The Darien Gap and the Truth about Migrants

By now, most Americans know what the Darien Gap is. It’s a sixty-mile broken trail through rotten, poisonous-snake-infested jungle between Colombia and Panama. It’s full of animal and human predators, including real coyotes, paid human ones that call themselves “guides,” robbers, highwaymen, and rapists.

But for migrants seeking refuge or asylum, it’s a far gateway to the US. It’s a portal to North America from Central and South America.

Migrants trek through this dangerous portal, or through similarly dangerous routes in Guatemala, just to trek another thousand miles on foot to get to the United States. They do this in the hope of sneaking across the border and, if caught, claiming asylum.

Migrants who come this way are not just from Central or South America. They come from all over the world. They come from places like Bangladesh, China, Congo, Haiti, Malawi, Sudan, Venezuela, and Zambia.

They can’t just get on planes or trains to come. Why? Officials will ask for papers at the other end, and they can’t even board the plane or train to begin their journeys.

So they come on foot. They wend their weary and dangerous ways from gateway cities in Latin America, through the Darien Gap and Guatemala, along the torturous thousand-mile trail, up to Greg Abbott’s razor wire at the Texas border. They come in droves, knowing full well how hard their thousand-mile “hike” will be, what dangers await, and how criminals will be lurking along the way.

Our Demagogue wants us to believe that these migrants are coming to prey on us. He says they are “poisoning our blood,” taking a phrase directly from Hitler’s racist lexicon. Earlier, he said they are bringing crime, drugs, disease and violence.

But all that’s so wrong. Crime, drugs, disease and violence—particularly from organized gangs—are what these migrants are fleeing.

They come, by and large, from failed states that can’t protect their remaining middle classes, let alone people at the bottom. Where migrants come from, their lives and families mean nothing. Gangs, violence and corrupt “mobocracies” rule. Haiti today is just one particularly bad example. Venezuela is another.

All these migrants seek is a peaceful life of work and family, unthreatened by gangs, drug cartels, predatory oligarchies, or organized criminals in league with corrupt governments. They seek fair wages for hard work, peace, and tranquility.

The truth and the anti-migrant propaganda are day and night. Statistics show that when migrants move into a community, the crime rate goes down. (More recent statistics are inconclusive because it's difficult to disentangle the effects of the pandemic—a sharp rise in crime during the early years, then a precipitous fall as it came under control—from the effects of migration.)

Why is this so? It’s simple cause and effect. The migrants have come a thousand miles on foot, over painful weeks and months, often in semi-starved condition, just to get here. Without papers, every single one knows that he or she can be deported back to the origin with a single phone call. All that thousand miles of hardship can be reduced to nothing in a single day.

So all keep exceedingly low profiles. None wants to stand out in any way, let alone be accused of or apprehended for criminal activity. The thought of having that thousand-mile nightmare reduced to naught with a single deportation is one of the most powerful disincentives for crime that any human being can feel.

Anyway, the idea that they came to prey on us makes absolutely no sense. If they were criminals, why not stay in their own countries, where law enforcement is sketchy and corrupt and a simple bribe avoids jail time? They know that our police and law enforcers are less corrupt than where they came from; that’s part of why they come.

But the truth gets even worse. The right-wing migrant bashers want it both ways. They want to bash migrants as criminals and blood-poisoners to dupe voters and win elections. But at the same time, they want them here as cheap and docile labor. This has been the GOP’s dirty little secret since Ronald Reagan first reformed our immigration laws 48 years ago.

Here’s how it works. Undocumented workers are not just cheap labor. They are also docile. They don’t complain of low pay. They don’t complain of lousy working conditions. They don’t complain of working 60 to 80 hour weeks isolated on small farms, where sometimes their bosses give them only rotten shacks with leaky roofs and black mold to live in. Even parents don’t complain about their children being forced to work in adult jobs and being maimed or killed because they are too small or weak or improperly trained to do adults’ work.

