, associate professor of marine science at the University of the Sunshine Coast, Queensland), Franzis Althaus (marine researcher with the Commonwealth Scientific and Industrial Research Organisation, Australia), and others, 2009, Marine Ecology Progress Series, “Impacts of bottom trawling on deep-coral ecosystems of seamounts are long-lasting”, Vol. 397, accessed August 8, 2013, http://www.int-res.com/articles/theme/m397p279.pdf (page 279, 292)

Here we examine changes to stony corals and associated megabenthic assemblages on seamounts off Tasmania (Australia) with different histories of bottom-contact trawling by analysing 64,504 video frames (25 seamounts) and 704 high-resolution images (7 seamounts). Trawling had a dramatic impact on the seamount benthos: (1) bottom cover of the matrix-forming stony coral Solenosmilia variabilis was reduced by 2 orders of magnitude; (2) loss of coral habitat translated into 3-fold declines in richness, diversity and density of other megabenthos; and (3) megabenthos assemblage structures diverged widely between trawled and untrawled seamounts. On seamounts where trawling had been reduced to < 5% a decade ago and ceased completely 5 yr ago, there was no clear signal of recovery of the megabenthos; communities remained impoverished comprising fewer species at reduced densities.

[later, in the same context:]

Our observations and the slow growth of seamount fauna suggest that recovery of the seamount benthos will take many decades, if not longer.

Causes 95% of the damage to deep-water seamount ecosystems

United Nations General Assembly, July 14, 2006, “The Impacts of Fishing on Vulnerable Marine Ecosystems”, accessed August 8, 2013, http://www.un.org/Depts/los/general_assembly/documents/impact_of_fishing.pdf (page 11)

While there is some evidence to suggest that bottom-set longlines, bottom-set gillnets, pots and traps (including when “ghost fishing”), all may be impacting the deep-sea, bottom trawling and dredging appear to be having the most obvious disruptive impact due to their widespread use and their contact with the bottom. Trawls and dredges remove organisms, rocks and sediments, reducing habitat complexity and on soft substrate stirs up sediment that can smother bottom-dwelling communities. In addition, bycatch of non-target species can be high. It is believed that about 95 percent of the damage inflicted on deep water systems associated with seamounts results from bottom-trawling.

Random bonus harm – devastating for archaeologists

Jo Marchant, January 25, 2012, Nature journal, “Underwater archaeology: Hunt for the ancient mariner”, accessed August 8, 2013, auvac.org/uploads/publication_pdf/Underwater archaeology_ Hunt for the ancient mariner _ Nature News %26 Comment.pdf

[Shelly] Wachsmann [an archeologist at Texas A&M] found that sedimentation was a problem even far from shore – up to a metre per millennium in some areas. This means that although some Greek and Roman remains might still be visible, a Minoan ship would be buried under 3 or 4 metres of sand. And even at 500-600 metres depth, he saw clear evidence of trawling. “It was almost like somebody had swept the sea in front of me,” he says. On the basis of his experiences, Wachsmann now believes that the chance of finding a Minoan equivalent of Ulu Burun “approaches zero”. The effect of bottom trawling is “devastating” for archaeologists, agrees Robert Ballard, an oceanographer based at the University of Rhode Island in Narragansett, who has pioneered deep-sea exploration and discovered the wreck of the Titanic in 1985. “Most of the Aegean has been destroyed,” he says.

SOLVENCY

Similar sanctions worked in the past

Charles R. Taylor (JD candidate at the University of Hawaii), 2010, Environs Environmental Law and Policy Journal, “Fishing with a Bulldozer: Options for Unilateral Action by the United States under Domestic and International Law to Halt Destructive Bottom Trawling Practices on the High Seas”, Vol. 34, No. 1, accessed August 8, 2013, environs.law.ucdavis.edu/issues/34/1/taylor.pdf (page 145)

Threats of import prohibitions and sanctions by the United States have played a role in enforcing environmental agreements in the past. In 1989 and 1991, the United States threatened sanctions against Japan, Taiwan, and South Korea for using large-scale pelagic driftnets on the high seas in violation of the High Seas Driftnet Fisheries Enforcement Act, a U.S. fishery law. These threats helped equip unenforceable UN General Assembly Resolution 44/225 with economic teeth and coerce those nations in to abandoning the practice. In 1991, after the United States threatened import prohibitions on Japanese products in response to Japan’s trade in endangered sea turtles, Japan agreed to limit its imports of the turtles in 1991 and end all trade by the end of 1992.

WTO allows environmental trade sanctions

Charles R. Taylor (JD candidate at the University of Hawaii), 2010, Environs Environmental Law and Policy Journal, “Fishing with a Bulldozer: Options for Unilateral Action by the United States under Domestic and International Law to Halt Destructive Bottom Trawling Practices on the High Seas”, Vol. 34, No. 1, accessed August 8, 2013, environs.law.ucdavis.edu/issues/34/1/taylor.pdf (page 156)

Many consider the Shrimp-Turtle dispute, two highly charged World Trade Organization (WTO) Appellate Body (“Appellate Body”) cases in 1998 and 2001, to be the most important development in WTO policy regarding trade restrictions for fisheries violations. This trade dispute featured the United States, on the one hand, and India, Malaysia, Pakistan, and Thailand, on the other. The [WTO] Appellate Body ruled that international trade law, specifically Article XX of the General Agreement on Tariffs and Trade (“Article XX”), allowed nations to utilize unilateral trade measures to conserve “exhaustible natural resources” if the trade measures follow certain guidelines.

DISADVANTAGE RESPONSES

General: Not worth it, must be stopped immediately

Charles R. Taylor (JD candidate at the University of Hawaii), 2010, Environs Environmental Law and Policy Journal, “Fishing with a Bulldozer: Options for Unilateral Action by the United States under Domestic and International Law to Halt Destructive Bottom Trawling Practices on the High Seas”, Vol. 34, No. 1, accessed August 8, 2013, environs.law.ucdavis.edu/issues/34/1/taylor.pdf (page 133)

Considering the minimal value that deep-sea bottom trawling contributes to the overall value of global marine fisheries catches and the substantial subsidies needed to support it, the industry is not economically sustainable from a global perspective. Further accounting for the vast ecological consequences, including the total devastation of unique, unexplored ecosystems and irreparable loss of biodiversity, leads to the conclusion that this practice must be stopped immediately.

A/T “economic harm”: Trawling creates <0.5% of revenue, only exists because of subsidies

Charles R. Taylor (JD candidate at the University of Hawaii), 2010, Environs Environmental Law and Policy Journal, “Fishing with a Bulldozer: Options for Unilateral Action by the United States under Domestic and International Law to Halt Destructive Bottom Trawling Practices on the High Seas”, Vol. 34, No. 1, accessed August 8, 2013, environs.law.ucdavis.edu/issues/34/1/taylor.pdf (page 133)

In 2001, deep-sea bottom trawling accounted for only 0.38- 0.43% of the approximately US$74 billion worldwide fisheries catch value. Of the roughly three million marine fishing vessels operating worldwide, the 285 deep-sea bottom trawling vessels make up an extremely small percentage. In fact, considering the minimal contribution this fishing practice makes to each country’s overall fishing income, deep-sea bottom trawling only survives as an industry because of the massive government subsidies that cover fuel and other fishing vessel costs.

A/T “essential food source”: Luxury items, not essential

Charles R. Taylor (JD candidate at the University of Hawaii), 2010, Environs Environmental Law and Policy Journal, “Fishing with a Bulldozer: Options for Unilateral Action by the United States under Domestic and International Law to Halt Destructive Bottom Trawling Practices on the High Seas”, Vol. 34, No. 1, accessed August 8, 2013, environs.law.ucdavis.edu/issues/34/1/taylor.pdf (page 133)

Some people support ecologically destructive fishing practices because of the valuable protein that fish provide to developing nations’ coastal populations. In the case of deep-sea bottom trawling, however, this argument is without merit. Fish caught by deep-sea bottom trawlers tend to be luxury goods, and the major markets for deep-sea bottom trawlers are Japan, the United States, and the European Union – hardly places where essential animal protein is in short supply.

A/T “essential food source”: Sold to rich countries, “no major social impact”

Dr. Sara Maxwell (PhD, research fellow at the Marine Conservation Biology Institute), Prof. Richard Haedrich (PhD, professor at the Memorial University of Newfoundland), Prof. Alex Rogers (PhD, professor of conservation biology at Oxford, leads the Core Programme on Biodiversity at the British Antarctic Survey), Dr. Lance Morgan (PhD in ecology, president of the Marine Conservation Biology Institute), and Dr. Elliot Norse (PhD, chief scientist of the Marine Conservation Biology Institute), June 2005, Deep Sea Conservation Coalition, “Why the world needs a time – out on high – seas bottom trawling”, accessed August 8, 2013, http://www.savethehighseas.org/publicdocs/TimeOut_english.pdf

Significantly, the majority of the high-seas bottom-trawl catch is destined for markets in the most affluent nations, namely the USA, Europe, and Japan, negating claims that HSBT contributes to global food security. HSBT fishing is a boutique fishery, temporarily benefiting only wealthy nations and wealthy consumers while tr ashing the global environment for a very long time (decades to centuries). Restrictions on these fisheries will have no major social impact but will have very important environmental benefits.


‘Case of the Week’ 3 (NCFCA): 17th Amendment

August 3, 2013

Important Disclaimer: We pretty much just throw these together over the weekend, and don’t put a lot of work into them. Case of the Week cases are not subject to the same editorial process and stringent quality standards as the COG 2013 sourcebook, and are frequently contributed by non-COG authors. You may find material and sources in these cases that would not appear in the sourcebook. That said, we hope these cases will be useful to you; enjoy!

Uploader’s Note: Actually, you might have to scratch the “don’t put a lot of work into them” – this one has a lot more backup than usual. (Many thanks to R.J. for putting together such a great resource!)

About the Author: R.J. Martin is the 2013 NCFCA Extemp National Champion and an accomplished Team Policy debater. His career has included a 6-0 record and top seed at the Alabama Open, top 5 finishes in all but two career Team Policy tournaments, and an overall win rate of 75%. (Yes, he’s done the math.)

1AC: Bacon for Everyone – Repeal the 17th Amendment

By R.J. Martin

“Great ideology creates great times.” – Kim Jong-Il

British Prime Minister Winston Churchill once said, “The best argument against democracy is a five-minute conversation with the average voter.” Realizing this truth, our Founding Fathers designed a vital check in our federal government to restrain the people. Originally, US Senators were elected by state legislatures instead of the populace. Unfortunately, this system came to an end in 1913 with the passage of the 17th Amendment. Today the affirmative supports repealing the 17th Amendment and returning elections of Senators to state legislatures instead of the people. While it might seem counter-intuitive, this reform will actually increase the people’s voice, and also restrain the growth of the federal government.

This is why the affirmative stands Resolved: That federal election law should be significantly reformed in the United States.

Election Law: The standards establishing who votes, when and how they vote, and/or for whom they may vote.

The affirmative today would like to propose a criterion of Federalism, which is a balance of power between states and federal government. The best way to protect your rights as an individual is to ensure the state and federal governments are balanced, so that neither gains excessive power. Whichever side which best upholds Federalism deserves your vote. The best way to re-balance the relationship of state and national government is to repeal the 17th Amendment. This Amendment, mandating Senatorial elections by the populace instead of state legislatures, has created 3 harms we see today:

Harm 1: States Cannot Prevent Federal Encroachment

Professor Todd Zywicki, (J.D. from the University of Virginia School of Law. Professor Zywicki currently teaches at George Mason University School of Law, and is a senior scholar of the Mercatus Center). November 15, 2010. Published by National Review Online. Repeal the Seventeenth Amendment. http://www.nationalreview.com/articles/252825/repeal-seventeenth-amendment-todd-zywicki

Before the Seventeenth Amendment, the now-widespread Washington practice of commandeering the states for federal ends — through such actions as “unfunded mandates,” laws requiring states to implement voter-registration policies that enable fraud (such as the “Motor Voter” law signed by Bill Clinton), and the provisions of Obamacare that override state policy decisions — would have been unthinkable. Instead, senators today act all but identically to House members, treating federalism as a matter of political expediency rather than constitutional principle.”

The original purpose of the Senate was state representation on a national level. The Senate gave states a veto on any bill that would expand the federal government (at the expense of the states). This safeguarded Federalism by ensuring a balanced – not dictatorial – relationship between states and the national government.

Harm 2: More Pork

Professor Todd Zywicki, (J.D. from the University of Virginia School of Law. Professor Zywicki currently teaches at George Mason University School of Law, and is a senior scholar of the Mercatus Center). 1997. Published by the Cleveland State Law Review. “Beyond the Shell and Husk of History: The history of the Seventeenth Amendment and its implications for current reform proposals.” http://mason.gmu.edu/~tzywick2/Cleveland%20State%20Senators.pdf

“Indeed, it is inconceivable that a Senator during the pre-Seventeenth Amendment era would vote for an ‘unfunded federal mandate,’ thereby requiring state legislatures to raise taxes and spend money on projects they did not devise and for which they receive no political benefit.”

Harm 3: Special Interests Fill Power Vacuum

James Christian Ure, (J.D. magna cum laude from South Texas College of Law. In law school, also served as President of the Federalist Society and the J. Reuben Clark Law Society. He clerked for a Texas state court judge and interned for the majority whip in the Utah House of Representatives). Fall 2007. Published by the South Texas Law Review. “You scratch my back and I’ll scratch yours: Why the federal marriage amendment should also repeal the Seventeenth Amendment.” http://xa.yimg.com/kq/groups/18873407/961742462/name/Federalism+-+Ure.pdf [note: all quotations and brackets below are original]

“The decline in state power had indirect consequences as well. Power is not static, and the gaping hole this Amendment left in the balance of powers was soon filled—only it was filled less by voters and more by interest groups than was intended. The chain of causation that led to this outcome can be illustrated in four steps: (1) the Amendment made Senators accountable to the voters at large instead of a set group of legislators; (2) the average voter is less capable of monitoring a Senator’s conduct than is a legislator; (3) with less monitoring, Senators are more susceptible to legislative schemes that sacrifice their constituents’ concerns for their own interests and those of special-interest groups; and (4) special-interest groups enjoyed increased influence because they could now centralize at the federal level and influence the Senators directly instead of being ‘dispersed across several states’ and having to lobby ‘multiple state legislatures in order to get the Senate [to] consent to a piece of legislation.’”

Instead of bribing or corrupting a 40-member legislature, now special interests can target individual senators. The outsized influence of special interests distorts democracy and minimizes your voice as an individual. Because of the harms of popular election of US Senators, the affirmative proposes the following:

Plan

Mandate: The 17th Amendment of the US Constitution shall be repealed.

Timeline: The repeal process shall begin immediately upon an affirmative ballot.

Agency: The US Federal Government, Congress, and any other necessary bodies.

No Funding is necessary, as this plan is purely legislative.

In other words, the affirmative plan returns election law to what our Founding Fathers intended: Senators elected by state legislatures instead of the people at large. There are 3 main advantages of repealing the 17th Amendment.

Advantage 1: Federal Government Restrained

Second Lieutenant Jay Zeigler. (Awarded The Brigadier General Douglas G. Murray Award for Excellence in American Politics; the Major General Robert G. Smith Award for Outstanding Performance in the Discipline of Political Science; and the Top Falcon Scholar. Zeigler also earned top military honors.) 2011-2012. Published by The Fellows Review. “The 17th Amendment: Attempting to Cure the Problems of Democracy with More Democracy.” http://cspc.nonprofitsoapbox.com/storage/documents/Zeigler-_Final_Paper.pdf

“Additionally, the notion of federalism has also suffered tremendously with the erosion of the state legislatures and their capacity to choose U.S. Senators. Under the original design, states had an invested interest in policies by the federal government. Additionally, the states could essentially check and curtail the power of the federal government by having their representatives in the Senate control such policies. Any encroachment by the federal government unnecessarily into the affairs of the states would be spoiled once the bill or action reached the Senate. This would also prevent other unconstitutional actions or overstepping by the federal government in most areas of life. However, with the increase in democratic movements and subsequent amendments, and the absence of truly-appointed Senators by the state representatives, the states lost most checks, other than the courts, to curtail such broadening of the federal government’s responsibility.”

The foundation of Federalism is an equal relationship between states and the national government – not a national government that dictates policy to states, which is what we currently have with the 17th Amendment.

Advantage 2: Senate Again Insulated from the 51%

Professor Todd Zywicki, (J.D. from the University of Virginia School of Law. Professor Zywicki currently teaches at George Mason University School of Law, and is a senior scholar of the Mercatus Center). November 15, 2010. Published by National Review Online. Repeal the Seventeenth Amendment. http://www.nationalreview.com/articles/252825/repeal-seventeenth-amendment-todd-zywicki

“The Framers understood what today’s self-interested sloganeers of democracy do not: What matters is not whether a given method of selecting governmental officials is more or less democratic, but whether it will safeguard the constitutional functions bestowed upon each branch and conduce to their competent execution. Indeed, certain of the Senate’s duties — such as its role as a type of jury for impeachment proceedings — make sense only if it is somewhat insulated from the public’s passions of the moment, as was well demonstrated by the farcical Senate trial of Bill Clinton.”

Repeal makes possible unpopular reforms, such as cuts to entitlement programs. The People should be represented – and they already are, in the House of Representatives. The Senate was designed to be different.

Advantage 3: Restored Accountability

Professor Todd Zywicki, (J.D. from the University of Virginia School of Law. Professor Zywicki currently teaches at George Mason University School of Law, and is a senior scholar of the Mercatus Center). 1994. Published by the Oregon Law Review. “Senators and Special Interests: A Public Choice Analysis of the Seventeenth Amendment.” http://mason.gmu.edu/~tzywick2/Oregon%20Senators.pdf

“Because of the small size of state legislatures, each legislator had an incentive to monitor the senator’s behavior. One legislator in a body of forty legislators can have some practical control over a senator’s behavior; one voter in a constituency of several million cannot.”

