The current turbulent social, political and moral environment in which our representative democracy exists, threatens, I believe, the resilience of our Constitutional democratic principles and institutions of governance. The extreme seriousness of the threats arises from: (1) the gradual acceptance by mainstream Americans of violence as a political tool, (2) the easy access to private armed militias and (3) the ubiquitous presence of social media and customized apps. The latter enable plans to be made, actions coordinated and operations to proceed in real time with instant communications involving hundreds of people in real time.
The violent January 6, 2021 insurrection and assault on the US Capitol revealed clearly that America’s long tradition of democratic elections, followed by peaceful transfers of power, can no longer be assumed. Two of the largest armed militias, Oath Keepers and Proud Boys, actively engaged in the attacks. Stewart Rhodes, founder of the Oath Keepers, was just convicted in Federal Court of Seditious Conspiracy.
Why the US Capitol? Because on January 6, 2021, members of both Houses of Congress were assembled in the House Chamber, led by the President of the Senate (US Vice President), to take the ceremonial final step in the election of a US president: the acceptance of the certified state votes of the Electoral College. However, a group of senators and House members used a perverse interpretation of the enabling legislation (1887 Electoral Count Act), to challenge some of the certified state tallies. Their likely purpose was to overturn or delay the confirmation of America’s new president.
The partisan mob broke into the Capitol building around 1PM on January 6th and then forced their way into the House Chamber. Minutes before, the Capitol Police and Secret Service, had led the members of Congress to protected locations. Once the Capitol was secured, hours later, the Congressional deliberations resumed circa 8PM and early on January 7, the electoral votes were accepted and Joe Biden became the 46th President of the United States.
To prevent a future misuse of the legislation, a draft amendment to the 1887 Act will be introduced and voted on by Congress, in December 2022.
Deeply unsettling as well, were the 2 years of false claims in courts and elsewhere, that the 2020 Presidential Election was a fraud. It is estimated that as many as 18 million Americans believe and support these lie-based assertions. This extended mass citizen effort to reverse a presidential election is unprecedented in American history. It reflects a sad fact: past generations of Americans’ ingrained acceptance of and participation in, our Constitutional democracy, is no longer predictable.
And violence has become part of today’s deeply divided political reality.
Does Something need to be Done?
In my opinion, Yes.
Anyone who has built or remodeled a house, knows that many licenses and inspections are required. And if there’s a problem with the work or the licensing, there’s a state commission or the courts to appeal to for redress.
However, political parties and their successful national candidates are elected to powerful positions, from which they determine the future of 330+ million Americans. But, unlike roof repairs, this immensely important process and its participants are essentially unregulated. There are no comparable (to roof repair) standards of competence or performance and no means easily available to voters, to appeal violations, even if there were any regulations..
There is one exception: candidates and their campaign committees must submit to election boards at the state or national level, multiple reports of money’s received, from whom (with addresses) and how spent. However, corporations and unions (SCOTUS 2010: Citizens United vs FEC) can contribute, possibly anonymously, unlimited amounts to PACs and political parties.
The following are suggestions based on vulnerabilities identified over many decades, particularly the last ten years. Some may be politically impossible, but they are offered for consideration and comment.
- Vote Count Act – Congress during their December 2022 session passes the amendments to the 1887 Vote Count Act.
- Federal Election Commission – The Federal Election Commission is substantially strengthened and given an expanded mandate. Current commission has six members, 3 Democrats and 3 Republicans, a prescription for dysfunction. The Commission in recent years has been tied or absent a quorum frequently.
- Technology and Security –
- The Federal Government should provide the same safe computers, software, and election security to all the states and territories for all general elections.
- Note: Art I, Section 4 of the Constitution: (1) The times, places and manner of holding elections for senators and representatives, shall be prescribed in each State by the legislature thereof; but the Congress may at any time by law make or alter such regulations, except as to the places of choosing senators.
- Presidential/Vice Presidential Elections
- The popular election for the president/Vice President should be take place separately from the general election for members of Congress and for state and local positions. The selection of the most powerful executive in the US Government and his/her understudy, are far too important to be included in the confusion, even chaos and inefficiencies of the much larger general election. It should have customized procedures and reinforced protections.
- Note: The Constitution sets out no description of the process or timing for the popular election of the president and vice president. It does provide detailed guidance for the Electoral College.
Tom Timberman is an Army vet, lawyer, former senior Foreign Service officer, adjunct professor at GWU, and economic development team leader or foreign government advisor in war zones. He is the author of four books, lectures locally and at US and European universities. He and his wife are 24 year residents of Kent County.
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