Migrants also don’t form or join labor unions, at least not since the bracero and other “guest worker” programs expired. Why? Without a legal presence in this country, they can be deported with a single phone call. And the bosses know they don’t have to have all their low-paid workers deported, just a few. Deport the “ringleaders” and “trouble makers,” and the rest fall into line.

But all this is mostly secret stuff. This is just one way—the secret way—that the right wing exploits undocumented migrant labor. It uses cheap, docile migrant labor to lower production costs and make greater profit. This is the traditional way that the GOP, as the “party of business,” serves the bosses that support and fund it and helps them compete with rising low-labor-cost nations like China, Mexico and Vietnam.

The other way the GOP exploits migrant labor is more open. In fact, it’s flagrant. Quite publicly, the GOP blames migrant labor for rising crime (even, as now, when crime isn’t rising), for an “invasion” at our border, and for disorder and lawlessness in our cities and small towns. It has no statistics to back these claims up because statistics point the other way: to lower crime rates for migrants than the native population.

But the truth doesn’t matter. What the GOP can get voters to believe is what matters. And so far it’s been able to get many voters to believe the worst. It did that during President Biden’s recent State of the Union Speech, citing a single anecdote of a female jogger killed by an undocumented Venezuelan migrant.

Citing a single horrific event instead of comprehensive data makes no scientific or practical sense. But it makes perfect emotional sense.

And it makes absolutely brilliant propaganda sense for the oligarchs who drive and fund the GOP. What they get is a whole class of eleven million or so undocumented serfs, who work for low wages and under miserable conditions for fear of instant deportment. This makes the oligarchs’ plants and factories more competitive on a global scale. At the same time, they get a middle class afraid of migrants who make cheap stuff and so is willing to let the oligarchs break unions with anti-dues laws, so-called “right to work” laws and anti-union pressure tactics that border on the illegal even under current lax labor laws.

What puzzles me is why native American factory workers don’t see the connection between migrants’ yearning for better pay and working conditions and their own. The only tried-and-true means to those ends is not a mythical “socialist workers’ paradise.” That failed miserably, after a fair trial, in both Soviet Russia and Communist China. In a thriving capitalist economy like ours, the path to workers’ welfare is strong and honest labor unions. They succeeded brilliantly from FDR’s day until Ronald Reagan started bashing them and government in the early 70s.

It’s just common sense that labor unions float all worker’s boats. But migrant workers can’t form or join labor unions unless they have some sort of legal status to protect them against arbitrary deportation.

The great César Chávez and his Farmworkers Union showed the way. But the oligarchs countered by letting the guest-workers statutes expire, and by demonizing migrants, thus splitting workers’ labor-union movements. Divide and conquer: it’s a strategy that has worked marvelously for the oligarchs and demagogues ever since Julius Caesar, but not so well for working people.

As for me, I’ve known for most of my life that migrants are sources of our nation’s strength and continuing national renewal. I’ve known that since my second year in college, in 1963, when I first met Man Hoo Kwong.


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The Willis-Wade Miscarriage of Justice

Yesterday Judge Scott McAfee of the Superior Court of Fulton County, Georgia, ordered one of the pair of prosecutors Fani Willis and Nathan Wade to withdraw from the prosecution of Donald Trump for attempting to overturn the presidential election in Georgia. His reason: there was evidence that Willis and Wade had been having a love affair while Wade was working under Willis’ supervision on the prosecution, and that they had shared travel expenses.

Wade, the subordinate prosecuting attorney whom Willis had hired, wisely withdrew, rather than let the whole prosecution founder. This choice was inevitable, for Judge McAfee had ordered the entire Fulton County District Attorney’s Office to withdraw with Willis if she had chosen to withdraw.

To “laypeople,” i.e., non-lawyers, this may seem like rough justice. Judge McAfee himself found that there was no actual conflict of interest because the amount of proven disparity in shared expenses in Willis’ favor were at most a few thousand dollars, in comparison with Willis $200,000-plus salary. (In business and tax affairs, discrepancies less than 5% are generally held not to be “material.”)