Ironically, having state legislatures elect senators actually strengthens your voice. Your local state legislator (perhaps your neighbor down the street) is one of only 40 or so people selecting the Senator. Under this system, your voice is not just one of millions. If you want greater accountability from US Senators and less federal government growth, we ask you to uphold Federalism by voting to repeal the 17th Amendment.

Backup: 17th Amendment

QUOTES FOR THE OPENING

Jon Stewart (comedian). http://www.goodreads.com/quotes/tag/democracy

You have to remember one thing about the will of the people: it wasn’t that long ago that we were swept away by the Macarena.

James Madison. (not a comedian). Federalist 51. Published by National Review Online. Repeal the Seventeenth Amendment. http://www.nationalreview.com/articles/252825/repeal-seventeenth-amendment-todd-zywicki

As Madison observes in Federalist 51, “A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.”

ORIGINAL PURPOSE OF SENATE

Design ensured equal federal representation

Judge Andrew Napolitano, (J.D. from Notre Dame Law School. He is the youngest life-tenured Superior Court judge in the history of New Jersey, and now appears on television as Fox News’ Senior Judicial Analyst. He also write a weekly column, and has been published in the New York Times, Wall Street Journal, and Los Angles Times). April 8, 2010. Published by reason.com. “Injustice System.” http://reason.com/archives/2010/04/08/injustice-system/print

If you read Madison’s notes from the constitutional convention, they spent more time arguing over the make-up of the federal government and they came up with the federal table. There would be three entities at the federal table. There would be the nation as a nation, there would be the people, and there would be the states. The nation as a nation is the president, the people is the House of Representatives, and the states is the Senate, because states sent senators. Not the people in the states, but the state government. When the progressives, in the Theodore Roosevelt/Woodrow Wilson era, abolished this it abolished bicameralism, the notion of two houses. It effectively just gave us another house like the House of Representatives where they didn’t have to run as frequently, and the states lost their place at the federal table. That was an assault, an invasion on the infrastructure of constitutional government. Even kings in Europe had to satisfy the princes and barons around them. And that’s how they lost their power, or that’s how their power was tempered. Congress believes it doesn’t have to satisfy anybody. Its only recognized restraint is whatever it can get away with.

Two Purposes of the Senate

Associate Professor of Law Jay S. Bybee, (J.D. cum laude from Bringham Young University. Professor Bybee teaches law at Louisiana State University. In 2001 he was appointed Assistant Attorney General in the U.S. Department of Justice. In 2003 he was confirmed to the US 9th Circuit Court of Appeals, where he currently serves). January 1, 1997. Published by the Northwestern University Law Review. Ulysses at the mast: Democracy, Federalism, and the sirens’ song of the Seventeenth Amendment.” http://scholars.law.unlv.edu/cgi/viewcontent.cgi?article=1365&context=facpub

Throughout the debates over the Senate, two themes recurred. First, the Senate should counter the democratic excesses of the people, newly represented in the House of Representatives. In Madison’s words, the Senate must be structured to reflect “more coolness”‘ of decision and to “render [the houses of the legislature] by different modes of election, and different principles of action, as little connected with each other, as the nature of their common functions, and their common dependence on the society will admit. ‘ Second, the Senate should serve as a check on the inexorable impulse of the new government to accretion of power. Federalism was to the states what separation of powers was for the three great departments: an assurance of non-encroachment.

Framers Intent Compromised

Second Lieutenant Jay Zeigler. (Awarded The Brigadier General Douglas G. Murray Award for Excellence in American Politics; the Major General Robert G. Smith Award for Outstanding Performance in the Discipline of Political Science; and the Top Falcon Scholar. Zeigler also earned top military honors.) 2011-2012. Published by The Fellows Review. “The 17th Amendment: Attempting to Cure the Problems of Democracy with More Democracy.” http://cspc.nonprofitsoapbox.com/storage/documents/Zeigler-_Final_Paper.pdf

The Framers knew that a democratic regime, not countered by any other forces, could be just as tyrannical as any sort of dictatorship. While all power of the American government would come from the people, it was not meant to flow directly in every case. Unfortunately, the Constitution would eventually be usurped by the movements for greater democracy in government. This small change to the national government has totally revised and distorted the Framers’ original intent.

James Madison: Different Purposes for House and Senate

James Madison. Federalist No. 39. Published by the Northwestern University Law Review. Ulysses at the mast: Democracy, Federalism, and the sirens’ song of the Seventeenth Amendment.” http://scholars.law.unlv.edu/cgi/viewcontent.cgi?article=1365&context=facpub

The house of representatives will derive its powers from the people of America, and the people will be represented in the same proportion, and on the same principle, as they are in the Legislature of a particular State. So far the Government is national not federal. The Senate on the other hand will derive its powers from the States, as political and co-equal societies; and these will be represented on the principle of equality in the Senate, as they now are in the existing Congress. So far the government is federal, not national.

Popular Vote Proposal opposed by Founders 10-1 in Committee

Professor Todd Zywicki, (J.D. from the University of Virginia School of Law. Professor Zywicki currently teaches at George Mason University School of Law, and is a senior scholar of the Mercatus Center). November 15, 2010. Published by National Review Online. Repeal the Seventeenth Amendment. http://www.nationalreview.com/articles/252825/repeal-seventeenth-amendment-todd-zywicki

Empowering state legislatures to elect senators was considered both good politics and good constitutional design. At the Constitutional Convention in Philadelphia, the proposal was ratified with minimal discussion and recognized as the approach “most congenial” to public opinion. Direct election was proposed by Pennsylvania’s James Wilson but defeated ten to one in a straw poll.

Final motion (for legislature election) approved unanimously

Charles C.W. Cooke (Graduated from Oxford after studying Modern History and Politics. Editorial Associate at National Review). March 1, 2013. Published by National Review Online. “Repeal the 17th Amendment!” http://www.nationalreview.com/articles/341894/repeal-17th-amendment-charles-c-w-cooke

The Senate was not intended to be the people’s representative body, but that of the states. Lest the federal government “swallow up the state legislatures,” George Mason insisted to his fellow convention delegates in Philadelphia, “let the state legislatures appoint the Senate.” The delegates backed him unanimously.

George Mason: Preventing states from being ‘swallowed up’ by feds

George Mason (Founding Father). Published by the Northwestern University Law Review. Ulysses at the mast: Democracy, Federalism, and the sirens’ song of the Seventeenth Amendment.” http://scholars.law.unlv.edu/cgi/viewcontent.cgi?article=1365&context=facpub

[W]e have agreed that the national Legislature shall have a negative on the State Legislatures-the Danger is that the national, will swallow up the State Legislatures-what will be a reasonable guard agt. this Danger, and operate in favor of the State authorities-The answer seems to me to be this, let the State Legislatures appoint the Senate-

FEDERALISM

Senate was a check on federal power

Second Lieutenant Jay Zeigler. (Awarded The Brigadier General Douglas G. Murray Award for Excellence in American Politics; the Major General Robert G. Smith Award for Outstanding Performance in the Discipline of Political Science; and the Top Falcon Scholar. Zeigler also earned top military honors.) 2011-2012. Published by The Fellows Review. “The 17th Amendment: Attempting to Cure the Problems of Democracy with More Democracy.” http://cspc.nonprofitsoapbox.com/storage/documents/Zeigler-_Final_Paper.pdf

The Senate, in theory, would not only serve to protect liberty from the passions of the people, but would also ensure that the federal government would not overstep its delegated authority. While the delegates to the convention wanted to strengthen the national government, by giving it the necessary tools to govern effectively, it also sought to keep the national government from expanding beyond the powers that the states offered. The concept of federalism could only be defended as long as the states themselves had a role in the shared power arrangement.

Impact: Federalism protects the Individual

Justice Sandra Day O’Connor.. June 19, 1992. Majority opinion in New York v US. http://www.law.cornell.edu/supct/html/91-543.ZO.html

The Constitution does not protect the sovereignty of States for the benefit of the States or state governments as abstract political entities, or even for the benefit of the public officials governing the States. To the contrary, the Constitution divides authority between federal and state governments for the protection of individuals. State sovereignty is not just an end in itself: “Rather, federalism secures to citizens the liberties that derive from the diffusion of power.”

A Check on Abuses of Power

Justice Sandra Day O’Connor. June 20, 1991. Majority opinion in Gregory v. Ashcroft. http://supreme.justia.com/cases/federal/us/501/452/case.html

Perhaps the principal benefit of the federalist system is a check on abuses of government power. “The ‘constitutionally mandated balance of power’ between the States and the Federal Government was adopted by the Framers to ensure the protection of ‘our fundamental liberties.‘” Atascadero State Hospital v. Scanlon, 473 U. S. 234, 473 U. S. 242 (1985), quotingGarcia v. San Antonio Metropolitan Transit Authority, 469 U. S. 528, 469 U. S. 572(1985) (Powell, J., dissenting). Just as the separation and independence of the coordinate Branches of the Federal Government serves to prevent the accumulation of excessive power in any one Branch, a healthy balance of power between the States and the Federal Government will reduce the risk of tyranny and abuse from either front.

Legislature Election Resists Federal Expansion

Charles C.W. Cooke (Graduated from Oxford after studying Modern History and Politics. Editorial Associate at National Review). March 1, 2013. Published by National Review Online. “Repeal the 17th Amendment!” http://www.nationalreview.com/articles/341894/repeal-17th-amendment-charles-c-w-cooke

One could sometimes be forgiven for thinking otherwise, but the states are not regional departments of the federal government. To ensure that they had a working mechanism by which to resist the expansion of federal power, the architects of our Constitution hard-wired the state legislatures into its structure; with the 17th Amendment, progressives pulled out that wiring like punch-drunk Jacobins.

De Toqeville Endorses

Alexis de Toquville (19th Century French political philosopher). 2011-2012. Published by The Fellows Review. “The 17th Amendment: Attempting to Cure the Problems of Democracy with More Democracy.” http://cspc.nonprofitsoapbox.com/storage/documents/Zeigler-_Final_Paper.pdf

This transmission of popular authority through an assemblage of chosen men operates an important change in it by refining its discretion and improving its choice. Men who are chosen in this manner,” Tocqueville proclaims, “accurately represent the majority of the nation which governs them; but they represent only the elevated thoughts that are current in the community and the generous propensities that prompt its nobler actions rather than the petty passions that disturb or the vices that disgrace it.

Aristotle Endorses (sort of)

Aristotle (philosopher; sometimes considered the first political scientist). 2011-2012. Published by The Fellows Review. “The 17th Amendment: Attempting to Cure the Problems of Democracy with More Democracy.” http://cspc.nonprofitsoapbox.com/storage/documents/Zeigler-_Final_Paper.pdf

Aristotle cautions against the notion that all power should be equally spread across the people. Regarding the rule of the many, ‘For if they shared in the greatest offices, it would not be safe, since, on account of their injustice and unwisdom, they would do wrong in some things and go wrong in others. If, on the other hand, they were given no share and had no participation in office, it would be cause for alarm, since the city that has many in it who lack honor and are poor must of necessity be full of enemies. What is left, then, is that they participate in deliberation and judgment…For their perception is adequate when they all come together, and when they are combined with the best, they actually help their cities…In separation, however, each of them lacks the completeness necessary for the passing judgment.’

Now, States are subject to Feds

Mike Leavitt, (Former Governor of Utah). Published in Fall 2007. Published by the South Texas Law Review. “You scratch my back and I’ll scratch yours: Why the federal marriage amendment should also repeal the Seventeenth Amendment.” http://xa.yimg.com/kq/groups/18873407/961742462/name/Federalism+-+Ure.pdf

State leaders have status only as lobbyists and special interest groups. The leaders go hat in hand, hoping and wishing that Congress will listen. There is no balance of power. States must accept whatever the Congress gives them. If states have any influence at all, it results only from the personal willingness of congressional leaders to pay attention. States have no tools, no rules, ensuring them an equal voice in the cutting of the pie or the selection of the pieces.

States Have Been Transformed Into Subjects

Gene Healy, (J.D. from the University of Chicago Law School. He is a Vice President at the Cato Institute, and has been published in the Los Angeles Times, New York Times, Chicago Tribune, Legal Times, and the Washington Examiner.) June 8, 2010. Published by the Cato Institute (Commentary). “Repeal the 17th Amendment?” http://www.cato.org/publications/commentary/repeal-17th-amendment

Together with the 16th Amendment establishing an income tax, the 17th Amendment helped transform the states into little more than administrative units for the federal behemoth. The feds have the gold, and they increasingly make the rules — in education, health care, and more.

IMPACTS OF DECREASING FEDERALISM

New Deal and Great Society likely impossible w/o 17th Amendment

Professor Todd Zywicki, (J.D. from the University of Virginia School of Law. Professor Zywicki currently teaches at George Mason University School of Law, and is a senior scholar of the Mercatus Center). 1994. Published by the Oregon Law Review. “Senators and Special Interests: A Public Choice Analysis of the Seventeenth Amendment.” http://mason.gmu.edu/~tzywick2/Oregon%20Senators.pdf

Era changes has not yet resulted in any thorough reexamination of the history of the Seventeenth Amendment. This silence is remarkable in that many aspects of the Progressive Era, and its later cousins, the New Deal and Great Society, may not have been possible without the institutional reform of the direct election of senators.

Government Grows and Special Interests Empowered

Professor Todd Zywicki, (J.D. from the University of Virginia School of Law. Professor Zywicki currently teaches at George Mason University School of Law, and is a senior scholar of the Mercatus Center). 1997. Published by the Cleveland State Law Review. “Beyond the Shell and Husk of History: The history of the Seventeenth Amendment and its implications for current reform proposals.” http://mason.gmu.edu/~tzywick2/Cleveland%20State%20Senators.pdf

In general, the activities of the federal government prior to the Seventeenth Amendment were confined to the provision of ‘public goods,’ such as defense and international relations. Redistributive activity to special-interest groups was virtually nonexistent at the federal level. Changing the method by which the Senate was elected undermined the check that bicameralism provided against special interest legislation. Thus, not only was there steady growth in the size of the federal government in the 1920s, but this growth was driven by special interest legislation. The New Deal, of course, accelerated ths trend toward capture of the federal government by special interests.

Wealth Transfers Made Possible

Professor Todd Zywicki, (J.D. from the University of Virginia School of Law. Professor Zywicki currently teaches at George Mason University School of Law, and is a senior scholar of the Mercatus Center). 1994. Published by the Oregon Law Review. “Senators and Special Interests: A Public Choice Analysis of the Seventeenth Amendment.” http://mason.gmu.edu/~tzywick2/Oregon%20Senators.pdf

By loosening oversight of senators, the Seventeenth Amendment made possible massive wealth transfers by the federal government that had been impossible throughout the nineteenth century.

—————–[later, in same context]

Changing the system for electing senators made monitoring the behavior of senators more difficult and thereby permitted more legislation advancing causes of particular interest groups. In addition, the rise of a national economy changed the traditional structure of relationships between politicians and interest groups. Interest groups extended beyond state boundaries, necessitating new legislation to further their goals. Finally, the Seventeenth Amendment was not uniformally supported throughout the country; it was strongest in regions that stood to gain financially from the reform.

Courts are more activist now

James Christian Ure, (J.D. magna cum laude from South Texas College of Law. In law school, also served as President of the Federalist Society and the J. Reuben Clark Law Society. He clerked for a Texas state court judge and interned for the majority whip in the Utah House of Representatives). Fall 2007. Published by the South Texas Law Review. “You scratch my back and I’ll scratch yours: Why the federal marriage amendment should also repeal the Seventeenth Amendment.” http://xa.yimg.com/kq/groups/18873407/961742462/name/Federalism+-+Ure.pdf

Another was this Amendment has directly weakened state sovereignty is through the federal judiciary One scholar has pointed out that the increasing number of Supreme Court cases holding state laws unconstitutional can be traced directly back to the Seventeenth Amendment. The causal chain that justifies this assertion may be summarized as follows: (1) when U.S. Senators stopped being accountable to the states, they entered into a competition with the states for power; (2) due to this competition, Senators became inclined to protect the institutional interests of the federal government rather than the state governments, thereby increasing their own power; (3) this inclination led Senators to consent to Supreme Court nominees who espoused a more expansive view of the role of the federal government, instead of those who would protect states’ rights; and (4) the confirmations of these new types of justices has sparked a large increase in the number of Supreme Court cases holding laws unconstitutional.

State Legislatures Rendered Irrelevant

Associate Professor of Law Jay S. Bybee, (J.D. cum laude from Bringham Young University. Professor Bybee teaches law at Louisiana State University. In 2001 he was appointed Assistant Attorney General in the U.S. Department of Justice. In 2003 he was confirmed to the US 9th Circuit Court of Appeals, where he currently serves). January 1, 1997. Published by the Northwestern University Law Review. Ulysses at the mast: Democracy, Federalism, and the sirens’ song of the Seventeenth Amendment.” http://scholars.law.unlv.edu/cgi/viewcontent.cgi?article=1365&context=facpub

When state legislatures lost all control over their senators through the Seventeenth Amendment, they became virtually irrelevant to the process of monitoring federal legislation through the state’s senators. In subsequent years, as Congress preempted more and more state legislation, state legislatures were powerless to prevent their slide into ignominy.

DEMOCRACY

The Logical Conclusion: Mob Rule via the Internet (A/T: “More Democracy is Always Better”)

C.H. Hoebeke, (MA, librarian at the University of Virginia and Fellow in Constitutional History at the Center for Constitutional Studies). 1996. Published by The Center for Constitutional Studies. “Democratizing the Constitution: The Failure of the Seventeenth Amendment.” http://www.nhinet.org/hoebeke.htm

Here it is worth pausing to take up the Progressive assertion that the necessity of intermediaries had passed away with the modern improvements in communications and transportation technology. By the early twentieth century, the area over which information could be directly transmitted, and over which in turn the public could directly register its response, would be virtually nationwide. Progressive democracy meant the annulment of representative institutions wherever direct expression could be substituted. Carried to its ultimate conclusion, this logic presaged a single, mass assembly of the people, if and when it ever became technically feasible. The bizarre suggestion occasionally heard about doing away with Congress and establishing direct popular rule via the Internet, a fantasy more or less advocated in the presidential candidacy of H. Ross Perot, is the natural end of Progressive thinking.

Impact: We all want our government to look like the comment section of a Youtube video. And that’s the logical conclusion of the “more democracy is better” philosophy.

Repeal would not Violate Democracy

Charles C.W. Cooke (Graduated from Oxford after studying Modern History and Politics. Editorial Associate at National Review). March 1, 2013. Published by National Review Online. “Repeal the 17th Amendment!” http://www.nationalreview.com/articles/341894/repeal-17th-amendment-charles-c-w-cooke

It makes no more sense to argue that to return to this original arrangement would be to “take away” the “rights” of the people than it does to maintain that not being able to vote directly for Supreme Court justices violates their democracy. Everything has its place, and indulging popular sovereignty is simply not what the Senate was designed to do.

Popular Vote Actually Decreases the People’s Voice

C.H. Hoebeke, (MA, librarian at the University of Virginia and Fellow in Constitutional History at the Center for Constitutional Studies). 1996. Published by The Center for Constitutional Studies. “Democratizing the Constitution: The Failure of the Seventeenth Amendment.” http://www.nhinet.org/hoebeke.htm

Aside from contravening the founders’ purposes by removing the representative intermediaries between the people and the Senate, it is highly doubtful that the people were actually given greater control over Senate elections. Instead of selecting a trustworthy delegate from among his neighbors to negotiate the choice of senators on his behalf, the individual voter was now asked to rely on the second- and third-hand accounts of newspapers. At best, his first-hand knowledge of Senate candidates was usually limited to what he heard on the stump or in the rhetoric of debate. Because no state consisted of a single interest, and no candidate wished to alienate the particular audience whose attention he had momentarily been granted, the substance of such engagements would naturally tend either toward telling each group what the candidate thought it wanted to hear, or toward speaking in terms so broad and patriotic as to mean all things to all people.

Goal of Constitution = Liberty, Not Popular Sovereignty (A/T: “Aff plan harms democracy”)

Professor Todd Zywicki, (J.D. from the University of Virginia School of Law. Professor Zywicki currently teaches at George Mason University School of Law, and is a senior scholar of the Mercatus Center). November 15, 2010. Published by National Review Online. Repeal the Seventeenth Amendment. http://www.nationalreview.com/articles/252825/repeal-seventeenth-amendment-todd-zywicki

The Constitution did not create a direct democracy; it established a constitutional republic. Its goal was to preserve liberty, not to maximize popular sovereignty.

Senate was a check on the people

The Federalist No. 63. March 1, 1788. Published by the Independent Journal. “The Senate (continued). http://constitution.org/fed/federa63.htm

To a people as little blinded by prejudice or corrupted by flattery as those whom I address, I shall not scruple to add, that such an institution may be sometimes necessary as a defense to the people against their own temporary errors and delusions. As the cool and deliberate sense of the community ought, in all governments, and actually will, in all free governments, ultimately prevail over the views of its rulers; so there are particular moments in public affairs when the people, stimulated by some irregular passion, or some illicit advantage, or misled by the artful misrepresentations of interested men, may call for measures which they themselves will afterwards be the most ready to lament and condemn. In these critical moments, how salutary will be the interference of some temperate and respectable body of citizens, in order to check the misguided career, and to suspend the blow meditated by the people against themselves, until reason, justice, and truth can regain their authority over the public mind? What bitter anguish would not the people of Athens have often escaped if their government had contained so provident a safeguard against the tyranny of their own passions? Popular liberty might then have escaped the indelible reproach of decreeing to the same citizens the hemlock on one day and statues on the next.

Method of Election Changed Nature of Representation (A/T: “Senators still represent states, so states are not disenfranchised”)

Associate Professor of Law Jay S. Bybee, (J.D. cum laude from Bringham Young University. Professor Bybee teaches law at Louisiana State University. In 2001 he was appointed Assistant Attorney General in the U.S. Department of Justice. In 2003 he was confirmed to the US 9th Circuit Court of Appeals, where he currently serves). January 1, 1997. Published by the Northwestern University Law Review. Ulysses at the mast: Democracy, Federalism, and the sirens’ song of the Seventeenth Amendment.” http://scholars.law.unlv.edu/cgi/viewcontent.cgi?article=1365&context=facpub

But the mode or manner for choosing senators was hardly irrelevant to the question of whom senators represented, and the states as political entities (rather than mere territorial entities) would no longer be represented. At some theoretical level senators had always represented the people, so that the change to direct election was no change in constituency. But at a more functional level, senators knew they represented state legislatures and that they were immediately accountable to that body. In this sense, the mode of election interfered directly with the manner in which senators saw themselves as representatives of states.

JUSTIFICATION FOR THE 17TH AMENDMENT: OVERVIEW

Associate Professor of Law Jay S. Bybee, (J.D. cum laude from Bringham Young University. Professor Bybee teaches law at Louisiana State University. In 2001 he was appointed Assistant Attorney General in the U.S. Department of Justice. In 2003 he was confirmed to the US 9th Circuit Court of Appeals, where he currently serves). January 1, 1997. Published by the Northwestern University Law Review. Ulysses at the mast: Democracy, Federalism, and the sirens’ song of the Seventeenth Amendment.” http://scholars.law.unlv.edu/cgi/viewcontent.cgi?article=1365&context=facpub

The stated justifications for the Seventeenth Amendment were corruption in state legislatures, deadlock in elections of U.S. senators, and renewed faith in the competence of people to make their own choices for senators.

JUSTIFICATION FOR THE 17TH AMENDMENT: CORRUPTION

Corruption Present in only .5% of pre-17th Senate Elections (A/T: “Repeal would create corruption, bribery by special interests)

Professor Todd Zywicki, (J.D. from the University of Virginia School of Law. Professor Zywicki currently teaches at George Mason University School of Law, and is a senior scholar of the Mercatus Center). November 15, 2010. Published by National Review Online. Repeal the Seventeenth Amendment. http://www.nationalreview.com/articles/252825/repeal-seventeenth-amendment-todd-zywicki

Critics of repeal have also contended that election of senators by state legislatures was, and would be today, unusually prone to corruption and bribery. But research by historian C. H. Hoebeke found that of the 1,180 Senate elections between 1789 and 1909, in only 15 cases was fraud credibly alleged, and in only seven was it actually found — approximately one-half of 1 percent. Moreover, it is absurd to think that even this modest degree of corruption would be tolerated in the modern media age, any more than politicians can today sell judgeships or other appointed offices, as they frequently did in the past. And even in the progressive era it was not believed that direct election of senators would prevent corruption. Among the Seventeenth Amendment’s staunchest supporters were urban political machines (hardly advocates of clean government), which understood that direct election would boost their control of the Senate as they drove and bribed their followers to the polls.

Bribery of Legislators did not produce clear results

Associate Professor Wendy J Schiller, (Ph.D. in Political Science from the University of Rochester. Professor Schiller currently teaches Political Science and Public Policy at Brown University) and Professor Charles Stewart III (Ph.D. from Stanford University. He has taught Political Science at MIT since 1985). Drafts first presented April 2006. Most recently presented February 2007. Published by the Massachusetts Institute of Technology. “Challenging the Myths of 19th Century Party Dominance: Evidence from Indirect Senate Elections 1871-1913.” http://web.mit.edu/cstewart/www/StewartSchillerapsa07FINAL.pdf

In the process of collecting our data, we have already come across explicit investigations into corruption of Senate elections, but it is unclear whether the money paid to legislators actually bought consistent support, much less an actual victory.

Impact: Even in the rare cases of corruption, no clear evidence bribery actually worked.

17th Amendment did not increase accountability

Charles C.W. Cooke (Graduated from Oxford after studying Modern History and Politics. Editorial Associate at National Review). March 1, 2013. Published by National Review Online. “Repeal the 17th Amendment!” http://www.nationalreview.com/articles/341894/repeal-17th-amendment-charles-c-w-cooke

“Democracy” may be the cry now. But as Alex Seitz-Wald goes on to acknowledge in his dissent, the primary argument in favor of the 17th Amendment was that it might serve to cut out corruption. Money was said to be rife in politics; direct elections would stamp it out. Lobbying by big business was staining the republic; direct elections would cut the buggers off at the knee. The small constituency that a senator served effectively gave him tenure; an amendment would make the body competitive. Bad behavior among senators was rife; the rigors of direct election would make them moral. And how are things now that the scalpel has been taken to Madison’s handiwork? There is more money in politics than ever before; direct elections have served only to cut out the middleman between lobbyists and politicians; senators rarely lose their seats; and Ted Kennedy killed a woman and got away with it.

State-wide elections increase chances for corruption/bribery

Professor Todd Zywicki, (J.D. from the University of Virginia School of Law. Professor Zywicki currently teaches at George Mason University School of Law, and is a senior scholar of the Mercatus Center). 1997. Published by the Cleveland State Law Review. “Beyond the Shell and Husk of History: The history of the Seventeenth Amendment and its implications for current reform proposals.” http://mason.gmu.edu/~tzywick2/Cleveland%20State%20Senators.pdf

One important consequence of the shift to direct election was to increase the need for money and organization to run expensive state-wide races and to mobilize massive numbers of voters. In turn, this has required Senators to supplicate themselves to special interests in the quest for money and power. Thus the movement to direct election may have had results more apparent than real, as direct bribery was merely converted into indirect ‘bribery’ through the need to raise campaign funds and solicit votes directly. Indeed, as a result of these forces, direct election may have had the perverse result of increasing the influence of special interests over Senators and the political process.

No indication of decreased corruption after Amendment

Professor Todd Zywicki, (J.D. from the University of Virginia School of Law. Professor Zywicki currently teaches at George Mason University School of Law, and is a senior scholar of the Mercatus Center). 1997. Published by the Cleveland State Law Review. “Beyond the Shell and Husk of History: The history of the Seventeenth Amendment and its implications for current reform proposals.” http://mason.gmu.edu/~tzywick2/Cleveland%20State%20Senators.pdf

Finally, there is no indication that the shift to direct election did anything to eliminate or even reduce corruption in Senate elections. Indeed, there was little reason even among contemporaries to suspect that direct election would have the effect of reducing corruption, as challenged elections and accusation of electoral wrongdoing were significantly more common in House elections than in the Senate. Thus a commentator writing nine years after the adoption of the Seventeenth Amendment noted that ‘fraud is occurring in nearly every state’ and that ‘the amendment has failed its purpose.’

JUSTIFICATION FOR THE 17TH AMENDMENT: DEADLOCK

Only ~2% were deadlocked

Associate Professor Wendy J Schiller, (Ph.D. in Political Science from the University of Rochester. Professor Schiller currently teaches Political Science and Public Policy at Brown University) and Professor Charles Stewart III (Ph.D. from Stanford University. He has taught Political Science at MIT since 1985). Drafts first presented April 2006. Most recently presented February 2007. Published by the Massachusetts Institute of Technology. “Challenging the Myths of 19th Century Party Dominance: Evidence from Indirect Senate Elections 1871-1913.” http://web.mit.edu/cstewart/www/StewartSchillerapsa07FINAL.pdf

In over 2% of cases the legislative divisions were so bad that the legislative session adjourned without the choice of a senator. Although 2 percent may not seem like a large number, considering the consequence of a vacant Senate seat in terms of lost patronage and federal service benefits, it is striking how many elections were deadlocked in this way.

Three-Quarters of Senators Chosen within first 2 days

Associate Professor Wendy J Schiller, (Ph.D. in Political Science from the University of Rochester. Professor Schiller currently teaches Political Science and Public Policy at Brown University) and Professor Charles Stewart III (Ph.D. from Stanford University. He has taught Political Science at MIT since 1985). Drafts first presented April 2006. Most recently presented February 2007. Published by the Massachusetts Institute of Technology. “Challenging the Myths of 19th Century Party Dominance: Evidence from Indirect Senate Elections 1871-1913.” http://web.mit.edu/cstewart/www/StewartSchillerapsa07FINAL.pdf

Table 1 shows that the vast majority of indirect elections to the U.S. Senate were handled in short order. Roughly three-fourths were either settled in the joint balloting on the first day or on the first round of joint assembly balloting on the second day. Still, nearly a quarter of all elections took longer, which is prima facie evidence that coordination problems were common enough for party leaders to be worried about holding their members in line.

States most affected by deadlock didn’t even support Amendment

James Christian Ure, (J.D. magna cum laude from South Texas College of Law. In law school, also served as President of the Federalist Society and the J. Reuben Clark Law Society. He clerked for a Texas state court judge and interned for the majority whip in the Utah House of Representatives). Fall 2007. Published by the South Texas Law Review. “You scratch my back and I’ll scratch yours: Why the federal marriage amendment should also repeal the Seventeenth Amendment.” http://xa.yimg.com/kq/groups/18873407/961742462/name/Federalism+-+Ure.pdf

‘Between 1891 and 1905, there were forty-six deadlocks across twenty states.’ While this is a legitimate concern, history shows that most repeated deadlocks occurred in newly-admitted western states with inexperienced legislatures, and that more experienced states generally only encountered the occasional deadlock. That this deadlocking problem did not merit a constitutional amendment is evidenced by the fact that several of the states who were most affected by deadlocks did not vote for the Amendment.

Deadlock was rare, Mostly a product of inexperienced legislatures

Professor Todd Zywicki, (J.D. from the University of Virginia School of Law. Professor Zywicki currently teaches at George Mason University School of Law, and is a senior scholar of the Mercatus Center). 1994. Published by the Oregon Law Review. “Senators and Special Interests: A Public Choice Analysis of the Seventeenth Amendment.” http://mason.gmu.edu/~tzywick2/Oregon%20Senators.pdf

In the fifteen year span examined, only thirteen states deadlocked more than once; only six states twice or more. In most states, it took only one or two deadlocks for the legislature to learn not to repeat the process again. Furthermore, many of the states with repeated deadlocks were newly-admitted western states with inexperienced legislatures and weak party discipline. As western legislators gained experience, deadlocks became less frequent. As one historian has written of the Utah deadlocks of 1897 and 1899, ‘[T]he struggle of 1897, and the failure of 1899, seemed to be a good teaching experience and Utah’s legislature never again failed to elect a senator so long as it had that responsibility.’

Deadlock didn’t prevent normal business from occurring

James Christian Ure, (J.D. magna cum laude from South Texas College of Law. In law school, also served as President of the Federalist Society and the J. Reuben Clark Law Society. He clerked for a Texas state court judge and interned for the majority whip in the Utah House of Representatives). Fall 2007. Published by the South Texas Law Review. “You scratch my back and I’ll scratch yours: Why the federal marriage amendment should also repeal the Seventeenth Amendment.” http://xa.yimg.com/kq/groups/18873407/961742462/name/Federalism+-+Ure.pdf [note: all quotations and brackets below are original]

The final internal explanation for passage of the Amendment is that electing Senators distracted state legislators, especially when deadlocks occurred. History, however, reveals that even when deadlocking was a problem, the amount of time dedicated to the election process amounted to one vote at the beginning of each day –then the legislators would continue with their normal affairs. Thus, in retrospect, none of the internal explanations for the Amendment sufficiently justified amending the Constitution.

JUSTIFICATION FOR THE 17TH AMENDMENT: CONTROL BY THE PEOPLE

Americans now have less a voice in the political process

James Christian Ure, (J.D. magna cum laude from South Texas College of Law. In law school, also served as President of the Federalist Society and the J. Reuben Clark Law Society. He clerked for a Texas state court judge and interned for the majority whip in the Utah House of Representatives). Fall 2007. Published by the South Texas Law Review. “You scratch my back and I’ll scratch yours: Why the federal marriage amendment should also repeal the Seventeenth Amendment.” http://xa.yimg.com/kq/groups/18873407/961742462/name/Federalism+-+Ure.pdf [note: all quotations and brackets below are original]

A decline in the political process was natural because the less political power in question, the less incentive to be involved –and, ironically, direct election decreased the political power of the average citizen. Suppose a small, local rotary club has particular concerns with a piece of legislation before the U.S. Senate. Suppose further that the state population is 2,250,000, the ideal district size for each state House of Representatives district is 30,000 constituents, and the state legislature is comprised of seventy Representatives and thirty Senators. Before the Amendment, these citizens would have been able to exert some influence over their senator’s conduct by simply contacting their state representative, who would have had both incentive to take them seriously and power to influence that state’s U.S. Senators.

——————–[later, in same context]

Because average Americans’ votes now bear less weight to their Senators, the average American has less incentive to be involved in the political processes associated with voting for and monitoring their Senators.

Decreased Oversight (A/T: “The people can hold Senators accountable”)

James Christian Ure, (J.D. magna cum laude from South Texas College of Law. In law school, also served as President of the Federalist Society and the J. Reuben Clark Law Society. He clerked for a Texas state court judge and interned for the majority whip in the Utah House of Representatives). Fall 2007. Published by the South Texas Law Review. “You scratch my back and I’ll scratch yours: Why the federal marriage amendment should also repeal the Seventeenth Amendment.” http://xa.yimg.com/kq/groups/18873407/961742462/name/Federalism+-+Ure.pdf [note: all quotations and brackets below are original]

The decrease in monitoring resulted from the fact that the voters at large are both less capable of monitoring and less likely to do so than the state legislatures. Voters are less capable because they simply cannot devote the same amount of time a legislator can to considering the issues and details on the senatorial agenda. As Montesquieu stated (in blunt fashion), ‘The great advantage of representatives is, their capacity of discussing public affairs. For this the people collectively are extremely unfit, which is one of the chief inconveniences of a democracy.” Additionally, voters have less incentive to monitor than legislators because a voter ‘senses the insignificance of his individual ballot,’ while a legislator was one of a small group whose every vote was worth lobbying for to a Senator.