Instead, the Judge ruled that there was the “appearance of impropriety.” Thus he implied, without ruling so explicitly, that lawyers on the same team, let alone in a high-profile case like this one, should not be sleeping together and sharing personal travel expenses, at least not without rigorously documenting their equal division. So one of the two alleged lovers had to go (along with the whole DA’s Office if Willis went), and Wade was the obvious choice.

But is this really “rough justice”? Whatever you call it, it reeks of “shopkeeper’s morality.” The decision has nothing to do with any kind of law that I know, and I practiced and taught law for 32 years. Stay with me, and hear me out.

First of all, consider the title of the case, on the very first page of Judge McAfee’s written decision: “State of Georgia v. Donald John Trump [and eight others].” Neither Willis nor Wade is a party to the case. Both were (and Willis still is) lawyers for the prosecution—one of the most serious and politically consequential prosecutions in American history. The chief defendant in the case is a former president of the United States. If convicted, he would be one of the most dastardly criminals in American history, a dis-elected president who tried to subvert our democracy to stay in power illegitimately.

How does he get standing to complain about two of his duly appointed prosecutors sleeping together and sharing travel expenses, even unequally? I submit that he has no such standing.

The law of “standing” is something so basic that apparently no one thought to argue it in this case. Expressed in non-legal terms, it’s simple common sense. No one can complain in a court of law about something that is none of his or her business. In order to complain, you have to have been wronged: you have to show that you have suffered “injury in fact.”

With regard to standing, Trump and his fellow defendants in this case get caught in what’s called a logical “fork.” If Willis and Wade allegedly sleeping together and sharing travel expenses unequally made their prosecution less effective, Trump and his co-defendants had and have nothing to complain of because they suffered no harm. Instead, they gained from the alleged wrongdoing.

If Willis and Wade sleeping together and sharing travel expenses made their prosecution more effective, those accused of high-level criminality cannot complain, unless what Willis and Wade did is against the law in such a way as to seriously prejudice the administration of justice. If defendants in criminal cases generally were able to complain of actions and incidents that make their prosecution more effective, our criminal justice system would fall apart. For this reason, defendants can complain only of clear instances of personal and adverse interest, for example, if a prosecutor revealed something like Trump’s own expressed desire for “vengeance” and “retribution” against people who he thinks have harmed him or those he professes to care about.

I know of no law that prohibits cooperating lawyers or public prosecutors from sleeping together and sharing travel expenses, equally or otherwise, and Judge McAfee cited none in his judicial opinion. Not only that. He made a specific and explicit finding of fact (page 7) that “the financial gain flowing from her relationship with Wade was not a motivating factor on the part of the District Attorney [Willis] to indict and prosecute this case.” On that basis and others, he specifically found, as a matter of fact, no cognizable conflict of interest.

Notwithstanding this finding, Judge McAfee reasoned that the possible implication that Willis might have profited personally and monetarily from her relationship and travel with Wade created the “appearance of impropriety” in the prosecution. He did so despite noting (in footnote 3) that both the American Bar Association’s Model Rules of Professional Conduct for attorneys (back in 1983, two generations ago) and the Georgia Rules of Professional Conduct (a generation ago) had dropped references to an “appearance of impropriety” because the term is “vague” and has “varying application.” In another footnote (number 4), he noted that the “appearance of impropriety” standard today applies to judges’ private behavior, but not to attorneys’ private behavior; yet somehow he confused private and professional behavior for prosecutors because “the distinction is less apparent here.”

This is badly muddled thinking. The result in this instance, the Willis-or-Wade withdrawal order, was pernicious nonsense. To the extent it sought to preserve the public reputation of the court and the prosecution, it appeared motivated more by nineteenth-century sexual prudery than rational cause and effect.