Voters have no accountability mechanism (between elections)

Associate Professor of Law Jay S. Bybee, (J.D. cum laude from Bringham Young University. Professor Bybee teaches law at Louisiana State University. In 2001 he was appointed Assistant Attorney General in the U.S. Department of Justice. In 2003 he was confirmed to the US 9th Circuit Court of Appeals, where he currently serves). January 1, 1997. Published by the Northwestern University Law Review. Ulysses at the mast: Democracy, Federalism, and the sirens’ song of the Seventeenth Amendment.” http://scholars.law.unlv.edu/cgi/viewcontent.cgi?article=1365&context=facpub

There is, unfortunately, no mechanism for the people to exercise any direct control over their senators in the interim. To put it another way, there is no means for senators to give an accounting of themselves-other than through the mechanism of an election. That would seem to suggest that we have less control of senators than previously. The Seventeenth Amendment answered the people’s craving for the reins of democracy, but at the level at which senators operate, democracy is a poor master.

More voters = more special interest power

Professor Todd Zywicki, (J.D. from the University of Virginia School of Law. Professor Zywicki currently teaches at George Mason University School of Law, and is a senior scholar of the Mercatus Center). 1997. Published by the Cleveland State Law Review. “Beyond the Shell and Husk of History: The history of the Seventeenth Amendment and its implications for current reform proposals.” http://mason.gmu.edu/~tzywick2/Cleveland%20State%20Senators.pdf

In an electorate of millions of voters, most individuals lack the incentive to study the issues and vote. This ‘rational ignorance’ allows well-organized interest groups to use the political process to transfer wealth from the dispersed public to themselves. Powerful special interests receive government favors and wealth transfers; politicians receive, in return, votes, money, and reelection.

State Legislators are best choice for electing Senators

C.H. Hoebeke, (MA, librarian at the University of Virginia and Fellow in Constitutional History at the Center for Constitutional Studies). 1996. Published by The Center for Constitutional Studies. “Democratizing the Constitution: The Failure of the Seventeenth Amendment.” http://www.nhinet.org/hoebeke.htm

Even in those days of sparse population, direct elections were ruled out as a mockery of the true principles of representation. Candidates would have too little acquaintance with any but the largest or most vocal interests. By the same token, the individual citizen’s vote, and the knowledge upon which it would be cast, counted for so little among the mass electorate that it would more than likely favor the intrigues of a well-organized few, adept at “taking advantage of the supineness, the ignorance, the hopes and fears of the unwary and interested.” Locally elected legislators, chosen with greater competence on the part of the people, would serve as trustworthy intermediaries to select to the Senate “those men only who have become the most distinguished by their abilities and virtue.”

SPECIAL INTERESTS

Lobbyists Now Focus on 1 Senator instead of entire Legislature

Associate Professor of Law Jay S. Bybee, (J.D. cum laude from Bringham Young University. Professor Bybee teaches law at Louisiana State University. In 2001 he was appointed Assistant Attorney General in the U.S. Department of Justice. In 2003 he was confirmed to the US 9th Circuit Court of Appeals, where he currently serves). January 1, 1997. Published by the Northwestern University Law Review. Ulysses at the mast: Democracy, Federalism, and the sirens’ song of the Seventeenth Amendment.” http://scholars.law.unlv.edu/cgi/viewcontent.cgi?article=1365&context=facpub

If the proponents’ real concern was eliminating corporate influence, the Amendment may have only facilitated the influence. The proponents thought that corporations would have less influence with the electorate than with the legislature, but direct election turned the corporations’ attention from the legislature to the candidates themselves, lowering the costs of securing influence. As senators refocused on a mass electorate rather than a relatively small group of legislators, they became amenable to the influence of powerful lobbies. The Seventeenth Amendment reduced the cost of lobbying by eliminating the state legislatures as a countervailing source of control over U.S. senators. Direct election enabled lobbyists to focus directly on the senators rather than on the entire state legislature.

Log-rolling agreements now easier for Special Interests

Professor Todd Zywicki, (J.D. from the University of Virginia School of Law. Professor Zywicki currently teaches at George Mason University School of Law, and is a senior scholar of the Mercatus Center). Winter 1997. Published by The Independent Review. http://www.independent.org/publications/TIR/article.asp?issueID=35&articleID=450

The ability of factions or special interests to capture control of the federal government was mitigated by requiring bills to receive the approval of the public, speaking through their representatives in the House, and the approval of the state legislatures, speaking through their representatives in the Senate. The transition to direct election made the constituencies represented in the House and Senate more similar, thereby facilitating creation of logrolling agreements across the two houses of the national legislature. Moreover, it made the procurement of special-interest legislation easier by allowing special interests to lobby the Senate directly, rather than having to proceed through the intermediaries of the state legislatures.

Senate Previously Stopped Special Interest Legislation

Professor Todd Zywicki, (J.D. from the University of Virginia School of Law. Professor Zywicki currently teaches at George Mason University School of Law, and is a senior scholar of the Mercatus Center). 1994. Published by the Oregon Law Review. “Senators and Special Interests: A Public Choice Analysis of the Seventeenth Amendment.” http://mason.gmu.edu/~tzywick2/Oregon%20Senators.pdf

In the decades leading up to the passage of the Seventeenth Amendment, the Senate consistently frustrated the redistributive desire of the House. Special-interest legislation frequently passed the House, only to stall in the Senate. For instance, in 1911 alone, the House passed twenty-seven pro-labor measures, eighteen of which were rejected by the Senate.

Shorter Election cycles narrowed window for special interest influence

Scott Bomboy, (MA, and Editor in Chief at the National Constitution Center). April 8, 2013. Published by Yahoo News. “What would the Senate look like without the 17th Amendment?” http://news.yahoo.com/senate-look-without-17th-amendment-095822973.html

Another factor would be campaign spending. Millions of dollars of outside money poured into 2012 U.S. Senate elections. According to data from the Campaign Finance Institute, $315 million was spent on U.S. Senate campaigns in 2012. The U.S. Senate race in Virginia has $51 million in spending by itself. Under the pre-1913 voting rules, the candidates for that seat wouldn’t even be in play until after the November general election was over, so there would be no opportunity for special interests to invest in campaigns.

SOLVENCY

Unpopular Reforms Made Possible

Second Lieutenant Jay Zeigler. (Awarded The Brigadier General Douglas G. Murray Award for Excellence in American Politics; the Major General Robert G. Smith Award for Outstanding Performance in the Discipline of Political Science; and the Top Falcon Scholar. Zeigler also earned top military honors.) 2011-2012. Published by The Fellows Review. “The 17th Amendment: Attempting to Cure the Problems of Democracy with More Democracy.” http://cspc.nonprofitsoapbox.com/storage/documents/Zeigler-_Final_Paper.pdf

Finally, with the exception of the Supreme Court, all of the nation’s federal representatives are essentially elected by the people. This has broad implications for policy making as well as solving the largest of the country’s issues. Many problems that need to be solved that are facing the country require some solutions which would definitely be described as unpopular. For example, the national debt is skyrocketing with no real fix in sight. Much of the problem comes from the entitlements that have been built into the budget, to the extent of encompassing 60% of its entirety. There clearly needs to be some sort of cuts to these programs, but no politician is willing to do so because his reelection depends on keeping them happy, or at least having their anger pointed away from him. Without a body that is at least partially removed from the people, no institution can make the real decisions that are necessary for the nation. While there is a renewed interest in making cuts to the budget by the people, it would appear that most do not want their own personal benefits to be slashed. Without a body removed from the people, it is hard to see how any real, long-term solutions can be produced.

Madison: State Legislatures are vigilant in restricting Feds

Charles C.W. Cooke (Graduated from Oxford after studying Modern History and Politics. Editorial Associate at National Review). March 1, 2013. Published by National Review Online. “Repeal the 17th Amendment!” http://www.nationalreview.com/articles/341894/repeal-17th-amendment-charles-c-w-cooke

The state legislatures will jealously and closely watch the operations of this Government, and be able to resist with more effect every assumption of power, than any other power on earth can do; and the greatest opponents to a Federal government admit the State Legislatures to be sure guardians of the people’s liberty.

Senators Acted For the States

Professor Todd Zywicki, (J.D. from the University of Virginia School of Law. Professor Zywicki currently teaches at George Mason University School of Law, and is a senior scholar of the Mercatus Center). November 15, 2010. Published by National Review Online. Repeal the Seventeenth Amendment. http://www.nationalreview.com/articles/252825/repeal-seventeenth-amendment-todd-zywicki

Under the original arrangement, senators had strong incentives to protect federalism. They recognized that their reelection depended on pleasing state legislators who preferred that power be kept close to home. Whereas House members were considered representatives of the people, senators were considered ambassadors of their state governments to the federal government and, like national ambassadors to foreign countries, were subject to instruction by the parties they represented (although not to recall if they refused to follow instructions). And they tended to act accordingly, ceding to the national government only the power necessary to perform its enumerated functions, such as fighting wars and building interstate infrastructure. Moreover, when the federal government expanded to address a crisis (such as war), it quickly retreated to its intended modest level after the crisis had passed. Today, as historian Robert Higgs has observed, federal expansion creates a “ratchet effect.”

State representation through Instruction

Professor Todd Zywicki, (J.D. from the University of Virginia School of Law. Professor Zywicki currently teaches at George Mason University School of Law, and is a senior scholar of the Mercatus Center). 1997. Published by the Cleveland State Law Review. “Beyond the Shell and Husk of History: The history of the Seventeenth Amendment and its implications for current reform proposals.” http://mason.gmu.edu/~tzywick2/Cleveland%20State%20Senators.pdf

The primary mechanism for enforcing the Senator-state legislature agency relationship established by the Constitution, was through the mechanism of ‘instruction.’ ‘Under this practice, state legislatures told senators how to vote on particular legislative items.’

Enforcement Existed for Instruction

James Christian Ure, (J.D. magna cum laude from South Texas College of Law. In law school, also served as President of the Federalist Society and the J. Reuben Clark Law Society. He clerked for a Texas state court judge and interned for the majority whip in the Utah House of Representatives). Fall 2007. Published by the South Texas Law Review. “You scratch my back and I’ll scratch yours: Why the federal marriage amendment should also repeal the Seventeenth Amendment.” http://xa.yimg.com/kq/groups/18873407/961742462/name/Federalism+-+Ure.pdf [note: all quotations and brackets below are original]

This state influence over the instrument of the Senate was exercised not only through the election itself, but through methods such as “instruction.” Under this practice, state legislatures told Senators how to vote on particular bills. This practice was rooted in the theory that a Senator was ‘an ambassador of the State to the nation.’ Failing to follow these ‘instructions’ was an offense serious enough to lead to the resignation of several non-complying Senators before their terms were complete States were firm with their Senators because ‘[a]s agents of the state legislatures, the primary duty of senators was to protect the sphere in which state and local governments could operate, free from the potentially strong arm of Washington.”

Competition Existed (A/T: “Elections by Legislatures were mere rubber stamps”)

Associate Professor Wendy J Schiller, (Ph.D. in Political Science from the University of Rochester. Professor Schiller currently teaches Political Science and Public Policy at Brown University) and Professor Charles Stewart III (Ph.D. from Stanford University. He has taught Political Science at MIT since 1985). Drafts first presented April 2006. Most recently presented February 2007. Published by the Massachusetts Institute of Technology. “Challenging the Myths of 19th Century Party Dominance: Evidence from Indirect Senate Elections 1871-1913.” http://web.mit.edu/cstewart/www/StewartSchillerapsa07FINAL.pdf

Party machine leaders were certainly critical, but even the “big boss” could lose. Rival factions might test the strength of top leaders. Short-term electoral setbacks might provide openings for insurgent elements within a party. Minority party legislators always had incentives to exploit divisions within the majority party, hoping for a fusion candidate.

Legislative Elections Were Not Foregone Conclusions (A/T: “Legislative Candidate pledging to vote for Senate candidate = de facto popular vote”)

Associate Professor Wendy J Schiller, (Ph.D. in Political Science from the University of Rochester. Professor Schiller currently teaches Political Science and Public Policy at Brown University). November 2003. Published by New York University. “Climbing and Clawing Their Way to the U.S. Senate: Political Ambition and Career Building 1880-1913.” http://www.nyu.edu/gsas/dept/politics/seminars/ws1201.pdf

Although a party majority in the State House and Senate would often guarantee a U.S. senator of that party, it did not guarantee agreement around a single candidate because the majority party could be comprised of several factions supporting different U.S. Senate candidates. Moreover, state legislators who had professed support for a specific candidate would frequently have to abandon that candidate if it became clear he could not attract the sufficient number of votes to reach a majority.

RANDOM STUFF

Rules Governing Elections by State Legislatures

Associate Professor Wendy J Schiller, (Ph.D. in Political Science from the University of Rochester. Professor Schiller currently teaches Political Science and Public Policy at Brown University) and Professor Charles Stewart III (Ph.D. from Stanford University. He has taught Political Science at MIT since 1985). Drafts first presented April 2006. Most recently presented February 2007. Published by the Massachusetts Institute of Technology. “Challenging the Myths of 19th Century Party Dominance: Evidence from Indirect Senate Elections 1871-1913.” http://web.mit.edu/cstewart/www/StewartSchillerapsa07FINAL.pdf

For the period covered by this paper, Senate election procedures were covered by an 1866 law that was passed in response to controversies that arose in Senate elections prior to the Civil War.1 The framework enunciated in the 1866 act provided for a two-step process. As had been typical before 1866, each chamber was required to meet separately at noon on the second Tuesday after the state legislature had organized, to vote separately for senator. On the following day at noon, the two chambers were required to meet in “joint assembly” to canvass the votes. If a majority of members of each chamber favored the same candidate, he would be declared elected. If one or both chambers failed to elect a senator with a majority of votes, or if the two chambers produced different majority vote winners, then the joint assembly would vote to choose a winner, acting as a single body. If no candidate secured a majority of the joint assembly, House and Senate members were required to meet together and ballot at least once a day until a senator was chosen or their legislative session adjourned sine die. States failing to elect a senator once the legislature had adjourned would have to endure the vacancy, since the U.S. Senate would not seat a gubernatorial appointee if the vacancy had occurred because of the failure of the legislature to elect.

Senators Then no Richer than Today (A/T: “Pre-17th Amendment = Plutocracy”)

Second Lieutenant Jay Zeigler. (Awarded The Brigadier General Douglas G. Murray Award for Excellence in American Politics; the Major General Robert G. Smith Award for Outstanding Performance in the Discipline of Political Science; and the Top Falcon Scholar. Zeigler also earned top military honors.) 2011-2012. Published by The Fellows Review. “The 17th Amendment: Attempting to Cure the Problems of Democracy with More Democracy.” http://cspc.nonprofitsoapbox.com/storage/documents/Zeigler-_Final_Paper.pdf

Another broad criticism of the Senate was that the institution was a bastion of rich men outside the touch of common Americans. However, the Senate at the time when reform calls were the loudest was not any richer than today (Hoebeke 101).

Senators Now Remain in Power Longer (A/T: “17th Reduced the number of Career Senators”)

Associate Professor of Law Jay S. Bybee, (J.D. cum laude from Bringham Young University. Professor Bybee teaches law at Louisiana State University. In 2001 he was appointed Assistant Attorney General in the U.S. Department of Justice. In 2003 he was confirmed to the US 9th Circuit Court of Appeals, where he currently serves). January 1, 1997. Published by the Northwestern University Law Review. Ulysses at the mast: Democracy, Federalism, and the sirens’ song of the Seventeenth Amendment.” http://scholars.law.unlv.edu/cgi/viewcontent.cgi?article=1365&context=facpub

History has shown these predictions incorrect. Senators had already begun to regard their positions as careers in the 1890s, and the number of senators serving consecutive terms remained about the same from the 1890s to the 1950s, but has increased since then. Rather than serving to limit senators’ terms, the Seventeenth Amendment has contributed to longer terms. There are at least two reasons for this phenomenon. First, once the election of senators was taken from the legislatures, the election was abandoned to party machines. Party bosses, not legislative compromise, determined who would be elected. Machines could more easily manipulate candidates and the populace than they could the egos of legislators. Second, the ambitions of the legislators themselves had helped to curb the terms served in the Senate. The Seventeenth Amendment worked against rotation or tenure limits because the elective body (the people) had less ambition to the office it controlled. Legislators had more natural ambition to the office and thus more incentive to watch senators. As a result senators had to be responsive to legislators’ concerns. The ambitions of state legislators helped curb lengthy stays in the Senate.

BONUS: Negative Brief

NEG PHILOSPHY: Completely counter the idea of Federalism by doubling down on government by the people. Otherwise, the Solvency and DA’s are fairly self-explanatory. As for the second Solvency point about Popular Elections happening even w/o the 17th: A great example is the Lincoln-Douglas debates, which were *not* waged over the actual Senate seat, both over state legislators who had pledged their votes to either Lincoln or Douglas. Also, I didn’t include a card on this, but you could probably construct a good DA about how we shouldn’t change a part of the Constitution that was approved by the people and the state legislatures (who supposedly lose so much with this Amendment) just 100 years ago. The Founders set a very high bar for amending the Constitution…and this Amendment passed the test.

COUNTER-CRITERION: Rule by the People.

Thomas Jefferson. 1801. http://www.famguardian.org/Subjects/Politics/ThomasJefferson/jeff0500.htm [Note: the “…” is original to the text displayed in the link.]

The will of the people… is the only legitimate foundation of any government, and to protect its free expression should be our first object.

Link 1: Consent is the Measure of Legitimacy

Compare the countries of Israel and Communist China, both of which restrict their citizens’ rights.

US Department of State. March 6, 2006. Israel and the Occupied Territories http://www.state.gov/g/drl/rls/hrrpt/2005/61690.htm

“The law provides citizens with the right to change their government peacefully, and citizens exercised this right in practice through periodic, free, and fair elections held on the basis of universal suffrage.”

Impact: Contrast the countries of Israel and Communist China. In the country of Israel, individual rights, such as freedom of action and the right to privacy, are occasionally violated to ensure national security. However, even though it infringes upon individual rights, Israel’s government is legitimate because it respects the people’s wishes. Contrast this to the country of China, which also infringes upon individual rights such as freedom of action and the right to privacy. But when Communist China takes away the people’s rights, we view it as a great atrocity against humanity, because those rights are taken away without the people’s consent.