The court itself found that any inequality in sharing expenses was immaterial, motivationally irrelevant, and likely inadvertent. Yet the end result of its order was to cause an experienced prosecutor (Wade), whom the Judge himself found was underpaid (page 5), and who had worked on the case for over 2-1/4 years, to withdraw just as the case is preparing for trial.

This was and is a major blow to the prosecution. It’s an especially hard blow in light of the fact that Willis, before hiring Wade, had tried to attract other co-prosecutors, including a former governor of Georgia, without success.

The aura of sexual prudery that pervades this decision is not just anachronistic, but highly counterproductive. High-stakes litigation like this is among the most stressful, exhausting, and demandingly obsessive things that people do. It’s inevitable that people working together in such a crucible would form romantic relationships. (And these days it shouldn’t matter whether they are heterosexual or homosexual.)

I would argue that, unless those relationships go awry, they actually aid the cause. People in love are more apt to listen to each other and credit each other’s views and arguments calmly. Romantic partners are also likely to hone their arguments together informally, in “pillow talk,” off the clock. Isn’t it about time to consider the real, practical effect of natural human sexual relations, and to abandon the medieval notion that all such relations outside of marriage are somehow inherently evil?

And if the romantic relationships do go awry and hurt the cause of the prosecution, the last parties allowed to complain should be the criminal defendants, who actually gain from the harm to the prosecution. As Judge McAfee himself noted (bottom of page 8), any questions involving professional ethics that do not undermine the system of justice are proper grist for the “the General Assembly [of Georgia], the Georgia State Ethics Commission, the State Bar of Georgia, the Fulton County Board of Commissioners, or the voters of Fulton County[.]” They are no business of those defending serious criminal charges.

So the end result of Judge McAfee’s decision, in my view, was substantially to impair the prosecution of Trump and his co-defendants, based on a claim that is really none of his or their business. The good Judge allowed Trump’s standard modus operandi to succeed spectacularly in this case: defending serious criminal charges by delaying and throwing dirt not only on his opponents, but now on his opposing attorneys as well.

The proper disposition of any such future claims is to throw them out summarily unless the claimant can show, in a closed hearing, why practical cause and effect creates “injury in fact” to the complaining defendants, or to the general system of justice, and therefore standing to complain. It’s long past time for judges to stop giving those charged with serious crimes advantages in court based solely on the perceived abstract, personal moral shortcomings of those who prosecute them, with no demonstrated adverse effect on our system of justice.


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The Supreme Court’s All-Male Treachery

It’s been just shy of a week since our Supreme Court decided Trump v. Anderson. In that decision, the Court denied the Colorado Supreme Court the power to take Donald Trump’s name off the ballot in Colorado under Section 3 of the Fourteenth Amendment. That part of the decision—the result—was unanimous.

But in another part of the decision, the Court was far from unanimous. In fact, it was as split down the middle as any nine-member body can be: five to four. It split on lines of gender, with the five males overruling all the females, including the arch-conservative fetus-saver Amy Coney Barrett.

What the five males did was effectively nullify Section 3 of the Fourteenth Amendment for all practical purposes, at least insofar as the present and impending constitutional emergency is concerned.

Let’s call Section 3 the Disqualification Clause, or capital-C “Clause” for short. As everybody knows by now, it prohibits oath-breaking insurrectionists and rebels from holding either state or federal offices.

Before we analyze the split, let’s analyze briefly how strange was what the court did unanimously. It ruled that the States have no part in enforcing the Clause against would-be federal office holders.

That was a practical decision. It will prevent different states from coming to differing conclusions within their own borders. It also might help avoid confusing the electorate and inflaming the deep divisions that already pervade our society.

But the good justices are not supreme politicians. They are not members of a privy council appointed to decide all the fundamental, practical things that a badly broken Congress cannot. They are judges on a court of law.