Link 2: The First Part of Republic

Preamble of Constitution. http://www.law.cornell.edu/constitution/preamble

We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.”

Link 3: Government Is By and For the People

Gettysburg Address. http://www.abrahamlincolnonline.org/lincoln/speeches/gettysburg.htm

It is rather for us to be here dedicated to the great task remaining before us — that from these honored dead we take increased devotion to that cause for which they gave the last full measure of devotion — that we here highly resolve that these dead shall not have died in vain — that this nation, under God, shall have a new birth of freedom — and that government of the people, by the people, for the people, shall not perish from the earth.”

Violation:

1.) Aff disenfranchises nearly every American citizen.

2.) Aff returns Senate elections to politicians rather than the people.

3.) Aff overturns Constitutional Amendment passed with the overwhelming approval of the people (via their state legislatures).

SOLVENCY 1: Little Change in Senate Composition

Most Senators Elected Either Way

Associate Professor of law Ilya Somin, (J.D. from Yale Law School. He currently teaches at George Mason University School of Law, and is Co-Editor of the Supreme Court Economic Review. His work has appeared in the Yale Law Journal, Stanford Law Review, Northwestern University Law Review, and Georgetown Law Review). September 2011. Published by the Federalist Society. “Federalism & Separation of Powers.” http://www.fed-soc.org/doclib/20110912_ZywickiSominEngage12.2.pdf

The assumption underlying such claims is that senators elected by state legislatures would be more interested in protecting state autonomy than senators elected by voters, and therefore more committed to limiting federal power. Unfortunately, repeal of the Seventeenth Amendment is unlikely to have the effect that advocates hope for. This is so for two reasons. The Amendment actually had little if any effect on the scope of federal power because most senators would have been popularly elected even without it. Moreover, there is no reason to expect senators elected by state legislatures to be more opposed to federal power than popularly-elected senators.

In the First Direct Election, all 25 Incumbents Re-elected

Professor Todd Zywicki, (J.D. from the University of Virginia School of Law. Professor Zywicki currently teaches at George Mason University School of Law, and is a senior scholar of the Mercatus Center). 1997. Published by the Cleveland State Law Review. “Beyond the Shell and Husk of History: The history of the Seventeenth Amendment and its implications for current reform proposals.” http://mason.gmu.edu/~tzywick2/Cleveland%20State%20Senators.pdf

Far from a wholesale purging of old Senators and replacing them with new Senators, there was virtually no change in membership in the Senate following the adoption of direct election. When the first direct elections were held in 1914, all of the twenty-five senators running for re-election were returned to the Senate.

SOLVENCY 2: Popular Election Prevalent Even Without 17th Amendment

Already Happened in 2/3 of the states

Professor Kris. W. Kobach, (J.D. in 1995 from Yale Law School, and MA and D.Phil. from Oxford University. He was a professor at the University of Missouri-Kansas City, was awarded a White House Fellowship in 2001, and is currently the Secretary of State of Kansas). 1994. Published by the Yale Law Journal. “Rethinking Article V: Term Limits and the Seventeenth and Nineteenth Amendments.” http://mason.gmu.edu/~tzywick2/Cleveland%20State%20Senators.pdf and http://www.jstor.org/discover/10.2307/797019?uid=3739256&uid=2&uid=4&sid=21102473314361

Through incremental state action, the structure of the Senate had been transformed. Consequently, enough senatorial support existed to etch into the formal constitutional text what was already a reality in nearly two-thirds of the forty-six states. All that remained were the final two stages – congressional proposition and state ratification – which would convert this incremental amendment into a normal constitutional amendment and impose it uniformly across the country.

Most State Legislators Themselves Had Already Given Away Power

Professor Todd Zywicki, (J.D. from the University of Virginia School of Law. Professor Zywicki currently teaches at George Mason University School of Law, and is a senior scholar of the Mercatus Center). 1997. Published by the Cleveland State Law Review. “Beyond the Shell and Husk of History: The history of the Seventeenth Amendment and its implications for current reform proposals.” http://mason.gmu.edu/~tzywick2/Cleveland%20State%20Senators.pdf

Thus, during the period preceding the adoption of the Seventeenth Amendment, there was increasing popular participation in the process of electing U.S. Senators. The conventional conclusion drawn from this story is that the adoption of the Seventeenth Amendment ‘simply universalized a situation which a majority of state legislatures had already created.’ The Seventeenth Amendment did nothing more than formalize and make uniform the electoral practices of most of the states.

Banning All Votes Ineffective (A/T: “Just ban any form of popularly-electing Senators”)

Associate Professor of law Ilya Somin, (J.D. from Yale Law School. He currently teaches at George Mason University School of Law, and is Co-Editor of the Supreme Court Economic Review. His work has appeared in the Yale Law Journal, Stanford Law Review, Northwestern University Law Review, and Georgetown Law Review). September 2011. Published by the Federalist Society. “Federalism & Separation of Powers.” http://www.fed-soc.org/doclib/20110912_ZywickiSominEngage12.2.pdf

In theory, popular election could potentially be blocked if the amendment repealing the Seventeenth included a ban on state legislation designed to ensure that senators are chosen by popular vote. It would be difficult, but perhaps not impossible, to draft an amendment that could effectively preclude all the different devices state legislatures could use to promote popular election of senators.7 But an amendment of that type would face even more daunting political odds than a straightforward repeal of the Seventeenth. In addition to the extraordinary uphill struggle that any amendment effort faces, such a preclusive amendment could be portrayed as infringing on state autonomy, as well as undermining democracy. And even an amendment banning the use of popular vote devices for selecting senators could not prevent state legislators from promising to choose whatever candidate for the Senate had the greatest amount of popular support, as demonstrated, for example, by public opinion polls. In many states, there might be substantial political pressure for state legislators to make such pledges.

SOLVENCY 3: No Cut to Federal Power

Legislators No More Opposed to Federal Power than Voters

Associate Professor of law Ilya Somin, (J.D. from Yale Law School. He currently teaches at George Mason University School of Law, and is Co-Editor of the Supreme Court Economic Review. His work has appeared in the Yale Law Journal, Stanford Law Review, Northwestern University Law Review, and Georgetown Law Review). September 2011. Published by the Federalist Society. “Federalism & Separation of Powers.” http://www.fed-soc.org/doclib/20110912_ZywickiSominEngage12.2.pdf

The assumption underlying such claims is that senators elected by state legislatures would be more interested in protecting state autonomy than senators elected by voters, and therefore more committed to limiting federal power. Unfortunately, repeal of the Seventeenth Amendment is unlikely to have the effect that advocates hope for. This is so for two reasons. The Amendment actually had little if any effect on the scope of federal power because most senators would have been popularly elected even without it. Moreover, there is no reason to expect senators elected by state legislatures to be more opposed to federal power than popularly-elected senators.

Modern State Legislators Like Federal Handouts

Associate Professor of law Ilya Somin, (J.D. from Yale Law School. He currently teaches at George Mason University School of Law, and is Co-Editor of the Supreme Court Economic Review. His work has appeared in the Yale Law Journal, Stanford Law Review, Northwestern University Law Review, and Georgetown Law Review). September 2011. Published by the Federalist Society. “Federalism & Separation of Powers.” http://www.fed-soc.org/doclib/20110912_ZywickiSominEngage12.2.pdf

Whatever was the case before 1913, under modern conditions senators chosen by state legislatures often have strong incentives to support expanded federal power. Those incentives arise precisely because senators’ reelection depends on “pleasing state legislators.” The state legislators in question are often heavily dependent on federal subsidies and regulations. They are unlikely to do anything to overturn the federal trough at which they themselves regularly feed.

Federal Grants compose approx. one quarter of state budgets

Associate Professor of law Ilya Somin, (J.D. from Yale Law School. He currently teaches at George Mason University School of Law, and is Co-Editor of the Supreme Court Economic Review. His work has appeared in the Yale Law Journal, Stanford Law Review, Northwestern University Law Review, and Georgetown Law Review). September 2011. Published by the Federalist Society. “Federalism & Separation of Powers.” http://www.fed-soc.org/doclib/20110912_ZywickiSominEngage12.2.pdf

In 2009, federal grants-in-aid accounted for 24.2% of all state government revenue, up greatly from 19.8% in 2007. State governments are anxious to get as much federal grant money as possible. This reality is unlikely to change if the Seventeenth Amendment were repealed and legislative selection of senators reinstated. To the contrary, senators chosen by state legislators would face even stronger incentives to lobby for additional federal grants than popularly-elected senators do. The political survival of the former would be completely at the mercy of the very state governments that benefit from federal grants.

DISADVANTAGE 1: Less Accountability

Special Interests Empowered

Associate Professor of law Ilya Somin, (J.D. from Yale Law School. He currently teaches at George Mason University School of Law, and is Co-Editor of the Supreme Court Economic Review. His work has appeared in the Yale Law Journal, Stanford Law Review, Northwestern University Law Review, and Georgetown Law Review). September 2011. Published by the Federalist Society. “Federalism & Separation of Powers.” http://www.fed-soc.org/doclib/20110912_ZywickiSominEngage12.2.pdf

If senators were chosen by state governments rather than by voters, the composition of federal spending and regulation might indeed change. More federal money would flow to state governments and those interest groups that have influence over them. We could potentially see more federal grants to small, local interest groups, such as those that lobbied for the notorious “bridge to nowhere” in Alaska. There would also be more regulations benefiting state officials and associated private interests. On the other hand, the federal government might become less solicitous of interest groups that do not have much leverage at the state level.

Legislature Turnover = Less Accountability

Associate Professor Wendy J Schiller, (Ph.D. in Political Science from the University of Rochester. Professor Schiller currently teaches Political Science and Public Policy at Brown University). November 2003. Published by New York University. “Climbing and Clawing Their Way to the U.S. Senate: Political Ambition and Career Building 1880-1913.” http://www.nyu.edu/gsas/dept/politics/seminars/ws1201.pdf

But there was a great deal of turnover in state legislatures at that time, so senators frequently faced a different set of legislators than the group who had elected them previously when they came up for reelection. How could senators anticipate the composition and preferences of state legislators who had yet to be elected? Moreover, who was holding senators accountable if the state legislators who initially elected them were no longer in office?

Currently, Senators Have Pronounced Relationship with the People

Rhonda Wrzenski, (BA, Hastings College, 2003) Master of Arts Thesis (submitted to Graduate Faculty of Louisiana State University). May 2005. Published by Louisiana State University. “Testing Democracy: The case of the 17th Amendment and Constituency Represenation.” http://etd.lsu.edu/docs/available/etd-04142005-104058/unrestricted/Wrzenski_thesis.pdf

My primary hypothesis stated that a positive relationship should develop between constituency preferences and Senate roll call voting behavior after the ratification of the 17th amendment. As evidence of this, between the 51st and the 76th Congress, the conservatism of the voters is shown to have a significant effect on the conservatism of senators while the conservatism of the elites does not demonstrate any significant effect. Furthermore, following the ratification of the amendment in 1913, the relationship between the voters and the senators is very pronounced while the relationship between the state elites and the senators becomes insignificant. Both of these findings provide evidence that legislative responsiveness has increased as a result of senators moving from a no-election condition to a state of constant electoral threat. As hypothesized, Senators are paying more attention to the ideology of the voters then to that of the governor and the upper and lower chambers of the state legislature.

DISADVANTAGE 2: Rule by the Elite Rather than the People

People Disenfranchised

Professor Sean Gailmard (Ph.D. from the California Institute of Technology. He currently teaches in American Government in the Political Science Department of the University of California, Berkeley. He won the William H. Riker Prize from the American Political Science Association in 2013 as the best book in political economy published in the last three years, as well as Statistical Modeling and Inference for Social Science, a Ph.D.-level textbook.) and Professor Jeffrey A. Jenkins, (Ph.D. in Political Science from the University of Illinois at Urbana-Champaign. He is currently a Professor at the Woodrow Wilson Department of Politics at the University of Virginia). February 2008. Published by The Quantitative Social Science Initiative at Penn State University. “Agency Problems and Electoral Institutions: The 17th Amendment and Representationin the U.S. Senate.” http://qssi.psu.edu/files/jenkins_psu.pdf

Thus the state electorate was essentially forced, before the 17th Amendment, to delegate the selection and monitoring of U.S. Senators to the relative political experts in the state legislature. In terms of representation, the major problem with this arrangement is that the state legislature’s (or controlling faction’s) preferred standard of behavior need not be the mass electorate’s preferred standard of behavior. Because elections are blunt instruments of selection and control, and mass elections typically have a small number of candidates, the state electorate must incur some “agency losses” relative to first-best, perfect control of the decisions of the state legislature. This is because opportunistic state legislators or party bosses can be expected to have substituted, to some extent, their own preferences for those of the state electorate in decision making.

Senators were career Politicians before 17th Amendment (A/T: “The 17th Made Senators career politicians”)

Associate Professor Wendy J Schiller, (Ph.D. in Political Science from the University of Rochester. Professor Schiller currently teaches Political Science and Public Policy at Brown University). November 2003. Published by New York University. “Climbing and Clawing Their Way to the U.S. Senate: Political Ambition and Career Building 1880-1913.” http://www.nyu.edu/gsas/dept/politics/seminars/ws1201.pdf

In the electoral environment in most states during this era, men who wished to be elected to the Senate — and reelected — had to be political entrepreneurs, vowing to protect specific interests in their states and cultivating strong ties with state party organizations. The men who reached the U.S. Senate during this era had extensive prior experience, either in the state legislature, Congress and/or the governor’s mansion. Of the 54 senators studied here, 45 held a government post prior to being elected to the Senate.

Now, Voters Hold Senators Accountable (A/T: “The 17th destroyed oversight of senators”)

Professor Sean Gailmard (Ph.D. from the California Institute of Technology. He currently teaches in American Government in the Political Science Department of the University of California, Berkeley. He won the William H. Riker Prize from the American Political Science Association in 2013 as the best book in political economy published in the last three years, as well as Statistical Modeling and Inference for Social Science, a Ph.D.-level textbook.) and Professor Jeffrey A. Jenkins, (Ph.D. in Political Science from the University of Illinois at Urbana-Champaign. He is currently a Professor at the Woodrow Wilson Department of Politics at the University of Virginia). February 2008. Published by The Quantitative Social Science Initiative at Penn State University. “Agency Problems and Electoral Institutions: The 17th Amendment and Representationin the U.S. Senate.” http://qssi.psu.edu/files/jenkins_psu.pdf

The 17th Amendment made the terms of the agency relationship quite different. Instead of indirect agency, the principal-agent relationship between voters and U.S. Senators was obviously more direct. Voters no longer had to rely on an imperfectly controlled intermediary to hold a further downstream agent to account for them. Instead, they themselves could select new U.S. Senators, and try to induce desired behaviors from sitting senators with any given ideology, based on their own preferences. To the extent that voters were informed about the preferences of new Senate candidates or the behavior of sitting senators, they could hold them accountable just as well as state legislatures could – and hold them to a better standard (from their own point of view, and from a normative democratic point of view)

DISADVANTAGE 3: Legislature Races Politicized

Associate Professor Wendy J Schiller, (Ph.D. in Political Science from the University of Rochester. Professor Schiller currently teaches Political Science and Public Policy at Brown University). November 2003. Published by New York University. “Climbing and Clawing Their Way to the U.S. Senate: Political Ambition and Career Building 1880-1913.” http://www.nyu.edu/gsas/dept/politics/seminars/ws1201.pdf

The increase in strong partisanship at this time also brought with it increased conflict in state legislators over choices for the U.S. Senate. As political party organizations strengthened at the state level, and voters began to associate policy platforms with parties, contests for the Senate moved outside the state legislature to a wider public audience. In many states, the public canvass and “direct primaries” emerged, which tied voters’ choices of state legislators to their subsequent votes for senators. When placing announcements of their candidacy in local papers, state legislature candidates would include the name of the man they favored for the U.S. Senate.


‘Case of the Week’ 2 (Stoa): Advisory Councils

July 27, 2013

Important Disclaimer: We pretty much just throw these together over the weekend, and don’t put a lot of work into them. Case of the Week cases are not subject to the same editorial process and stringent quality standards as the COG 2013 sourcebook, and are frequently contributed by non-COG authors. You may find material and sources in these cases that would not appear in the sourcebook. That said, we hope these cases will be useful to you; enjoy!

About the Author: Dr. Doyle Srader is Associate Professor of Speech and Communication at Northwest Christian University, where he directs the forensics team. His video blogs and other resources for NCFCA and Stoa competitors can be found on NCU Speaking Beacons Facebook page.

1AC: Regional Citizen’s Advisory Councils

By Dr. Doyle Srader

NOTE: Longish; slower speakers will likely run out of time. Trim to taste.

We open the debate with a quote attributed to Albert Einstein: “The world is a dangerous place to live; not because of the people who are evil, but because of the people who don’t do anything about it.” Because we do not wish to be counted among them. my colleague and I stand Resolved: That the United States Federal Government should substantially reform its marine natural resource policies.

We open the debate with our goal and criteria, which are explained by Land Use attorneys Martha Black and Ellen Kohler in 2004:

Public participation has become a standard aspect of environmental legislation at the federal and state level. These processes can range from public notice and comment on agency actions, to holding public hearings, to seeking public input through advisory committees, and to participating in mediations or negotiations. Regardless of how public participation is incorporated into the decisionmaking process, the general goal of such processes has been described as “democratiz[ing] the decision-making process by increasing the quantity and quality of public influence.” A United Nations Convention states that better access to information and public involvement in decision-making “enhance[s] the quality and the implementation of decisions, contribute[s] to public awareness of environmental issues, give[s] the public the opportunity to express its concerns and enable[s] public authorities to take due account of such concerns.” In their evaluation of over 239 case studies entitled Democracy in Practice: Public Participation in Environmental Decisions, Thomas Beierle and Jerry Cayford define the success of public participation processes in democratizing environmental decision-making in terms of achieving five social goals:

1. Incorporating public values into decisions;

2. Improving the substantive quality of decisions;

3. Resolving conflict among competing interests;

4. Building trust in institutions; and

5. Educating and informing the public.

(Wayne Law Review, Summer, pp. 221-222)

That brings us to our first stock issue:

Part 1: Inherency

One particular area of environmental protection falls short of this goal: efforts to regulate oil shipments to prevent accidental spills are caught up in what Boston College law professor Zygmunt Plater calls a di-polar arrangement. The two poles are the oil companies and the government regulators. Ideally, regulators should oversee oil companies’ deployment of safety measures, but as professor Plater explains in 2011, the two sides have arrived at an unofficial sweetheart deal, which defeats safety measures and guarantees catastrophic oil spills in the future:

The standard governance design in modern society, including governance of megasystems like the oil production and transportation sphere, is implicitly a “di-polar” arrangement—a public-private societal governing structure comprised of two theoretically counter-balancing establishments. On one side are the industry players in the marketplace, generating jobs, technology, wealth, and political power. On the other side are regulatory agencies, state and federal, tasked with monitoring the industry and protecting the public from industry’s market failure externalities. As the Exxon Valdez spill revealed, however, and as decades of political scientists have described as “iron triangles” and “agency capture,” the counter-balancing “poles” too often incline centripetally into each other. The industry and agency players are too easily pulled together into a combined culture of complacency, collusion, and neglect. The major oil spill calamities in the two Gulfs have demonstrated that the standard di-polar governance model for oil megasystems produces a complex but poorly coordinated, insufficiently vigilant, risk-prone plexus that cannot be relied upon for human or ecological safety. This failing is only multiplied as drilling pushes ever farther and deeper to develop hydrocarbons.

(Boston College Environmental Affairs Law Review, vol 38 #2, pp. 3-5, http://lawdigitalcommons.bc.edu/cgi/viewcontent.cgi?article=1353&context=lsfp)

The 2010 Deepwater Horizon spill in the Gulf of Mexico brought calls for reform, including increased public participation, but those reforms are currently stalled in Congress, as Christina Santarpio, managing editor of the Boston College Environmental Affairs Law Review reports in 2013:

While calls to implement RCACs in the Gulf of Mexico in the wake of the BP Deepwater Horizon blowout resulted in their inclusion in proposed bills, Congress has not enacted such a bill. Almost immediately following the Deepwater Horizon disaster, both Democrats and Republicans in the Senate introduced bills responding to the oil spill. Both bills primarily addressed liability issues and what party should have to pay response costs in the event of an oil spill. The Senate, however, was unable to agree on a final version of either bill and did not pass a law.

(February, p. 322, http://lawdigitalcommons.bc.edu/cgi/viewcontent.cgi?article=2100&context=ealr)

The dysfunctional relationship between the oil industry and its regulators, combined with the lack of forward movement on reform efforts, exposes the world to terrible risks, which brings us to our second stock issue, that of:

Part 2: Harms

Oil spills exact a nightmarish toll on the ecology and the economy, as Eric May, lecturer in Natural Sciences at the University of Maryland, described in 2010:

The damage to key commercially important species such as blue crabs, shrimp, drum and others could be immense. Beyond the direct economic threat to the commercial fishing industry, the protracted damage will extend to the stability of the communities which depend on the income from the industry. The recreational fisheries will be similarly affected along with a myriad of businesses that depend on the recreational anglers for their economic future. As a consequence of the Gulf of Mexico oil spill, the “what ifs” are staggering. What if a similar spill occurs off the mouth of the Chesapeake Bay, and equally sensitive ecosystem as the Gulf of Mexico? What if a similar species occurs off New Jersey or Delaware where highly sensitive systems of coastal lagoons exist? As we promote oil exploration, and we will, let us also consider the ecological risks associated with such activities and how we can be ready for them.

(Testimony Before The Senate Committee on Environment and Public Works Economic and Environmental Impacts of the Recent Oil Spill in the Gulf of Mexico, May 11, p. 7)

The cozy relationship between government and industry minimizes hassle for the regulators, and guarantees profit for the companies, while channeling all the consequences at innocent people who depend on marine ecosystems for their livelihood, which is blatantly unjust. E. A. Barry-Pheby, who holds a Master’s Degree in Legal Studies from Manchester Metropolitan University, argues in 2013:

The Deepwater Horizon and Exxon Valdez disasters illustrate the level of damage that oil pollution can cause to local fishing and tourism industries, sustainable lifestyles and the environment. Despite a $ 2.5 billion clean-up operation, less than 10% of the spilled Exxon Valdez oil was recovered from the water and shore. Twenty years later, the damage to organisms and their marine environment is still apparent. Immediate sizeable effects from the Exxon Valdez spill were obvious, with estimated mortalities of 2,800-5,000 sea otters, 250,000-700,000 seabirds, 300 harbour seals, 250 bald eagles, 22 killer whales and billions of herring and salmon eggs. Indigenous peoples state that both the offshore industry and central governments do not adequately consider their lack of economic benefits, or the potentially devastating risks they face: This is at odds with the distributive element of environmental justice.

(Sustainable Development Law & Policy, vol 13, p. 53, http://digitalcommons.wcl.american.edu/cgi/viewcontent.cgi?article=1529&context=sdlp

To address this injustice, we propose the following

Part 3: Plan

Mandates:

1. Regional citizens’ advisory councils shall be formed for all communities impacted by offshore oil drilling and oil shipments.

2. Membership and subject matter jurisdiction will follow the same guidelines used in the Prince William Sound and Cook Inlet RCACs established in the Oil Pollution Act of 1990.

3. The councils shall have subpoena power as well as authority to issue binding rules when collaborative efforts break down.

Funding: Oil companies shall fund the councils as a condition of approval of their contingency plans, and the funding level shall be set by the Interior Department’s Minerals Management Service.

Enforcement shall be through normal means.

We reserve the right to clarify any ambiguities.

Our third and final stock issue is:

Part 4: Solvency

First, a brief explanation: a regional citizens advisory council is a committee made up of people who live in the affected area, who research new safety measures and make recommendations for safety improvements. Two modestly successful RCACs have operated in Alaska since shortly after the Valdez spill, but adoption of our plan is needed to unleash the full potential of regional citizens advisory councils, as Christina Santarpio, previously cited, argues in 2013:

The development and expansion of RCACs is a crucial next step that the federal government must take in the prevention and mitigation of future oil spills. The two existing RCACs in Alaska provide both a compelling argument for the potential of these innovative citizens’ groups and a clear example of what steps must be taken to improve them. Since the creation of RCACs in 1990, the two Alaska councils have collaborated in creating new policy guidelines and regulations for safe oil transport in the area, disseminated a significant amount of knowledge to the public about the oil industry in general, and become a significant source of research and information designed to address the threat of future oil spills. This structure, however, has the power to do more. It is clear from the recent BP Deepwater Horizon blowout in the Gulf of Mexico that the systematic problems evident in the oil industry have not disappeared. Citizens have always played a role in environmental regulation and litigation, but through the inventive structure of RCACs they could have a much more meaningful role in monitoring the relationship between the oil industry and the government and ultimately protecting the environment. If RCACs expand, Congress must make three significant changes to their structure to ensure their success moving forward. First, they must have subpoena power over the oil industry so they are not forced to rely on oil company cooperation. This check on the industry would enable the RCACs to make meaningful recommendations, perform important research, and create an incentive for the industry itself to self-police. Second, while funding for RCACs can and should remain the responsibility of the oil industry, the process of negotiating the amount of funding must be removed from the day-to-day operations of the RCACs. Otherwise, as illustrated by the Cook Inlet RCAC, there will be well-founded criticism of the councils’ actions and general distrust of board members’ motives. Finally, and most importantly, RCACs must be allowed to expand from their existing advisory function. Forcing the oil industry to heed their advice by conditioning acceptance of contingency plans on a system in which the oil companies review and respond to that advice is the only feasible way to ensure that these RCACs can accomplish their goal of preventing future oil spill disasters.

(February, pp. 332-333, http://lawdigitalcommons.bc.edu/cgi/viewcontent.cgi?article=2100&context=ealr)

This would eliminate the dipolar arrangement, enabling safety measures to contain the risk of oil spills. Professor Plater, previously cited, explains in 2011:

Institutionalizing the presence of independent at-risk citizen monitors, funded by the implicated industries, fundamentally changes the centripetal tendency of di-polar industry-agency structures, opening them to transparency, increased compliance, and care-enhancing public awareness. Adding this third leg to the di-polar default format for governance shifts the governmental geometry toward a Jeffersonian multicentric pluralism, where affected interests that were previously marginalized now are able to be actively involved in the governance process.

(Boston College Environmental Affairs Law Review, vol 38 #2, p. 26, http://lawdigitalcommons.bc.edu/cgi/viewcontent.cgi?article=1353&context=lsfp)

This would also fulfill the goal of optimizing public participation, as Felicia Barnes, who holds a JD from Georgetown Law School, explains in 2012:

RCACs can serve many functions. They can increase representation of citizen interests, enable incorporation of citizen values into the decisionmaking process, allow multiple citizen interests to come together and form coalitions, create additional information by sponsoring research, increase trust between citizens and government and/or industry, and enhance communication between government and/or industry and citizens. Perhaps the most important function of an RCAC, however, is the one that makes it unique: it provides a forum for detailed discussions among citizen interests, government, and industry. This function is particularly important in oil and gas regulation, in which many of the relevant issues are highly technical, but for which accidents can have widespread effects.

(Georgetown International Environmental Law Review, Winter, p. 170)

We’ll close with the words of Pastor Harry Emerson Fosdick: “Democracy is based upon the conviction that there are extraordinary possibilities in ordinary people.”

Backup: Citizens Advisory Councils

TOPICALITY

It’s a substantial reform

Christina Santarpio, managing editor, Boston College Environmental Affairs Law Review, 2013 (February, p. 302, http://lawdigitalcommons.bc.edu/cgi/viewcontent.cgi?article=2100&context=ealr)

The present system did not provide a significant enough deterrent to prevent oil spills, and thus the Commission called for a complete reform. Fundamentally, the Alaska Commission found the spill was almost a certainty: “Success bred complacency; complacency bred neglect; neglect increased the risk—until the right combination of errors finally led to an accident of disastrous proportions.” Although particular spills could be addressed individually, the Alaska Commission’s report called for a complete overhaul, aimed at the systemic reduction of risk, so that similar situations would not repeat and result in another spill. The Alaska Commission recommended citizen supervision of specific government agencies because failures in the oil transportation industry directly harm citizens. In contrast, the oil industry primarily concerns itself with profitability and supports deregulation due to competition in the market, and thus often directly opposes environmental safety measures. To that end, the Alaska Commission specifically recommended the creation of a citizens’ advisory council to supervise the transportation of oil, gas, and any other hazardous substance.

INHERENCY

Megasystems are different – their internal dynamics ensure future accidents

Zygmunt Plater, professor of law, Boston College, 2011 (Boston College Environmental Affairs Law Review, vol 38 #2, p. 5, http://lawdigitalcommons.bc.edu/cgi/viewcontent.cgi?article=1353&context=lsfp)

Here is the apparent syllogism: the greater the size, complexity, and technical sophistication of the elements of a megasystem, the greater the risk of mega-catastrophe— and the greater the need for extreme vigilance in design, coordination, and operation. Yet the bigger such megasystems become, the harder it is for corporate managers and government agencies alike to see, keep track of, and manage the cumulative mass of critical points of risk. Likewise, the bigger the megasystem, the greater the daily internal economic and political pressures to maximize short-term benefits, and, perversely, to fractionalize vigilance.

Inherency for subpoena power

Zygmunt Plater, professor of law, Boston College, 2011 (Boston College Environmental Affairs Law Review, vol 38 #2, p. 24, http://lawdigitalcommons.bc.edu/cgi/viewcontent.cgi?article=1353&context=lsfp)

The Alaska experience, however, has demonstrated some intrinsic challenges to effective representation of societal interests external to dipolar industry-agency governance. First is the lack of subpoena power. Lobbyists in Congress successfully blocked subpoena authority for the RCACs in OPA-90, just as they blocked the grant of subpoena power for the current 2010 Commission.

HARMS

Spills devastate the environment and the economy

David Styles, lecturer in carbon footprinting, Bangor University, 2010 (Regina Leader-Post, p. B7)

On April 20, the worst environmental disaster in recent memory took place when the uncontrolled release of crude oil on the Deepwater Horizon offshore oil platform in the Gulf of Mexico caused a devastating explosion. The oil spill has resulted in many injuries, deaths and billions of dollars in lost product and market investment. With literally thousands of barrels of oil being released into the water daily, there are also serious repercussions concerning the environment. The Gulf Coast is in dire straits when you consider the wildlife inhabiting these waters. Fish, dolphins, whales and birds are negatively impacted as many of these sea-dwelling creatures could perish and the ecosystem will take years, or possibly decades, to return to its former self. A chance that the oil spill could spread into the Atlantic Ocean is even more frightening to imagine. Marine wildlife is abundant throughout the Gulf Coast and the fishing industry in this area is expected to suffer a heavy loss, especially with shrimp and oysters being a popular item for export. Ultimately, nothing good accompanies this oil spill. Financial losses in tourism and fishing, ecological consequences and the cost of cleaning up such a disaster all top the list of consequences. When a crisis like this occurs it makes a person wonder, “Is the risk worth the reward?”

Without an effective external check, oil companies respond to spills with chemical dispersants, which makes things a thousand times worse

Zygmunt Plater, professor of law, Boston College, 2011 (Boston College Environmental Affairs Law Review, vol 38 #2, pp. 16-18, http://lawdigitalcommons.bc.edu/cgi/viewcontent.cgi?article=1353&context=lsfp)

Dispersants were targeted by the Alaska Commission as deeply problematic, but are nonetheless strongly favored by industry for a variety of salient reasons. Dispersants are cheaper in terms of out-of-pocket costs to the spiller than removal actions. Perhaps even more compelling, dispersants are “optically” preferable: they play a key role in the “out-of-sight, out-of-mind” response strategy. If oil can be sunk beneath the surface and broken up into billions of small suspended droplets, it becomes invisible, lessens the images of fouled beaches and dying wildlife, and its existence can be doubted and denied. By discharging a torrent of dispersants a mile below the surface, the objective is to prevent much of the oil from ever reaching visibility at the surface. However, if oil does reach the shore, dispersants can, to some extent, achieve surface cleaning. In Alaska, high-pressure spraying of dispersants on stony beaches was a major objective for Exxon in creating news video of successful post-spill cleanup. But dispersants have serious destructive effects when released into the environment, and not just for wildlife. In Alaska temporary workers hired to spray dispersants on Prince William Sound and on the beaches reported a litany of physical effects from exposure to backspray. “We’re peeing blood,” the author was told, “We can’t let the foremen know or they’ll send us home to Texas, but if it’s doing this to us, what’s it doing to the places we’re spraying?” In Alaska today, beaches that had been sprayed with dispersants reportedly demonstrate greater continued ecological damage than beaches that were never “cleaned.” Down on the Gulf of Mexico there are not only reports of dolphins dying with bloody hemorrhages around their blowholes and in their internal organs, but dispersant workers have started to pass blood in their urine, as well. Dispersants in the water column not only kill marine mammals, fish, and other larger life forms, but may have even greater long-term ecosystem effects. The BP Deepwater Horizon blowout occurred at the Gulf of Mexico’s season of maximum larval production for fish, shellfish, and the myriad smaller life forms that support the fecundity of the Gulf. Dispersants make the oil miscible, hanging in subsurface curtain plumes of tiny droplets of heavy oil-cum-dispersant that can directly contaminate or be consumed by whatever they touch. “Clouds of larva, billions, even trillions of them, are drifting in that water column,” a federal biologist told the author. “They move up and down according to temperature and light, and when they hit those plumes of suspended subsurface oil, it’s all over for them.” The genetic damage to ecosystems in Alaska is still tangible. Herring populations and the major Alaska herring fishery have never recovered, and Prince William Sound’s primary pod of orca killer whales has not had a successful reproduction since the spill.

SOLVENCY: PLAN MECHANISM

RCACs can be expanded into new areas

Zygmunt Plater, professor of law, Boston College, 2011 (Boston College Environmental Affairs Law Review, vol 38 #2, pp. 21-22, http://lawdigitalcommons.bc.edu/cgi/viewcontent.cgi?article=1353&context=lsfp)

RCACs—authorized in OPA-90 but limited to Alaska waters by Capitol lobbying—have become a significant but largely unheralded product of the Exxon Valdez disaster. The RCAC model could well be integrated into a post-Deepwater Horizon management system for the Gulf and other oil production areas.

The plan removes RCACs barriers to success, enabling them to prevent future spills

Christina Santarpio, managing editor, Boston College Environmental Affairs Law Review, 2013 (February, p. 300, http://lawdigitalcommons.bc.edu/cgi/viewcontent.cgi?article=2100&context=ealr)

The three biggest limitations of the two Alaska RCACs all stem from their formation: lack of subpoena power, limited advisory function, and reliance on the oil industry for funding. This Note argues that with the removal of these barriers, RCACs could play a significant role in monitoring the oil industry and ensuring that tragedies such as the BP Deepwater Horizon blowout and the Exxon Valdez oil spill never happen again.

Granting RCACs subpoena power solves

Christina Santarpio, managing editor, Boston College Environmental Affairs Law Review, 2013 (February, pp. 330-331, http://lawdigitalcommons.bc.edu/cgi/viewcontent.cgi?article=2100&context=ealr)

The final essential element of the RCACs, which requires attention and improvement, is their lack of subpoena power over the oil industry. Currently, the CIRCAC has no recourse to compel companies to provide it with paperwork or allow its members to inspect facilities, and the advance notice requirement significantly limits the PWSRCAC’s power as a watchdog. As the Alaska Oil Spill Commission and National Commission on the BP Deepwater Horizon Oil Spill and Offshore Drilling (“BP Commission) (collectively, the “Commissions”) suggested, the subpoena power is an important and necessary part of a successful RCAC, and this power is one of the only ways the councils can actually influence the decisions of the oil industry. Going forward, Congress must give RCACs power to compel oil executives to cooperate fully with their demands, especially because the Commissions cited this as one of the most prominent causes of both oil spills.