And what law did they cite for their decision? Not much. They spent the bulk of their decision plowing through history, citing instances after instance in which Congress participated in the disqualification process for federal offices, and none in which states did. Apparently relying on the logical fallacy that absence of evidence is evidence of absence, they concluded that the States cannot so participate. That conclusion rested mainly on history.

The Court was mindful of practical politics: avoiding messes like inter-state conflicts in disqualifying insurrectionists. It’s a pity it hasn’t paid attention to other practical messes, including: (1) women’s loss of reproductive rights and doctors’ inability to assist them (Dobbs); (2) money pervading and dominating politics and expanding for-profit propaganda beyond all bounds (Citizens United); (3) weapons of war turning our streets, clubs and businesses into a true “American carnage;” and (4) many Americans losing the right to vote due to transparent restrictions that Section 2 of the Voting Rights Act would have avoided had the Court not killed it as no longer necessary (Shelby County v. Holder).

Is it just a coincidence that the Court made all these practically catastrophic decisions, making grand messes of our democracy, but avoided only a mess for which a mammoth and irate minority of the electorate might blame the justices themselves? As WaPo columnist Ruth Marcus (a Harvard Law School graduate) noted, the Court’s usual backward-looking search for “original intent” was notably absent in Trump v. Anderson, making it look all the more like an illegitimate political decision by nine unelected judges.

But that was hardly the decision’s worst point. That was just the unanimous part.

Courts are not ever supposed to decide things not brought precisely before them, so-called “hypothetical cases.” That’s what distinguishes courts from legislatures.

This point is explicit in our Constitution. Article III, Section 2 requires courts to limit themselves to “Cases” and “Controversies” brought before them. They cannot overreach and make law by deciding things in the abstract or in purely hypothetical cases. At the federal level, that’s the job of Congress.

But that’s precisely what the five men on the Court did. Here’s the single sentence in which they encapsulated the result of their twelve-page opinion: “[T]he responsibility for enforcing Section 3 against federal officeholders and candidates rests with Congress and not the States.” (Emphasis added.)

The non-italicized portion was the holding with which all nine justices agreed, both male and female: the States cannot enforce the Clause against would-be federal officers. The italicized limitation to Congress was and is entirely gratuitous and unnecessary to decide the case before the Court. That’s why all four female justices wrote separate opinions, concurring only in the result but vehemently disagreeing with the reasoning. They wrote to disclaim this unnecessary “ruling.”

Why the fuss? What’s so important? The explicit limitation to “Congress” excludes not just the States, but both the federal judiciary and the federal Executive.

So the five-man majority was signaling, as clearly as it could: don’t look to the federal courts, which we head. If a case of disqualification under the Clause comes up to us, as this one has, we will duck it, just as we have this one. We won’t even bother to decide whether there was an insurrection and whether the accused would-be office holder engaged in it.

Instead, we will bury our anointed judicial heads in the sand. We will stretch our bony male fingers out to point at the broken, divided and dysfunctional Congress as the only savior against an oath-breaking insurrectionist becoming president. And if the Executive tries to act—in this case with a President who has an obvious personal interest in the controversy—we will again insist that a Congress that can’t pass a budget or provide weapons to oppose the Second Coming of Adolf Hitler do the job.

The reference to Congress as the exclusive enforcer of the Clause is what lawyers call “dictum,” i.e., not a logically or necessary part of the decision in the case. But as long as the Court’s membership stays the same, it doesn’t matter that the four female Justices all dissented vehemently to that exclusive reference in their separate opinions. (Justices Sotomayor, Kagan and Jackson wrote together, and Justice Barrett wrote separately and more briefly.) The five men had the votes, and they’ve signaled unequivocally how any appeal to this Court to aid in disqualifying Trump would end.

The supreme irony is how the Clause arose. Way back in 1866, Congress debated the Fourteenth Amendment, including the Clause. Congress then adopted it, as required, by a vote of more than two-thirds of each House. In fact, the final affirmative vote in each House was at least three-quarters of those present and voting: 33-11 in the Senate and 120-32 in the House. Then three-fourths of the then-existing States ratified it, as our Constitution requires.