Making RCAC rules binding is inherent and would solve

Christina Santarpio, managing editor, Boston College Environmental Affairs Law Review, 2013 (February, pp. 329, http://lawdigitalcommons.bc.edu/cgi/viewcontent.cgi?article=2100&context=ealr)

To give RCACs a more authoritative voice in directly affecting policy changes, an improved statute must remove the advisory function limitation and replace it with actual decision-making power. The current system severely handicaps the RCACs’ ability to accomplish anything beyond research and gathering data, unless the councils are willing to work with other groups and those other groups are willing to cooperate. The oil industry must fund the RCACs to obtain approval of their NCP; requiring the industry to implement RCAC recommendations for NCP approval as well, would provide an effective way to force the industry to take note of RCACs. It is unlikely, however, that the oil industry would allow such a provision to pass in a federal statute.

Christina Santarpio, managing editor, Boston College Environmental Affairs Law Review, 2013 (February, p. 329, http://lawdigitalcommons.bc.edu/cgi/viewcontent.cgi?article=2100&context=ealr)

The current system limits the powers of RCACs to the extent that the oil industry and government may completely ignore RCAC recommendations unless the political climate makes it favorable not to do so. The most feasible way to avoid this pitfall is to force the oil industry and government to consider each recommendation from a RCAC and face tangible repercussions if they do not.

In the status quo, RCACs have to negotiate with the oil companies for their total budget; changing this makes them independent, and therefore stronger

Christina Santarpio, managing editor, Boston College Environmental Affairs Law Review, 2013 (February, pp. 329-30, http://lawdigitalcommons.bc.edu/cgi/viewcontent.cgi?article=2100&context=ealr)

RCACs must also be granted more autonomy from the oil industry through improved funding structures. Independence is an essential part of RCACs, as their fundamental role is to provide a third source of input regarding the industry, not supplement an existing one.

SOLVENCY: PUBLIC PARTICIPATION

RCACs optimize public participation

Christina Santarpio, managing editor, Boston College Environmental Affairs Law Review, 2013 (February, pp. 332-333, http://lawdigitalcommons.bc.edu/cgi/viewcontent.cgi?article=2100&context=ealr)

This structure, however, has the power to do more. It is clear from the recent BP Deepwater Horizon blowout in the Gulf of Mexico that the systematic problems evident in the oil industry have not disappeared. Citizens have always played a role in environmental regulation and litigation, but through the inventive structure of RCACs they could have a much more meaningful role in monitoring the relationship between the oil industry and the government and ultimately protecting the environment.

RCACs produce educated public citizens

Felicia Barnes, JD from Georgetown Law School, 2012 (Georgetown International Environmental Law Review, Winter, p. 170)

RCACs can serve many functions. They can increase representation of citizen interests, enable incorporation of citizen values into the decisionmaking process, allow multiple citizen interests to come together and form coalitions, create additional information by sponsoring research, increase trust between citizens and government and/or industry, and enhance communication between government and/or industry and citizens. Perhaps the most important function of an RCAC, however, is the one that makes it unique: it provides a forum for detailed discussions among citizen interests, government, and industry. This function is particularly important in oil and gas regulation, in which many of the relevant issues are highly technical, but for which accidents can have widespread effects.

RCACs improve enforcement and increase public trust

Christina Santarpio, managing editor, Boston College Environmental Affairs Law Review, 2013 (February, p. 321, http://lawdigitalcommons.bc.edu/cgi/viewcontent.cgi?article=2100&context=ealr)

The BP Commission found that local officials’ exclusion from response planning had hampered the efficacy of the cleanup and led to citizen mistrust of the efforts. Groups enabling citizens to become more involved in prevention and response planning could “prevent industry and government complacency, and increase public trust in response operations.”

RCACs solve by educating the public

Felicia Barnes, JD from Georgetown Law School, 2012 (Georgetown International Environmental Law Review, Winter, pp. 180-181)

Because RCACs permit individual citizens to investigate issues in more depth, RCACs can serve a valuable role by allowing “citizens a chance to become informed about the issues before coming to conclusions, hence providing counsel to the agency which combines the citizens’ perspective with a thorough understanding of the situation.” This unique characteristic of RCACs is perhaps the strongest argument in their favor. Few other methods are available that can allow such detailed discussions between citizens and industry or government on highly complicated and technical subjects like offshore drilling or oil spill response. These discussions have two benefits as they both allow industry and government to obtain more useful feedback from citizens and educate citizens about relevant issues. This educational aspect can be a stepping-stone to enhancing an area’s preparedness because it creates a populace already informed of many of the intricacies and trade-offs involved in oil spill preparation and response.

RCACs solve public apathy by giving them a voice

Felicia Barnes, JD from Georgetown Law School, 2012 (Georgetown International Environmental Law Review, Winter, p. 181)

Engagement of local citizens would have the added benefit of creating a citizenry more able to respond to oil spills, which would both improve spill preparedness and potentially empower citizens. The Deepwater Horizon incident was frustrating for many Gulf citizens because not only could they personally do little to stop the oil, but they also felt as if government and industry were not paying enough attention to their plight or to their suggestions. An RCAC provides an avenue for citizen inclusion in oil spill preparation and response such that citizens can participate in relevant discussions before spills occur. An RCAC can also help citizens feel as if their concerns are generally being heard and given responses.

SOLVENCY: RCACs IMPROVE SAFETY

RCACs solve the di-polar problem

Zygmunt Plater, professor of law, Boston College, 2011 (Boston College Environmental Affairs Law Review, vol 38 #2, p. 5, http://lawdigitalcommons.bc.edu/cgi/viewcontent.cgi?article=1353&context=lsfp)

The Commission’s innovative recommendation to create RCACs not only changed the public management perspectives of oil production and transport in Alaska, it also provides a potentially instructive model for managing oil production and other industrial megasystems in modern industrial democracies. Properly designed and implemented, RCACs provide a pluralistic structural design for governing, breaking up the centripetal tendencies of the usual agency-industry di-polar system.

Zygmunt Plater, professor of law, Boston College, 2011 (Boston College Environmental Affairs Law Review, vol 38 #2, p. 21, http://lawdigitalcommons.bc.edu/cgi/viewcontent.cgi?article=1353&context=lsfp)

In addition to seeking “regulatory vigilance in government agencies” and “corporate attitudes that put safety first,” a prime innovation of the Alaska Commission, only partially integrated into OPA-90, was the proposed creation of institutionalized citizen watchdog councils— RCACs. These councils, made up of citizens representing interests that would be grievously harmed if risk-prevention and incident response measures fail, aim to break up tendencies toward complacency, collusion, and neglect within the industry-agency management model that characterizes the field. Integrated into several Commission recommendations, this structural reform innovation in effect pluralized the di-polar governance model. Citizen councils would strategically institutionalize a functional, informed viewpoint on operations and risk from the external perspective of potentially-impacted members of the public.

An RCAC would have prevented the Gulf oil spill

Zygmunt Plater, professor of law, Boston College, 2011 (Boston College Environmental Affairs Law Review, vol 38 #2, p. 24, http://lawdigitalcommons.bc.edu/cgi/viewcontent.cgi?article=1353&context=lsfp)

Had there been a Gulf RCAC, with representatives of the inshore and offshore commercial fisheries, sport fishing, tourism and recreation, it is unlikely that the recent rarefied technology of deepwater drilling would have been issued a permit without either an environmental review, acknowledgment of the potential for spills reaching beaches and shores, a practicable contingency plan, basic geological data from BP, or even considering the possibility of a blowout. Institutionalized representation of at-risk citizen interests and communities creates a dramatic change in the “low level of vigilance and a discomforting level of comfort between the industry and…regulators.”

It doesn’t matter that members don’t start out with any expertise – RCAC members learn on the job

Gary Busenberg, professor of public affairs, University of Colorado at Denver, 2007 (Coastal Management, vol 35 #2-3, p. 240)

The trait that often distinguishes citizen advisory councils from other methods of citizen participation examined in the literature (such as public hearings or surveys) is the potential for long-term interactions between the council participants. These long-term interactions allow the participants in citizen advisory councils to engage in an extended process of mutual learning through recurring dialogue, thereby promoting well-informed participation in the technically complex issues of environmental management.

RCACs succeed in getting industry to adopt safety innovations

Gary Busenberg, professor of public affairs, University of Colorado at Denver, 2007 (Coastal Management, vol 35 #2-3, p. 249)

In many cases, these advisory councils have proven effective in securing the implementation of the policy changes they seek. In essence, the councils have operated as institutional learning arrangements (by promoting the application of new ideas and information to policy decisions in this system). The councils have therefore emerged as highly consequential institutional arrangements for the management of this system.

RCACs work collaboratively, guaranteeing compliance

Christina Santarpio, managing editor, Boston College Environmental Affairs Law Review, 2013 (February, p. 327, http://lawdigitalcommons.bc.edu/cgi/viewcontent.cgi?article=2100&context=ealr)

Although the councils have been successful at implementing some policy goals since 1990, each example of a success involves collaboration with the industry or a government body, allowing the RCAC to extend beyond its advisory capacity. When RCACs work alone, they are rarely as successful. Most, if not all, of the successes of RCACs have been directly tied to their ability to work with other organizations to accomplish their goals. Many changes that the PWSRCAC takes credit for have come about through collaboration with the U.S. Coast Guard or the Alaska Department of Environmental Conservation (ADEC). For example, when the PWSRCAC implemented a new ice detection system in 2002, they did so with the help of the Coast Guard, Army, National Oceanic and Atmospheric Association, and ADEC. Similarly, improvements to the tug escort system through Prince William Sound, although supported by the PWSRCAC, were not fully implemented until the oil industry, the Coast Guard, and ADEC agreed to work with the Prince William Sound Council to produce a study. In these and other examples, the PWSRCAC essentially used these collaborations to circumvent their advisory function to accomplish their regulatory goals.

Gary Busenberg, professor of public affairs, University of Colorado at Denver, 2007 (Coastal Management, vol 35 #2-3, p. 250)

Collaborations have played a role in all of the eight project categories examined in this study. Indeed, the councils were able to secure the implementation of several policy reforms only through political support and funding provided by other organizations. The effectiveness of the councils in securing policy reforms therefore depends not only on their resources, but also on their collaborative capacities. Working within the context of existing legal and regulatory frameworks, the councils have participated in a series of collaborative efforts that have led to productive policy synergies in the marine oil trade of Alaska.

Gary Busenberg, professor of public affairs, University of Colorado at Denver, 2007 (Coastal Management, vol 35 #2-3, p. 240)

In many cases, the councils do not possess the resources (or political authority) necessary to secure the implementation of their policy proposals through unilateral action. In such cases, the effectiveness of the councils depends on their collaborative capacity (defined here as the capacity of the councils to build supporting networks of collaboration with other organizations active in their policy domains). This study reveals that both councils have greatly magnified their policy contributions by forming a series of multilateral collaborations with other organizations involved in the management of the Alaskan oil trade.

RCACs gain compliance through persuasion, not necessarily enforcement

Felicia Barnes, JD from Georgetown Law School, 2012 (Georgetown International Environmental Law Review, Winter, p. 178)

Although funding research does not always lead to the RCACs proposals being adopted, it provides an opportunity for the RCAC to be persuasive on the merits. A collaborative approach involving co-sponsoring research with industry or government can also obtain their buy-in when much of the disagreement concerns important facts.

Felicia Barnes, JD from Georgetown Law School, 2012 (Georgetown International Environmental Law Review, Winter, p. 187)

Funding also helps determine how persuasive an RCAC may be. An adequate budget allows an RCAC to fund activities necessary for an in-depth understanding of the many complex issues of oil spill prevention and response, not to mention the scientific and technical aspects of oil and gas operations generally. As previously discussed, funding allows an RCAC to hire consultants and create new information. Though this information may not always be persuasive, without it an RCAC certainly stands little chance of persuading industry or government to change their positions based on the factual merits of the issue.

A specific solvency example: geographic response strategies

Felicia Barnes, JD from Georgetown Law School, 2012 (Georgetown International Environmental Law Review, Winter, p. 177)

One of CIRCAC’s useful contributions has been the incorporation of geographic response strategies (GRS) into Alaska’s site-specific contingency response plans. GRS are map-based plans that highlight sensitive areas requiring special protection during an oil spill. Having already identified sensitive areas allows oil spill responders to use their time and resources more efficiently. By tying together “local knowledge of sensitive areas with proven operations and logistics into a document with specific guidance for rapid response . . . GRS . . . helps stakeholders and the public understand what actions may be feasible during a response.” CIRCAC initially brought the idea to use GRS to the Alaskan state government. At the time, Mike Munger, current Executive Director of CIRCAC, was employed in Alaska’s Department of Environmental Conservation. CIRCAC, together with industry, recommended GRS to Munger, and he enthusiastically relayed it to his supervisor. At the time, however, resources to implement GRS were insufficient so the state government could not act on CIRCAC’s suggestion. CIRCAC continued to advocate for GRS, later developing a pilot program to demonstrate its benefits. CIRCAC’s efforts successfully raised attention and interest in GRS. In 1998, PWSRCAC researched GRS and recommended Alaska adopt it in its site-specific response plans. The Alaska Regional Response Team then directed its Sensitive Areas Work Group to outline how GRS could be integrated into the contingency planning process, which brought about a workshop involving CIRCAC, PWSRCAC, federal and state government, and industry. The results of the workshop led to the Alaska Regional Response Team adopting GRS as part of the subarea contingency plans. Since then, more than 145 GRS have been developed and incorporated into Alaska’s state/federal contingency plan. Many of these GRS have been created using funds from CIRCAC and PWSRCAC. CIRCAC was critical to the adoption of GRS in Alaska due to its perseverance and ability to marshal support from important stakeholders, one of which was the better-funded PWSRCAC.

RCACs don’t have the conflicting demands that other institutions do

Felicia Barnes, JD from Georgetown Law School, 2012 (Georgetown International Environmental Law Review, Winter, p. 181)

RCACs are distinctive in their ability to focus solely on their mission because they need not worry about earning a profit or being overly inundated with comments from regulated entities. Their only function is to monitor the adverse environmental impacts of oil and gas activities and seek to diminish them. In this capacity, RCACs can provide useful follow-through on ideas or programs that industry or government may have overlooked or stopped pursuing. Both PWSRCAC and CIRCAC have achieved success through their dogged persistence in insisting an idea be taken seriously by government or industry.

Success with oil spills opens the way to use RCACs with other pollution problems

Christina Santarpio, managing editor, Boston College Environmental Affairs Law Review, 2013 (February, p. 325, http://lawdigitalcommons.bc.edu/cgi/viewcontent.cgi?article=2100&context=ealr)

Properly formulated and implemented, RCACs have the potential to become an integral part of environmental enforcement of the oil industry, and could potentially be expanded into many different areas of environmental law. To do this, however, legislators must understand how to improve on existing citizens’ councils in the future by fully appreciating their successes and limitations.

A/T “RCACs cut into oil company profits, hurting the economy”

Turn – encouraging public participation in environment policymaking helps the economy for several reasons

Thomas Mullikin, JD from South Carolina Law School, Nancy Smith and Michael Champion, JDs from North Carolina Law School, 2005 (Georgetown International Environmental Law Review, Spring, p. 429)

There is another compelling factor driving transitional and developed States to embrace the concept of environmental public participation: it simply makes good economic sense. Capital investors generally recognize that the public’s ability to participate in environmental decision-making produces positive economic outcomes essential for successful development. Successful economic markets require a free flow of information. Because environmental public participatory schemes stress the importance of education and access to information, they facilitate the free exchange of information, thereby fueling investment, a crucial component of development. Perhaps most importantly, public participation mitigates economic loss by properly allocating the risks associated with development, including environmental risks, among all the parties involved. As such, transitional States and capital investors are beginning to implement environmental regulatory regimes and public participation as a means of achieving sustainable growth, allocating risks, and attracting investment.

Thomas Mullikin, JD from South Carolina Law School, Nancy Smith and Michael Champion, JDs from North Carolina Law School, 2005 (Georgetown International Environmental Law Review, Spring, pp. 396-397)

This paper advances a basic argument: environmental public participation rights are necessary to industrial development, and deliberate, effective, and well-reasoned economic growth can occur only after involvement of critical host-community stakeholders. Such rights should not be ignored by the governments of transitional States, nor should they be ignored by industry seeking to invest in those transitional States. Three factors support this position. First, and perhaps most importantly, there is a crucial nexus between the industrialization of society and the need for environmental regulation containing assurances of public participation in environmental decision-making. Where industrial development occurs, public apprehension and concern for the protection of air, land, and water eventually follow. As States move through the stages of industrialization, the resulting environmental stressors intensify concern for the protection of the environment among a public that ultimately bears many of the externalities of development. Failure to recognize this phenomenon and to include the public as participants in environmental decision-making will have long-term negative consequences on industry. Therefore, public support is crucial to continued and sustainable development. This “nexus” between public participation and successful economic growth is reflected in the historical experiences of developed and heavily industrialized States such as the United States and the States that make up the European Union. It is no coincidence that these States have created elaborate mechanisms for environmental public participation rights and have been the most successful at injecting those rights into broad, far-reaching environmental legislation. A study of this historical nexus demonstrates how public concern resulting from industrialization created the impetus for the current public participation schemes embedded in the environmental legislation of these developed nations. Second, both international and internal forces are compelling transitional States to secure environmental participatory rights for their citizens. International support for environmental participatory rights has resulted from the recognition that environmental public participation rights are a key factor for sustainable development. Many transitional States have bound themselves by treaty to include the public in governmental decisions regarding the environment. Further, transitional States are finding it increasingly difficult to secure funding and aid for development without adhering to at least some minimum international standard of public involvement in decisions concerning development projects. In addition to international pressure, transitional States increasingly face internal pressure to implement environmental public participation rights as a means to mitigate the potentially disastrous consequences of public discord (e.g., rioting). When the affected public is left out of the development process, transitional governments face potentially devastating consequences and long-term costs. The result is that transitional States have begun to recognize the importance of public involvement and are responding accordingly. Finally, transitional States and private industry should not ignore public participation rights because the creation of these rights attracts capital investors. Capital investors generally recognize that the public’s ability to participate in environmental decision-making produces positive economic outcomes essential for successful development. n16 Environmental public participation rights make good economic sense. Markets require a free flow of information. Investors like stability and seek proper risk allocation for their large capital outlays. When States implement public participation schemes, they facilitate information flow and ensure stability by creating a rule of law. As discussed above, the public’s ability to participate can also alleviate public discord and promote acceptance of large infrastructure projects, another key factor for market stability.