That’s why both scholars and jurists generally view the Fourteenth Amendment as self-enforcing, or at least requiring no further action by Congress. It’s part of our Constitution, much like a second Bill of Rights. Some historians consider it a Second Founding.

So Congress had acted. It had acted, as the Constitution requires, by supermajorities in both Houses. It did so after the bloodiest war ever on our own territory, in an attempt to ensure that such a war would never happen again. Yet the male majority on our Supreme Court refused even to engage in enforcing it today, thus inviting our government to sleepwalk into despotism or perhaps a second civil war.

So much for “conservatism.” The five male justices wouldn’t lift a finger to “conserve” what 600,000 Americans had died violent deaths to enact.

It’s hard to conceive of a more wretched example of judicial cowardice and dereliction of duty than what those five male justices did in Trump v. Anderson. They resolutely decided to duck and cover, even against punches not yet thrown. They made it crystal clear that, if we are to avoid sleepwalking into despotism under a deranged insurrectionist, we can seek no help from them.

Whether we keep our Republic, as Ben Franklin noted, is up to the voters now, under such restrictions on voting as the several States may approve. The soldiers who fought the Civil War to prevent this all from happening again—not to mention the three-quarters of the 1866 Representatives and Senators who approved the Fourteenth Amendment—would weep with frustration.


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What Broke Congress and How to Fix It

Serious observers of American politics have many doubts and questions, but most are sure of one thing. Congress is broken.

Congress can’t pass a bill for aid to Ukraine in its wartime agony. That is so even though the bill would enrich and strengthen American defense industries, support a valiant, struggling would-be ally, and not require a single American soldier to fight. Congress can’t even pass a bill to defend our Southern border against over-the-top unauthorized migration—a bill that a vast majority of members of Congress seem to want, but that would cross our Demagogue’s plans for his campaign.

So what’s wrong with Congress? Too many of its members put their party’s and their own personal power above their country and anything resembling principle. That’s clear to even to a casual observer.

But isn’t our Constitution supposed to thwart that kind of thing? What about the much-vaunted “checks and balances” that our Founders gave us? What about their suspicion of the dark sides of “human nature” that our high-school civics teachers used to teach with pride?

Truth is, our Constitution has a time bomb hidden in it. That time bomb has been going off, in slow motion, ever since our Founders ratified it. The time bomb appears in a whole sentence, but the key part is just nine words long: “Each House may determine the Rules of its Proceedings . . . “ Article I, Section 5, Clause 2.

At the moment, the slow-motion explosion of this time bomb has two chief effects. First, a distinct minority of each House can block any action by that House. Let’s call this a “minority veto,” because that’s in substance what it is. Second, a single, solitary, lone individual member of either House can now block any action by that House. Let’s call this an “individual veto.”

None of these effects is explicit in the Constitution itself. With modern electronic processing, you can search the Constitution word for word in seconds. If you do, you won’t find any reference to a “filibuster,” a “Senate hold” or the “Hastert rule.” And you certainly won’t find a rule that lets any single Representative call for a vote to depose the Speaker of the House at any time.

But now extra-constitutional rules have tied us up with minority vetoes and individual vetoes in both the Senate and the House. A minority, and even a single member, can block action in either House. Hence “gridlock.”

In the Senate, the ultimate source of the time bomb is the so-called “filibuster.” But it’s come a long way, baby, from the speaking filibuster depicted by Jimmy Stewart in the old movie “Mr. Smith goes to Washington.”

Today a single senator doesn’t have to stand up and talk for hours or days and “hold the floor” to prevent a bill or appointment s/he doesn’t like from passing. All s/he has to do is pass a note to the Senate Majority Leader, regardless of party, saying s/he objects to the matter under consideration. On receiving this co-called “Senate hold” note, the Majority Leader places the matter at the back of the queue of Senate business, where, since the Senate is always busy, it usually stays.

As a practical matter, a vote on the issue mostly never comes up, so the individual “hold” kills it. At one time, Senator Shelby, Republican of Alabama (natch!) held up some seventy key appointments of President Obama just to extort special benefits for his state.

Voilá! An individual veto springs out of a minority veto, namely, the filibuster, which now takes a 60-vote super-majority to overcome. So any single, sole, solitary senator can, in practice, block any action by the Senate. And, if that block is somehow overcome, a minority of 41 votes supporting the veto can make it permanent. This is “democracy”?

In the Senate, this caricature of democracy has been going on for decades, but it has lately been getting worse. Over a dozen years ago, I analyzed the frequency of minority blockage of legislation in the Senate. [Search in linked source for first instance of “41”.] During the last two years of George W. Bush’s presidency and the first two years of Barack Obama’s, that frequency had increased by 142 times as compared to the period 1917 to 1974. Yet that earlier period itself had been no slouch. It had included the two World Wars, women’s suffrage, our second civil-rights revolution, women’s liberation, and most of the controversial War in Vietnam. During the last century minority vetoes in the Senate became not just routine, but near-daily occurrences.

In the House, minority and individual vetoes took hold later and by more circuitous paths. The minority veto first arose under the so-called “Hastert Rule” in the mid-1990s. The then Republican Speaker of the House, one Denny Hastert, decided not to permit even floor debate, let alone a vote, on any bill or other matter unless a majority of the Republican majority—not the whole House—first approved it. Under this Rule, a majority of Republicans alone (“majority of the majority”), not the whole House, determines what gets done.

Now do the math. For a long time, the House has been split between Republicans and Democrats nearly equally. So suppose the Republican majority (which allows that party to pick the Speaker) has a thin majority of 51% of the whole House. Under the Hastert Rule, nothing gets done unless a majority of this majority approves. That’s 26% of the whole House. But if that same number, 26%, disapproves, the action gets shelved. Thus, the minority veto in the House is now even more extreme than that in the Senate: the House’s minority veto requires only 26%, while the Senate’s requires 41%.

The individual veto in the House arose by an even more circuitous path. In order to retain his Speakership, former Republican Speaker Kevin McCarthy agreed to restore an apparently earlier House rule that any single member of the House can call for a “no-confidence” vote on the incumbent Speaker. After a Democrat (Hakeem Jeffries) came within six votes of becoming Speaker, out of 435 in a Republican-majority House, extremists in the Republican Party forced now-Speaker Mike Johnson to accept the same rule.

So how does that individual “no-confidence” House veto actually work in practice? We can see in the latest of many debacles in the House. Recently senators spent weeks negotiating and drafting a bipartisan bill that would have provided needed funding for Ukraine’s valiant fight against Putin’s Atrocity. It also would have imposed drastic measures to limit the flow of migrants across our Southern Border—measures that went well beyond what Democrats were comfortable with.

This bill was a teeth-grinding compromise that would have imposed stronger border measures than any in decades. The Senate approved it handily. Reporters covering the House all thought there were enough votes there to pass it, too.

So did this hard-won compromise become law? No. Speaker Johnson refused even to bring it up for a vote in the House. Why? Because several extremist Republicans, motivated by the Demagogue’s promise to torpedo the bill for political gain, had threatened to call a “no-confidence” vote against Johnson as Speaker, which the tiny Republican margin in the House likely would have caused him to lose.

So the peculiar combination of House rules, a “no confidence” vote only threatened by individual House members, and a tiny majority for the Speaker combined to permit a few extreme Republican members of the House to kill a bill desired by majorities of both Houses, which senators had worked weeks to put together. And the extremists effected this veto merely by anonymously threatening a “no-confidence” vote; they didn’t actually have to do anything or put their reputations on the line.

Can we all say “dysfunction”? Not to be left behind by the Senate and its no-speaking “filibuster,” the House, in just the last few years, has surpassed the Senate in the extremity of both minority and individual vetoes.