A few details on how the plan would work

Details of the RCAC membership in Alaska

Christina Santarpio, managing editor, Boston College Environmental Affairs Law Review, 2013 (February, p. 306, http://lawdigitalcommons.bc.edu/cgi/viewcontent.cgi?article=2100&context=ealr)

The OPA sets forth guidelines for the membership of each RCAC, ensuring that they will be made up of Alaska residents (with voting power) as well as nonvoting representatives from federal agencies. The governor of Alaska appoints members from the general population, taking into account a need for “regional balance.” The Council must have a representative for a variety of local interests, including local commercial fishing industry organizations; aquaculture associations, Alaska Native organizations, environmental organizations, recreational organizations, the Alaska State Chamber of Commerce, and nearby municipalities. The nonvoting members are representatives of the EPA, U.S. Coast Guard, National Oceanic and Atmospheric Administration, U.S. Forest Services, Bureau of Land Management, Alaska Department of Environmental Conservation, Alaska Department of Fish and Game, Alaska Department of Natural Resources, and the Division of Emergency Services, Alaska Department of Military and Veterans Affairs. The governor appoints each voting member of an RCAC to
serve for three years.

Details of what RCACs do in Alaska

Christina Santarpio, managing editor, Boston College Environmental Affairs Law Review, 2013 (February, pp. 307-308, http://lawdigitalcommons.bc.edu/cgi/viewcontent.cgi?article=2100&context=ealr)

The OPA outlines the duties of RCACs, which are generally to improve spill prevention measures and control the oil industry’s impact on the environment in the area. The RCACs advise their Oil Terminal Facilities and Oil Tanker Operations Association (“Association”) on potential policies, permits, or regulations that could have an effect on the local environment. In addition, RCACs monitor the environmental effects of terminal facilities, crude oil tankers, and the operation and maintenance of these facilities. The RCACs also review prevention and response plans for Prince William Sound and Cook Inlet, and may make recommendations regarding permitting standards, facility operations, tanker operations, and prevention and contingency plans in order to improve safety. If the Association does not adopt the recommendation of the RCAC, it must provide a reason for the rejection. The statute mandates federal agency cooperation with RCACs by requiring that agencies consult with the Councils about any potential agency action that could have an effect on permitting or certain regulations in Alaska. The consultation must include allowing the RCAC to review the changes and make relevant recommendations. However, in this relationship—as in their relationship with the Associations—the Councils’ roles are merely advisory.

Bonus: Negative Arguments

Public participation’s benefits are exaggerated

Yvonne Ridin, professor of geography at the London School of Economics, and Mark Pennington, professor of political science at Queen Mary and Westfield College, 2000 (Local Environment, volume 5 #2, p. 153)

Within the literature on environmental policy and planning, public participation is usually considered an unalloyed good. This emphasis on the inherent desirability of public involvement is part of a tradition which seeks to ‘open up’ planning processes to democratic scrutiny and to expand the scope of public involvement as an integral part of improvements in policy delivery. These claims over the merits of participation have tended, however, to sit awkwardly with accounts of the policy process which highlight a propensity towards special interest capture and bureaucratisation as the reality of participation in practice. Consequently, it is not always clear how expanding the scope of public involvement might actually lead to improvements in policy delivery.

They don’t solve the dipolar arrangement; industry and government both ignore them

Christina Santarpio, managing editor, Boston College Environmental Affairs Law Review, 2013 (February, pp. 319-320, http://lawdigitalcommons.bc.edu/cgi/viewcontent.cgi?article=2100&context=ealr)

Both RCACs have experienced difficulty in implementing improved oil spill response systems. The PWSRCAC reviews contingency plans for the Prince William Sound, which are used for oil spill prevention and response by the oil industry. Under the OPA, every oil tanker operator must have a contingency plan if they intend to ship in the waters of Alaska. In 1994, the PWSRCAC developed a “standard protocol” for its review of contingency plans, and pursuant to this protocol, reviewed all existing plans that same year. Despite this, the Prince William Sound Council “has faced a generally unfavorable political context in attempting to enhance the contingency plans for the Sound.” Although the oil industry has improved their response plans since the Exxon Valdez spill, the PWSRCAC has lobbied for even more protections. ADEC has not funded PWSRCAC’s proposals, and has merely approved preexisting oil industry contingency plans—without ADEC’s support, the PWSRCAC has not sufficiently persuaded the industry to enhance the plans. Similarly, the CIRCAC has tried and failed to improve oil spill response systems in Cook Inlet. The CIRCAC, like the PWSRCAC, reviews all contingency plans for oil tankers in the region, and has developed standard reviewing protocols. As a result of these reviews, the Cook Inlet Council has proposed various policy changes that both the ADEC and the oil industry have ignored. Although the CIRCAC has called for more coordination between the government and oil industry in the planning process and the “incorporation of oil firefighting strategies into the contingency plans,” neither has supported the Council.

RCACs are darned if they do and darned if they don’t

Felicia Barnes, JD from Georgetown Law School, 2012 (Georgetown International Environmental Law Review, Winter, p. 178)

Oddly enough, these problems have stemmed from almost exactly opposite issues: PWSRCAC has been criticized for being overly confrontational, and CIRCAC has been lambasted for being overly accommodating. Without attempting to detract from these critiques, these contradictory problems demonstrate how narrow a line an RCAC must walk. If an RCAC plays too much of a watchdog role, it will be written off as extremist; if an RCAC is seen as being too close to government and industry, it will be perceived as a weak and ineffective rubberstamp.

The Coast Guard breaks off cooperation with RCACs if their oversight is too stringent

Felicia Barnes, JD from Georgetown Law School, 2012 (Georgetown International Environmental Law Review, Winter, p. 178)

In 1998, the Coast Guard considered conditionally recertifying PWSRCAC based partially on concerns that it was not acting consistently with the purpose of OPA 90. In fact, the Coast Guard proposed that “it is time to reexamine the PWSRCAC with respect to its ‘alternative’ status, and establish a [c]ouncil more in line with the requirements of OPA 90, Sec 5002.” PWSRCAC’s “counterproductive activity” included calling industry representatives liars during open meetings and reporting allegations of illegal activity by Alyeska to the state government. Some in the Coast Guard felt PWSRCAC’s actions were “not conducive to building the trust between the citizens and industry that the statute envisioned,” which evidences their strong viewpoint that the RCACs in OPA 90 were intended to be cooperative partners with government and industry, not watchdogs. Though the Coast Guard did not decertify PWSRCAC in 1998, the looming prospect of decertification has remained.

If the wrong members get on, public support evaporates

Felicia Barnes, JD from Georgetown Law School, 2012 (Georgetown International Environmental Law Review, Winter, p. 181)

RCACs are not guaranteed success, however. Seeking broad representation inevitably will involve some overrepresentation and underrepresentation of interests. If the interests are not chosen carefully, one perspective could become predominant and overpower different viewpoints. Such an RCAC could also have trouble obtaining citizen buy-in for the RCAC and citizen support for its recommendations.

RCACs will become power-hungry

Felicia Barnes, JD from Georgetown Law School, 2012 (Georgetown International Environmental Law Review, Winter, p. 181)

Further, if the RCAC is meant to function long-term, as the Alaskan ones have, it may inevitably be tempted to act in ways that increase its own power instead of acting in the public interest.

RCAC effectiveness is hard to measure

Felicia Barnes, JD from Georgetown Law School, 2012 (Georgetown International Environmental Law Review, Winter, p. 175)

Second, even if the purpose of an RCAC were perfectly clear, many success measurement problems still exist. Determining the efficacy of an RCAC is part revisionist history. This determination is especially difficult given that pre-spill and post-spill actions are not easily compared because the spill itself has had large impacts on attitudes regarding safety and environmental protection.


‘Case of the Week’ 1 (NCFCA): Electoral College

July 20, 2013

Important Disclaimer: We pretty much just throw these together over the weekend, and don’t put a lot of work into them. Case of the Week cases are not subject to the same editorial process and stringent quality standards as the COG 2013 sourcebook, and are frequently contributed by non-COG authors. You may find material and sources in these cases that would not appear in the sourcebook. That said, we hope these cases will be useful to you; enjoy!

About the Author: Will King is a high school senior in NCFCA Region 9. He broke to outrounds in Team Policy at the 2013 NCFCA National Championship. Will is a COG author.

1AC: Abolish the Electoral College

By Will King

As far back as 1969, the American Bar Association acknowledged the broken system that is the Electoral College when it reported that “The electoral college method of electing a President of the United States is archaic, undemocratic, complex, ambiguous, indirect, and dangerous.” (http://books.google.com/books/about/Electing_the_President.html?id=vYhCAAAAIAAJ) We agree with the ABA that the electoral college is an anachronism that should no longer be used, which is why we stand Resolved: That Federal Election Law should be significantly reformed in the United States.

The first thing we’ll address is some important background information about the electoral college, in:

Part 1: Definitions

The electoral college described itself as:

National Archives and Records Administration, static information page, “What is the Electoral College?”, http://www.archives.gov/federal-register/electoral-college/about.html

a process, not a place. The founding fathers established it in the Constitution as a compromise between election of the President by a vote in Congress and election of the President by a popular vote of qualified citizens.

The Electoral College process consists of the selection of the electors, the meeting of the electors where they vote for President and Vice President, and the counting of the electoral votes by Congress.

The Electoral College consists of 538 electors. A majority of 270 electoral votes is required to elect the President. Your state’s entitled allotment of electors equals the number of members in its Congressional delegation: one for each member in the House of Representatives plus two for your Senators. Read more about the allocation of electoral votes.

[later, in the same context:]

The presidential election is held every four years on the Tuesday after the first Monday in November. You help choose your state’s electors when you vote for President because when you vote for your candidate you are actually voting for your candidate’s electors.

Most states have a “winner-take-all” system that awards all electors to the winning presidential candidate.”

Now that we’ve seen what the Electoral College is, I’d like to establish a goal for today’s round, in:

Part 2: Goal and Criteria

All policies should aim for a goal, and so in this policy debate it makes sense to have a goal that both teams should try to uphold. The goal that we propose is that of democracy. America is a representative democracy, which means that our country was founded on the principle that we should elect our leaders through a democratic process. Now, of course, nothing is perfect, and democracy is no exception, but we agree with Winston Churchill’s remark that: “It has been said that democracy is the worst form of government except all the others that have been tried.”

Because democracy is ultimately the best way to select our representatives, we urge you to evaluate this round’s arguments in light of this goal and vote for the team that best upholds it.

Establishing a goal begs the question of how to achieve it, which is what we’ll look at next in the two criteria.

The first criterion is that of equal representation.

In his book, published in 2005, Distinguished Professor of Political Science George C. Edwards observed that:

Prof. George C. Edwards (PhD, distinguished professor of political science at Texas A&M University), 2005, “Why the Electoral College Is Bad for America”, Yale University Press, http://books.google.com/books?id=NyegUKwXX4EC

“Political equality lies at the core of democratic theory. Robert Dahl, the leading democratic theorist, includes equality in voting as a central standard for a democratic process: ‘every member must have an equal and effective opportunity to vote, and all votes must be counted as equal.’ A constitution for democratic government, he adds, ‘must be in conformity with one elementary principle: that all members are to be treated (under the constitution) as if they were equally qualified to participate in the process of making decisions about the policies the association will pursue. Whatever may be the case on other matters, then, in governing this association all members are to be considered politically equal.’”

In order to have democracy, one person’s vote cannot count more than another’s. We may be unequal in many regards, but the Constitution established the democratic principle that we are all equal under the law.

The second criterion is that of majority rule.

The concept of majority rule is simple enough, but in practice it is fraught with difficulties. Many of the founding fathers expressed a distrust of the majority and feared that majority rule would quickly become majority tyranny. In order to prevent this, they established numerous safeguards, including the Bill of Rights, that would prevent a majority from destroying the rights of a minority.

However, at times this sentiment can seem at odds with the principles of majority rule that the founders set up. They called for a majority in the Electoral College and a majority when electing other federal officials. This apparent contradiction formed the heart of what we now know as a representative democracy. The founders knew that policies should never be decided by a pure majority, for that would lead to the degradation of the rights of the minority. However, in selecting leaders, it clearly makes no sense to elect the candidate who receives less votes than his or her opponent! It is only common sense that the candidate who has the approval of the majority of the nation deserves to win the presidency. In this way, democracy requires a majority rule where elections are concerned.

Unfortunately, the current system violates both of these criteria. We can see this in the two harms.

Part 3: Harms

Harm one is inequality.

Juris Doctor and Professor of Law Norman Williams explained in 2011 that:

Prof. Norman Williams (JD, professor of law and director of the Center for Law and Government at Willamette University), 2011, “Reforming the Electoral College: Federalism, Majoritarianism, and the Perils of Subconstitutional Change”, Georgetown Law Journal, Vol. 100, http://georgetownlawjournal.org/files/2011/11/Williams.pdf

“Second, because each state receives two senatorial electors regardless of its population, less populous states receive more electors than a strict, population-based allocation would produce. Wyoming, for example, has three electors for its 563,626 residents (or one for every 187,900 residents in the state), while California has fifty-five electors for its over 37 million residents (or one for every 677,000 residents).

In essence, each elector has the same amount of voting power, but electors from different states represent different amounts of people. This means that if you live in Wyoming, your vote counts over 3 times as much as it would if you lived in California!

Harm two is minority rule.

Because 48 of the 50 states use a winner-take-all system, where the winner of the state’s vote gets all of that state’s electoral votes, the current system makes it possible for someone to win the presidency but not the majority of the popular vote. In fact, it is theoretically possible to become president with a scant 22% of the popular vote. (Do the math – or let CGPGrey do it for you: http://www.youtube.com/watch?v=7wC42HgLA4k; skip to 4:19.) This is obviously an extreme hypothetical, but in 57 presidential elections, there have been four instances where the minority of voters won the election.

The National Popular Vote organization published a report in 2008 that noted that:

National Popular Vote Press, 2008, “EVERY VOTE EQUAL: A State-Based Plan for Electing the President by National Popular Vote”, http://www.every-vote-equal.com/pdf/EveryVoteEqual_web.pdf

“Of the 55 presidential elections between 1789 and 2004, there have been four elections—approximately once every five decades—in which the candidate with the most popular votes nationwide did not win the Presidency (table 1.5).”

To solve these harms, we propose the following:

Part 4: Plan

…to be enacted and enforced immediately by any necessary bodies.

The mandate is simple: Abolish the Electoral College. The Constitution will be amended to allow for the direct popular vote of the US President.

This plan requires no additional funding beyond normal means, and we reserve the right to clarify it as needed.

Logically, abolishing the electoral college will put an end to the madness in the SQ, as we see in:

Part 5: Solvency & Advantages

Writes Carolyn Jefferson-Jenkins in the National Civic Review in 2001,

Carolyn Jefferson-Jenkins (president of the League of Women Voters), Summer 2001, “Who Should Elect the President?”, National Civic Review, volume 90, issue 2, page 173, http://www.uvm.edu/~dguber/POLS21/articles/jefferson.htm

“The president should be directly elected by the people he or she will represent, just as other federally elected officials are in this country. Direct election is the most representative system. It is the only system that guarantees the president will have received the most popular votes.”

In addition to the significant benefit of restoring democracy, abolishing the electoral college will result in a separate advantage, which is increased participation.

Because of the winner-take-all system, voters in states that are heavily biased towards one candidate are often discouraged from voting altogether, since they know that no matter how they vote, the leading candidate in their state will garner all the electoral votes. Abolishing the electoral college changes this and restores worth to millions of otherwise meaningless votes, thus encouraging participation in our electoral process.

In 1980, Richard Cebula, Professor of Finance, wrote with Dennis Murphy that:

Prof. Richard Cebula (professor of finance) and Dennis Murphy, 1980, “The Electoral College and voter participation rates: An exploratory note”, Public Choice, Vol. 35, No. 2, http://www.jstor.org/stable/30023793

“This brief exploratory Note argues that, in years of Presidential elections, these two phenomena are in fact highly related. In particular, it is argued that the existence of the Electoral College is a significant contributing force to voter apathy and hence to low voter participation rates during Presidential election years. [Later on, they conclude that:] Abolition of the present Electoral College system may not only lead to more voting, but, in particular, to more voting for alternative parties, and hence to more voting for alternative national policies, than presently takes place.

In 2007, PhD and JD Sanford Levinson asked this question:

Prof. Sanford Levinson (PhD from Harvard, JD from Stanford, professor of government at the University of Texas), 2007, “HOW THE UNITED STATES CONSTITUTION CONTRIBUTES TO THE DEMOCRATIC DEFICIT IN AMERICA”, Drake Law Review, 55 Drake L. Rev. 859

Are you comfortable with an Electoral College that, among other things, has regularly placed candidates in the White House who did not get a majority of the popular vote and, in two cases over the past fifty years (Kennedy and George W. Bush), who did not even come in first in that vote?

Our answer to this question is a strong no, and we hope that you are not comfortable with the current situation either. A vote for the affirmative team is a vote to repair this outdated system, a vote for democracy, and a vote that I strongly urge you to cast. Thank you.


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