Our Founders knew a lot about political perversions of democracy. They endlessly debated the need for “checks and balances” and the dangers of “popular passion,” “faction” (meaning political partisanship), and demagogues. But they never foresaw that a simple provision allowing each House to make its own procedural rules would devolve into minority and individual vetoes in both Houses. I suppose they underestimated the extent to which individual power is a supreme driving motivation for people making a career of politics.

Yet another point of “human nature” needs attention before we turn to solutions. We all want to make our mark on the world. That’s particularly true for politicians; many “throw their hat in the ring” precisely to change the world. So when the law and rules make it far easier to block action—whether by individual veto or by joining a negative minority—than to cobble together a positive majority, won’t most pols inevitably “just say ‘no’”? Won’t they exercise their individual and minority vetoes often, simply as the easiest way to make their mark?

How can we fix this? Minority vetoes and individual vetoes arising out of each chamber’s own rules have little to do with the most basic flaws in our Constitution. Those include the intrinsic malapportionment (by population) of the Senate and the Electoral College, and the failure to anticipate and outlaw gerrymandering. Most likely, each House devolving into minority and individual vetoes would have been harder for any Founder to anticipate.

The key here is the rules of each House. Rules of procedure seem so innocuous, don’t they, until you understand what men like Mitch McConnell and Denny Hastert can get away with by manipulating them? Was Hastert, who perpetrated these vetoes on the House, a great legal mind, a constitutional scholar? Hardly. He was a former high-school basketball coach who paid to hush up a charge of pedophilia!

So I think we need an amendment to our Constitution, outlawing minority vetoes and re-establishing majority rule in both Houses. Here’s my proposal for such an amendment, to be inserted immediately after the single sentence of Article I, Section 5, Clause 2:

“Notwithstanding anything in this Constitution to the contrary, members of either House numbering at least one-quarter of the whole membership of that House, without regard to party affiliation, may, by written petition or by motion on the floor, bring any motion, rule, bill, resolution, proclamation, consent to executive appointment, proposal for amendment to this Constitution, or an amendment to any of the foregoing, to a vote by that House in regular or extraordinary session. Such vote shall take place within ten days of that petition or motion having been made, and a simple numerical majority of those present and voting, a quorum being present, shall prevail.”

Pretty simple, isn’t it? An amendment like this could restore majority rule to both Houses, eliminate majority and individual vetoes, and yet still allow each House to adopt its own rules in other, less democracy-killing respects.

No doubt future members of Congress, driven by the individual ego that characterizes our species, would in time find other ways to thwart majority rule again. But at least this amendment would mark a first attempt to restore to our deviant nation what “democracy” has meant since the times of ancient Greece and Rome.

Could this sort of amendment have a chance to pass? I think so, especially in comparison with more fundamental constitutional reforms. No state is going to give up its two votes in the Senate, as the Constitution explicitly requires. That legacy of slavery will last as long as our democracy does.

And the National Popular Vote Plan is far more likely to work than any attempt to reform the Electoral College by amending the constitution. All that has to happen to make the Plan work is for states with a total of 270 or more electoral votes to adopt it. As of 2023, states having 205 electoral votes had signed on.

In each such case, the prospects for a constitutional amendment are small because “success” would require smaller states giving up power disproportionate to their population. That disproportionate power is a bit like Charleton Heston’s rifle: others will have to take it from small states’ “cold, dead hands.”

But congressional dysfunction affects both small-state and big-state representatives alike. No one can get anything done when everyone can veto work in progress. The dismal results are obvious and obviously enduring, even more so in a time of close and rancorous division in Congress.

With Congress so closely divided between the parties, maybe, just maybe, an amendment to make Congress work again might have broad appeal. At least eliminating minority and individual vetoes offers no obvious partisan advantage to either party. Instead, it would enhance the opportunities and incentives for what makes any legislature work: cooperation and compromise.


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